Federal Register Vol. 81, No.193,

Federal Register Volume 81, Issue 193 (October 5, 2016)

Page Range68933-69367
FR Document

81_FR_193
Current View
Page and SubjectPDF
81 FR 69367 - Transfer of Unified Command Plan ResponsibilitiesPDF
81 FR 69184 - 60-Day Notice of New Information Collection: Commercial Driver's License (CDL) Skills Testing DelaysPDF
81 FR 69084 - Agency Information Collection Activities; Proposed eCollection eComments Requested; A Newly Approved Data Collection, National Use-of-Force Data CollectionPDF
81 FR 69076 - Exxon Valdez Oil Spill Public Advisory Committee Charter RenewalPDF
81 FR 69053 - Privacy Act of 1974; System of RecordsPDF
81 FR 69040 - Materials Processing Equipment Technical Advisory Committee; Notice of Partially Closed MeetingPDF
81 FR 69040 - Bureau of Industry and SecurityPDF
81 FR 69087 - Proposed Extension of Existing Collection; Comment RequestPDF
81 FR 69041 - Certain Frozen Warmwater Shrimp From India: Notice of Correction to Final Results of Antidumping Duty Administrative Review; Final Determination of No Shipments; 2014-2015PDF
81 FR 69185 - Future Enhancements to the Safety Measurement System (SMS)PDF
81 FR 69059 - Receipt of Information Under the Toxic Substances Control ActPDF
81 FR 69084 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
81 FR 69057 - Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization; Chisholm View Wind Project II, LLCPDF
81 FR 69055 - Nippon Dynawave Packaging Co.; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 69056 - Combined Notice of FilingsPDF
81 FR 69057 - Combined Notice of Filings #2PDF
81 FR 69055 - Combined Notice of Filings #1PDF
81 FR 69008 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2016 Commercial Accountability Measure and Closure for South Atlantic Vermilion SnapperPDF
81 FR 69058 - Pesticide Program Dialogue Committee; Notice of Public MeetingPDF
81 FR 69060 - Pesticide Product Registration; Receipt of Applications for New Uses and New Active Ingredients; CorrectionPDF
81 FR 69087 - 184th Meeting of the Advisory Council on Employee Welfare and Pension Benefit Plans; Notice of MeetingPDF
81 FR 69059 - Amendments, Extensions, and/or Issuances of Experimental Use PermitsPDF
81 FR 69063 - Request for Nominations for Voting Members for the Patient Engagement Advisory CommitteePDF
81 FR 69040 - Sensors and Instrumentation Technical Advisory Committee; Notice of Partially Closed MeetingPDF
81 FR 69039 - Foreign-Trade Zone 7-Mayagüez, Puerto Rico; Application for Subzone; Romark Global Pharma, LLC; Manatí, Puerto RicoPDF
81 FR 69076 - Notice of Cancellation of Public Meeting, Coeur d'Alene District Resource Advisory Council, IdahoPDF
81 FR 69037 - Black Hills National Forest Advisory BoardPDF
81 FR 69182 - Notice of Public Meeting of the President's Emergency Plan for AIDS Relief (PEPFAR) Scientific Advisory BoardPDF
81 FR 69039 - Approval of Subzone Expansion; Tesla Motors, Inc.; Palo Alto and Fremont, CaliforniaPDF
81 FR 68938 - Tolfenpyrad; Pesticide Tolerances for Emergency ExemptionsPDF
81 FR 69076 - Notice of Public Meeting, Las Cruces District Resource Advisory Council Meeting, New MexicoPDF
81 FR 69109 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Amendment No. 3, and Order Granting Accelerated Approval of Proposed Rule Change, as Modified by Amendment No. 3, to List and Trade Shares of the First Trust Municipal High Income ETF of First Trust Exchange-Traded Fund IIIPDF
81 FR 69062 - Pharmacy Compounding Advisory Committee; Notice of MeetingPDF
81 FR 68944 - Acrylic acid-butyl acrylate-styrene copolymer; Tolerance ExemptionPDF
81 FR 69043 - Stock Status Determination for Atlantic Dusky SharksPDF
81 FR 69042 - Request for Comments on U.S. Technical Participation in the 15th Conference of the International Organization of Legal Metrology (OIML)PDF
81 FR 69047 - Best Buy Co., Inc., Provisional Acceptance of a Settlement Agreement and OrderPDF
81 FR 69200 - Joint Biomedical Laboratory Research and Development and Clinical Science Research and Development Services Scientific Merit Review Board Notice of MeetingsPDF
81 FR 69010 - Processing Fitness-for-Duty Drug and Alcohol CasesPDF
81 FR 69052 - Defense Business Board; Notice of Federal Advisory Committee MeetingPDF
81 FR 68934 - Special Local Regulation; Arkansas River; Little Rock, ARPDF
81 FR 69073 - Notice of Certain Operating Cost Adjustment Factors for 2017PDF
81 FR 69060 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
81 FR 68933 - Food Safety and Inspection Service Labeling Guideline on Documentation Needed To Substantiate Animal Raising Claims for Label SubmissionPDF
81 FR 69074 - Agency Information Collection Activities: Request for CommentsPDF
81 FR 69009 - Energy Conservation Standards for General Service Lamps: Public MeetingPDF
81 FR 69078 - Aluminum Extrusions From China; Scheduling of Full Five-Year ReviewsPDF
81 FR 69054 - Biological and Environmental Research Advisory Committee MeetingPDF
81 FR 69054 - Environmental Management Site-Specific Advisory Board, Northern New MexicoPDF
81 FR 69023 - Offers of Financial AssistancePDF
81 FR 69062 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 69050 - Advisory Committee on Arlington National Cemetery, Honor Subcommittee and the Remember and Explore Subcommittee Meeting NoticePDF
81 FR 69043 - Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Stock Identification Work Group Post-Meeting Webinar for Atlantic Blueline TilefishPDF
81 FR 69064 - Product-Specific Bioequivalence Recommendations; Draft and Revised Draft Guidances for Industry; AvailabilityPDF
81 FR 69038 - Economic Development Administration (EDA), National Telecommunications and Information Administration (NTIA), Bureau of Industry and Security (BIS) Membership of the Performance Review Board for EDA, NTIA and BISPDF
81 FR 69044 - Proposed Information Collection-Renewal/Revision; Comment Request; Educational Partnership Program (EPP), Ernest F. Hollings Undergraduate Scholarship Program, Dr. Nancy Foster Scholarship Program, Recruitment, Training, and Research ProgramPDF
81 FR 69036 - Nez Perce-Clearwater National Forests; Idaho; Nez Perce-Clearwater National Forests Travel Planning ProjectPDF
81 FR 69051 - Advisory Committee on Arlington National Cemetery Meeting NoticePDF
81 FR 69052 - Advisory Panel on Streamlining and Codifying Acquisition RegulationsPDF
81 FR 69041 - Membership of the International Trade Administration Performance Review BoardPDF
81 FR 69190 - Sanctions Actions Pursuant to Executive Orders 13660, 13661, 13662, and 13685PDF
81 FR 68947 - Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System and Policy Changes and Fiscal Year 2017 Rates; Quality Reporting Requirements for Specific Providers; Graduate Medical Education; Hospital Notification Procedures Applicable to Beneficiaries Receiving Observation Services; Technical Changes Relating to Costs to Organizations and Medicare Cost Reports; Finalization of Interim Final Rules With Comment Period on LTCH PPS Payments for Severe Wounds, Modifications of Limitations on Redesignation by the Medicare Geographic Classification Review Board, and Extensions of Payments to MDHs and Low-Volume Hospitals; CorrectionPDF
81 FR 69061 - FDIC Advisory Committee on Economic Inclusion (ComE-IN); Notice of MeetingPDF
81 FR 69077 - Proposed Information Collection; After School Place-Based STEM Learning Partnership Evaluation SurveyPDF
81 FR 69181 - Avante Mezzanine Partners SBIC II, L.P.; Notice Seeking Exemption Under Section 312 of the Small Business Investment Act, Conflicts of InterestPDF
81 FR 69182 - Interest RatesPDF
81 FR 69045 - The Incentives, Benefits, Costs, and Challenges to IPv6 ImplementationPDF
81 FR 69182 - Public HearingPDF
81 FR 69012 - Small Business Investment Companies-Early Stage SBICs; Public WebinarPDF
81 FR 69066 - Prospective Grant of Exclusive Patent License: Development of Anti-CD70 Chimeric Antigen Receptors for the Treatment of CD70 Expressing CancersPDF
81 FR 69069 - National Institute on Minority Health and Health Disparities; Notice of Closed MeetingPDF
81 FR 69067 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed MeetingPDF
81 FR 69067 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
81 FR 69068 - National Heart, Lung, And Blood Institute; Notice of Closed MeetingPDF
81 FR 69067 - Center for Scientific Review; Notice of Closed MeetingPDF
81 FR 69068 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 69084 - Notice of Lodging Proposed Consent DecreePDF
81 FR 69083 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
81 FR 69072 - Agency Information Collection Activities: United States-Caribbean Basin Trade Partnership Act (CBTPA)PDF
81 FR 69071 - Agency Information Collection Activities: NAFTA Regulations and Certificate of OriginPDF
81 FR 69089 - New Postal ProductsPDF
81 FR 69092 - Self-Regulatory Organizations; New York Stock Exchange LLC; NYSE MKT LLC; NYSE Arca, Inc.; Order Approving Proposed Rule Change, as Modified by Amendment No. 2 Thereto, Amending and Restating the Second Amended and Restated Certificate of Incorporation of the Exchanges' Ultimate Parent Company, Intercontinental Exchange, Inc.PDF
81 FR 69046 - Notice of a Public List of Companies Offering Existing Customers Free Access to a Credit ScorePDF
81 FR 69037 - Notice of Request for Extension of a Currently Approved Information CollectionPDF
81 FR 69070 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 69183 - Forty Fourth RTCA SC-224 Standards for Airport Security Access Control Systems PlenaryPDF
81 FR 69172 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing of a Proposed Rule Change Related to the Exchange's Equity Options Platform To Adopt a Price Improvement Auction, the Bats Auction MechanismPDF
81 FR 69123 - Self-Regulatory Organizations; National Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Exchange Rules 11.11 and 11.26 To Describe Changes to System Functionality Necessary To Implement the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 69152 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing of Proposed Rule Change To Amend the By-Laws of Nasdaq, Inc. to Implement Proxy AccessPDF
81 FR 69102 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing of Proposed Rule Change To Amend the By-Laws of Nasdaq, Inc. To Implement Proxy AccessPDF
81 FR 69093 - Self-Regulatory Organizations; Stock Clearing Corporation of Philadelphia; Notice of Filing of Proposed Rule Change To Amend the By-Laws of Nasdaq, Inc. To Implement Proxy AccessPDF
81 FR 69100 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Related to Amendments to and the Restatement of OCC's Certificate of IncorporationPDF
81 FR 69159 - Self-Regulatory Organizations; Boston Stock Exchange Clearing Corporation; Notice of Filing of Proposed Rule Change To Amend the By-Laws of Nasdaq, Inc. To Implement Proxy AccessPDF
81 FR 69165 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing of Proposed Rule Change To Amend the By-Laws of Nasdaq, Inc. To Implement Proxy AccessPDF
81 FR 69127 - Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing of Proposed Rule Change To Amend the By-Laws of Nasdaq, Inc. To Implement Proxy AccessPDF
81 FR 69145 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change To Amend the By-Laws of Nasdaq, Inc. To Implement Proxy AccessPDF
81 FR 69133 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing of Proposed Rule Change To Amend the By-Laws of Nasdaq, Inc. To Implement Proxy AccessPDF
81 FR 69140 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Nasdaq's Fees and Credits at Rules 7014 and 7018PDF
81 FR 69122 - Order Extending a Temporary Exemption From Compliance With Rules 13n-1 to 13n-12 Under the Securities Exchange Act of 1934PDF
81 FR 69090 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Exchange Rule 519C, Mass Cancellation of Trading InterestPDF
81 FR 69079 - Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From RussiaPDF
81 FR 69200 - Senior Executive Service; Legal Division Performance Review BoardPDF
81 FR 69088 - General Use of Locks in the Protection and Control of: Facilities, Radioactive Materials, Classified Information, Classified Matter, and Safeguards InformationPDF
81 FR 68934 - Definition of Real Estate Investment Trust Real Property; CorrectionPDF
81 FR 69036 - Submission for OMB Review; Comment RequestPDF
81 FR 69189 - Meeting Notice-U.S. Maritime Transportation System National Advisory CommitteePDF
81 FR 69079 - Established Aggregate Production Quotas for Schedule I and II Controlled Substances and Assessment of Annual Needs for the List I Chemicals Ephedrine, Pseudoephedrine, and Phenylpropanolamine for 2017PDF
81 FR 69019 - Air Plan Approval; Georgia: Volatile Organic CompoundsPDF
81 FR 68936 - Air Plan Approval; Georgia: Volatile Organic CompoundsPDF
81 FR 68985 - Endangered and Threatened Wildlife and Plants; Endangered Species Status for the Miami Tiger Beetle (Cicindelidia floridana)PDF
81 FR 69240 - Amendment to Securities Transaction Settlement CyclePDF
81 FR 69012 - Application of the Fair Housing Act's Discriminatory Effects Standard to InsurancePDF
81 FR 68963 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for Kentucky Arrow Darter With 4(d) RulePDF
81 FR 69312 - Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Kentucky Arrow DarterPDF
81 FR 69301 - Liabilities Recognized as Recourse Partnership Liabilities Under Section 752PDF
81 FR 69282 - Liabilities Recognized as Recourse Partnership Liabilities Under Section 752PDF
81 FR 69291 - Section 707 Regarding Disguised Sales, GenerallyPDF
81 FR 69204 - Executive Branch Financial Disclosure, Qualified Trusts, and Certificates of DivestiturePDF
81 FR 69019 - Notice of Proposed Supplementary Rules for Public Lands in ColoradoPDF

Issue

81 193 Wednesday, October 5, 2016 Contents Agriculture Agriculture Department See

Food Safety and Inspection Service

See

Forest Service

See

Rural Housing Service

Army Army Department NOTICES Meetings: Advisory Committee on Arlington National Cemetery, 69051-69052 2016-24046 Advisory Committee on Arlington National Cemetery, Honor Subcommittee and the Remember and Explore Subcommittee, 69050-69051 2016-24053 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Public List of Companies Offering Existing Customers Free Access to a Credit Score, 69046-69047 2016-24014 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals, etc.; Correction, 68947-68963 2016-24042 Coast Guard Coast Guard RULES Special Local Regulations: Arkansas River, Little Rock, AR, 68934-68936 2016-24071 Commerce Commerce Department See

Foreign-Trade Zones Board

See

Industry and Security Bureau

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

See

National Telecommunications and Information Administration

NOTICES Performance Review Board Membership, 69038-69039 2016-24049
Consumer Product Consumer Product Safety Commission NOTICES Settlement Agreements: Best Buy Co., Inc., 69047-69050 2016-24075 Defense Department Defense Department See

Army Department

NOTICES Committee Establishment: Advisory Panel on Streamlining and Codifying Acquisition Regulations, 69052 2016-24045 Meetings: Defense Business Board, 69052-69053 2016-24072
Drug Drug Enforcement Administration NOTICES Established Aggregate Production Quotas for Schedule I and II Controlled Substances: Assessment of Annual Needs for the List I Chemicals Ephedrine, Pseudoephedrine, and Phenylpropanolamine for 2017, 69079-69083 2016-23988 Education Department Education Department NOTICES Privacy Act; System of Records, 69053-69054 2016-24141 Employee Benefits Employee Benefits Security Administration NOTICES Meetings: Advisory Council on Employee Welfare and Pension Benefit Plans, 69087 2016-24102 Energy Department Energy Department See

Energy Efficiency and Renewable Energy Office

See

Federal Energy Regulatory Commission

NOTICES Meetings: Biological and Environmental Research Advisory Committee, 69054 2016-24058 Environmental Management Site-Specific Advisory Board, Northern New Mexico, 69054-69055 2016-24057
Energy Efficiency Energy Efficiency and Renewable Energy Office PROPOSED RULES Energy Conservation Standards: General Service Lamps; Meeting, 69009-69010 2016-24063 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Georgia; Volatile Organic Compounds, 68936-68938 2016-23970 Pesticide Tolerances: Acrylic acid-butyl acrylate-styrene copolymer; Exemption, 68944-68946 2016-24083 Tolfenpyrad; Emergency Exemption, 68938-68944 2016-24093 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Georgia; Volatile Organic Compounds, 69019 2016-23971 NOTICES Applications: Pesticide Experimental Use Permits, 69059-69060 2016-24101 Meetings: Pesticide Program Dialogue Committee, 69058 2016-24104 Pesticide Product Registrations: Applications for New Uses; Correction, 69060 2016-24103 Receipt of Information under the Toxic Substances Control Act, 69059 2016-24112 Federal Aviation Federal Aviation Administration NOTICES Meetings: RTCA SC-224 Standards for Airport Security Access Control Systems Plenary, 69183-69184 2016-24011 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69060-69061 2016-24069 Federal Deposit Federal Deposit Insurance Corporation NOTICES Meetings: Advisory Committee on Economic Inclusion, 69061-69062 2016-24039 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 69055-69058 2016-24106 2016-24107 2016-24108 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Chisholm View Wind Project II, LLC, 69057 2016-24110 Nippon Dynawave Packaging Co., 69055 2016-24109 Federal Motor Federal Motor Carrier Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Commercial Driver's License Skills Testing Delays, 69184-69185 2016-24177 Future Enhancements to the Safety Measurement System, 69185-69189 2016-24114 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 69062 2016-24055 Fish Fish and Wildlife Service RULES Endangered and Threatened Species: Endangered Species Status for the Miami Tiger Beetle (Cicindelidia floridana), 68985-69007 2016-23945 Kentucky Arrow Darter, 69312-69363 2016-23539 Threatened Species Status for Kentucky Arrow Darter with 4(d) Rule, 68963-68985 2016-23545 Food and Drug Food and Drug Administration NOTICES Guidance: Product-Specific Bioequivalence Recommendations, 69064-69066 2016-24050 Meetings: Pharmacy Compounding Advisory Committee, 69062-69063 2016-24085 Requests for Nominations: Voting Members, Patient Engagement Advisory Committee, 69063-69064 2016-24100 Food Safety Food Safety and Inspection Service RULES Documentation Needed to Substantiate Animal Raising Claims for Label Submission, 68933-68934 2016-24067 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69036 2016-23990 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 69190-69200 2016-24043 Foreign Trade Foreign-Trade Zones Board NOTICES Applications for Subzone Status: Romark Global Pharma, LLC, Foreign-Trade Zone 7, Mayaguez, PR, 69039 2016-24098 Approvals of Subzone Status: Tesla Motors, Inc. Palo Alto and Fremont, CA, 69039-69040 2016-24094 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Nez Perce-Clearwater National Forests Travel Planning Project, 69036-69037 2016-24047 Meetings: Black Hills National Forest Advisory Board, 69037 2016-24096 Geological Geological Survey NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69074-69076 2016-24064 Government Ethics Government Ethics Office PROPOSED RULES Executive Branch Financial Disclosure, Qualified Trusts, and Certificates of Divestiture, 69204-69238 2016-22958 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

Homeland Homeland Security Department See

Coast Guard

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department PROPOSED RULES Application of Fair Housing Act's Discriminatory Effects Standard to Insurance, 69012-69019 2016-23858 NOTICES Certain Operating Cost Adjustment Factors for 2017, 69073-69074 2016-24070 Industry Industry and Security Bureau NOTICES Meetings: Information Systems Technical Advisory Committee, 69040-69041 2016-24136 Materials Processing Equipment Technical Advisory Committee, 69040 2016-24139 Sensors and Instrumentation Technical Advisory Committee, 69040 2016-24099 Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

Land Management Bureau

See

National Park Service

NOTICES Meetings: Exxon Valdez Oil Spill Public Advisory Committee, 69076 2016-24143
Internal Revenue Internal Revenue Service RULES Disguised Sales, 69291-69300 2016-23387 Liabilities Recognized as Recourse Partnership Liabilities Under Section 752, 69282-69291 2016-23388 Real Estate Investment Trust Real Property; Correction, 68934 2016-23991 PROPOSED RULES Liabilities Recognized as Recourse Partnership Liabilities Under Section 752, 69301-69309 2016-23390 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Frozen Warmwater Shrimp from India, 69041 2016-24122 Membership of the Performance Review Board, 69041-69042 2016-24044 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Aluminum Extrusions from China, 69078-69079 2016-24059 Investigations; Determinations, Modifications, and Rulings, etc.: Hot-Rolled Flat-Rolled Carbon-Quality Steel Products from Russia, 69079 2016-23994 Justice Department Justice Department See

Drug Enforcement Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Use-of-Force Data Collection, 69084-69087 2016-24173 Proposed Consent Decrees under the Clean Air Act, 69083-69084 2016-24020 2016-24021 2016-24111
Labor Department Labor Department See

Employee Benefits Security Administration

See

Workers Compensation Programs Office

Land Land Management Bureau PROPOSED RULES Public Lands in Colorado, 69019-69023 2016-21934 NOTICES Meetings: Coeur d'Alene District Resource Advisory Council, ID; Cancellation, 69076 2016-24097 Las Cruces District Resource Advisory Council, NM, 69076-69077 2016-24092 Maritime Maritime Administration NOTICES Meetings: U.S. Maritime Transportation System National Advisory Committee, 69189-69190 2016-23989 National Institute National Institute of Standards and Technology NOTICES U.S. Technical Participation in the 15th Conference of the International Organization of Legal Metrology, 69042-69043 2016-24076 National Institute National Institutes of Health NOTICES Meetings: Center For Scientific Review, 69067-69069 2016-24022 2016-24023 Eunice Kennedy Shriver National Institute Of Child Health and Human Development, 69067 2016-24027 National Heart, Lung, And Blood Institute, 69068 2016-24024 National Institute Of Allergy And Infectious Diseases, 69067 2016-24025 2016-24026 National Institute on Minority Health and Health Disparities, 69069-69070 2016-24028 Proposed Exclusive Patent License: Development of Anti-CD70 Chimeric Antigen Receptors for the Treatment of CD70 Expressing Cancers, 69066-69067 2016-24030 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: 2016 Commercial Accountability Measure and Closure for South Atlantic Vermilion Snapper, 69008 2016-24105 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Educational Partnership Program, etc., 69044-69045 2016-24048 Meetings: Fisheries of the South Atlantic Southeast Data, Assessment, and Review Stock Identification Work Group Post-Meeting Webinar for Atlantic Blueline Tilefish, 69043-69044 2016-24051 Stock Status Determination for Atlantic Dusky Sharks, 69043 2016-24077 National Park National Park Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: After School Place-Based Science Technology Engineering and Mathematics Learning Partnership Evaluation Survey, 69077-69078 2016-24037 National Telecommunications National Telecommunications and Information Administration NOTICES Incentives, Benefits, Costs, and Challenges to Internet Protocol v6 Implementation, 69045-69046 2016-24033 Nuclear Regulatory Nuclear Regulatory Commission PROPOSED RULES Processing Fitness-for-Duty Drug and Alcohol Cases, 69010-69011 2016-24073 NOTICES Guidance: General Use of Locks in the Protection and Control of Facilities, Radioactive Materials, Classified Information, Classified Matter, and Safeguards Information, 69088-69089 2016-23992 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 69089-69090 2016-24017 Presidential Documents Presidential Documents ADMINISTRATIVE ORDERS Defense and National Security: Unified Command Plan; Transfer of Responsibilities (Memorandum of September 30, 2016), 69365-69367 2016-24308 Rural Housing Service Rural Housing Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69037-69038 2016-24013 Securities Securities and Exchange Commission PROPOSED RULES Securities Transaction Settlement Cycle, 69240-69280 2016-23890 NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Bats EDGX Exchange, Inc., 69172-69181 2016-24010 Boston Stock Exchange Clearing Corp., 69159-69165 2016-24004 International Securities Exchange, LLC, 69102-69109 2016-24007 ISE Gemini, LLC, 69165-69172 2016-24003 ISE Mercury, LLC, 69127-69133 2016-24002 Miami International Securities Exchange, LLC, 69090-69092 2016-23997 NASDAQ BX, Inc., 69152-69159 2016-24008 NASDAQ PHLX, LLC, 69133-69140 2016-24000 NASDAQ Stock Market, LLC, 69109-69122, 69140-69152 2016-23999 2016-24001 2016-24086 National Stock Exchange, Inc., 69123-69126 2016-24009 New York Stock Exchange, LLC; NYSE MKT LLC; NYSE Arca, Inc., 69092-69093 2016-24016 Options Clearing Corp., 69100-69102 2016-24005 Stock Clearing Corporation of Philadelphia, 69093-69100 2016-24006 Temporary Exemptions, 69122 2016-23998 Small Business Small Business Administration PROPOSED RULES Small Business Investment Companies—Early Stage; Meetings, 69012 2016-24031 NOTICES Conflicts of Interest; Exemption Applications: Avante Mezzanine Partners SBIC II, LP, 69181 2016-24035 Interest Rates, 69182 2016-24034 State Department State Department NOTICES Meetings: President's Emergency Plan for AIDS Relief Scientific Advisory Board, 69182 2016-24095 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69070-69071 2016-24012 Surface Transportation Surface Transportation Board PROPOSED RULES Offers of Financial Assistance, 69023-69035 2016-24056 Susquehanna Susquehanna River Basin Commission NOTICES Public Hearings, 69182-69183 2016-24032 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Maritime Administration

Treasury Treasury Department See

Foreign Assets Control Office

See

Internal Revenue Service

NOTICES Senior Executive Service Legal Division Performance Review Board, 69200 2016-23993
Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: NAFTA Regulations and Certificate of Origin, 69071-69072 2016-24018 United States-Caribbean Basin Trade Partnership Act, 69072-69073 2016-24019 Veteran Affairs Veterans Affairs Department NOTICES Meetings: Joint Biomedical Laboratory Research and Development and Clinical Science Research and Development Services Scientific Merit Review Board, 69200-69201 2016-24074 Workers' Workers Compensation Programs Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69087-69088 2016-24123 Separate Parts In This Issue Part II Government Ethics Office, 69204-69238 2016-22958 Part III Securities and Exchange Commission, 69240-69280 2016-23890 Part IV Treasury Department, Internal Revenue Service, 69282-69309 2016-23387 2016-23388 2016-23390 Part V Interior Department, Fish and Wildlife Service, 69312-69363 2016-23539 Part VI Presidential Documents, 69365-69367 2016-24308 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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81 193 Wednesday, October 5, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service 9 CFR Parts 317, 381, and 412 [Docket No. FSIS-2016-0021] Food Safety and Inspection Service Labeling Guideline on Documentation Needed To Substantiate Animal Raising Claims for Label Submission AGENCY:

Food Safety and Inspection Service, USDA.

ACTION:

Guidance.

SUMMARY:

The Food Safety and Inspection Service (FSIS) is announcing the availability of an updated version of the Agency's compliance guideline on documentation needed to support animal-raising claims on product labels that must be submitted for Agency approval before they can be used on product labels. The updated guideline reflects FSIS's current position and procedures for reviewing animal-raising claims and includes explanations of animal-raising claims that FSIS may approve and the types of supporting documentation that the Agency requires to be submitted to support these claims.

DATES:

Submit comments on or before December 5, 2016.

ADDRESSES:

A downloadable version of the compliance guideline is available to view and print at http://www.fsis.usda.gov/wps/wcm/connect/6fe3cd56-6809-4239-b7a2-bccb82a30588/RaisingClaims.pdf?MOD=AJPERES once copies of the guideline have been published.

FSIS invites interested persons to submit comments on this guidance. Comments may be submitted by one of the following methods:

Federal eRulemaking Portal: This Web site provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments. Go to http://www.regulations.gov/. Follow the on-line instructions at that site for submitting comments.

Mail, including CD-ROMs: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, Patriots Plaza 3, 1400 Independence Avenue SW., Mailstop 3782, Room 8-163B, Washington, DC 20250-3700.

Hand- or courier-delivered submittals: Deliver to Patriots Plaza 3, 355 E Street SW., Room 8-163A, Washington, DC 20250-3700.

Instructions: All items submitted by mail or electronic mail must include the Agency name and docket number FSIS-2016-0021. Comments received in response to this docket will be made available for public inspection and posted without change, including any personal information, to http://www.regulations.gov.

Docket: For access to background documents or to comment received, go to the FSIS Docket Room at Patriots Plaza 3, 355 E Street SW., Room 164-A, Washington, DC 20250-3700 between 8:00 a.m. and 4:30 p.m., Monday through Friday.

FOR FURTHER INFORMATION CONTACT:

Dr. Daniel L. Engeljohn, Assistant Administrator, Office of Policy and Program Development; Telephone: (202) 205-0495.

SUPPLEMENTARY INFORMATION:

Background

A federally inspected meat or poultry establishment is required to use labels that are in compliance with the Federal Meat Inspection Act (FMIA; 21 U.S.C. 601 et seq., 607), the Poultry Products Inspection Act (PPIA; 21 U.S.C. 451 et seq., 457), and the implementing regulations. Requirements include all mandatory labeling requirements as prescribed in Title 9 of the Code of Federal Regulations section 317.2 and 381 Subpart N.

All labels with special claims, including animal-raising claims, need to be submitted to FSIS prior to being used on the product under 9 CFR 412.1(c)(3). As with all labels with special claims, labels with animal-raising claims must be submitted to the Labeling and Program Delivery Staff, Office of Policy and Program Development in FSIS with specific documentation to support all such claims that appear on that label. Examples of animal-raising claims include, but are not limited to: “Raised Without Antibiotics,” “Organic,” “Grass-Fed,” “Free-Range,” and “Raised without the use of hormones.” For most animal-raising claims, the documentation typically needed to support these claims includes:

1. A detailed written description explaining the controls used for ensuring that the raising claim is valid from birth to harvest or the period of raising being referenced by the claim;

2. A signed and dated document describing how the animals are raised (e.g., vegetarian-fed, raised without antibiotics, grass-fed), to support that the specific claim made is truthful and not misleading;

3. A written description of the product-tracing and segregation mechanism from time of slaughter or further processing through packaging and wholesale or retail distribution;

4. A written description for the identification, control, and segregation of non-conforming animals or products; and

5. If a third party certifies a claim, a current copy of the certificate.

FSIS previously issued a compliance guideline on animal-raising claims in 2002. The changes included in this version of the guideline include definitions for frequently used animal-raising claims, the detailed supporting documentation required for each specific claim that appears on the label, additional information regarding the claim grass fed, information required for duplicating raising claims from purchased product, and examples of labels bearing claims.

This guideline represents FSIS's current position and procedures for approving animal-raising claims, and although FSIS is requesting comments on this guideline and may update it in response to comments, FSIS encourages establishments that wish to submit request for approvals of animal raising claims on product labels to begin using this guideline.

Additional Public Notification

Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS Web page located at: http://www.fsis.usda.gov/federal-register.

FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Update is available on the FSIS Web page. Through the Web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password-protect their accounts.

USDA Nondiscrimination Statement

No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination, any person in the United States under any program or activity conducted by the USDA.

To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at: http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

Send your completed complaint form or letter to USDA by mail, fax, or email:

Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410.

Fax: (202) 690-7442.

Email: [email protected]

Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

Done at Washington, DC on: September 29, 2016. Alfred V. Almanza, Acting Administrator.
[FR Doc. 2016-24067 Filed 10-4-16; 8:45 am] BILLING CODE 3410-DM-P
DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9784] RIN 1545-BM05 Definition of Real Estate Investment Trust Real Property; Correction AGENCY:

Internal Revenue Service (IRS), Treasury.

ACTION:

Correcting amendment.

SUMMARY:

This document contains corrections to final regulations (TD 9784) that were published in the Federal Register on Wednesday, August 31, 2016 (81 FR 59849). The final regulations that clarify the definition of real property for purposes of real estate investment trust provisions of the Internal Revenue Code (Code).

DATES:

This correction is effective October 5, 2016 and is applicable on or after August 31, 2016.

FOR FURTHER INFORMATION CONTACT:

Julanne Allen of the Office of Associate Chief Counsel (Financial Institutions and Products) at (202) 317-6945 (not a toll-free number).

SUPPLEMENTARY INFORMATION: Background

The final regulations (TD 9784) that are the subject of this correction are under section 856 of the Internal Revenue Code.

Need for Correction

As published, the final regulations (TD 9784) contain errors that may prove to be misleading and are in need of clarification.

List of Subjects in 26 CFR Part 1

Income taxes, Reporting and recordkeeping requirements.

Correction of Publication

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:

PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

26 U.S.C. 7805 * * *

Par. 2. Section 1.856-10(g) is amended by revising the first sentence of Example 10 paragraph (iv) and revising the fourth sentence of Example 10 paragraph (v) to read as follows:
§ 1.856-10 Definition of real property.

(g) * * *

Example 10.

* * *

(iv) The factors described in this paragraph (g) Example 10 (iii)(A) through (C) and (iii)(E) through (H) support the conclusion that the isolation valves and vents and pressure control and relief valves are structural components of REIT J's pipelines within the meaning of paragraph (d)(3) of this section and, therefore, are real property. * * *

(v) * * * The meters and compressors do not serve the pipelines in their passive function of providing a conduit for the natural gas, and are used in connection with the production of income from the sale and transportation of natural gas, rather than as consideration for the use or occupancy of space within the pipelines.

Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration).
[FR Doc. 2016-23991 Filed 10-4-16; 8:45 am] BILLING CODE 4830-01-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2016-0887] RIN 1625-AA08 Special Local Regulation; Arkansas River; Little Rock, AR AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary special local regulation controlling movement of vessels for certain waters of the Arkansas River. This rule is necessary to provide for the safety of life on navigable waters during a rowing regatta on October 14 and 15, 2016. This regulation prohibits entry by all vessels, mariners, and persons into the event area, a 1.2 mile stretch of the Arkansas River extending 25-yards from the left descending bank. All vessels transiting the regulated area outside of the 25-yard zone will be limited to slowest speed for safe navigation to minimize wake unless specifically authorized by the Captain of the Port Memphis.

DATES:

This rule is effective from 7 a.m. on October 14, 2016 until 7 p.m. on October 15, 2016.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0887 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT:

If you have questions about this rule, call or email Petty Officer Todd Manow, Waterways Management, Sector Lower Mississippi River, U.S. Coast Guard, telephone 901-521-4813, email [email protected]

SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security E.O. Executive Order FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory Hostory

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency, for good cause, finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. While the Arkansas Boathouse Club notified the Coast Guard that it will be conducting a rowing regatta, the “Six Bridges Regatta”, from 7 a.m. until 7 p.m. on October 14 and 15, 2016, the final details of this event were not made known to the Coast Guard until early September, leaving an insufficient amount of time remaining to publish an NPRM. It is impracticable to publish an NPRM because we must establish this safety zone by October 14, 2016.

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

III. Legal Authority and Need for a Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The COTP has determined that potential hazards posed to participants of a rowing regatta in this section of river would be a safety concern for anyone transiting the river from mile marker 117.4 to 118.6. The purpose of this rulemaking is to ensure the safety of event participants and other waterway users in U.S. navigable waters from mile marker 117.4 to 118.6 before, during, and after the scheduled event.

IV. Discussion of the Rule

This rule establishes a special local regulation, enforced from 7 a.m. until 7 p.m. each day on October 14 and 15, 2016. In light of the aforementioned hazards, the COTP has determined that a special local regulation is necessary to protect spectators, vessels, and participants. The special local regulation will encompass the following waterway: All waters of the Arkansas River between mile markers 117.4 and 118.6 in the vicinity of Little Rock, AR.

This regulation prohibits entry by all vessels, mariners, and persons into the event area, a 1.2 mile stretch of the Arkansas River extending 25-yards from the left descending bank. All vessels transiting the regulated area outside of the 25-yard zone will be limited to slowest speed for safe navigation to minimize wake unless specifically authorized by the Captain of the Port Memphis.

V. Regulatory Analyses

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

A. Regulatory Planning and Review

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

The Coast Guard's use of this special local regulation will be only 12 hours in duration each day on a Friday and a Saturday, and it is designed to minimize the impact on navigation. Moreover, vessels will be allowed to transit the marked navigation channel outside the 25 yards from left descending bank from mile marker 117.4 to mile marker 118.6 at the slowest speed for safe navigation to minimize wake unless specifically authorized by the Captain of the Port Memphis. Overall, the Coast Guard expects minimal impact to vessel movement from the enforcement of this special local regulation.

B. Impact on Small Entities

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

This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in this portion of the Arkansas River in the vicinity of Little Rock, AR between 7 a.m. on October 14, 2016 and 7 p.m. on October 15, 2016.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

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

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

E. Unfunded Mandates Reform Act

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

F. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a special local regulation lasting 12 hours each day over the course of a Friday and Saturday. Normally such actions are categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

G. Protest Activities

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

List of Subjects in 33 CFR Part 100

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

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

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

33 U.S.C. 1233.

2. Add § 100.35T08-0887 to read as follows:
§ 100.35T08-0887 Special Local Regulation; Arkansas River, Little Rock, AR.

(a) Regulated area. (1) A regulated area is established to encompass the following waterway: All waters of the Arkansas River mile 117.4 through mile 118.6.

(2) All vessels are prohibited from entering the event area which extends out 25-yards from the left descending bank within the regulated area. All vessels transiting the regulated area outside of 25 yards from the left descending bank zone are limited to slowest speed for safe navigation to minimize wake unless specifically authorized by the COTP.

(b) Effective period. This section is effective from 7 a.m. on October 14, 2016 until 7 p.m. on October 15, 2016 and will be enforced each day from 7 a.m. until 7 p.m.

(c) Regulations. (1) In accordance with the general regulations in § 100.801 of this part, all vessels, mariners, and persons are prohibited from entering the event area, without permission of the Captain of the Port Memphis (COTP). All vessel operators desiring to operate in the event area of this special local regulation must contact the COTP or a designated representative to request permission to do so. The COTP or a designated representative may be contacted via VHF Channel 16 or by telephone at 1-866-777-2784.

(2) During enforcement, all vessels transiting the marked navigation channel from mile marker 117.4 to mile marker 118.6 will be limited to slowest speed for safe navigation to minimize wake unless specifically authorized by the COTP.

(d) Informational broadcasts. The COTP or a designated representative will inform the public through broadcast notices to mariners of the enforcement period for the regulated area as well as any changes in the dates and times of enforcement.

Dated: September 27, 2016. T.J. Wendt, Captain, U.S. Coast Guard, Captain of the Port, Memphis, Tennessee.
[FR Doc. 2016-24071 Filed 10-4-16; 8:45 am] BILLING CODE 9110-04-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2016-0489; FRL-9953-64-Region 4] Air Plan Approval; Georgia: Volatile Organic Compounds AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving portions of two revisions to the Georgia State Implementation Plan (SIP) submitted by the Georgia Department of Environmental Protection (GA EPD) on July 25, 2014, and November 1, 2015. These revisions modify the definition of “volatile organic compounds” (VOC). Specifically, these revisions add two compounds to the list of those excluded from the VOC definition on the basis that these compounds make a negligible contribution to tropospheric ozone formation. This action is being taken pursuant to the Clean Air Act (CAA or Act).

DATES:

This direct final rule is effective December 5, 2016 without further notice, unless EPA receives adverse comment by November 4, 2016. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R04-OAR-2016-0489 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION: I. Background

Tropospheric ozone, commonly known as smog, occurs when VOC and nitrogen oxides (NOX) react in the atmosphere in the presence of sunlight. Because of the harmful health effects of ozone, EPA and state governments limit the amount of VOC and NOX that can be released into the atmosphere. VOC are those compounds of carbon (excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate) that form ozone through atmospheric photochemical reactions. Compounds of carbon (or organic compounds) have different levels of reactivity; they do not react at the same speed or do not form ozone to the same extent.

Section 302(s) of the CAA specifies that EPA has the authority to define the meaning of “VOC,” and hence what compounds shall be treated as VOC for regulatory purposes. It has been EPA's policy that compounds of carbon with negligible reactivity need not be regulated to reduce ozone and should be excluded from the regulatory definition of VOC. See 42 FR 35314 (July 8, 1977), 70 FR 54046 (September 13, 2005). EPA determines whether a given carbon compound has “negligible” reactivity by comparing the compound's reactivity to the reactivity of ethane. EPA lists these compounds in its regulations at 40 CFR 51.100(s) and excludes them from the definition of VOC. The chemicals on this list are often called “negligibly reactive.” EPA may periodically revise the list of negligibly reactive compounds to add or delete compounds.

EPA issued final rules approving the addition of trans-1,3,3,3-tetrafluropropene (also known as HFO-1234ze) and 2-amino-2-methyl-1-propanol (AMP) to the list of those compounds excluded from the regulatory definition of VOC. See 77 FR 37610 (June 22, 2012) and 79 FR 17037 (March 27, 2014). Georgia is updating its SIP to be consistent with those changes to federal regulations.

II. Analysis of State's Submittal

On July 25, 2014, and November 1, 2015, Georgia submitted SIP revisions 1 to EPA for review and approval. The revisions modify the definition of VOC found at Georgia's Rule 391-3-1-.01(llll), “Volatile Organic Compounds.” Specifically, the revisions add trans-1,3,3,3-tetrafluropropene (also known as HFO-1234ze) and 2-amino-2-methyl-1-propanol (AMP) to the list of compounds excluded from the VOC definition on the basis that each of these compounds makes a negligible contribution to tropospheric ozone formation.

1 EPA will consider the other changes included in Georgia's July 25, 2014, and November 5, 2015, SIP revisions in a future rulemaking.

These changes are consistent with section 110 of the CAA and meet the regulatory requirements pertaining to SIPs. Pursuant to CAA section 110(l), the Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in CAA section 171), or any other applicable requirement of the Act. The revisions to Rule 391-3-1-.01(llll), “Volatile Organic Compounds,” are approvable under section 110(l) because they reflect changes to federal regulations based on findings that the aforementioned compounds are negligibly reactive.

III. Incorporation by Reference

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Rule 391-3-1-.01 “Definitions” effective August 3, 2015, which revised the definition of VOC.2 Therefore, this material has been approved by EPA for inclusion in the SIP, has been incorporated by reference by EPA into that plan, is fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.3 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

2 The effective date of the rule change made in Georgia's July 25, 2014, SIP revision is August 1, 2013. However, that change to Georgia's rule is captured and superseded by Georgia's update in the November 1, 2015, SIP revision.

3 62 FR 27968 (May 22, 1997).

IV. Final Action

Pursuant to section 110 of the CAA, EPA is approving the aforementioned changes to Georgia's SIP for Rule 391-3-1-.01(llll). EPA has evaluated the relevant portions of Georgia's July 25, 2014, and November 1, 2015, SIP revisions and has determined that they meet the applicable requirements of the CAA and EPA regulations and are consistent with EPA policy.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective December 5, 2016 without further notice unless the Agency receives adverse comments by November 4, 2016.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 5, 2016 and no further action will be taken on the proposed rule.

V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 5, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

Dated: September 23, 2016. V. Anne Heard, Acting Regional Administrator, Region 4.

40 CFR part 52 is amended as follows:

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

42 U.S.C. 7401 et seq.

Subpart L—Georgia 2. Section 52.570(c) is amended by revising the entry for “391-3-1-.01” to read as follows:
§ 52.570 Identification of plan.

(c) * * *

EPA Approved Georgia Regulations State citation Title/subject State effective date EPA approval date Explanation 391-3-1-.01 Definitions 8/3/2015 10/5/2016, [Insert citation of publication] only changes to Rule 391-3-1-.01(llll). *         *         *         *         *         *         *
[FR Doc. 2016-23970 Filed 10-4-16; 8:45 am] BILLING CODE 6560-50-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2016-0193; FRL-9951-57] Tolfenpyrad; Pesticide Tolerances for Emergency Exemptions AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This regulation establishes time-limited tolerances for residues of tolfenpyrad in or on vegetable, fruiting, group 8-10. This action is in response to EPA's granting of an emergency exemption under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of the pesticide on agricultural commodities in the group “vegetable, fruiting, group 8-10.” This regulation establishes a maximum permissible level for residues of tolfenpyrad in or on these commodities.

The time-limited tolerances expire on December 31, 2019.

DATES:

This regulation is effective October 5, 2016. Objections and requests for hearings must be received on or before December 5, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES:

The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0193, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

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

Under section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0193 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 5, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0193, by one of the following methods:

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

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

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

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

II. Background and Statutory Findings

EPA, on its own initiative, in accordance with FFDCA sections 408(e) and 408(l)(6) of, 21 U.S.C. 346a(e) and 346a(1)(6), is establishing time-limited tolerances for residues of tolfenpyrad, 4-chloro-3-ethyl-1-methyl-N-[4-(p-tolyloxy)benzyl]pyrazole-5-carboxamide, in or on agricultural commodities in the group “vegetable, fruiting, group 8-10” at 0.70 parts per million (ppm). These time-limited tolerances expire on December 31, 2019.

Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on FIFRA section 18 related time-limited tolerances to set binding precedents for the application of FFDCA section 408 and the safety standard to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

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

Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

III. Emergency Exemption for Tolfenpyrad on Vegetable, Fruiting, Group 8-10 Commodities and FFDCA Tolerances

The Florida Department of Agriculture and Consumer Services (FDACS) requested an emergency exemption for the use of tolfenpyrad on fruiting vegetables to reduce damage incurred by thrips. Thrips have become a severe problem in Florida on account of their developing resistance to the insecticides currently registered for use on fruiting vegetable crops, combined with the appearance of Tomato Chlorotic Spot Virus, a newly established invasive virus disease vectored by thrips attacking fruiting vegetables. According to FDACS, substantial economic damage is occurring and 30% to 90% yield loss has been documented due to the insufficient efficacy of registered alternatives.

After having reviewed the submission, EPA determined that an emergency condition exists for this State, and that the criteria for approval of an emergency exemption are met. EPA has authorized a specific exemption under FIFRA section 18 for the use of tolfenpyrad on vegetable, fruiting, group 8-10 for control of thrips in Florida.

As part of its evaluation of the emergency exemption application, EPA assessed the potential risks presented by residues of tolfenpyrad in or on vegetable, fruiting, group 8-10. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent, non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing these tolerances without notice and opportunity for public comment as provided in FFDCA section 408(l)(6). Although these time-limited tolerances expire on December 31, 2019, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on vegetable, fruiting, group 8-10 after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these time-limited tolerances at the time of that application. EPA will take action to revoke these time-limited tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because these time-limited tolerances are being approved under emergency conditions, EPA has not made any decisions about whether tolfenpyrad meets FIFRA's registration requirements for use on vegetable, fruiting, group 8-10 or whether permanent tolerances for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerance decision serves as a basis for registration of tolfenpyrad by a State for special local needs under FIFRA section 24(c), nor does this tolerance by itself serve as the authority for persons in any State other than Florida to use this pesticide on the applicable crops under FIFRA section 18, absent the issuance of an emergency exemption applicable within that State. For additional information regarding the emergency exemption for tolfenpyrad, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT.

IV. Aggregate Risk Assessment and Determination of Safety

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

Consistent with the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of, and to make a determination on, aggregate exposure expected as a result of this emergency exemption request and the time-limited tolerances for residues of tolfenpyrad on vegetable, fruiting, group 8-10 at 0.70 ppm. EPA's assessment of exposures and risks associated with establishing time-limited tolerances follows.

A. Toxicological Points of Departure/Levels of Concern

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

A summary of the toxicological profile and endpoints for tolfenpyrad used for human health risk assessment is discussed in Table 1 of the final rule published in the Federal Register of January 9, 2014, (79 FR 1599) (FRL-9904-70).

B. Exposure Assessment

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to tolfenpyrad, EPA considered exposure under the time-limited tolerances established by this action as well as all existing tolfenpyrad tolerances in 40 CFR 180.675. EPA assessed dietary exposures from tolfenpyrad in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessment are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure; such effects were identified for tolfenpyrad. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). For purposes of this acute exposure assessment, EPA assumed 100 percent crop treated (PCT) and tolerance-level residues.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption information from the USDA 2003-2008 NHANES/WWEIA. For purposes of this chronic exposure assessment, EPA relied upon average residue levels from crop field trials. EPA also used PCT estimates (discussed further in Unit IV.B.1.iv., below) for certain commodities that were shown to have a high contribution to the overall dietary exposure, while assuming 100 PCT for the rest of the commodities.

iii. Cancer. Based on the data summarized in Unit IV.A., EPA has concluded that tolfenpyrad does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and percent crop treated (PCT) information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.

In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.

In this case, EPA used data from the USDA NASS Agricultural Chemical Usage—Fruit Summary (2003, 2005, 2007, 2009), Vegetable Summary (2004, 2006, 2010), along with proprietary data to estimate PCT for four commodities (all others being assumed to be 100 PCT). Based on that data, EPA estimated average PCTs of 40% for oranges, 60% for apples, 65% for table grapes, and 50% for spinach.

The Agency believes that the three conditions discussed in Unit IV.B1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which tolfenpyrad may be applied in a particular area.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for tolfenpyrad in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of tolfenpyrad. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of tolfenpyrad for acute exposures are estimated to be 26.9 parts per billion (ppb) for surface water and 11 ppb for ground water. For chronic exposures for non-cancer assessments, the EDWCs are estimated to be 12.2 ppb for surface water and 11 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.

For acute dietary risk assessment, the water concentration value of 26.9 ppb was used to assess the contribution to drinking water.

For chronic dietary risk assessment, the water concentration value of 12.2 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Tolfenpyrad is not registered for any specific use patterns that would result in residential exposure.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at: http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

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

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

C. Safety Factor for Infants and Children

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

2. Prenatal and postnatal sensitivity. No evidence of increased quantitative or qualitative susceptibility was observed in developmental toxicity studies in rats or rabbits or a reproduction toxicity study in rats. However, the developmental immunotoxicity study (DIT) in rats suggests increased qualitative susceptibility in the young, since toxicity observed in offspring animals was more pronounced than toxicity seen in maternal animals at the same dose. No evidence of quantitative susceptibility was seen in the study. There is low concern and there are no residual uncertainties regarding the increased qualitative prenatal and/or postnatal susceptibility observed for tolfenpyrad. When the DIT and the reproduction study are considered together, the offspring toxicity in the DIT is comparable in severity to maternal toxicity observed at the same dose in the reproduction study. Since the adverse effects in young occurred at exposure levels that have shown comparable effects in adults, EPA does not consider the DIT persuasive evidence of an increased susceptibility of infants or children to tolfenpyrad. Additionally, the effects observed in the DIT study are well-characterized, a clear NOAEL was identified, and the endpoints chosen for risk assessment are protective of potential offspring effects, since a dermal hazard was not identified for tolfenpyrad, inhalation risk assessments are based on a route specific inhalation study, and the POD used for chronic dietary risk assessment is lower than where offspring effects were seen in the DIT study.

3. Conclusion. EPA has determined that reliable data show that the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for tolfenpyrad is complete.

ii. There is no indication that tolfenpyrad is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. Although there is possibly increased qualitative susceptibility in the young in the DIT study in rats, there are no residual uncertainties regarding increased susceptibility for tolfenpyrad since, (1) comparable maternal toxicity was observed at the same dose in the reproduction study, (2) the offspring effects observed in the DIT study are well characterized and there is a clear NOAEL for the effects seen, (3) no evidence of quantitative susceptibility was seen in the DIT study and susceptibility was not observed (quantitative or qualitative) in rat or rabbit developmental toxicity or reproduction studies tested at similar doses, (4) the endpoints and PODs selected for risk assessment are protective, and (5) direct non-dietary exposure to children is not anticipated since there are no residential uses for tolfenpyrad. Thus, a 10X FQPA safety factor is not necessary to protect infants and children.

iv. There are no residual uncertainties identified in the exposure databases. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to tolfenpyrad in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by tolfenpyrad.

D. Aggregate Risks and Determination of Safety

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water and relevant residential exposure scenarios. Since acute residential exposure is not anticipated, acute aggregate risk from exposure to tolfenpyrad results from exposure to residues in food and drinking water alone. Therefore, acute aggregate risk estimates are equivalent to the acute dietary risk estimates. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to tolfenpyrad will occupy 56% of the aPAD for the U.S. general population. Children 3-5 years old are the highest-exposed population subgroup with an estimated exposure of 81% of the aPAD. Typically, EPA has concerns when estimated exposures exceed 100% of the acute or chronic population-adjusted dose (aPAD or cPAD). Acute dietary risk estimates are below EPA's level of concern for all populations.

2. Chronic risk. A chronic aggregate risk assessment takes into account chronic exposure estimates from dietary consumption of food and drinking water and relevant residential exposure scenarios. Since chronic residential exposure is not anticipated for tolfenpyrad, chronic aggregate risk from exposure to tolfenpyrad results from exposure to residues in food and drinking water alone. Therefore, chronic aggregate risk estimates are equivalent to the chronic dietary risk estimates. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to tolfenpyrad from food and water will utilize 69% of the cPAD for (children 1-2 years old) the population group receiving the greatest exposure. There are no residential uses for tolfenpyrad.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background (average) exposure level). A short-term adverse effect was identified; however, tolfenpyrad is not registered for any use patterns that would result in short-term residential exposure. Short-term risk is assessed based on short-term residential exposure plus chronic dietary exposure. Because there is no short-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short-term risk), no further assessment of short-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating short-term risk for tolfenpyrad.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term non-dietary, non-occupational exposure plus chronic exposure to food and water (considered to be a background exposure level).

An intermediate-term adverse effect was identified; however, tolfenpyrad is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for tolfenpyrad.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, tolfenpyrad is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to tolfenpyrad residues.

V. Other Considerations A. Analytical Enforcement Methodology

An adequate enforcement methodology (liquid chromatography/tandem mass spectrometry (LC/MS/MS)) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected]

B. International Residue Limits

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for tolfenpyrad residues in/on fruiting vegetables.

VI. Conclusion

Therefore, a time-limited tolerance is established for residues of tolfenpyrad, (4-chloro-3-ethyl-1-methyl-N-[4-(p-tolyloxy)benzyl]pyrazole-5-carboxamide, in or on the agricultural commodity “vegetable, fruiting, group 8-10” at 0.70 ppm. This tolerance expires on December 31, 2019.

VII. Statutory and Executive Order Reviews

This action establishes a tolerance under FFDCA sections 408(e) and 408(l)(6). The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not apply.

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

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

VIII. Congressional Review Act

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

List of Subjects in 40 CFR Part 180

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

Dated: September 26, 2016. Michael L. Goodis, Acting Director, Registration Division, Office of Pesticide Programs.

Therefore, 40 CFR chapter I is amended as follows:

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

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

2. In § 180.675, revise paragraph (b) to read as follows:
§  180.675 Tolfenpyrad; tolerances for residues.

(b) Section 18 emergency exemptions. Time-limited tolerances specified in the following table are established for residues of tolfenpyrad, (4-chloro-3-ethyl-1-methyl-N-[4-(p-tolyloxy)benzyl]pyrazole-5-carboxamide, including its metabolites and degradates, in or on the specified agricultural commodities, resulting from use of the pesticide pursuant to FFIFRA section 18 emergency exemptions. Compliance with the tolerance levels specified below is to be determined by measuring only tolfenpyrad, 4-chloro-3-ethyl-1-methyl-N-[4-(p-tolyloxy)benzyl]pyrazole-5-carboxamide. The tolerances expire on the date specified in the table.

Commodity Parts per million Expiration date Vegetable, fruiting, group 8-10 0.70 12/31/2019
[FR Doc. 2016-24093 Filed 10-4-16; 8:45 am] BILLING CODE 6560-50-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2016-0330; FRL-9952-34] Acrylic acid-butyl acrylate-styrene copolymer; Tolerance Exemption AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This regulation establishes an exemption from the requirement of a tolerance for residues of 2-propenoic acid, polymer with butyl 2-propenoate and ethenylbenzene, also known as acrylic acid-butyl acrylate-styrene copolymer, when used as an inert ingredient in a pesticide chemical formulation. Momentive Performance Materials submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of 2-propenoic acid, polymer with butyl 2-propenoate and ethenylbenzene on food or feed commodities.

DATES:

This regulation is effective October 5, 2016. Objections and requests for hearings must be received on or before December 5, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES:

The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0330, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT:

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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

C. Can I file an objection or hearing request?

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0330 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 5, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0330, by one of the following methods.

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

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

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

II. Background and Statutory Findings

In the Federal Register of July 20, 2016 (81 FR 47150) (FRL-9948-45), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-10925) filed by Momentive Performance Materials, 260 Hudson River Rd., Waterford, NY 12188. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of acrylic acid-butyl acrylate-styrene copolymer; CAS Reg. No. 25586-20-3. That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency did not receive any comments.

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

III. Risk Assessment and Statutory Findings

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

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

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

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

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

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

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

6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

7. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF3- or longer chain length as listed in 40 CFR 723.250(d)(6).

Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

8. The polymer's number average MW of 5,200 is greater than 1,000 and less than 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymer does not contain any reactive functional groups.

Thus, acrylic acid-butyl acrylate-styrene copolymer meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to acrylic acid-butyl acrylate-styrene copolymer.

IV. Aggregate Exposures

For the purposes of assessing potential exposure under this exemption, EPA considered that acrylic acid-butyl acrylate-styrene copolymer could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of acrylic acid-butyl acrylate-styrene copolymer is 5,200 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since acrylic acid-butyl acrylate-styrene copolymer conforms to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

V. Cumulative Effects From Substances With a Common Mechanism of Toxicity

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

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

VI. Additional Safety Factor for the Protection of Infants and Children

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of acrylic acid-butyl acrylate-styrene copolymer, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

VII. Determination of Safety

Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of acrylic acid-butyl acrylate-styrene copolymer.

VIII. Other Considerations A. Analytical Enforcement Methodology

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

B. International Residue Limits

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for acrylic acid-butyl acrylate-styrene copolymer.

IX. Conclusion

Accordingly, EPA finds that exempting residues of acrylic acid-butyl acrylate-styrene copolymer from the requirement of a tolerance will be safe.

X. Statutory and Executive Order Reviews

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

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

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

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

XI. Congressional Review Act

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

List of Subjects in 40 CFR Part 180

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

Dated: September 26, 2016. Michael L. Goodis, Acting Director, Registration Division, Office of Pesticide Programs.

Therefore, 40 CFR chapter I is amended as follows:

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

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

2. In § 180.960, add alphabetically the polymer “Acrylic acid-butyl acrylate-styrene copolymer, minimum number average molecular weight (in amu), 5,200” to the table to read as follows:
§  180.960 Polymers; exemptions from the requirement of a tolerance. Polymer CAS No. *    *    *    *    * Acrylic acid-butyl acrylate-styrene copolymer, minimum number average molecular weight (in amu), 5,200 25586-20-3 *    *    *    *    *
[FR Doc. 2016-24083 Filed 10-4-16; 8:45 am] BILLING CODE 6560-50-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 405, 412, 413, and 489 [CMS-1655-F; CMS-1664-F; CMS-1632-F2] RIN 0938-AS77; 0938-AS88; 0938-AS41 Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System and Policy Changes and Fiscal Year 2017 Rates; Quality Reporting Requirements for Specific Providers; Graduate Medical Education; Hospital Notification Procedures Applicable to Beneficiaries Receiving Observation Services; Technical Changes Relating to Costs to Organizations and Medicare Cost Reports; Finalization of Interim Final Rules With Comment Period on LTCH PPS Payments for Severe Wounds, Modifications of Limitations on Redesignation by the Medicare Geographic Classification Review Board, and Extensions of Payments to MDHs and Low-Volume Hospitals; Correction AGENCY:

Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION:

Final rule; correction.

SUMMARY:

This document corrects technical and typographical errors in the final rule that appeared in the August 22, 2016 Federal Register titled “Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System and Policy Changes and Fiscal Year 2017 Rates; Quality Reporting Requirements for Specific Providers; Graduate Medical Education; Hospital Notification Procedures Applicable to Beneficiaries Receiving Observation Services; Technical Changes Relating to Costs to Organizations and Medicare Cost Reports; Finalization of Interim Final Rules With Comment Period on LTCH PPS Payments for Severe Wounds, Modifications of Limitations on Redesignation by the Medicare Geographic Classification Review Board, and Extensions of Payments to MDHs and Low-Volume Hospitals.”

DATES:

This correction is effective October 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Donald Thompson, (410) 786-4487.

SUPPLEMENTARY INFORMATION:

I. Background

In FR Doc. 2016-18476 of August 22, 2016 (81 FR 56761) there were a number of technical and typographical errors identified and corrected in the Correction of Errors section of this correcting document. The provisions in this correcting document are effective as if they had been included in the document that appeared in the August 22, 2016 Federal Register. Accordingly, the corrections are effective October 1, 2016.

II. Summary of Errors A. Summary of Errors in the Preamble

On page 56775, we made a typographical error in stating the cost reduction.

On page 56796, we are correcting errors and inadvertent omissions in the summary and response to a comment on the assignment of 18 additional diagnosis codes.

On page 56797, we erroneously referred to the wrong table.

On page 56801, we are correcting errors and inadvertent omissions in our response to comments on our proposal to redesignate four ICD-10-PCS procedure codes.

On page 56803 and in the table on page 56804 describing ICD-10-PCS Endovascular Thrombectomy Procedure Codes Reassigned to MS-DRGs 270, 271, and 272 for FY 2017, we are correcting technical errors in our discussion in response to comments to remove 34 ICD-10-PCS procedure codes describing endovascular thrombectomy of non-lower limbs from the proposed list of codes to be reassigned to MS-DRGs 270, 271 and 272. In this response, we erroneously referred to 34 procedure codes describing non-lower limb procedures (as included in the list submitted by the commenter) rather than 32 non-lower limb procedure codes. Two of the 34 procedure codes identified by the commenter, ICD-10-PCS procedure codes 04CT3ZZ (Extirpation of matter from right peroneal artery, percutaneous approach) and 04CU3ZZ (Extirpation of matter from left peroneal artery, percutaneous approach), describe endovascular thrombectomy of lower limbs. These codes are assigned to MS-DRGs 270, 271 and 272, accurately replicating the logic of ICD-9-CM MS-DRGs Version 32 and supporting clinical and resource use homogeneity as originally proposed and in accordance with the finalized policy to add procedures describing endovascular thrombectomy of lower limbs to ICD-10 Version 34 MS-DRGS 270, 271 and 272.

On page 56804, as a result of our correction of the MS-DRG assignment in Table 6B—New Procedure Codes for 13 ICD-10-PCS procedure codes that describe endovascular thrombectomy procedures of the lower limb, as described in section II.D. of this correction document, we are making additional conforming corrections to the table describing ICD-10-PCS Endovascular Thrombectomy Procedure Codes Reassigned to MS-DRGs 270, 271, and 272 for FY 2017.

On pages 56821 and 56823, we erroneously stated there were 58 additional combination codes for removal and replacement of knee joints. There were 57 additional combination codes.

On pages 56822 and 56823, we erroneously listed the code number for (Replacement of Left Knee Joint, Femoral Surface with Synthetic Substitute, Cemented, Open Approach) as code 0SRU0JA three times within the table. The correct code number should be 0SRU0J9 (Replacement of Left Knee Joint, Femoral Surface with Synthetic Substitute, Cemented, Open Approach).

As a result of the corrections to pages 56803, 56804, 56821, 56822, and 56823, we have made conforming changes to the ICD-10 MS-DRG Definitions Manual Version 34 and ICD-10 MS-DRG Grouper Software Version 34 for FY 2017.

On page 56858, we erroneously omitted MS-DRG 265 from the table of MS-DRGs subject to the policy for replaced devices offered without cost or with a credit.

On pages 56895 and 56897, we inadvertently made an error to the title of ICD-10-PCS procedure code XW03331 and omitted an additional procedure code that describes Idarucizumab. Cases involving Idarucizumab that are eligible for new technology add-on payments will be identified by ICD-10-PCS procedure codes XW03331 (Introduction of Idarucizumab, Dabigatran reversal agent into peripheral vein, percutaneous approach, New Technology Group 1) and XW04331 (Introduction of Idarucizumab, Dabigatran reversal agent into central vein, percutaneous approach, New Technology Group 1).

On page 56927, as a result of the correction of the technical errors described in section II.B of this correction document, we have made conforming changes to the following: The number of hospitals approved for wage index reclassifications by the Medicare Geographic Classification Review Board (MGCRB) starting in FY 2017 and the number of hospitals in a MGCRB reclassification status for FY 2017.

On page 57002 in the table titled, “Previously Adopted and Newly Finalized Baseline and Performance Periods for the FY 2021 Program Year” we erroneously repeated the same information three times, and in the first instance provided incorrect performance period years for the Mortality (MORT-30-AMI, MORT-30-HF, MORT-30-COPD) and THA/TKA measures.

On page 57033, we made a typographical error and omitted a dash within the web link address creating a non-functional link.

On pages 57195, 57196, 57199, 57211, 57213, 57218, and 57220 through 57223 we inadvertently made technical and typographical errors to the Long-Term Care Hospital Quality Reporting Program section and have corrected those errors for clarification.

B. Summary of Errors in the Addendum

As discussed in section II.D. of this correcting document, we made technical errors with regard to the calculation of Factor 3 of the uncompensated care payment methodology. The revisions made to address some of these errors directly affected and required the recalculation of all the budget neutrality factors and final outlier threshold. Factor 3 is used to determine the amount of total uncompensated care payment a hospital is eligible to receive as well as the amount of the uncompensated care payment a hospital receives per discharge. Per discharge uncompensated care payments are then included when determining total payments for purposes of all of the budget neutrality factors and the final outlier threshold. Therefore, we made conforming changes to pages 57278 through 57280, 57286, and 57291 to take into account the updated per-discharge uncompensated care payments determined using revised Factor 3 amounts. We made further conforming corrections to the national outlier adjustment factors on page 57286 and the table on page 57288 as a result of these changes. Finally, we made conforming corrections to the national operating standardized amounts.

We made inadvertent errors related to the MGCRB reclassification status of one provider as well as the status of three providers reclassified as urban to rural under section 1886(d)(8)(E) of the Act (codified in the regulations under § 412.103 and hereinafter referred to as § 412.103).

Specifically, the reclassification status in the FY 2017 IPPS/LTCH PPS final rule did not properly reflect the following:

• Withdrawal of a MGCRB reclassification for FY 2017 for one provider.

• Application of urban to rural reclassification under § 412.103 for three providers.

Therefore, on page 57279, we recalculated the reclassification hospital budget neutrality adjustment.

The reclassification errors also required the recalculation of additional budget neutrality adjustment factors, the fixed-loss cost threshold, the final wage indexes, and the national operating standardized amounts. Therefore, we made conforming changes to the following:

• On page 57280, the rural floor budget neutrality adjustment and the wage index transition budget neutrality adjustment.

• On page 57286, the calculation of the outlier fixed-loss cost threshold and the national outlier adjustment factors.

• On page 57288, the table titled “Change of FY 2016 Standardized Amounts to the FY 2017 Standardized Amounts”.

On pages 57291 and 57293 through 57295, in our discussion of the determination of the Federal hospital inpatient capital related prospective payment rate update, we have made conforming corrections to the increase in the capital Federal rate, the incremental and cumulative budget neutrality adjustment factors for changes in the GAFs and the MS-DRG relative weights, the GAF/MS-DRG budget neutrality adjustment factor (due to the errors in our calculation of the GAFs, which are computed from the wage index), the capital Federal rate, and the outlier threshold (as discussed previously).

Also, as a result of these errors, on pages 57294 and 57295, we have made conforming corrections in the tables showing the comparison of factors and adjustments for the FY 2016 capital Federal rate and FY 2017 capital Federal rate and the proposed FY 2017 capital Federal rate and final FY 2017 capital Federal rate.

On page 57307, we are making conforming corrections the fixed-loss amount for site neutral discharges due to corrections in the IPPS rates and factors discussed previously.

On page 57312, we have made conforming corrections to the national operating standardized amounts and capital standard Federal payment rate (which also include the rates payable to hospitals located in Puerto Rico) in Tables 1A, 1B, 1C, and 1D as a result of the conforming corrections to certain budget neutrality factors and the outlier threshold (as described previously).

C. Summary of Errors in the Appendices

On pages 57312, 57315 through 57317, 57319 through 57323, 57330 through 57332 in our regulatory impact analyses, we made conforming corrections to the factors, values, and tables and accompanying discussion of the changes in operating and capital IPPS payments for FY 2017 and the effects of certain budget neutrality factors as a result of the technical errors that lead to conforming changes in our calculation of the operating and capital IPPS budget neutrality factors, outlier threshold, final wage indexes, operating standardized amounts, and capital Federal rate (as described in section II.B. of this correction document).

On pages 57324 through 57326, in the table titled “Modeled Disproportionate Share Hospital Payments for Estimated FY 2017 DSHs by Hospital Type: Model DSH $ (In Millions) From FY 2016 To FY 2017” and the accompanying discussion, we made corrections to address technical and formatting errors in the estimated impacts resulting from inadvertent errors in the calculation of Factor 3 for certain hospitals.

On pages 57331 through 57332, we made conforming corrections to Table III—Comparison of Total Payments Per Case [FY 2016 Payments Compared to FY 2017 Payments].

On page 57342, we made conforming corrections to the discussion of the estimated changes in operating and capital IPPS payments and the accounting statement and table for acute care hospitals that arose from the corrections of errors and conforming changes as described in sections II.B. and II.D. of this correcting document.

D. Summary of Errors in and Corrections to Files and Tables Posted on the CMS Web Site

We are correcting the errors in the following IPPS tables that are listed on page 57311 of the FY 2017 IPPS/LTCH PPS final rule and are available on the Internet on the CMS Web site at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInpatientPPS/FY2017-IPPS-Final-Rule-Home-Page.html. The tables that are available on the Internet have been updated to reflect the revisions discussed in this correcting document.

Table 2—Case-Mix Index and Wage Index Table—FY 2017. Because the uncompensated care and reclassification errors discussed in section II.B. of this correction document required that we recalculate the rural and imputed floor budget neutrality factor, we are correcting the values in the column titled FY 2017 Wage Index for all providers. For the three providers for which we are applying urban to rural reclassification under § 412.103, we are correcting the values in the column titled “FY 2017 Wage Index”, inserting the rural reclassified CBSA in the column titled “Reclassified/Redesignated CBSA”, and inserting a “Y” in the column titled “Hospital Reclassified as Rural Under Section 1886(d)(8)(E) of the Act (§ 412.103)”. For the provider that withdrew its MGCRB reclassification for FY 2017, we are revising the wage index in the column titled FY 2017 Wage Index, and we are removing the MGCRB flag in the column titled MGCRB Reclass.

Table 3—Wage Index Table by CBSA—FY 2017. Because the uncompensated care and reclassification errors discussed in section II.B. of this correction document required that we recalculate the rural and imputed floor budget neutrality factor, we are making corresponding changes to the wage indexes and GAFs of all CBSAs listed in Table 3. Specifically, we are correcting the values and flags in the columns titled “Wage Index”, “Reclassified Wage Index”, “GAF”, “Reclassified GAF”, “Pre-Frontier and/or Pre-Rural Floor Wage Index” and “Eligible for Rural Floor Wage Index”.

Table 6B—New Procedure Codes for FY 2017. In Table 6B—New Procedure Codes, we inadvertently listed the incorrect MS-DRG assignment for 13 ICD-10-PCS procedure codes that describe endovascular thrombectomy procedures of the lower limb involving a bifurcation. We are correcting the MS-DRG assignment of these 13 ICD-10-PCS codes in Table 6B.

Table 10—New Technology Add-On Payment Thresholds for Applications for FY 2018. We are correcting the thresholds in this table as a result of the corrections to the operating standardized amounts discussed in section II.B. of this correcting document.

Table 18—FY 2017 Medicare DSH Uncompensated Care Payment Factor 3 and Projected DSH Eligibility. For the FY 2017 IPPS/LTCH PPS final rule, we published a list of hospitals that we identified to be subsection (d) hospitals and subsection (d) Puerto Rico hospitals eligible to receive empirically justified Medicare DSH payment adjustments and uncompensated care payments for FY 2017. We also published, in the Supplemental Medicare DSH File located in the FY 2017 IPPS/LTCH PPS final rule data files page at https://www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/AcuteInpatientPPS/FY2017-IPPS-FinalRule-Home-Page-Items/FY2017-IPPSFinal-Rule-Data-Files.html, the data used to calculate each hospital's Factor 3, total uncompensated care payment, and estimated uncompensated care payment per discharge.

Shortly after the publication of the FY2017 IPPS/LTCH PPS final rule, we discovered that, in calculating Factor 3 of the uncompensated care payment methodology, we had understated the low-income insured days of hospitals that merged after 2011 with one surviving provider number because we inadvertently excluded the low income insured days of acquired hospitals from the low income insured days used in the Factor 3 calculation of surviving hospitals that were projected to receive Medicare DSH in FY 2017. In addition, we discovered that we had calculated a Factor 3 for hospitals that have ceased operations and erroneously calculated Factor 3 using Medicaid days reported on Worksheet S-3 instead of Worksheet S-2 of certain hospitals' FY 2013 cost reports. We are revising Factor 3 for all hospitals to correct these errors. These corrections to the uncompensated care payments impacted the calculation of all the budget neutrality factors as well as the outlier fixed-loss cost threshold for outlier payments.

In addition, we discovered that we had inadvertently excluded the Medicaid days from the 2011 cost report for a provider as well as the Medicaid days from the 2012 cost report for another provider from the calculation of Factor 3. Due to technical errors by our Medicare Administrative Contractors the Medicaid days from these cost reports were not included in the March 2016 update of HCRIS. We projected that both providers would be eligible to receive Medicare DSH in FY 2017. Accordingly, we are revising Factor 3 for all hospitals to reflect these Medicaid days; however, the impact of these revisions is too small to affect other aspects of the IPPS ratesetting, such as the calculation of the fixed-loss threshold for outlier payments.

We are also correcting the errors in the following LTCH PPS table that is listed on page 57311 of the FY 2017 IPPS/LTCH PPS final rule and is available on the Internet on the CMS Web site at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/LongTermCareHospitalPPS/index.html under the list item for regulation number CMS-1655-F. The table that is available on the Internet has been updated to reflect the revisions discussed in this correcting document.

Table 11—MS-LTC-DRGs, Relative Weights, Geometric Average Length of Stay, Short Stay Outlier (SSO) Threshold, and “IPPS Comparable Threshold” for LTCH PPS Discharges Occurring from October 1, 2016 through September 30, 2017. We are correcting this table by correcting typographical errors for MS-LTC-DRGs 627 and 658 in the columns titled “Relative Weight,” “Geometric Average Length of Stay,” “Short-Stay Outlier (SSO) Threshold,” and “IPPS Comparable Threshold.”

III. Waiver of Proposed Rulemaking and Delay in Effective Date

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice.

Section 553(d) of the APA ordinarily requires a 30-day delay in the effective date of final rules after the date of their publication in the Federal Register. This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.

We believe that this correcting document does not constitute a rule that would be subject to the APA notice and comment or delayed effective date requirements. This correcting document corrects technical and typographic errors in the preamble, addendum, payment rates, tables, and appendices included or referenced in the FY 2017 IPPS/LTCH PPS final rule but does not make substantive changes to the policies or payment methodologies that were adopted in the final rule. As a result, this correcting document is intended to ensure that the information in the FY 2017 IPPS/LTCH PPS final rule accurately reflects the policies adopted in that final rule.

In addition, even if this were a rule to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule or delaying the effective date would be contrary to the public interest because it is in the public's interest for providers to receive appropriate payments in as timely a manner as possible, and to ensure that the FY 2017 IPPS/LTCH PPS final rule accurately reflects our policies. Furthermore, such procedures would be unnecessary, as we are not altering our payment methodologies or policies, but rather, we are simply implementing correctly the policies that we previously proposed, received comment on, and subsequently finalized. This correcting document is intended solely to ensure that the FY 2017 IPPS/LTCH PPS final rule accurately reflects these payment methodologies and policies. Therefore, we believe we have good cause to waive the notice and comment and effective date requirements.

IV. Correction of Errors

In FR Doc. 2016-18476 of August 22, 2016 (81 FR 56761), we are making the following corrections:

A. Corrections of Errors in the Preamble

1. On page 56775, third column, second bulleted paragraph, line 25, the figure “$50.4 million” is corrected to read “$56.4 million”.

2. On page 56796—

a. Top half of the page, third column, third full paragraph,

(1) Lines 4 and 5, the phrase “describing similar conditions” is corrected to read “displayed in Table 6A—New Diagnosis Codes associated with the proposed rule (which is available via the Internet on the CMS Web site at: http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInpatientPPS/index.html) that describe similar conditions”.

(2) Lines 9 and 10, the phrase, “18 ICD-10-CN diagnosis codes in the following table be reassigned” is corrected to read “18 ICD-10-CM diagnosis codes in the following table also be reassigned”.

b. Lower half of the page, first column, last paragraph—

(1) Lines 6 and 7, the phrase “describing procedures performed on” is corrected to read “describing conditions affecting”.

(2) Line 14, the phrase “MS DRGs 091, 092 and 093.” is corrected to read “MS-DRGs 091, 092, and 093 because they are also nervous system codes.”

3. On page 56797, first column, first paragraph, lines 15 and 16, the phrase “These 18 codes also are reflected in Table 6E” is corrected to read “These 18 codes are reflected in Table 6A”.

4. On page 56801, second column, second full paragraph—

a. Lines 11 and 12, the phrase “performing such procedures because loop” is corrected to read “performing such procedures because, as noted in the FY 2017 IPPS/LTCH PPS proposed rule, loop”.

b. Lines 25 and 26, the phrase “were not able to finalize that specific request.” is corrected to read “were not able to replicate that specific request in the ICD-9-CM based MS-DRGs.”.

c. Lines 26 through 29, the sentence “Rather, we finalized an alternative option, which was to change the designation for four of the six codes requested.” is corrected to read “Rather, we proposed an alternative option, which was to change the designation for four of the six codes requested, because we believed that if we limited the change in designation to these four codes, the change would not have any impact.”.

d. Lines 40 through 41, the phrase “not finalizing the proposal to change the two” is corrected to read “not changing the designation of the two”.

5. On page 56803, bottom of the page—

a. First column, last paragraph, lines 7 and 8, the phrase “removing the 34 codes” is corrected to read “removing 32 of the 34 codes”.

b. Second column, first partial paragraph—

(1) Lines 5 and 6, the phrase “34 non-lower” is corrected to read “32 non-lower”.

(2) Lines 8 and 9, the phrase “These 34 non-lower” is corrected to read “These 32 non-lower”.

(3) Line 13, after the phrase “for FY 2017.” the paragraph is corrected by adding sentences to read as follows:

“Two of the procedure codes identified by the commenter, ICD-10-PCS procedure codes 04CT3ZZ (Extirpation of matter from right peroneal artery, percutaneous approach) and 04CU3ZZ (Extirpation of matter from left peroneal artery, percutaneous approach) describe endovascular thrombectomy of lower limbs and are not non-lower limb procedure codes.”.

c. Third column, first full paragraph, line 11, the phrase “34 procedure” is corrected to read “32 procedure”.

6. On page 56804, top of page, the table titled “ICD-10-PCS ENDOVASCULAR THROMBECTOMY PROCEDURE CODES REASSIGNED TO MS-DRGs 270, 271, AND 272 FOR FY 2017” is corrected by adding the following entries:

04CK3Z6 Extirpation of Matter from Right Femoral Artery, Bifurcation, Percutaneous Approach. 04CL3Z6 Extirpation of Matter from Left Femoral Artery, Bifurcation, Percutaneous Approach. 04CM3Z6 Extirpation of Matter from Right Popliteal Artery, Bifurcation, Percutaneous Approach. 04CN3Z6 Extirpation of Matter from Left Popliteal Artery, Bifurcation, Percutaneous Approach. 04CP3Z6 Extirpation of Matter from Right Anterior Tibial Artery, Bifurcation, Percutaneous Approach. 04CQ3Z6 Extirpation of Matter from Left Anterior Tibial Artery, Bifurcation, Percutaneous Approach. 04CR3Z6 Extirpation of Matter from Right Posterior Tibial Artery, Bifurcation, Percutaneous Approach. 04CS3Z6 Extirpation of Matter from Left Posterior Tibial Artery, Bifurcation, Percutaneous Approach. 04CT3Z6 Extirpation of Matter from Right Peroneal Artery, Bifurcation, Percutaneous Approach. 04CT3ZZ Extirpation of Matter from Right Peroneal Artery, Percutaneous Approach. 04CU3Z6 Extirpation of Matter from Left Peroneal Artery, Bifurcation, Percutaneous Approach. 04CU3ZZ Extirpation of Matter from Left Peroneal Artery, Percutaneous Approach. 04CV3Z6 Extirpation of Matter from Right Foot Artery, Bifurcation, Percutaneous Approach. 04CW3Z6 Extirpation of Matter from Left Foot Artery, Bifurcation, Percutaneous Approach. 04CY3Z6 Extirpation of Matter from Lower Artery, Bifurcation, Percutaneous Approach.

7. On page 56821, middle of the page—

a. Second column, first partial paragraph, line 2, the phrase “identified 58” is corrected to read “identified 57”.

b. Third column, first partial paragraph, line 3, the phrase “following 58” is corrected to read “following 57”.

8. On pages 56821 through 56823, in the table titled “ICD-10-PCS CODE PAIRS PROPOSED TO BE ADDED TO VERSION 34 ICD-10 MS-DRGs 466, 467, and 468: PROPOSED NEW KNEE REVISION ICD-10-PCS COMBINATIONS”, the codes (in the 4th column) for the following entries are corrected to read as follows:

ICD-10-PCS Code Pairs Proposed To Be Added to Version 34 ICD-10 MS-DRGs 466, 467, and 468: Proposed New Knee Revision ICD-10-PCS Combinations Code Code description Code Code description 0SPD08Z Removal of Spacer from Left Knee Joint, Open Approach and 0SRU0J9 Replacement of Left Knee Joint, Femoral Surface with Synthetic Substitute, Cemented, Open Approach. 0SPD38Z Removal of Spacer from Left Knee Joint, Percutaneous Approach and 0SRU0J9 Replacement of Left Knee Joint, Femoral Surface with Synthetic Substitute, Cemented, Open Approach. 0SPD48Z Removal of Spacer from Left Knee Joint, Percutaneous Endoscopic Approach and 0SRU0J9 Replacement of Left Knee Joint, Femoral Surface with Synthetic Substitute, Cemented, Open Approach.

9. On page 56823, lower half of the page—

a. First column, second paragraph, line 10, the phrase “58 new” is corrected to read “57 new”.

b. Second column—

(1) First partial paragraph, line 11, the phrase “58 new” is corrected to read “ new”.

(2) First full paragraph, lines 3 and 4, the phrase “58 new” is corrected to read “57 new”.

10. On page 56858, top of the page, the untitled table is corrected by adding the following entry after line 34 (which is the entry for MDC 5, MS-DRG 262):

MDC MS-DRG MS-DRG Title 5 265 AICD Lead Procedures.

11. On page 56895, third column, first partial paragraph—

a. Lines 8 and 9, the phrase “a unique ICD-10-PCS procedure code” is corrected to read “two unique ICD-10-PCS procedure codes”.

b. Lines 10 through 15, the sentence “The approved procedure code is XW0331 (Introduction of Idarucizumab, Dabigatran reversal agent into central vein, percutaneous approach, New Technology Group 1).” is corrected to read “The approved procedure codes are XW0331 (Introduction of Idarucizumab, Dabigatran reversal agent into peripheral vein, percutaneous approach, New Technology Group 1) and XW04331 (Introduction of Idarucizumab, Dabigatran reversal agent into central vein, percutaneous approach, New Technology Group 1).”.

12. On page 56897, third column, third full paragraph, line 11, the phrase “procedure code XW03331.” is corrected to read “procedure codes XW03331 and XW04331.”.

13. On page 56927—

a. Second column, last partial paragraph, line 5 the phrase “265 hospitals” is corrected to read “264 hospitals”.

b. Third column, first partial paragraph, line 12, the phrase “817 hospitals” is corrected to read “816 hospitals”.

14. On page 57002, bottom of the page, the table titled “PREVIOUSLY ADOPTED AND NEWLY FINALIZED BASELINE AND PERFORMANCE PERIODS FOR THE FY 2021 PROGRAM YEAR” is corrected to read as follows:

Previously Adopted and Newly Finalized Baseline and Performance Periods for the FY 2021 Program Year Domain Baseline period Performance period Clinical Care • Mortality (MORT-30-AMI, MORT-30-HF, MORT-30-COPD) * • July 1, 2011-June 30, 2014 • July 1, 2016-June 30, 2019 • THA/TKA * • April 1, 2011-March 31, 2014 • April 1, 2016-March 31, 2019 • MORT-30-PN (updated cohort) • July 1, 2012-June 30, 2015 • September 1, 2017-June 30, 2019 Efficiency and Cost Reduction • MSPB • January 1, 2017-December 31, 2017 • January 1, 2019-December 31, 2019 • Payment (AMI Payment and HF Payment) • July 1, 2012-June 30, 2015 • July 1, 2017-June 30, 2019 * Previously adopted baseline and performance periods that remain unchanged (80 FR 49562 through 49563).

15. On page 57033, first column, last paragraph, lines 2 through 4, the web link “http://www.cms.gov/Medicare/Medicare-Fee-for-ServicePayment/AcuteInpatientPPS/dgme.html” is corrected to read “http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInpatientPPS/dgme.html.

16. On page 57195—

a. First column, last partial paragraph, lines 4 and 5, the phrase “it recommended” is corrected to read “the commenters recommended”.

b. Third column, third full paragraph—

(1). Line 14, the phrase “This measure” is corrected to read “The Drug Regimen Review Conducted with Follow-Up for Identified Issues-PAC LTCH QRP quality measure”.

(2) Lines 23 through 25, the phrase “ and Potentially Preventable 30-Day Post-Discharge Readmission Measure for LTCH QRP,” is corrected to read “, Potentially Preventable 30-Day Post-Discharge Readmission Measure for LTCH QRP and Medicare Spending Per Beneficiary-PAC LTCH QRP,”.

17. On page 57196, third column, first full paragraph, lines 13 through 16, the phrase “with information more frequently, such as unadjusted counts of potentially preventable readmissions (PPRs) and discharge data.” is corrected to read “with information, such as unadjusted counts of potentially preventable readmissions (PPRs) and discharge data, more frequently.”

18. On page 57199, first column, second full paragraph, lines 3 and 4, the phrase “SES or SDS status.” is corrected to read “SES or SDS.”

19. On page 57211, third column, second full paragraph, line 16, the phrase “to discharge” is corrected to read “to be discharged”.

20. On page 57213—

a. Second column, last partial paragraph, lines 6 through 8, the phrase “and a SNF stay within a 30-day window, the SNF stay is a candidate to for” is corrected to read “and then a SNF stay within a 30-day window, the SNF stay is a candidate for”.

b. Third column, after the last paragraph, Footnote 280, lines 1 and 2, the measure name “Hospital-Wide All-Cause Readmission Measure (HWR) (CMS/Yale).” is corrected to read “Hospital-Wide All-Cause Unplanned Readmission Measure (HWR) (CMS/Yale).”

21. On page 57218, third column, first full paragraph, lines 4 and 5, the phrase “The commenter was correct in its interpretation of” is corrected to read “The commenter's interpretation was correct regarding”.

22. On page 57220, second column, second footnoted full paragraph (Footnote 311), lines 1 through 6, the footnote “311Greenwald, J.L., Halasyamani, L., Greene, J., LaCivita, C., et al. (2010). Making inpatient medication reconciliation patient centered, clinically relevant and implementable: A consensus statement on key principles and necessary first steps. Journal of Hospital Medicine, 5(8), 477-485.” is corrected to read “311Institute of Medicine. Preventing Medication Errors. Washington, DC: National Academies Press; 2006.”

23. On page 57221, second column, second full paragraph, lines 3 and 4, the phrase “cross-setting and quality measure” is corrected to read “cross-setting quality measure”.

24. On page 57222—

a. Second column, first full paragraph, lines 11 and 12, the phrase “however, the adoption of the measure” is corrected to read “however, the measure”.

b. Third column, first full paragraph—

(1) Line 4, the word “facilities” is corrected to read “facility's”.

(2) Line 22, the phrase “collected admission” is corrected to read “collected at admission”.

25. On page 57223—

a. First column, second paragraph—

(1) Lines 1 through 4, the phrase “Since the time of the MAP consideration, with our measure contractor, we tested this measure in a pilot test involving twelve PAC facilities,” is corrected to read “Since the time of the NQF-convened MAP consideration we have further tested this measure in a pilot test involving twelve PAC facilities”.

(2) Lines 7 and 8, the phrase, “record collection system” is corrected to read “records system”.

b. Second column, third full paragraph, lines 9 and 10, the phrase “PAC facility.” is corrected to read “PAC facility. We appreciate MedPAC and other commenters' recommendation for a quality measure that assesses post-discharge medication communication with primary care providers for patients discharged to home.”

B. Correction of Errors in the Addendum

1. On page 57278, third column, fifth full paragraph,

a. Line 3, the figure “0.999079” is corrected to read “0.999078”.

b. Line 9, the figure “0.999079” is corrected to read “0.999078”.

2. On page 57279—

a. Second column, first full paragraph, line 9, the figure “1.000209” is corrected to read “1.00021”.

b. Third column, third full paragraph, line 12, the figure “0.988224” is corrected to read “0.988136”.

3. On page 57280—

a. First column, fifth full paragraph, line 4, the figure “0.993200” is corrected to read “0.991987”.

b. Third column, second full paragraph,

(1) Line 3, the figure “0.999994” is corrected to read “0.999997”.

(2) Line 6, the figure “0.999994” is corrected to read “0.999997”.

4. On page 57286—

a. Second column, last paragraph—

(1) Line 6, the figure “$23,570” is corrected to read “$23,573”.

(2) Line 8, the figure “$83,347,416,971” is corrected to read “$83,364,479,923”.

(3) Line 9, the figure “$4,479,256,519” is corrected to read “$4,479,256,368”.

b. Third column—

(1) First partial paragraph, line 11, the figure “$23,570” is corrected to read “$23,573”.

(2) Following the third full paragraph, the untitled table is corrected to read as follows:

Operating
  • standardized
  • amounts
  • Capital
  • Federal rate
  • National 0.948998 0.938602

    5. On page 57288, middle of the page, the table titled “CHANGE OF FY 2016 STANDARDIZED AMOUNTS TO THE FY 2017 STANDARDIZED AMOUNTS”, is corrected to read as follows:

    Change of FY 2016 Standardized Amounts to the FY 2017 Standardized Amounts Hospital submitted quality data and is a meaningful EHR user Hospital submitted quality data and is NOT a
  • meaningful EHR user
  • Hospital did NOT submit quality data and is a meaningful EHR user Hospital did NOT submit quality data and is NOT a meaningful EHR user
    FY 2016 Base Rate after removing:
  • 1. FY 2016 Geographic Reclassification Budget Neutrality (0.988169).
  • 2. FY 2016 Rural Community Hospital Demonstration Program Budget Neutrality (0.999837).
  • If Wage Index is Greater Than 1.0000:
  • Labor (69.6 percent): $4,394.09.
  • Nonlabor (30.4 percent): $1,919.26.
  • If Wage Index is Greater Than 1.0000:
  • Labor (69.6 percent): $4,394.09.
  • Nonlabor (30.4 percent): $1,919.26.
  • If Wage Index is Greater Than 1.0000:
  • Labor (69.6 percent): $4,394.09.
  • Nonlabor (30.4 percent): $1,919.26.
  • If Wage Index is Greater Than 1.0000:
  • Labor (69.6 percent): $4,394.09.
  • Nonlabor (30.4 percent): $1,919.26.
  • 3. Cumulative FY 2008, FY 2009, FY 2012, FY 2013, FY 2014, FY 2015 and FY 2016 Documentation and Coding Adjustments as Required under Sections 7(b)(1)(A) and 7(b)(1)(B) of Public Law 110-90 and Documentation and Coding Recoupment Adjustment as required under Section 631 of the American Taxpayer Relief Act of 2012 (0.9255) If Wage Index is less Than or Equal to 1.0000:
  • Labor (62 percent): $3,914.28.
  • Nonlabor (38 percent): $2,399.07.
  • If Wage Index is less Than or Equal to 1.0000:
  • Labor (62 percent): $3,914.28.
  • Nonlabor (38 percent): $2,399.07.
  • If Wage Index is less Than or Equal to 1.0000:
  • Labor (62 percent): $3,914.28.
  • Nonlabor (38 percent): $2,399.07.
  • If Wage Index is less Than or Equal to 1.0000:
  • Labor (62 percent): $3,914.28.
  • Nonlabor (38 percent): $2,399.07.
  • 4. FY 2016 Operating Outlier Offset (0.948998) 5. FY 2016 New Labor Market Delineation Wage Index Transition Budget Neutrality Factor (0.999998) 6. FY 2017 2-Midnight Rule Permanent Adjustment (1/0.998) FY 2017 Update Factor 1.0165 0.99625 1.00975 0.9895. FY 2017 MS-DRG Recalibration Budget Neutrality Factor 0.999078 0.999078 0.999078 0.999078. FY 2017 Wage Index Budget Neutrality Factor 1.00021 1.00021 1.00021 1.00021. FY 2017 Reclassification Budget Neutrality Factor 0.988136 0.988136 0.988136 0.988136. FY 2017 Operating Outlier Factor 0.948998 0.948998 0.948998 0.98998. Cumulative Factor: FY 2008, FY 2009, FY 2012, FY 2013, FY 2014, FY 2015, FY 2016 and FY 2017 Documentation and Coding Adjustment as Required under Sections 7(b)(1)(A) and 7(b)(1)(B) of Public Law 110-90 and Documentation and Coding Recoupment Adjustment as required under Section 631 of the American Taxpayer Relief Act of 2012 0.9118 0.9118 0.9118 0.9118. FY 2017 New Labor Market Delineation Wage Index 3-Year Hold Harmless Transition Budget Neutrality Factor 0.999997 0.999997 0.999997 0.999997. FY 2017 2-Midnight Rule One-Time Prospective Increase 1.006 1.006 1.006 1.006. National Standardized Amount for FY 2017 if Wage Index is Greater Than 1.0000; Labor/Non-Labor Share Percentage (69.6/30.4) Labor: $3,839.23
  • Nonlabor: $1,676.91
  • Labor: $3,762.75
  • Nonlabor: $1,643.50
  • Labor: $3,8143.74
  • Nonlabor: $1,665.77
  • Labor: $3,737.25.
  • Nonlabor: $1,632.37.
  • National Standardized Amount for FY 2017 if Wage Index is less Than or Equal to 1.0000; Labor/Non-Labor Share Percentage (62/38) Labor: $3,420.01
  • Nonlabor: $2,096.13
  • Labor: $3,351.88
  • Nonlabor: $2,054.37
  • Labor: $3,397.30
  • Nonlabor: $2,082.21
  • Labor: $3,329.16.
  • Nonlabor: $2,040.46.
  • 6. On page 57291—

    a. First column, second full paragraph, line 15, the figure “0.999079” is corrected to read “0.999078”.

    b. Third column, first full paragraph line 6, the figure “1.84” is corrected to read “1.83”.

    7. On page 57293, third column—

    a. First partial paragraph—

    (1) Line 1, the figure “0.9995” is corrected to read “0.9994”.

    (2) Line 4, “0.9855” is corrected to read “0.9854”.

    b. First full paragraph, line 16, the figure “0.9851” is corrected to read “0.9850”.

    c. Last paragraph—

    (1) Line 2, the figure “0.9991”is corrected to read “0.9990”.

    (2) Line 4, “0.9995” is corrected to read “0.9994”.

    8. On page 57294—

    a. Top of the page—

    (1) Second column—

    (a) First full paragraph, line 17, the figure “$446.81” is corrected to read “$446.79”.

    (b) Second bulleted paragraph, line 6, the figure “0.9991” is corrected to read “0.9990”.

    (2) Third column, second full paragraph—

    (a) Line 13, the figure, “0.09” is corrected to read “0.10”.

    (b) Line 26, the figure, “1.84” is corrected to read “1.832”.

    b. Bottom of the page, the table titled “COMPARISON OF FACTORS AND ADJUSTMENTS: FY 2016 CAPITAL FEDERAL RATE AND FY 2017 CAPITAL FEDERAL RATE” is corrected to read as follows:

    Comparison of Factors and Adjustments: FY 2016 Capital Federal Rate and FY 2017 Capital Federal Rate FY 2016 FY 2017 Change Percent
  • change 3
  • Update Factor 1 1.0130 1.009 1.009 0.9 GAF/DRG Adjustment Factor 1 0.9976 0.9990 0.9990 −0.10 Outlier Adjustment Factor 2 0.9365 0.9386 1.0022 0.22 Permanent 2-midnight Policy Adjustment Factor N/A 1.002 1.002 0.2 One-Time 2-midnight Policy Adjustment Factor N/A 1.006 1.006 0.6 Capital Federal Rate $438.75 $446.79 1.0183 1.83 1 The update factor and the GAF/DRG budget neutrality adjustment factors are built permanently into the capital Federal rates. Thus, for example, the incremental change from FY 2016 to FY 2017 resulting from the application of the 0.9990 GAF/DRG budget neutrality adjustment factor for FY 2017 is a net change of 0.9990 (or −0.10 percent). 2 The outlier reduction factor is not built permanently into the capital Federal rate; that is, the factor is not applied cumulatively in determining the capital Federal rate. Thus, for example, the net change resulting from the application of the FY 2017 outlier adjustment factor is 0.9386/0.9365, or 1.0022 (or 0.22 percent). 3 Sum of individual changes may not match percent change in capital rate due to rounding.

    9. On page 57295—

    a. The top of the page, the table titled “COMPARISON OF FACTORS AND ADJUSTMENTS: PROPOSED FY 2017 CAPITAL FEDERAL RATE AND FINAL FY 2017 CAPITAL FEDERAL RATE” is corrected to read as follows:

    Comparison of Factors and Adjustments: Proposed FY 2017 Capital Federal Rate and Final FY 2017 Capital Federal Rate Proposed
  • FY 2017
  • Final
  • FY 2017
  • Change Percent
  • change
  • Update Factor 1 1.0090 1.0090 1.0000 0.00 GAF/DRG Adjustment Factor 1 0.9993 0.9990 0.9997 −0.03 Outlier Adjustment Factor 2 0.9374 0.9386 1.0013 0.13 Permanent 2-midnight Policy Adjustment Factor 1.002 1.002 1.000 0.00 One-Time 2-midnight Policy Adjustment Factor 1.006 1.006 1.000 0.00 Capital Federal Rate $446.35 $446.79 1.0010 0.10

    b. Lower three-fourths of the page, first column, second paragraph, line 21, the figure, “$23,570.” is corrected to read “$23,573.”

    10. On page 57307, second column, first full paragraph—

    a. Line 15, the figure “$23,570” is corrected to read “$23,573”.

    b. Line 35, the figure “$23,570” is corrected to read “$23,573”.

    11. On page 57312—

    a. Top of the page—

    (1) Table 1A titled “NATIONAL ADJUSTED OPERATING STANDARDIZED AMOUNTS, LABOR/NONLABOR (69.6 PERCENT LABOR SHARE/30.4 PERCENT NONLABOR SHARE IF WAGE INDEX IS GREATER THAN 1)—FY 2017” is corrected to read as follows:

    Table 1A—National Adjusted Operating Standardized Amounts, Labor/Nonlabor (69.6 Percent Labor Share/30.4 Percent Nonlabor Share if Wage Index Is Greater Than 1)—FY 2017 Hospital submitted quality data and is a meaningful EHR user
  • (update = 1.65 percent)
  • Labor Nonlabor Hospital submitted quality data and is NOT a meaningful EHR user
  • (update = −0.375 percent)
  • Labor Nonlabor Hospital did NOT submit quality data and is a meaningful EHR user
  • (update = 0.975 percent)
  • Labor Nonlabor Hospital did NOT submit quality data and is NOT a meaningful EHR user
  • (update = −1.05 percent)
  • Labor Nonlabor
    $3,839.23 $1,677.91 $3,762.75 $1,643.50 $3,813.74 $1,665.77 $3,737.25 $1,632.37

    (2) Table 1B titled “NATIONAL ADJUSTED OPERATING STANDARDIZED AMOUNTS, LABOR/NONLABOR (62 PERCENT LABOR SHARE/38 PERCENT NONLABOR SHARE IF WAGE INDEX IS LESS THAN OR EQUAL TO 1)—FY 2017” is corrected to read as follows:

    Table 1B—National Adjusted Operating Standardized Amounts, Labor/Nonlabor (62 Percent Labor Share/38 Percent Nonlabor Share if Wage Index Is Less Than or Equal to 1)—FY 2017 Hospital submitted quality data and is a meaningful EHR user
  • (update = 1.65 percent)
  • Labor Nonlabor Hospital submitted quality data and is NOT a meaningful EHR user
  • (update = −0.375 percent)
  • Labor Nonlabor Hospital did NOT submit quality data and is a meaningful EHR user
  • (update = 0.975 percent)
  • Labor Nonlabor Hospital did NOT submit quality data and is NOT a meaningful EHR user
  • (update = −1.05 percent)
  • Labor Nonlabor
    $3,420.01 $2,096.13 $3,351.88 $2,054.37 $3,397.30 $2,082.21 $3,329.16 $2,040.46

    b. Middle of the page—

    (1) Table 1C titled “ADJUSTED OPERATING STANDARDIZED AMOUNTS FOR HOSPITALS IN PUERTO RICO, LABOR/NONLABOR (NATIONAL: 62 PERCENT LABOR SHARE/38 PERCENT NONLABOR SHARE BECAUSE WAGE INDEX IS LESS THAN OR EQUAL TO 1);—FY 2017” is corrected to read as follows:

    Table 1C—Adjusted Operating Standardized Amounts for Hospitals in Puerto Rico, Labor/Nonlabor (National: 62 Percent Labor Share/38 Percent Nonlabor Share Because Wage Index Is Less Than or Equal to 1)—FY 2017 Standardized amount Rates if wage index is greater than 1 Labor Nonlabor Rates if wage index is less than or equal to 1 Labor Nonlabor National 1 Not Applicable Not Applicable $3,420.01 $2,096.13 1 For FY 2017, there are no CBSAs in Puerto Rico with a national wage index greater than 1.

    (2) Table 1D titled “CAPITAL STANDARD FEDERAL PAYMENT RATE—FY 2017” is corrected as follows:

    Table 1D—Capital Standard Federal Payment Rate—FY 2017 Rate National $446.79 C. Corrections of Errors in the Appendices

    1. On page 57312, bottom of the page, third column, first partial paragraph,

    a. Line 8, the figure “$987” is corrected to read “$990”.

    b. Line 10, the figure “$66” is corrected to read “$72”.

    2. On page 57315, upper three-fourths of the page—

    a. Second column, third full paragraph,

    (1) Line 7, the figure “1,380” is corrected to read “1,369”.

    (2) Line 9, the figure “1,135” is corrected to read “1,146”.

    b. Third column, first full paragraph, line 13—

    (1) The figure “1,372” is corrected to read “1,369”.

    (2) The figure “1,150” is corrected to read “1,153”.

    3. On pages 57315 through 57317, the table titled “TABLE I—IMPACT ANALYSIS OF CHANGES TO THE IPPS FOR OPERATING COSTS FOR FY 2017” is corrected to read as follows:

    Table I—Impact Analysis of Changes to the IPPS for Operating Costs for FY 2017 Number
  • of
  • hospitals 1
  • Hospital rate update and documentation and coding
  • adjustment
  • FY 2017 weights and DRG changes with
  • application of
  • recalibration budget
  • neutrality
  • FY 2017 Wage data under new CBSA designations with application of wage budget neutrality FY 2017
  • MGCRB
  • reclassifications
  • Rural and
  • imputed floor with
  • application of national rural and
  • imputed floor budget
  • neutrality
  • Application of the frontier wage index and
  • out-migration adjustment
  • All FY 2017 changes
    (1) 2 (2) 3 (3) 4 (4) 5 (5) 6 (6) 7 (7) 8 All Hospitals 3,330 1.0 0.0 0.0 0.0 0.0 0.1 0.9 By Geographic Location: Urban hospitals 2,515 0.9 0.0 0.0 −0.1 0.0 0.1 0.9 Large urban areas 1,369 0.9 0.1 0.0 −0.3 −0.1 0.0 0.9 Other urban areas 1,146 1.0 0.0 0.0 0.1 0.2 0.2 1.0 Rural hospitals 815 1.6 −0.4 0.1 1.3 −0.2 0.1 1.2 Bed Size (Urban): 0-99 beds 659 0.9 −0.2 0.2 −0.5 0.1 0.2 0.9 100-199 beds 767 1.0 −0.1 0.0 0.0 0.3 0.2 0.7 200-299 beds 446 1.0 −0.1 −0.1 0.1 0.0 0.1 0.8 300-499 beds 431 1.0 0.1 0.0 −0.2 0.1 0.2 0.9 500 or more beds 212 0.9 0.2 0.0 −0.2 −0.2 0.0 1.1 Bed Size (Rural): 0-49 beds 317 1.5 −0.5 0.1 0.2 −0.2 0.3 1.0 50-99 beds 292 1.8 −0.6 0.1 0.8 −0.2 0.1 1.2 100-149 beds 120 1.6 −0.4 0.0 1.5 −0.2 0.2 1.0 150-199 beds 46 1.7 −0.2 0.2 1.7 −0.3 0.0 1.3 200 or more beds 40 1.6 −0.1 0.2 2.5 −0.3 0.0 1.5 Urban by Region: New England 116 0.8 0.0 −0.5 1.1 0.9 0.1 −0.4 Middle Atlantic 315 0.9 0.1 −0.1 0.8 −0.2 0.1 0.9 South Atlantic 407 1.0 0.0 −0.2 −0.5 −0.3 0.1 0.9 East North Central 390 0.9 0.0 −0.1 −0.2 −0.4 0.0 1.0 East South Central 147 1.0 0.0 −0.1 −0.4 −0.3 0.0 1.2 West North Central 163 1.1 0.1 −0.1 −0.8 −0.4 0.7 1.0 West South Central 385 0.9 0.0 0.2 −0.5 −0.4 0.0 1.2 Mountain 163 1.1 0.0 0.1 −0.3 1.2 0.2 2.2 Pacific 378 0.9 0.0 0.4 −0.4 1.0 0.1 0.5 Puerto Rico 51 0.9 0.1 −0.5 −1.0 0.1 0.1 0.3 Rural by Region: New England 21 1.3 −0.2 0.3 1.4 −0.3 0.2 1.6 Middle Atlantic 54 1.7 −0.4 0.1 0.8 −0.2 0.1 1.6 South Atlantic 128 1.7 −0.5 −0.1 2.3 −0.3 0.1 1.0 East North Central 115 1.7 −0.4 0.0 1.0 −0.2 0.1 1.2 East South Central 155 1.1 −0.3 0.4 2.2 −0.4 0.1 1.0 West North Central 98 2.2 −0.4 0.0 0.2 −0.1 0.3 1.5 West South Central 160 1.5 −0.4 0.4 1.3 −0.3 0.1 1.2 Mountain 60 1.7 −0.4 0.1 0.2 −0.1 0.2 1.3 Pacific 24 1.9 −0.4 −0.3 1.3 −0.1 0.0 1.3 By Payment Classification: 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Urban hospitals 2,522 0.9 0.0 0.0 −0.1 0.0 0.1 0.9 Large urban areas 1,369 0.9 0.1 0.0 −0.3 −0.1 0.0 0.9 Other urban areas 1,153 1.0 0.0 0.0 0.1 0.2 0.2 1.0 Rural areas 808 1.6 −0.4 0.1 1.4 −0.2 0.1 1.2 Teaching Status: Nonteaching 2,266 1.1 −0.2 0.0 0.1 0.2 0.1 0.8 Fewer than 100 residents 815 1.0 0.0 0.0 −0.1 0.0 0.2 0.9 100 or more residents 249 0.9 0.2 0.0 −0.1 −0.2 0.0 1.1 Urban DSH: Non-DSH 589 0.9 −0.1 −0.2 0.2 0.0 0.2 0.8 100 or more beds 1,642 0.9 0.1 0.0 −0.1 0.0 0.1 0.9 Less than 100 beds 363 1.0 −0.3 0.0 −0.5 0.1 0.1 0.7 Rural DSH: SCH 240 2.0 −0.6 0.1 0.1 −0.1 0.0 1.4 RRC 325 1.7 −0.3 0.1 1.8 −0.2 0.0 1.3 100 or more beds 29 0.9 −0.4 0.1 2.9 −0.4 0.1 0.5 Less than 100 beds 142 0.8 −0.4 0.2 1.3 −0.4 0.7 0.2 Urban teaching and DSH: Both teaching and DSH 898 0.9 0.1 0.0 −0.2 −0.1 0.1 1.0 Teaching and no DSH 109 0.9 0.0 −0.1 1.1 0.0 0.0 0.7 No teaching and DSH 1,107 1.0 −0.1 0.1 −0.1 0.3 0.1 0.8 No teaching and no DSH 408 0.9 −0.1 −0.2 −0.4 0.0 0.2 0.9 Special Hospital Types: RRC 189 0.8 −0.1 0.1 1.9 0.0 0.5 1.2 SCH 324 2.1 −0.3 −0.1 0.0 0.0 0.0 1.7 MDH 148 1.7 −0.6 0.0 0.6 −0.1 0.1 1.3 SCH and RRC 126 2.2 −0.3 0.1 0.4 −0.1 0.0 1.8 MDH and RRC 12 2.1 −0.6 −0.1 1.3 −0.2 0.0 2.2 Type of Ownership: Voluntary 1,927 1.0 0.0 0.0 0.0 0.0 0.1 0.9 Proprietary 881 1.0 0.0 0.1 0.0 0.0 0.1 0.9 Government 522 1.0 0.0 −0.1 −0.2 0.0 0.1 0.9 Medicare Utilization as a Percent of Inpatient Days: 0-25 523 0.8 0.1 0.1 −0.3 0.2 0.0 1.1 25-50 2,122 1.0 0.0 0.0 0.0 −0.1 0.1 0.9 50-65 545 1.2 −0.2 −0.1 0.6 0.0 0.1 0.9 Over 65 89 1.2 −0.3 0.3 −0.4 0.2 0.2 1.0 FY 2017 Reclassifications by the Medicare Geographic Classification Review Board: All Reclassified Hospitals 791 1.1 −0.1 0.0 2.3 −0.2 0.0 0.9 Non−Reclassified Hospitals 2,539 1.0 0.0 0.0 −0.8 0.1 0.1 0.9 Urban Hospitals Reclassified 532 1.0 0.0 −0.1 2.3 −0.1 0.0 0.9 Urban Nonreclassified Hospitals 1,936 0.9 0.1 0.0 −0.9 0.1 0.1 0.9 Rural Hospitals Reclassified Full Year 277 1.7 −0.3 0.1 2.2 −0.2 0.0 1.3 Rural Nonreclassified Hospitals Full Year 489 1.6 −0.4 0.2 −0.2 −0.2 0.3 1.1 All Section 401 Reclassified Hospitals: 72 1.7 −0.2 0.0 0.3 −0.1 0.9 1.5 Other Reclassified Hospitals (Section 1886(d)(8)(B)) 48 1.2 −0.4 0.1 3.1 −0.4 0.0 0.8 1 Because data necessary to classify some hospitals by category were missing, the total number of hospitals in each category may not equal the national total. Discharge data are from FY 2015, and hospital cost report data are from reporting periods beginning in FY 2012 and FY 2013. 2 This column displays the payment impact of the hospital rate update and other adjustments including the 1.65 percent adjustment to the national standardized amount and hospital-specific rate (the estimated 2.7 percent market basket update reduced by 0.3 percentage points for the multifactor productivity adjustment and the 0.75 percentage point reduction under the Affordable Care Act), the −1.5 percent documentation and coding adjustment to the national standardized amount and the adjustment of (1/0.998) to permanently remove the −0.2 percent reduction, and the 1.006 temporary adjustment to address the effects of the 0.2 percent reduction in effect for FYs 2014 through 2016 related to the 2-midnight policy. 3 This column displays the payment impact of the changes to the Version 34 GROUPER, the changes to the relative weights and the recalibration of the MS DRG weights based on FY 2015 MedPAR data in accordance with section 1886(d)(4)(C)(iii) of the Act. This column displays the application of the recalibration budget neutrality factor of 0.999078 in accordance with section 1886(d)(4)(C)(iii) of the Act. 4 This column displays the payment impact of the update to wage index data using FY 2013 cost report data and the OMB labor market area delineations based on 2010 Decennial Census data. This column displays the payment impact of the application of the wage budget neutrality factor, which is calculated separately from the recalibration budget neutrality factor, and is calculated in accordance with section 1886(d)(3)(E)(i) of the Act. The wage budget neutrality factor is 1.000210. 5 Shown here are the effects of geographic reclassifications by the Medicare Geographic Classification Review Board (MGCRB) along with the effects of the continued implementation of the new OMB labor market area delineations on these reclassifications. The effects demonstrate the FY 2017 payment impact of going from no reclassifications to the reclassifications scheduled to be in effect for FY 2017. Reclassification for prior years has no bearing on the payment impacts shown here. This column reflects the geographic budget neutrality factor of 0.988136. 6 This column displays the effects of the rural and imputed floor based on the continued implementation of the new OMB labor market area delineations. The Affordable Care Act requires the rural floor budget neutrality adjustment to be 100 percent national level adjustment. The rural floor budget neutrality factor (which includes the imputed floor) applied to the wage index is 0.991987. This column also shows the effect of the 3-year transition for hospitals that were located in urban counties that became rural under the new OMB delineations or hospitals deemed urban where the urban area became rural under the new OMB delineations, with a budget neutrality factor of 0.999997. 7 This column shows the combined impact of the policy required under section 10324 of the Affordable Care Act that hospitals located in frontier States have a wage index no less than 1.0 and of section 1886(d)(13) of the Act, as added by section 505 of Public Law 108-173, which provides for an increase in a hospital's wage index if a threshold percentage of residents of the county where the hospital is located commute to work at hospitals in counties with higher wage indexes. These are not budget neutral policies. 8 This column shows the estimated change in payments from FY 2016 to FY 2017.

    4. On page 57319,

    a. First column, second full paragraph,

    (1) Line 6, the figure “0.988224” is corrected to read “0.988136”.

    (2) Line 13, the figure “1.4” is corrected to read “1.3”.

    b. Second column—

    (1) First full paragraph—

    (a) Line 8, the figure “0.9930” is corrected to read “0.991987”.

    (b) Line 9, the figure “0.7” is corrected to read “0.8”.

    (2) Third full paragraph—

    (a) Line 1, the figure “397” is corrected to read “436”.

    (b) Line 5—

    (1) The figure “0.9930” is corrected to read “0.991987”.

    (2) The figure “0.7” is corrected to read “0.8”.

    (c) Line 23, the figure “1.0” is corrected to read “0.9”.

    (d) Line 31, the figure “$24” is corrected to read “$22”.

    (e) Line 33, the figure “0.7” is corrected to read “0.6”.

    c. Third column—

    (1) First full paragraph,

    (a) Line 7, the figure “$10” is corrected to read “$6.4”.

    (b) Line 18, the figure “$17” is corrected to read “$18”.

    (2) Second full paragraph, line 28, the figure “0.999994” is corrected to read “0.999997”.

    5. On page 57320, the table titled “FY 2017 IPPS Estimated Payments Due to Rural Floor and Imputed Floor with National Budget Neutrality” is corrected to read as follows:

    FY 2017 IPPS Estimated Payments Due to Rural and Imputed Floor With National Budget Neutrality State Number of
  • hospitals
  • Number of
  • hospitals that will receive the rural floor or imputed floor
  • Percent change in payments due to application of rural floor and imputed floor with budget neutrality Difference
  • (in $ millions)
  • (1) (2) (3) (4) Alabama 83 6 −0.3 −6 Alaska 6 4 2.1 4 Arizona 57 46 3.5 63 Arkansas 44 0 −0.4 −4 California 301 186 1.3 131 Colorado 48 3 0.2 3 Connecticut 31 8 0.2 4 Delaware 6 2 0 0 Washington, DC 7 0 −0.4 −1 Florida 171 16 −0.3 −2 Georgia 105 0 −0.4 −18 Hawaii 12 0 −0.3 −10 Idaho 14 0 −0.3 −1 Illinois 126 3 −0.4 −1 Indiana 89 0 −0.4 −19 Iowa 35 0 −0.4 −11 Kansas 53 0 −0.3 −4 Kentucky 65 0 −0.4 −3 Louisiana 95 2 −0.4 −6 Maine 18 0 −0.4 −5 Massachusetts 58 15 0.6 −2 Michigan 95 0 −0.4 22 Minnesota 49 0 −0.3 −18 Mississippi 62 0 −0.4 −6 Missouri 74 2 −0.3 −4 Montana 12 4 0.3 −8 Nebraska 26 0 −0.3 1 Nevada 24 3 −0.2 −2 New Hampshire 13 9 2.2 −2 New Jersey 64 18 0.2 11 New Mexico 25 0 −0.3 6 New York 154 21 −0.3 −1 North Carolina 84 1 −0.4 −20 North Dakota 6 1 −0.3 −12 Ohio 130 10 −0.4 −1 Oklahoma 86 2 −0.3 −13 Oregon 34 2 −0.4 −4 Pennsylvania 151 5 −0.4 −4 Puerto Rico 51 12 0.1 −20 Rhode Island 11 10 4.7 0 South Carolina 57 5 −0.1 18 South Dakota 18 0 −0.2 −2 Tennessee 92 20 −0.3 −1 Texas 320 3 −0.4 −7 Utah 33 1 −0.3 −26 Vermont 6 0 −0.2 −2 Virginia 76 1 −0.3 −1 Washington 49 6 −0.1 −8 West Virginia 29 3 −0.2 −1 Wisconsin 65 6 −0.3 −5 Wyoming 10 0 −0.1 0

    6. On page 57321, second column, first partial paragraph —

    a Line 1, the figure “277” is corrected to read “278”.

    b Line 7, the figure “1.0” is corrected to read “0.9”.

    7. On pages 57321 through 57323, the table titled “TABLE II—IMPACT ANALYSIS OF CHANGES FOR FY 2017 ACUTE CARE HOSPITAL OPERATING PROSPECTIVE PAYMENT SYSTEM [PAYMENTS PER DISCHARGE]” is corrected to read as follows:

    Table II—Impact Analysis of Changes for FY 2017 Acute Care Hospital Operating Prospective Payment System [Payments per discharge] Number of hospitals Estimated
  • average
  • FY 2016
  • payment per
  • discharge
  • Estimated
  • average FY 2017
  • payment per
  • discharge
  • FY 2017
  • changes
  • (1) (2) (3) (4) All Hospitals 3,330 $11,542 $11,649 0.9 By Geographic Location: Urban hospitals 2,515 11,890 11,997 0.9 Large urban areas 1,369 12,690 12,799 0.9 Other urban areas 1,146 10,946 11,051 1.0 Rural hospitals 815 8,602 8,707 1.2 Bed Size (Urban): 0-99 beds 659 9,392 9,478 0.9 100-199 beds 767 10,050 10,117 0.7 200-299 beds 446 10,757 10,840 0.8 300-499 beds 431 12,092 12,202 0.9 500 or more beds 212 14,613 14,772 1.1 Bed Size (Rural): 0-49 beds 317 7,208 7,279 1.0 50-99 beds 292 8,192 8,292 1.2 100-149 beds 120 8,434 8,519 1.0 150-199 beds 46 9,243 9,367 1.3 200 or more beds 40 10,171 10,320 1.5 Urban by Region: New England 116 12,957 12,901 −0.4 Middle Atlantic 315 13,471 13,593 0.9 South Atlantic 407 10,498 10,595 0.9 East North Central 390 11,190 11,303 1.0 East South Central 147 10,042 10,160 1.2 West North Central 163 11,578 11,692 1.0 West South Central 385 10,693 10,820 1.2 Mountain 163 12,279 12,549 2.2 Pacific 378 15,372 15,452 0.5 Puerto Rico 51 8,491 8,513 0.3 Rural by Region: New England 21 11,818 12,009 1.6 Middle Atlantic 54 8,655 8,791 1.6 South Atlantic 128 8,043 8,122 1.0 East North Central 115 8,918 9,023 1.2 East South Central 155 7,639 7,716 1.0 West North Central 98 9,420 9,560 1.5 West South Central 160 7,243 7,328 1.2 Mountain 60 10,100 10,228 1.3 Pacific 24 12,045 12,197 1.3 By Payment Classification: Urban hospitals 2,522 11,886 11,993 0.9 Large urban areas 1,369 12,690 12,799 0.9 Other urban areas 1,153 10,940 11,046 1.0 Rural areas 808 8,602 8,706 1.2 Teaching Status: Nonteaching 2,266 9,600 9,680 0.8 Fewer than 100 residents 815 11,133 11,231 0.9 100 or more residents 249 16,764 16,949 1.1 Urban DSH: Non-DSH 589 10,055 10,140 0.8 100 or more beds 1,642 12,247 12,359 0.9 Less than 100 beds 363 8,853 8,914 0.7 Rural DSH: SCH 240 8,584 8,702 1.4 RRC 325 9,006 9,123 1.3 100 or more beds 29 7,018 7,054 0.5 Less than 100 beds 142 6,823 6,838 0.2 Urban teaching and DSH: Both teaching and DSH 898 13,344 13,474 1.0 Teaching and no DSH 109 11,361 11,442 0.7 No teaching and DSH 1,107 10,047 10,124 0.8 No teaching and no DSH 408 9,455 9,539 0.9 Special Hospital Types: RRC 189 9,709 9,824 1.2 SCH 324 10,344 10,516 1.7 MDH 148 7,321 7,415 1.3 SCH and RRC 126 10,767 10,957 1.8 MDH and RRC 12 8,822 9,019 2.2 Type of Ownership: Voluntary 1,927 11,719 11,830 0.9 Proprietary 881 10,130 10,218 0.9 Government 522 12,485 12,596 0.9 Medicare Utilization as a Percent of Inpatient Days: 0-25 523 14,996 15,160 1.1 25-50 2,122 11,460 11,562 0.9 50-65 545 9,343 9,431 0.9 Over 65 89 6,948 7,019 1.0 FY 2017 Reclassifications by the Medicare Geographic Classification Review Board: All Reclassified Hospitals 791 11,399 11,507 0.9 Non-Reclassified Hospitals 2,539 11,595 11,701 0.9 Urban Hospitals Reclassified 532 12,008 12,115 0.9 Urban Nonreclassified Hospitals 1,936 11,849 11,955 0.9 Rural Hospitals Reclassified Full Year 277 8,984 9,101 1.3 Rural Nonreclassified Hospitals Full Year 489 8,173 8,266 1.1 All Section 401 Reclassified Hospitals 72 11,307 11,474 1.5 Other Reclassified Hospitals (Section 1886(d)(8)(B)) 48 7,889 7,954 0.8

    7. On page 57324, top of the page, third column, last paragraph, line 1, the figure “2,426” is corrected to read “2,419”.

    8. On pages 57324 and 57325, the table titled “Modeled Disproportionate Share Hospital Payments for Estimated FY 2017 DSHs by Hospital Type: Model DSH $ (In Millions) From FY 2016 to FY 2017” is corrected to read as follows:

    Modeled Disproportionate Share Hospital Payments for Estimated FY 2017 DSHS by Hospital Type: Model DSH $ (in Millions) From FY 2016 to FY 2017 Number of
  • DSHs
  • (FY 2017)
  • FY 2016
  • final
  • rule estimated
  • DSH $ *
  • (in millions)
  • FY 2017
  • final
  • rule estimated
  • DSH $ *
  • (in millions)
  • Dollar
  • difference:
  • FY 2017-
  • FY 2016
  • (in millions)
  • Percent
  • change **
  • (1) (2) (3) (4) (5) Total 2,419 $9,767 $9,551 −$216 −2.2 By Geographic Location: Urban Hospitals 1,921 9,294 9,106 −188 −2.0 Large Urban Areas 1,045 5,885 5,765 −120 −2.0 Other Urban Areas 876 3,408 3,341 −68 −2.0 Rural Hospitals 498 473 445 −28 −5.9 Bed Size (Urban): 0 to 99 Beds 336 189 185 −4 −2.2 100 to 249 Beds 837 2,211 2,154 −57 −2.6 250+ Beds 748 6,894 6,767 −127 −1.8 Bed Size (Rural): 0 to 99 Beds 368 206 190 −16 −7.8 100 to 249 Beds 116 211 199 −12 −5.5 250+ Beds 14 56 56 0 −0.2 Urban by Region: East North Central 322 1,273 1,252 −22 −1.7 East South Central 129 574 566 −8 −1.4 Middle Atlantic 232 1,614 1,570 −44 −2.7 Mountain 125 448 448 0 −0.1 New England 90 394 385 −9 −2.4 Pacific 312 1,459 1,448 −10 −0.7 Puerto Rico 41 104 116 12 11.3 South Atlantic 314 1,777 1,721 −56 −3.2 West North Central 104 451 439 −11 −2.5 West South Central 252 1,200 1,161 −39 −3.2 Rural by Region: East North Central 64 49 44 −4 −8.3 East South Central 141 149 141 −8 −5.3 Middle Atlantic 28 34 33 −1 −2.4 Mountain 21 16 15 0 −0.2 New England 11 15 16 1 7.2 Pacific 7 9 7 −3 −27.4 South Atlantic 86 98 92 −6 −6.4 West North Central 31 20 19 −1 −6.3 West South Central 109 83 78 −6 −7.0 By Payment Classification: Urban Hospitals 1,886 9,243 9,055 −188 −2.0 Large Urban Areas 1,043 5,884 5,764 −120 −2.0 Other Urban Areas 843 3,359 3,292 −68 −2.0 Rural Hospitals 533 523 496 −28 −5.3 Teaching Status: Nonteaching 1,544 3,117 3,053 −64 −2.1 Fewer than 100 residents 637 3,213 3,132 −81 −2.5 100 or more residents 238 3,437 3,366 −71 −2.1 Type of Ownership: Voluntary 1,405 6,044 5,913 −131 −2.2 Proprietary 541 1,672 1,629 −43 −2.6 Government 471 2,023 1,983 −40 −2.0 Unknown 2 27 25 −2 −6.1 Medicare Utilization Percent: Missing or Unknown 4 1 1 0 0.9 0 to 25 428 3,013 2,974 −39 −1.3 25 to 50 1,617 6,356 6,189 −166 −2.6 50 to 65 319 385 375 −10 −2.5 Greater than 65 51 12 11 −1 −8.2 Source: Dobson | DaVanzo analysis of 2011-2013 Hospital Cost Reports. * Dollar DSH calculated by [0.25 * estimated section 1886(d)(5)(F) payments] + [0.75 * estimated section 1886(d)(5)(F) payments * Factor 2 * Factor 3]. When summed across all hospitals projected to receive DSH payments, DSH payments are estimated to be $9,767 million in FY 2016 and $9,551 million in FY 2017. ** Percentage change is determined as the difference between Medicare DSH payments modeled for the FY 2017 IPPS/LTCH PPS final rule (column 3) and Medicare DSH payments modeled for the FY 2016 IPPS/LTCH PPS final rule (column 2) divided by Medicare DSH payments modeled for the FY 2016 final rule (column 2) times 100 percent.

    9. On page 57325, bottom of the page, third column, last paragraph, line 8, the figure “6.4” is corrected to read “5.9”.

    10. On page 57326, first column—

    a. First partial paragraph—

    (1) Line 7 the figure “5.2” is corrected to read “5.5”.

    (2) Line 8, the figure “5.9” is corrected to read “0.2”.

    b. First full paragraph, line 12, the figure “11.4” is corrected to read “11.3”.

    c. Third full paragraph (last paragraph)—

    (1) Line 12, the figure “11.4” is corrected to read “11.3”.

    (2) Line 18, the figure “$9.5 million” is corrected to read “$9.4 million”.

    11. On page 57330, third column—

    a. Fourth bulleted paragraph, line 4, the figure “0.9991” is corrected to read “0.9990”.

    b. Last paragraph, line 6, the figure “1.84” is corrected to read “1.83”.

    12. On page 57331, top half of the page—

    a. First column—

    (1) First partial paragraph—

    (a) Line 1, the phrase “Less than half of the hospitals” is corrected to read “Most of the hospitals”.

    (b) Lines 4 through 6, the phrase “the effects of changes to the GAFs, while the remainder of these urban area hospitals would experience no change or a decrease in” is corrected to read “the effects of changes to the GAFs, while hospitals in one urban area are expected to experience a decrease in”.

    (c) Line 11, the phrase “except for two rural areas where changes in” is corrected to read, “except for one rural area where changes in”.

    (2) Third paragraph, lines 8 and line 9, the phrase “0.7 percent, while hospitals in rural areas, on average, are expected to experience a 0.8” is corrected to read “0.7 percent, and hospitals in rural areas, on average, are also expected to experience a 0.7”.

    b. Second column—

    (1) First partial paragraph, lines 2 through 6, the sentence “The primary factor contributing to the small difference in the projected increase in capital IPPS payments per case for urban hospitals as compared to rural hospitals is the changes to the GAFs.” is corrected by deleting the sentence.

    (2) First full paragraph—

    (a) Lines 4 through 8, “range from a 4.2 percent increase for the Puerto Rico urban hospitals, and a 1.4 percent increase for the West South Central urban region to a 0.7 percent increase for the Mountain urban region.” is corrected to read “range from a 4.1 percent increase for the Puerto Rico urban hospitals, and a 2.1 percent increase for the Mountain urban region to a 0.7 percent increase for several other urban regions.”.

    (b) Line 13, the figure “4.2” is corrected to read “4.1”.

    (c) Line 23, the figure “1.6” is corrected to read “2.1”.

    (d) Line 26, the figure “0.4” should read “0.1”.

    c. Third column—

    (1) First full paragraph, line 9, the figure “0.7” is corrected to read “0.6”.

    (2) Second full paragraph—

    (a) Line 13, the figure “1.0” is corrected to read “0.9”.

    (b) Line 17, the figure “1.0” is corrected to read “0.9”.

    (c) Line 20, the figure “0.2” is corrected to read “0.3”.

    13. On pages 57331 and 57332, the table titled “Table III.—Comparison of Total Payments Per Case [FY 2016 Payments Compared To FY 2017 Payments]” is corrected to read as follows:

    Table III—Comparison of Total Payments per Case [FY 2016 payments compared to FY 2017 payments] Number of
  • hospitals
  • Average FY 2016
  • payments/case
  • Average FY 2017
  • payments/case
  • Change
    By Geographic Location: All hospitals 3,330 912 920 0.8 Large urban areas (populations over 1 million) 1,369 1,011 1,019 0.7 Other urban areas (populations of 1 million of fewer) 1,146 871 879 0.9 Rural areas 815 618 623 0.7 Urban hospitals 2,515 947 955 0.8 0-99 beds 659 768 774 0.8 100-199 beds 767 824 829 0.6 200-299 beds 446 865 871 0.7 300-499 beds 431 958 967 0.9 500 or more beds 212 1,139 1,149 0.9 Rural hospitals 815 618 623 0.7 0-49 beds 317 520 524 0.7 50-99 beds 292 577 582 0.8 100-149 beds 120 610 614 0.6 150-199 beds 46 669 673 0.6 200 or more beds 40 738 745 0.9 By Region: Urban by Region 2,515 947 955 0.8 New England 116 1,031 1,024 −0.6 Middle Atlantic 315 1,056 1,064 0.7 South Atlantic 407 840 847 0.8 East North Central 390 908 915 0.8 East South Central 147 793 804 1.3 West North Central 163 923 930 0.7 West South Central 385 858 868 1.1 Mountain 163 977 998 2.1 Pacific 378 1,219 1,227 0.7 Puerto Rico 51 435 453 4.1 Rural by Region 815 618 623 0.7 New England 21 868 878 1.1 Middle Atlantic 54 591 603 2.1 South Atlantic 128 584 584 0.0 East North Central 115 638 643 0.9 East South Central 155 562 566 0.9 West North Central 98 666 668 0.4 West South Central 160 536 542 1.2 Mountain 60 718 717 −0.1 Pacific 24 804 812 1.0 By Payment Classification: All hospitals 3,330 912 920 0.8 Large urban areas (populations over 1 million) 1,369 1,011 1,019 0.7 Other urban areas (populations of 1 million of fewer) 1,153 870 878 0.9 Rural areas 808 619 623 0.7 Teaching Status: Non-teaching 2,266 771 776 0.7 Fewer than 100 Residents 815 885 892 0.8 100 or more Residents 249 1,287 1,298 0.9 Urban DSH: 100 or more beds 1,642 968 976 0.8 Less than 100 beds 363 696 702 0.8 Rural DSH: Sole Community (SCH/EACH) 240 575 581 1.0 Referral Center (RRC/EACH) 325 649 654 0.7 Other Rural: 100 or more beds 29 538 540 0.4 Less than 100 beds 142 526 528 0.3 Urban teaching and DSH: Both teaching and DSH 898 1,043 1,052 0.9 Teaching and no DSH 109 942 948 0.6 No teaching and DSH 1,107 813 820 0.8 No teaching and no DSH 408 815 820 0.6 Rural Hospital Types: Non special status hospitals 2,529 948 955 0.7 RRC/EACH 189 772 782 1.4 SCH/EACH 324 706 716 1.4 SCH, RRC and EACH 126 748 756 1.1 Hospitals Reclassified by the Medicare Geographic Classification Review Board: FY2017 Reclassifications: All Urban Reclassified 532 953 962 0.9 All Urban Non-Reclassified 1,936 948 955 0.7 All Rural Reclassified 277 650 655 0.9 All Rural Non-Reclassified 489 578 580 0.3 Other Reclassified Hospitals (Section 1886(d)(8)(B)) 42 599 602 0.5 Type of Ownership: Voluntary 1,927 926 934 0.8 Proprietary 881 820 827 0.8 Government 522 963 969 0.6 Medicare Utilization as a Percent of Inpatient Days: 0-25 523 1,103 1,114 1.0 25-50 2,122 916 923 0.8 50-65 545 745 750 0.7 Over 65 89 529 531 0.4

    14. On page 57342—

    a. Top of the page—

    (1) First column, first full paragraph—

    (a) Line 11, the figure “987” is corrected to read “990”.

    (b) Line 23, the figure “809” is corrected to read “811”.

    (2) Second column, first partial paragraph—

    (a) Line 12, the figure “809” is corrected to read “811”.

    (b) Line 14, the figure”680” is corrected to read “683”.

    (c) Line 19, the figure “66” is corrected to read “72”.

    (d) Line 23, the figure “746” is corrected to read “755”.

    b. Middle of the page, the table titled “TABLE V—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED EXPENDITURES UNDER THE IPPS FROM FY 2016 TO FY 2017” is corrected to read as follows:

    Table V—Accounting Statement: Classification of Estimated Expenditures Under the IPPS From FY 2016 to FY 2017 Category Transfers Annualized Monetized Transfers $755 million. From Whom to Whom Federal Government to IPPS Medicare Providers. Dated: September 29, 2016. Madhura Valverde, Executive Secretary to the Department, Department of Health and Human Services.
    [FR Doc. 2016-24042 Filed 9-30-16; 11:15 am] BILLING CODE 4120-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R4-ES-2015-0132; 4500030113] RIN 1018-AZ09 Endangered and Threatened Wildlife and Plants; Threatened Species Status for Kentucky Arrow Darter With 4(d) Rule AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), determine threatened species status under the Endangered Species Act of 1973 (Act), as amended, for Kentucky arrow darter (Etheostoma spilotum), a fish species from the upper Kentucky River basin in Kentucky. The effect of this regulation will be to add this species to the List of Endangered and Threatened Wildlife. We are also adopting a rule under section 4(d) of the Act (a “4(d) rule”) to further provide for the conservation of the Kentucky arrow darter.

    DATES:

    This rule becomes effective November 4, 2016.

    ADDRESSES:

    This final rule is available on the internet at http://www.regulations.gov and http://www.fws.gov/frankfort/. Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at http://www.regulations.gov. Comments, materials, and documentation that we considered in this rulemaking will be available by appointment, during normal business hours at: U.S. Fish and Wildlife Service, Kentucky Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    FOR FURTHER INFORMATION CONTACT:

    Virgil Lee Andrews, Jr., Field Supervisor, U.S. Fish and Wildlife Service, Kentucky Ecological Services Field Office, 330 West Broadway, Suite 265, Frankfort, KY 40601; telephone 502-695-0468, x108; facsimile 502-695-1024. 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 Endangered Species Act (Act), we may list a species if it is endangered or threatened throughout all or a significant portion of its range. Listing a species as an endangered or threatened species can only be completed by issuing a rule.

    What this document does. This rule finalizes the listing of the Kentucky arrow darter (Etheostoma spilotum) as a threatened species. It also includes provisions published under section 4(d) of the Act that are necessary and advisable for the conservation of the Kentucky arrow darter.

    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. This decision to list the Kentucky arrow darter as threatened is based on three of the five factors (A, D, and E).

    Under section 4(d) of the Act, the Secretary of the Interior has discretion to issue such regulations as she deems necessary and advisable to provide for the conservation of threatened species. The Secretary also has the discretion to prohibit by regulation, with respect to a threatened species, any act prohibited by section 9(a)(1) of the Act.

    Summary of the major provisions of the 4(d) rule. The regulations in title 50 of the Code of Federal Regulations at 50 CFR 17.31(a) apply to threatened wildlife all the general prohibitions for endangered wildlife set forth at 50 CFR 17.21, and 50 CFR 17.31(c) states that whenever a 4(d) rule applies to a threatened species, the provisions of § 17.31(a) do not apply to that species. The regulations at 50 CFR 17.32 contain permit provisions for threatened species.

    Some activities that would normally be prohibited under 50 CFR 17.31 and 17.32 will contribute to the conservation of the Kentucky arrow darter because habitat within some of the physically degraded streams must be improved before they are suitable for the species. Therefore, the Service has authorized certain species-specific exceptions for the Kentucky arrow darter under section 4(d) of the Act that may be appropriate to promote the conservation of this species. This 4(d) rule also exempts from the general prohibitions in 50 CFR 17.32 take that is incidental to the following activities when conducted within habitats currently occupied by the Kentucky arrow darter:

    (1) Channel reconfiguration or restoration projects that create natural, physically stable, ecologically functioning streams (or stream and wetland systems) that are reconnected with their groundwater aquifers.

    (2) Bank stabilization projects that use bioengineering methods specified by the Kentucky Energy and Environment Cabinet and the Kentucky Transportation Cabinet.

    (3) Bridge and culvert replacement/removal projects that remove migration barriers (e.g., collapsing, blocked, or perched culverts) or generally allow for improved upstream and downstream movements of Kentucky arrow darters.

    (4) Repair and maintenance of U.S. Forest Service (USFS) concrete plank stream crossings in the Daniel Boone National Forest (DBNF).

    Peer review and public comment. We sought comments from independent specialists to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment on our listing proposal. We also considered all comments and information received during the comment period.

    Elsewhere in this Federal Register, we finalize designation of critical habitat for the Kentucky arrow darter under the Act.

    Previous Federal Action

    Please refer to the proposed listing rule for the Kentucky arrow darter (80 FR 60962, October 8, 2015) for a detailed description of previous Federal actions concerning this species.

    Summary of Comments and Recommendations

    In the proposed rule published on October 8, 2015 (80 FR 60962), we requested that all interested parties submit written comments on the proposal by December 7, 2015. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Lexington Herald-Leader and Louisville Courier Journal. We did not receive any requests for a public hearing. During the comment period, we received 47 comment letters in response to the proposed rule: 5 from peer reviewers, 1 from a State agency, and 41 from organizations or individuals. Two comment letters from organizations were accompanied by petitions containing a total of 15,388 signatures of persons supporting the proposed listing. Another organization submitted a separate comment letter on behalf of itself and 14 other organizations. None of the 47 comment letters objected to the proposed rule to list the Kentucky arrow darter as threatened. All substantive information provided during the comment period has either been incorporated directly into this final determination or addressed below.

    Peer Reviewer Comments

    In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from seven knowledgeable individuals with scientific expertise that included familiarity with Kentucky arrow darter and its habitat, biological needs, and threats. We received responses from five of the peer reviewers.

    We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the listing of Kentucky arrow darter. The peer reviewers all generally concurred with our methods and conclusions and provided additional information on the taxonomy, life history, and threats; technical clarifications; and suggestions to improve the final rule. The comments and supplementary information provided by the peer reviewers improved the final version of this document, and we thank them for their efforts. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

    (1) Comment: One peer reviewer stated that the Service should include any new information on growth, feeding, reproduction, or spawning of the Kentucky arrow darter obtained from recent captive-propagation efforts by Conservation Fisheries, Inc. (CFI) in Knoxville, Tennessee.

    Our Response: New observations on spawning behavior and the growth and viability of eggs and larvae were made by CFI during recent captive-propagation efforts (2010 to present). We have incorporated language summarizing these findings under the BackgroundHabitat and Life History section of this final listing determination.

    (2) Comment: Two of the peer reviewers asked that we discuss the detectability of the Kentucky arrow darter during survey efforts and how this could affect our conclusions regarding the status of the species. More specifically, the peer reviewers raised the issue of imperfect detection, which is the inability of the surveyor to detect a species (even if present) due to surveyor error, low-density or rareness of the target species, or confounding variables such as environmental conditions (e.g., stream flow). The peer reviewers asked the Service to explain how it accounted for imperfect detection when evaluating the species' current distribution and status.

    Our Response: We recognize the importance and significance of imperfect detection when conducting surveys for rare or low-density species, and we agree that is possible a species can go undetected within a particular survey reach when it is actually present. However, we are also required, by statute and regulation, to base our determinations solely on the basis of the best scientific and commercial data available. We are confident that the survey data available to us at the time we prepared our proposed listing determination represented the best scientific and commercial data available. These data were collected by well-trained, professional biologists, who employed similar sampling techniques (single-pass electrofishing) across the entire potential range of the Kentucky arrow darter, which included historical darter locations, random locations, and locations associated with regulatory permitting, such as mining or transportation. Nearly 245 surveys were conducted for the species between 2007 and 2015, and the results of these surveys revealed a clear trend of habitat degradation and range curtailment for the species. Kentucky arrow darters may have gone undetected at a few sites (i.e., our detection of the species may have been imperfect at a few collection sites), but the species' overall decline and pattern of associated habitat degradation (e.g., elevated conductivity) was clear based on our review of available survey data.

    (3) Comment: One peer reviewer pointed out that some information we included on the reproductive behavior of the Kentucky arrow darter was actually based on research conducted on its closest relative, the Cumberland arrow darter (Etheostoma sagitta).

    Our Response: We concur with the peer reviewer and have incorporated language to address this topic under the BackgroundHabitat and Life History section of this final listing determination.

    (4) Comment: Two peer reviewers suggested we expand our discussion of the effects of elevated conductivity on aquatic communities by including additional information related to the vulnerability of salamanders or other aquatic organisms.

    Our Response: We have added language to address this topic under the Factor A. The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range—Water Quality Degradation section of this final listing determination.

    (5) Comment: One peer reviewer recommended we discuss the potential threat posed by anthropogenic barriers (e.g., perched culverts).

    Our Response: We added language to address this topic under the Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence—Restricted Range and Population Size section of this final listing determination.

    (6) Comment: One peer reviewer suggested that the spatial degree of impacts facing the Kentucky arrow darter could be more accurately estimated using the Kentucky Division of Water's probabilistic sampling data from the upper Kentucky River basin, as opposed to relying on data generated from fixed monitoring sites across the species' range.

    Our Response: We agree with the peer reviewer and have added language to address this topic under the Factor A. The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range section of this final listing determination.

    (7) Comment: One peer reviewer offered new information on gill parasites and sewage bacteria, suggesting that these organisms represent potential threats to the Kentucky arrow darter under Factor C. Disease or Predation.

    Our Response: We agree with the peer reviewer that these organisms have the potential to adversely affect the Kentucky arrow darter, and we have added language to address this topic under the Factor C. Disease or Predation section of this final listing determination.

    (8) Comment: One peer reviewer commented that generalized natural channel design projects (i.e., Rosgen) may not be sufficient under provisions of the proposed section 4(d) rule, and individual designs would be needed to benefit the Kentucky arrow darter.

    Our Response: In the proposed listing determination, we proposed a species-specific section 4(d) rule to further promote the conservation of the Kentucky arrow darter. We concluded that activities such as stream reconfiguration/riparian restoration, bridge and culvert replacement or removal, bank stabilization, and stream crossing repair and maintenance would improve or restore physical habitat quality for the species and would provide an overall conservation benefit to the species. We concur with the peer reviewer that, under the proposed 4(d) rule, generalized stream restoration designs may not be sufficient to benefit the species. For this reason, the Service provided references and detailed descriptions of stream reconfigurations in the proposed rule, with an emphasis on stability, ecological function, and reconnection with groundwater systems.

    (9) Comment: One peer reviewer and one other commenter stated that the Service needed to clarify potentially conflicting statements regarding threats under Factor D (the inadequacy of the Surface Mining Control and Reclamation Act (SMCRA) as an existing regulatory mechanism) and our conclusion that surface coal mining and reclamation activities conducted in accordance with the 1996 biological opinion (1996 BO) between the Service and the Office of Surface Mining Reclamation and Enforcement (OSM) are unlikely to result in a violation of section 9 of the Act.

    Our Response: The peer reviewer and commenter are correct in stating that we considered existing regulatory mechanisms such as SMCRA to be inadequate in protecting the Kentucky arrow darter and its habitats. Habitats across the species' range have been degraded by water pollution and sedimentation associated with coal mining (e.g., elevated conductivity), and there is evidence of recent extirpations in watersheds impacted by mining (16 historical streams since the mid-1990s).

    In the Provisions of the 4(d) Rule section of the proposed listing rule, we also stated that surface coal mining and reclamation activities, if conducted in accordance with existing regulations and permit conditions, would not result in violations of section 9 of the ESA. The 1996 BO is the result of a formal section 7 consultation between OSM and the Service on OSM's approval of State regulatory programs (primacy) under SMCRA. In Kentucky, the State has approved primacy under SMCRA and, therefore, operates under the 1996 BO to address adverse effects to federally listed species. Under the 1996 BO, SMCRA regulatory authorities are exempt from prohibitions of section 9 of the ESA if they comply with the terms and conditions of the 1996 BO. The terms and conditions of the 1996 BO require that each SMCRA regulatory authority implement and comply with species-specific protective measures for federally listed species as developed by the Service and the regulatory authority. These measures may not eliminate all adverse effects (“take”) on the species or its habitat, but they are intended to minimize and avoid impacts to the greatest extent practical and to ensure that the proposed activity will not jeopardize the species' continued existence.

    (10) Comment: One peer reviewer stated the Service needs to coordinate with other agencies on protective conductivity levels under Kentucky's narrative aquatic life standards in order to protect the species.

    Our Response: We continue to share information with the Kentucky Department of Environmental Protection (KYDEP) on the species' status and threats; however, any future modifications to Kentucky's narrative aquatic life standards will be the responsibility of KYDEP and the U.S. Environmental Protection Agency (USEPA). We will continue to provide technical assistance when requested.

    (11) Comment: One peer reviewer commented that the Service should explain if recorded Kentucky arrow darter movements in Elisha Branch, Long Fork, and Hector Branch represent simple movements within home ranges (intrapopulational movements from pool to pool) or dispersal events (interpopulational movements).

    Our Response: We can only speculate as to whether the recorded movements in these streams represent simple movements within home ranges or dispersal events. Most are likely intrapopulational (pool to pool within the same stream), but a few observations on Elisha Creek and Long Fork may provide evidence of dispersal events (interpopulational). We have added language to address this topic under the BackgroundHabitat and Life History section of this final listing determination.

    (12) Comment: One peer reviewer stated that the Service should explain how we estimated abundance and recruitment of Kentucky arrow darters.

    Our Response: Kentucky arrow darter abundance per sampling reach was estimated based on observed captures during single-pass electrofishing surveys. As described in the proposed rule, these surveys typically involved qualitative searches of all available habitats within a 100- to 150-meter survey reach. Evidence of recruitment was based on the presence of multiple age-classes within a survey reach. All captured Kentucky arrow darters were measured (total length in millimeters), allowing for the discrimination of age classes.

    (13) Comment: One peer reviewer stated that the Service did not mention or discuss the relationship between land use and instream habitat conditions.

    Our Response: We do not specifically mention the influence of land use and how it relates to instream habitat conditions; however, the Factor A discussion offers multiple examples of how differing land uses (e.g., resource extraction, residential development) can affect water quality and physical habitat conditions.

    (14) Comment: One peer reviewer asked us to clarify whether the Kentucky arrow darter was sensitive to high light conditions (loss of riparian vegetation and stream canopy).

    Our Response: Increased light conditions have been shown to be a threat to other aquatic organisms, but its impact on the Kentucky arrow darter is unknown. We have added language to address this topic under the Factor A. The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range section of this final listing determination.

    (15) Comment: One peer reviewer commented that nonnative rainbow trout may compete with Kentucky arrow darters for food resources and space.

    Our Response: Within Big Double Creek, the only stream occupied by both species, nonnative rainbow trout and Kentucky arrow darters could complete for food and space as both feed on aquatic insects and both occupy similar habitats (pools). However, we do not believe that competition from nonnative trout represents a widespread, high-magnitude threat to the species across its range. Potential competition from nonnative trout is limited to Big Double Creek, and recent surveys in Big Double Creek demonstrate that the Kentucky arrow darter population is healthy and stable (see Factor C: Disease or Predation).

    (16) Comment: One peer reviewer, the Kentucky Division of Forestry, and several other commenters provided comments on the effectiveness of best management practices (BMP) and compliance issues related to the Kentucky Forest Conservation Act. In general, the peer reviewers and commenters stated that BMPs were effective at preventing sediment runoff from logging sites, thereby protecting water quality and instream habitats. They also explained that BMP implementation rates in the upper Kentucky River basin were higher than those reported in the proposed listing determination. Based on these factors, the reviewers stated the Service should reconsider its claim that the Kentucky Forest Conservation Act is an ineffective regulatory mechanism. To support their request, the reviewers provided updated and revised inspection data and new information related to BMP elements designed to improve BMP effectiveness.

    Our Response: We agree with the commenters that BMP implementation rates are relatively high in the upper Kentucky River basin (greater than 70 percent), and forestry BMPs are effective in protecting water quality and instream habitats. However, as we discuss in the Factor D. The Inadequacy of Existing Regulatory Mechanisms section of this final listing determination, BMP compliance at inspected sites in the upper Kentucky River basin was only 73 percent between May 2014 and October 2015. Remedial actions were implemented at most noncompliant sites (74 percent) within a few months, but 26 percent of these sites remained noncompliant. The primary reason for noncompliance was related to the inadequate control of sediment laden runoff from skid trails, roads, and landings. Therefore, we agree with the commenters that forestry BMPs are effective in protecting water quality and preventing sedimentation; however, these impacts continue to occur within the upper Kentucky River basin due to BMP noncompliance. We have incorporated new compliance information provided by the commenters under the Factor D—The Inadequacy of Existing Regulatory Mechanisms section of this final listing determination. We have also included additional text regarding recent changes to Kentucky's BMP standards, which will be more protective of stream habitats. We agree with the peer reviewer and other commenters that BMP compliance rates were higher than those reported in the proposed listing rule, and recent changes to Kentucky's BMP standards will be more protective of stream habitats. However, BMP noncompliance continues to occur at some sites (about 26 percent), remedial actions at these sites sometimes take several months to complete, and some of these sites (6.5 percent) are never remediated.

    (17) Comment: One peer reviewer recommended that the Service modify the discussion regarding genetic variation and gene flow because a detailed study of these factors is lacking.

    Our Response: We concur with the peer reviewer and have modified our text accordingly in the Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence—Restricted Range and Population Size section of this final listing determination.

    Public Comments

    (18) Comment: One commenter stated that the Service failed to consider how the Kentucky arrow darter's habitat is affected by the surrounding human population. This same commenter also suggested that mountaintop mining and fracking were not considered as potential threats to the species in the proposed rule, but should have been.

    Our Response: We discussed a variety of human-induced habitat threats under the Factor A. The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range section of this listing determination. In that section, we also provided a detailed summary of threats related to fracking and described specific impacts associated with a spill of chemicals used during the drilling process. Mountaintop coal mining is not mentioned within the proposed rule, but any potential impacts associated with mountaintop mining are addressed in our detailed discussion of impacts associated with surface coal mining in the Factor A. The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range section of this listing determination. Surface coal mining is a broad category of coal mining that includes a variety of methods, such as area, auger, contour, and mountaintop mining.

    (19) Comment: One commenter had concerns over perceived regulatory gaps associated with oil and gas development (and related infrastructure) on the Redbird Ranger District of the DBNF. Because some oil and gas resources within the Redbird Ranger District are privately owned, the commenter believed resource extraction activities in these areas would be exempt from National Environmental Policy Act (NEPA) requirements, and these projects would not be evaluated as closely for potential adverse effects to natural resources as activities occurring in areas under public ownership.

    Our Response: The commenter is correct that mineral resources (i.e., coal, natural gas, oil) underlying much of the Redbird District of the DBNF are in private ownership, and that no Federal nexus exists with regard to actions associated with these minerals (including coal, oil/gas) in the DBNF. Because these mineral resources are in private ownership, oil and gas exploration activities taking place within them would not be subject to NEPA, and there would be no requirement for the DBNF to consult with the Service under section 7 of the ESA or apply standards of the DBNF's Land and Resource Management Plan (Forest Plan) to these privately held areas. The Service recognizes these regulatory gaps (with respect to privately held minerals) on the DBNF and has added language to the Factor D. The Inadequacy of Existing Regulatory Mechanisms section in this final listing determination.

    (20) Comment: One commenter stated that the recently signed Candidate Conservation Agreement (CCA) between the Service and U.S. Forest Service fails to create new conservation measures that will be implemented on the DBNF to protect the Kentucky arrow darter.

    Our Response: The CCA involves several new conservation measures that will benefit the species. Some of these measures include (1) the development and implementation of a long-term management and monitoring program for Kentucky arrow darter populations on the DBNF; (2) an inventory and mapping project of natural gas lines, oil wells, roads, other facilities, land ownership, and mineral ownership within Kentucky arrow darter watersheds on the DBNF; (3) the identification of restoration or enhancement opportunities for Kentucky arrow darter streams in coordination with Forest Plan standards, implementing those opportunities as funding and other resources allow; and (4) the initiation of an annual Kentucky arrow darter conservation meeting between the Service and DBNF to discuss the results of implementing the CCA. These and other conservation measures included in the CCA will benefit the species; however, these actions did not influence our final listing determination. The actions outlined in the CCA apply only to portions of Kentucky arrow streams located within the DBNF. The majority of Kentucky arrow populations (streams) and about 74 percent of the species' occupied habitat are located in areas outside of the DBNF that are not covered by the CCA. These populations will not benefit from specific conservation measures described in the CCA and will continue to be vulnerable to a variety of threats (see Factor A: The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range).

    (21) Comment: One commenter disagreed with our description of roads on Robinson Forest, a 59.9-km 2 (14,800-acre (ac)) experimental forest owned and managed by the University of Kentucky (UK). The commenter stated that the roads on Robinson Forest are used for forest access and management and should not be described as logging roads. The same commenter also stated that, in addition to protection from mining provided through the Lands Unsuitable for Mining designation in the Kentucky Administrative Regulations (405 KAR 24:040), habitats within Robinson Forest are protected from potential habitat disturbance associated with private or recreational all-terrain vehicle (ATV) use.

    Our Response: We agree with the commenter that roads on Robinson Forest should not be described as logging roads, and we have revised the corresponding text under the Population Estimates and Status section of this final rule. Under the Factor D. The Inadequacy of Existing Regulatory Mechanisms section of this final listing determination, we have added a description of UK's management guidelines for Robinson Forest. Under these guidelines, public access to Robinson Forest is controlled, and potential impacts from such activities as recreational ATV use are avoided.

    Summary of Changes From the Proposed Rule

    We have considered all comments and information received during the open comment period for the proposed rule to list the Kentucky arrow darter as threatened. In this final rule, we have added species description and life-history information to the background section, and we have revised and updated the threats discussion (Summary of Factors Affecting the Species section). We added new information on spawning behavior and the development and viability of eggs, based on observations made during captive-propagation efforts by CFI. We also clarified information related to darter movements, discussing the difference between dispersal (intertributary movement) and simple movements within the same stream (intratributary movement). We added a more detailed description of feeding behavior, relying on observations made for the closely related Cumberland arrow darter in Tennessee. With regard to threats, we:

    —Used new probabilistic data generated by the Kentucky Division of Water (KDOW) to demonstrate the spatial degree of threats across the species' range, —Added new information summarizing the vulnerability of salamanders and other aquatic organisms to elevated conductivity, —Briefly discussed the potential impact of high light conditions (stream canopy loss), —Discussed the potential threat posed by sewage bacteria and parasites, —Incorporated new forestry BMP compliance information and descriptions of new BMP standards in Kentucky, and —Added text summarizing the threat posed by anthropogenic barriers (e.g., perched culverts). Background Species Information Species Description and Taxonomy

    A thorough account of Kentucky arrow darter life history is presented in the preamble to the proposed rule (October 8, 2015, 80 FR 60962), and that information is incorporated here by reference. The following is a summary of that information. We have incorporated new information into the final rule, as appropriate (see Summary of Changes from the Proposed Rule).

    The Kentucky arrow darter, Etheostoma spilotum Gilbert, is a small and compressed fish, with a background color of straw yellow to pale greenish and a body covered by a variety of stripes and blotches. During the spawning season, breeding males exhibit vibrant coloration. Most of the body is blue-green in color, with scattered scarlet spots and scarlet to orange vertical bars laterally.

    The Kentucky arrow darter belongs to the Class Actinopterygii (ray-finned fishes), Order Perciformes, and Family Percidae (perches) (Etnier and Starnes 1993, pp. 18-25; Page and Burr 2011, p. 569). A similar darter species, the Cumberland arrow darter, E. sagitta (Jordan and Swain), is restricted to the upper Cumberland River basin in Kentucky and Tennessee, and the Kentucky arrow darter is restricted to the upper Kentucky River basin in Kentucky.

    Habitat and Life History

    Kentucky arrow darters typically inhabit pools or transitional areas between riffles and pools (glides and runs) in moderate- to high-gradient, first- to third-order streams with rocky substrates (Thomas 2008, p. 6). The species is most often observed near some type of cover in depths ranging from 10 to 45 centimeters (cm) (4 to 18 in) and in streams ranging from 1.5 to 20 meters (m) (4.9 to 65.6 feet (ft)) wide. During spawning (April to June), the species utilizes riffle habitats with moderate flow (Kuehne and Barbour 1983, p. 71). Kentucky arrow darters typically occupy streams with watersheds of 25.9 square kilometers (km2) (10 square miles (mi2)) or less, and many of these habitats, especially in first-order reaches, can be intermittent in nature (Thomas 2008, pp. 6-9). During drier periods (late summer or fall), some Kentucky arrow darter streams may cease flowing, but the species appears to survive these conditions by retreating into shaded, isolated pools or by dispersing into larger tributaries (Lotrich 1973, p. 394; Lowe 1979, p. 26; Etnier and Starnes 1993, p. 523; ATS 2011, p. 7; Service unpublished data).

    Little information is available on the reproductive behavior of the Kentucky arrow darter; however, general details were provided by Kuehne and Barbour (1983, p. 71), and more specific information can be inferred from studies of the closely related Cumberland arrow darter conducted by Bailey (1948, pp. 82-84) and Lowe (1979, pp. 44-50). Male Kentucky arrow darters establish territories over riffles and defend a fanned out depression in the substrate. After spawning, it is assumed the male continues to defend the nest until the eggs have hatched. The spawning period extends from April to June, but peak activity occurs when water temperatures reach 13 degrees Celsius (°C) (55 degrees Fahrenheit (°F)), typically in mid-April. Females produce between 200 and 600 eggs per season, with tremendous variation resulting from size, age, condition of females, and stream temperature (Rakes 2014, pers. comm.).

    Captive-propagation efforts by CFI (2010-present) have yielded observations related to spawning behavior and the development and viability of eggs and larvae (Petty et al. 2015, pp. 4-7). The spawning period is dependent on several factors, but laboratory observations suggest that water temperature is likely a significant determinant of when spawning begins and how long it continues (Petty et al. 2015, p. 7). The appearance of larvae in the laboratory appeared to be delayed by cool water temperatures (less than10 °C), suggesting that cooler temperatures may (1) affect egg viability and/or larval survivorship or (2) simply increase development times of eggs and/or larvae. Another potential factor related to spawning period is the age and size of breeding darters. In the laboratory, large, older individuals spawned earlier and terminated earlier, while smaller, younger individuals matured and spawned later. Petty et al. (2015, p. 7) cautioned that hatchery observations are necessarily biased by the selection and use of mostly larger individuals in attempts to maximize production, so these larger individuals may not reflect the natural variation in wild populations with greater demographic (and environmental) diversity.

    Kentucky arrow darters can reach 50 mm (2 in) in length by the end of the first year (Lotrich 1973, pp. 384-385; Lowe 1979, pp. 44-48; Kuehne and Barbour 1983, p. 71). One-year-olds are generally sexually mature and participate in spawning with older age classes (Etnier and Starnes 1993, p. 523). Juvenile Kentucky arrow darters can be found throughout the channel but are often observed in shallow water along stream margins near root mats, rock ledges, or some other cover. As stream flow lessens and riffles begin to shrink, most Kentucky arrow darters move into pools and tend to remain there even when late autumn and winter rains restore stream flow (Kuehne and Barbour 1983, p. 71).

    Limited information exists with regard to upstream or downstream movements of Kentucky arrow darters; however, a movement study at Eastern Kentucky University (EKU) and a reintroduction project in the DBNF suggest that Kentucky arrow darters can move considerable distances (Baxter 2015, entire; Thomas 2015a, pers. comm.), which we summarize below.

    The EKU study used PIT-tags (electronic tags placed under the skin) and placed antenna systems (installed in the stream bottom) to monitor intra- and inter-tributary movement of Kentucky arrow darters in Gilberts Big Creek and Elisha Creek, two second-order tributaries of Red Bird River in Clay and Leslie Counties (Baxter 2015, pp. 9-11). PIT-tags were placed in a total of 126 individuals, and Kentucky arrow darter movements were tracked from May 2013 to May 2014 (Baxter 2015, pp. 15, 19-21, 35-36). Recorded movements ranged from 134 m (439 ft) (upstream movement) to 4,078 m (13,379 ft or 2.5 mi) (downstream movement by a female in Elisha Creek). Intermediate recorded movements included 328 m (1,076 ft) (downstream), 351 m (1,151 ft) (upstream), 900 m (2,952 ft) (upstream/downstream), 950 m (3,116 ft) (downstream), 1,282 m (4,028 ft) (downstream), and 1,708 m (5,603 ft) (downstream). Based on this research, we believe it is likely that most of these documented movements could best be described as intrapopulational and represent individual darters moving between stream pools of Elisha Creek. In the case of the female arrow darter that moved unidirectionally from the headwaters of Elisha Creek to its mouth (a distance of more than 4,000 m (2.5 mi)), this documented movement could represent an interpopulational event (dispersal), where an individual leaves one population and travels to another population (or stream). Further research is needed to differentiate these behaviors.

    Since August 2012, the Kentucky Department of Fish and Wildlife Resources (KDFWR) and CFI have been releasing captive-bred Kentucky arrow darters into a 1.5-km (0.9 mi) reach of Long Fork, a DBNF stream and first-order tributary to Hector Branch in eastern Clay County, Kentucky, where the species formerly occurred but has been extirpated. Researchers have tagged and released a total of 1,447 Kentucky arrow darters (about 50-55 mm TL) and have conducted monitoring on 14 occasions since the initial release using visual searches and seining methods. Tagged darters have been observed throughout the Long Fork mainstem, and some individuals have moved considerable distances (up to 1.0 km (0.4 mi)) downstream into Hector Branch. Based on these results, it is clear that young Kentucky arrow darters can disperse both upstream and downstream from their place of origin and can move considerable distances.

    Kentucky arrow darters feed primarily on mayflies (Order Ephemeroptera), with larger darters also feeding on small crayfishes. Other food items include larval blackflies, midges, caddisfly larvae, stonefly nymphs, beetle larvae, microcrustaceans, and dipteran larvae (Lotrich 1973, p. 381; Etnier and Starnes 1993, p. 523).

    Historical Range and Distribution

    A thorough account of the Kentucky arrow darter's historical range is presented in the preamble to the proposed rule (October 8, 2015, 80 FR 60962), and that information is incorporated here by reference. The following is a summary of that information with new information added as appropriate (see Summary of Changes from the Proposed Rule).

    The Kentucky arrow darter occurred historically in at least 74 streams in the upper Kentucky River basin of eastern Kentucky (Gilbert 1887, pp. 53-54; Woolman 1892, pp. 275-281; Kuehne and Bailey 1961, pp. 3-4; Kuehne 1962, pp. 608-609; Branson and Batch 1972, pp. 507-514; Lotrich 1973, p. 380; Branson and Batch 1974, pp. 81-83; Harker et al. 1979, pp. 523-761; Greenberg and Steigerwald 1981, p. 37; Branson and Batch 1983, pp. 2-13; Branson and Batch 1984, pp. 4-8; Kornman 1985, p. 28; Burr and Warren 1986, p. 316; Measel 1997, pp. 1-105; Kornman 1999, pp. 118-133; Stephens 1999, pp. 159-174; Ray and Ceas 2003, p. 8; Kentucky State Nature Preserves Commission (KSNPC) unpublished data). Its distribution spanned portions of 6 smaller sub-basins or watersheds (North Fork Kentucky River, Middle Fork Kentucky River, South Fork Kentucky River, Silver Creek, Sturgeon Creek, and Red River) in 10 Kentucky counties (Breathitt, Clay, Harlan, Jackson, Knott, Lee, Leslie, Owsley, Perry, and Wolfe) (Thomas 2008, p. 3) (figure 1).

    ER05OC16.029 Current Range and Distribution

    Based on surveys completed since 2006, extant populations of the Kentucky arrow darter are known from 47 streams in the upper Kentucky River basin in eastern Kentucky. These populations are scattered across 6 sub-basins (North Fork Kentucky River, Middle Fork Kentucky River, South Fork Kentucky River, Silver Creek, Sturgeon Creek, and Red River) in 10 Kentucky counties: Breathitt, Clay, Harlan, Jackson, Knott, Lee, Leslie, Owsley, Perry, and Wolfe Counties (Thomas 2008, pp. 3-6; Service unpublished data). Populations in eight of these streams have been discovered since 2006, and one additional population (Long Fork, Clay County) was reestablished through a reintroduction project led by KDFWR. Current populations occur in the following Kentucky River sub-basins (and smaller watersheds):

    • North Fork Kentucky River (Troublesome, Quicksand, Frozen, Holly, Lower Devil, Walker, and Hell Creek watersheds);

    • Middle Fork Kentucky River (Big Laurel, Rockhouse, Hell For Certain Creek, and Squabble Creek watersheds);

    • South Fork Kentucky River (Red Bird River, Hector Branch, and Goose, Bullskin, Buffalo, and Lower Buffalo Creek watersheds);

    • Silver Creek;

    • Sturgeon Creek (Travis, Wild Dog, and Granny Dismal Creek watersheds); and

    • Red River (Rock Bridge Fork watershed).

    Population Estimates and Status

    The species' status in all streams of historical or recent occurrence is summarized in table 1, below, which is organized by sub-basin, beginning at the southeastern border (upstream end) of the basin (North Fork Kentucky River) and moving downstream. In this final rule, the term “population” is used in a geographical context and not in a genetic context, and is defined as all individuals of the species living in one stream at a given time. Using the term in this way allows the status, trends, and threats to be discussed comparatively across streams where the species occurs. In using this term, we do not imply that the populations are currently reproducing and recruiting or that they are distinct genetic units. We considered populations of the Kentucky arrow darter as extant if live specimens have been observed or collected since 2006, and habitat conditions are favorable for reproduction (e.g., low siltation, water chemistry at normal levels).

    We are using the following generalized sets of criteria to categorize the relative status of populations of 83 streams (74 historical and 9 nonhistorical, discovered or established since 2006) included in table 1. Similar criteria have been used by the Service in previous proposed listing rules (76 FR 3392, January 19, 2011; 77 FR 63440, October 16, 2012):

    The status of a population is considered “stable” if: (1) There is little evidence of significant habitat loss or degradation; (2) darter abundance has remained relatively constant or increased during recent surveys; or (3) evidence of relatively recent recruitment has been documented since 2006.

    The status of a population is considered “vulnerable” if: (1) There is ample evidence of significant habitat loss or degradation since the species' original capture; (2) there is an obvious decreasing trend in abundance since the historical collection; or (3) no evidence of relatively recent recruitment (since 2006) has been documented.

    The status of a population is considered “extirpated” if: (1) All known suitable habitat has been destroyed or severely degraded; (2) no live individuals have been observed since 2006; or (3) live individuals have been observed since 2006, but habitat conditions do not appear to be suitable for reproduction to occur (e.g., elevated conductivity, siltation) and there is supporting evidence that the observed individuals are transients (fishes originating from another stream that occupy a particular habitat for only a short time).

    Table 1—Kentucky Arrow Darter Status in All Streams of Historical (74) or Recent Occurrence 1 (9; noted in bold) in the Upper Kentucky River Basin Sub-basin Sub-basin tributaries Stream 1 County Current
  • status
  • Date of last
  • observation
  • North Fork Lotts Creek Lotts Creek Perry Extirpated 1890 Troublesome Creek Left Fork Knott Extirpated 1890 Troublesome Creek Perry Extirpated 1890 Mill Creek Knott Extirpated 1995 Laurel Fork (of Balls Fork) Knott Extirpated 1995 Buckhorn Creek (Prince Fork) Knott Vulnerable 2011 Eli Fork1 Knott Vulnerable 2011 Boughcamp Branch Knott Extirpated 2011 Coles Fork Breathitt, Knott Stable 2011 Snag Ridge Fork Knott Stable 2008 Clemons Fork Breathitt Stable 2013 Millseat Branch Breathitt Extirpated 1976 Lewis Fork Breathitt Extirpated 1959 Long Fork Breathitt Extirpated 1959 Bear Branch Breathitt Extirpated 2015 Laurel Fork (of Buckhorn) Breathitt Extirpated 1976 Lost Creek Breathitt Extirpated 1997 Quicksand Creek Laurel Fork Knott Stable 2014 Baker Branch Knott Extirpated 1994 Middle Fork Knott Stable 2015 Spring Fork1 Breathitt Vulnerable 2013 Wolf Creek Breathitt Extirpated 1995 Hunting Creek Breathitt Vulnerable 2013 Leatherwood Creek Breathitt Extirpated 1982 Bear Creek Breathitt Extirpated 1969 Smith Branch Breathitt Extirpated 1995 Frozen Creek Frozen Creek Breathitt Stable 2013 Clear Fork Breathitt Vulnerable 2008 Negro Branch Breathitt Vulnerable 2008 Davis Creek Breathitt Vulnerable 2008 Cope Fork Breathitt Extirpated 1995 Boone Fork Breathitt Extirpated 1998 Holly Creek Holly Creek Wolfe Vulnerable 2007 Lower Devil Creek Lower Devil Creek Lee, Wolfe Extirpated 1998 Little Fork1 Lee, Wolfe Vulnerable 2011 Walker Creek Walker Creek Lee, Wolfe Stable 2013 Hell Creek Hell Creek Lee Vulnerable 2013 Middle Fork Greasy Creek Big Laurel Creek Harlan Vulnerable 2009 Greasy Creek Leslie Extirpated 1970 Cutshin Creek Cutshin Creek Leslie Extirpated 1890 Middle Fork Middle Fork Leslie Extirpated 1890 Rockhouse Creek Laurel Creek1 Leslie Vulnerable 2013 Hell For Certain Creek Hell For Certain Creek Leslie Stable 2013 Squabble Creek Squabble Creek Perry Vulnerable 2015 South Fork Red Bird River Blue Hole Creek Clay Stable 2008 Upper Bear Creek Clay Stable 2013 Katies Creek Clay Stable 2007 Spring Creek Clay Stable 2007 Bowen Creek Leslie Stable 2009 Elisha Creek Leslie Stable 2014 Gilberts Big Creek Clay, Leslie Stable 2013 Sugar Creek1 Clay, Leslie Stable 2008 Big Double Creek Clay Stable 2014 Little Double Creek Clay Stable 2008 Big Creek Clay Extirpated 1890 Jacks Creek Clay Vulnerable 2009 Hector Branch Clay Extirpated 2015 Long Fork (of Hector Br.)1 Clay Stable 2014 Goose Creek Horse Creek Clay Vulnerable 2013 Laurel Creek Clay Extirpated 1970 Bullskin Creek Bullskin Creek Clay, Leslie Vulnerable 2014 Buffalo Creek Laurel Fork Owsley Stable 2014 Cortland Fork1 Owsley Vulnerable 2014 Lucky Fork Owsley Stable 2014 Left Fork Owsley Stable 2014 Right Fork Owsley Vulnerable 2009 Buffalo Creek Owsley Vulnerable 1969 Sexton Creek Bray Creek Clay Extirpated 1997 Robinsons Creek Clay Extirpated 1997 Sexton Creek Owsley Extirpated 1978 Lower Island Creek Lower Island Creek Owsley Extirpated 1997 Cow Creek Right Fork Cow Creek Owsley Extirpated 1997 Buck Creek Buck Creek Owsley Extirpated 1978 Lower Buffalo Creek Lower Buffalo Creek Lee, Owsley Vulnerable 2007 Silver Creek Lee Vulnerable 2008 Sturgeon Creek Travis Creek1 Jackson Vulnerable 2008 Brushy Creek Jackson, Owsley Extirpated 1996 Little Sturgeon Creek Owsley Extirpated 1996 Wild Dog Creek Jackson, Owsley Stable 2007 Granny Dismal Creek1 Lee, Owsley Vulnerable 2013 Cooperas Cave Branch Lee Extirpated 1996 Sturgeon Creek Lee Extirpated 1998 Red River Swift Camp Creek Rockbridge Fork Wolfe Vulnerable 2013 1Non-historical occurrence discovered or established since 2006.

    In the period 2007-2012, the Service, KSNPC, and KDFWR conducted a status review for the Kentucky arrow darter (Thomas 2008, pp. 1-33; Service 2012, pp. 1-4). Surveys were conducted qualitatively using single-pass electrofishing techniques (Smith-Root backpack electrofishing unit) within an approximate 100-m (328-ft) reach. During these efforts, fish surveys were conducted at 69 of 74 historical streams, 103 of 119 historical sites, and 40 new (nonhistorical) sites (sites correspond to individual sampling reaches and more than one may be present on a given stream). Kentucky arrow darters were observed at 36 of 69 historical streams (52 percent), 53 of 103 historical sites (52 percent), and 4 of 40 new sites (10 percent). New sites were visited in an effort to locate additional populations and were specifically selected based on habitat suitability and the availability of previous collection records (sites lacking previous collections were chosen).

    From June to September 2013, KSNPC and the Service initiated a study that included quantitative surveys at 80 randomly chosen sites within the species' historical range (Service unpublished data). Kentucky arrow darters were observed at only seven sites, including two new localities (Granny Dismal Creek in Owsley County and Spring Fork Quicksand Creek in Breathitt County) and one historical stream (Hunting Creek, Breathitt County) where the species was not observed during status surveys by Thomas (2008, pp. 1-33) and Service (2012, pp. 1-4).

    During 2014-2015, additional qualitative surveys (single-pass electrofishing) were completed at more than 20 sites within the basin. Kentucky arrow darters were observed in Bear Branch, Big Double Creek, Big Laurel Creek, Bullskin Creek, Clemons Fork, Coles Fork, Cortland Fork, Laurel Fork Buffalo Creek, and Squabble Creek. Based on the poor habitat conditions observed in Bear Branch (e.g., elevated conductivity, siltation, and embedded substrates) and its close proximity to Robinson Forest, we suspect that the few individuals observed in Bear Branch were transients originating from Clemons Fork.

    Based on historical records and survey data collected at more than 200 sites since 2006, the Kentucky arrow darter has declined significantly rangewide and has been eliminated from large portions of its former range, including 36 of 74 historical streams (figure 2) and large portions of the basin that would have been occupied historically by the species (figure 3). Forty-four percent of the species' extirpations (16 streams) have occurred since the mid-1990s, and the species has disappeared completely from several watersheds (e.g., Sexton Creek, South Fork Quicksand Creek, Troublesome Creek headwaters). Of the species' 47 extant streams, we consider half of these populations (23) to be “vulnerable” (table 1), and most remaining populations are isolated and restricted to short stream reaches.

    BILLING CODE 4333-15-P ER05OC16.030 ER05OC16.031 BILLING CODE 4333-15-C

    A synopsis of the Kentucky arrow darter's current range and status is provided in the preamble to the proposed rule, and that information is incorporated here by reference.

    Our recent survey data (Thomas 2008, pp. 25-27; Service 2012, pp. 1-4) indicate that Kentucky arrow darters occur in low densities. Sampling reaches where arrow darters were observed had an average of only 3 individuals per 100-m (328-ft) reach and a median of 2 individuals per reach (range of 1 to 10 individuals). ATS (2011, pp. 4-6) observed similar densities at occupied sampling reaches in the Buckhorn Creek watershed. Surveys in 2011 by the DBNF from Laurel Fork and Cortland Branch of Left Fork Buffalo Creek (South Fork Kentucky River sub-basin) produced slightly higher capture rates (an average of 5 darters per 100-m (328-ft) sampling reach) (Mulhall 2014, pers. comm.). The low abundance values (compared to other darters) are not surprising since Kentucky arrow darters generally occur in low densities, even in those streams where disturbance has been minimal (Thomas 2015b, pers. comm.).

    Detailed information on population size is generally lacking for the species, but estimates have been completed for three streams: Clemons Fork (Breathitt County), Elisha Creek (Clay and Leslie Counties), and Gilberts Big Creek (Clay and Leslie Counties) (Service unpublished data). Based on field surveys completed in 2013 by EKU, KSNPC, and the Service, population estimates included 986-2,113 individuals (Clemons Fork), 592-1,429 individuals (Elisha Creek), and 175-358 individuals (Gilberts Big Creek) (ranges reflect 95 percent confidence intervals) (Baxter 2015, pp. 14-15, 18-19).

    Based on observed catch rates and habitat conditions throughout the upper Kentucky River basin, the most stable and largest populations of the Kentucky arrow darter appear to be located in the following streams:

    • Hell For Certain Creek, Leslie County;

    • Laurel and Middle Forks of Quicksand Creek, Knott County;

    • Frozen and Walker Creeks, Breathitt and Lee Counties;

    • Clemons Fork and Coles Fork, Breathitt and Knott Counties;

    • Several direct tributaries (e.g., Bowen Creek, Elisha Creek, and Big Double Creek) of the Red Bird River, Clay and Leslie Counties; and

    • Wild Dog Creek, Jackson and Owsley Counties.

    The Kentucky arrow darter is considered “threatened” by the State of Kentucky and has been ranked by KSNPC as a G2G3/S2S3 species (imperiled or vulnerable globally and imperiled or vulnerable within the State) (KSNPC 2014, p. 40). Kentucky's Comprehensive Wildlife Conservation Strategy (KDFWR 2013, pp. 9-11) identified the Kentucky arrow darter as a Species of Greatest Conservation Need (rare or declining species that requires conservation actions to improve its status).

    Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Listing may be warranted based on any of the above threat factors, singly or in combination.

    Factor A: The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

    A thorough discussion of Kentucky arrow darter habitat destruction or modification is presented in the preamble to the proposed rule (October 8, 2015, 80 FR 60962), and that information is incorporated here by reference. The following is a summary of that information.

    The Kentucky arrow darter's habitat and range have been destroyed, modified, and curtailed due to a variety of anthropogenic activities in the upper Kentucky River drainage. Resource extraction (e.g., coal mining, logging, oil/gas well development), land development, agricultural activities, and inadequate sewage treatment have all contributed to the degradation of streams within the range of the species (Branson and Batch 1972, pp. 513-516; Branson and Batch 1974, pp. 82-83; Thomas 2008, pp. 6-7; KDOW 2010, pp. 70-84; KDOW 2013a, pp. 189-214, 337-376; KDOW 2013b, pp. 88-94). These land use activities have led to chemical and physical changes to stream habitats that have adversely affected the species. Specific stressors have included inputs of dissolved solids and elevation of instream conductivity, sedimentation/siltation of stream substrates (excess sediments deposited in a stream), turbidity, inputs of nutrients and organic enrichment, and elevation of stream temperatures (KDOW 2010, p. 84; KDOW 2013a, pp. 189-214, 337-376). KDOW (2013a, pp. 337-376) provided a summary of specific threats within the upper Kentucky River drainage, identifying impaired reaches in 21 streams within the Kentucky arrow darter's historical range (table 2). Six of these streams continue to support populations of the species, but only one of these populations (Frozen Creek) is considered to be stable (see table 1, above). Results of probabilistic surveys (i.e., surveys conducted at randomly selected sites with sites selected in a statistically valid way) by KDOW demonstrate the spatial degree of threats across the species' range. Out of 22 probabilistic sites (streams) visited within the upper Kentucky River basin in 2003, 18 were considered to be impaired (Payne 2016, pers. comm.), suggesting habitats across the species' range are impacted by the specific stressors identified above.

    Table 2—Summary of 303(d) Listed Stream Segments Within the Historical Range of the Kentucky Arrow Darter (KDOW 2013a, pp. 337-376) Stream County Impacted stream segment(s)—stream km (stream mi) Pollutant source Pollutant Buckhorn Creek Breathitt 0-10.0
  • (0-6.8)
  • Abandoned Mine Lands, Unknown Sources Fecal Coliform (FC), Sediment/Siltation, Total Dissolved Solids (TDS).
    Cope Fork (of Frozen Creek) Breathitt 0-3.0
  • (0-1.9)
  • Channelization, Riparian Habitat Loss, Logging, Agriculture, Stream Bank Modification, Surface Coal Mining Sediment/Siltation, TDS.
    Cutshin Creek Leslie 15.6-17.2
  • (9.7-10.7)
  • Riparian Habitat Loss, Stream Bank Modification, Surface Coal Mining Sediment/Siltation.
    Frozen Creek * Breathitt 0-22.4
  • (0-13.9)
  • Riparian Habitat Loss, Post-Development Erosion and Sedimentation Sediment/Siltation.
    Goose Creek Clay 0-13.4
  • (0-8.3)
  • Septic Systems FC.
    Hector Branch Clay 0-8.8
  • (0-5.5)
  • Unknown Unknown.
    Holly Creek * Wolfe 0-9.8
  • (0-6.2)
  • Agriculture, Riparian Habitat Loss, Stream Bank Modification, Surface Coal Mining Sediment/Siltation, Unknown.
    Horse Creek * Clay 0-13.4
  • (0-8.3)
  • Riparian Habitat Loss, Managed Pasture Grazing, Surface Coal Mining Sediment/Siltation.
    Laurel Creek Clay 6.1-7.7
  • (3.8-4.8)
  • Managed Pasture Grazing, Crop Production Nutrients/Eutrophication.
    Left Fork Island Creek Owsley 0-8.0
  • (0-5.0)
  • Crop Production Sediment/Siltation.
    Long Fork Breathitt 0-7.4
  • (0-4.6)
  • Surface Coal Mining Sediment/Siltation, TDS.
    Lost Creek Breathitt 0-14.3
  • (0-8.9)
  • Coal Mining, Riparian Habitat Loss, Logging, Stream Bank Modification FC, Sedimentation, TDS, Turbidity.
    Lotts Creek Perry 0.6-1.6, 1.9-9.6
  • (0.4-1.0, 1.2-6.0)
  • Riparian Habitat Loss, Land Development, Surface Coal Mining, Logging, Stream Bank Modification Sediment/Siltation, TDS, Turbidity.
    Quicksand Creek Breathitt 0-27.4,
  • 34.9-49.6
  • (0-17.0, 21.7-30.8)
  • Surface Coal Mining, Riparian Habitat Loss, Logging, Stream Bank Modification FC, Turbidity, Sediment/Siltation, TDS.
    Sexton Creek Clay, Owsley 0-27.7
  • (0-17.2)
  • Crop Production, Highway/Road/Bridge Runoff Sediment/Siltation, TDS.
    South Fork Quicksand Creek Breathitt 0-27.2
  • (0-16.9)
  • Riparian Habitat Loss, Petroleum/Natural Gas Production Activities, Surface Coal Mining Sediment/Siltation, TDS.
    Spring Fork (Quicksand Creek) * Breathitt 5.0-11.1
  • (3.1-6.9)
  • Abandoned Mine Lands (Inactive), Riparian Habitat Loss, Logging, Stream Bank Modification Sediment/Siltation, TDS, Turbidity.
    Squabble Creek * Perry 0-7.6
  • (0-4.7)
  • Land Development, Surface Coal Mining Sediment/Siltation, TDS.
    Sturgeon Creek Lee 12.9-19.6
  • (8.0-12.2)
  • Riparian Habitat Loss, Crop Production, Surface Coal Mining Sediment/Siltation.
    Swift Camp Creek Wolfe 0-22.4
  • (0-13.9)
  • Unknown Unknown.
    Troublesome Creek Breathitt 0-72.6
  • (0-45.1)
  • Surface Coal Mining, Municipal Point Source Discharges, Petroleum/Natural Gas Activities Sediment/Siltation, Specific Conductance, TDS, Turbidity.
    * Stream segment still occupied by Kentucky arrow darters.
    Water Quality Degradation

    One threat to the Kentucky arrow darter is water quality degradation caused by a variety of nonpoint-source pollutants (contaminants from many diffuse and unquantifiable sources). Within the upper Kentucky River drainage, coal mining has been the most significant historical source of these pollutants, and this activity continues to occur throughout the drainage.

    Activities associated with coal mining have the potential to contribute high concentrations of dissolved salts, metals, and other solids that (1) elevate stream conductivity (a measure of electrical conductance in the water column that increases as the concentration of dissolved solids increases), (2) increase sulfates (a common dissolved ion with empirical formula of SO4 −2), and (3) cause wide fluctuations in stream pH (a measure of the acidity or alkalinity of water) (Curtis 1973, pp. 153-155; Dyer and Curtis 1977, pp. 10-13; Dyer 1982, pp. 1-16; Hren et al. 1984, pp. 5-34; USEPA 2003, pp. 77-84; Hartman et al. 2005, p. 95; Pond et al. 2008, pp. 721-723; Palmer et al. 2010, pp. 148-149; USEPA 2011, pp. 27-44). The coal mining process also results in leaching of metals and other dissolved solids that can result in elevated conductivity, sulfates, and hardness in the receiving stream. Stream conductivity in mined watersheds can be significantly higher compared to unmined watersheds, and conductivity values can remain high for decades (Merricks et al. 2007, pp. 365-373; Johnson et al. 2010, pp. 1-2).

    Elevated levels of metals and other dissolved solids (i.e., elevated conductivity) in Appalachian streams have been shown to negatively impact biological communities, including losses of mayfly and caddisfly taxa (Chambers and Messinger 2001, pp. 34-51; Pond 2004, p. 7; Hartman et al. 2005, p. 95; Pond et al. 2008, pp. 721-723; Pond 2010, pp. 189-198), reduced occupancy and conditional abundance of salamanders (Price et al. 2015, pp. 6-9), and decreases in fish diversity (Kuehne 1962, pp. 608-614; Branson and Batch 1972, pp. 507-512; Branson and Batch 1974, pp. 81-83; Stauffer and Ferreri 2002, pp. 11-21; Fulk et al. 2003, pp. 55-64; Mattingly et al. 2005, pp. 59-62; Thomas 2008, pp. 1-9; Service 2012, pp. 1-4; Black et al. 2013, pp. 34-45; Hitt 2014, pp. 5-7, 11-13; Hitt and Chambers 2014, pp. 919-924; Daniel et al. 2015, pp. 50-61; Hitt et al. 2016, pp. 46-52).

    There is a pattern of increasing conductivity and loss of arrow darter populations that is evident in the fish and water quality data from the Buckhorn Creek basin (1962 to present) in Breathitt and Knott Counties.

    Kentucky arrow darters tend to be less abundant in streams with elevated conductivity levels (Service 2012, pp. 1-4; Service 2013, p. 9), and are typically excluded from these streams as conductivity increases (Branson and Batch 1972, pp. 507-512; Branson and Batch 1974, pp. 81-83; Thomas 2008, pp. 3-6). Recent range-wide surveys of historical sites by Thomas (2008, pp. 3-6) and the Service (2012, pp. 1-4) demonstrated that Kentucky arrow darters are excluded from watersheds when conductivity levels exceed about 250 μS/cm. The species was observed at only two historical sites where conductivity values exceeded 250 μS/cm, and average conductivity values were much lower at sites where Kentucky arrow darters were observed (115 μS/cm) than at sites where the species was not observed (689 μS/cm). Hitt et al. (2016, entire) reported that conductivity was a strong predictor of Kentucky arrow darter abundance in the upper Kentucky River drainage, and sharp declines in abundance were observed at 258 μS/cm (95 percent confidence intervals of 155-590 μS/cm). Based on the research presented in the preamble to the proposed rule and incorporated by reference here, we believe it is clear that the overall conductivity level is important in determining the Kentucky arrow darter's presence and vulnerability, but the species' presence is more likely tied to what individual metals or dissolved solids (e.g., sulfate) are present. Determination of discrete conductivity thresholds or the mechanisms through which the Kentucky arrow darter is influenced will require additional study (KSNPC 2010, p. 3; Pond 2015, pers. comm.); however, conductivity thresholds have been evaluated for other aquatic species. Elevated specific conductance has been positively correlated with decreased macroinvertebrate abundance (Pond et al. 2008, pp. 725-726; Pond 2012, p. 111), and Johnson et al. (2015, pp. 170-171) showed that daily growth rates and development of a mayfly (Neocleon triagnulifer) declined with increasing ionic concentrations. Increased levels of specific conductance have been shown to influence the behavior (Karraker et al. 2008, pp. 728-732) and corticosterone levels (a hormone secreted by the adrenal cortex that regulates energy, immune reactions, and stress responses) of amphibians (Chambers 2011, pp. 220-222). Embryonic and larval survival of amphibians were reduced significantly at moderate (500 μS/cm) and high (3,000 μS/cm) specific conductance levels (Karraker et al. 2008, pp. 728-732).

    Mine drainage can also cause chemical (and some physical) effects to streams as a result of the precipitation of entrained metals and sulfate, which become unstable in solution (USEPA 2003, pp. 24-65; Pond 2004, p. 7). Precipitants accumulate on substrates, encrusting and cementing stream sediments, making them unsuitable for colonization by invertebrates and rendering them unsuitable as foraging or spawning habitat for the Kentucky arrow darter.

    Oil and gas exploration and drilling activities represent another significant source of harmful pollutants in the upper Kentucky River basin (KDOW 2013a, pp. 189-214). Once used, fluid wastes containing chemicals used in the drilling and fracking process (e.g., hydrochloric acid, surfactants, potassium chloride) are stored in open pits (retention basins) or trucked away to treatment plants or some other storage facility. If spills occur during transport or releases occur due to retention basin failure or overflow, there is a risk for surface and groundwater contamination. Any such release can cause significant adverse effects to water quality and aquatic organisms that inhabit these watersheds (Wiseman 2009, pp. 127-142; Kargbo et al. 2010, pp. 5,680-5,681; Osborn et al. 2011, pp. 8,172-8,176; Papoulias and Velasco 2013, pp. 92-111).

    Other nonpoint-source pollutants common within the upper Kentucky River drainage with potential to affect the Kentucky arrow darter include domestic sewage (through septic tank leakage or straight pipe discharges) and agricultural pollutants such as animal waste, fertilizers, pesticides, and herbicides (KDOW 2013a, pp. 189-214). Nonpoint-source pollutants can cause increased levels of nitrogen and phosphorus, excessive algal growths, oxygen deficiencies, and other changes in water chemistry that can seriously impact aquatic species (KDOW 2010, pp. 70-84; KDOW 2013a, pp. 189-214; KDOW 2013b, pp. 88-94). Nonpoint-source pollution may be correlated with impervious surfaces and storm water runoff (Allan 2004, pp. 266-267) and include sediments, fertilizers, herbicides, pesticides, animal wastes, septic tank and gray water leakage, pharmaceuticals, and petroleum products.

    Physical Habitat Disturbance

    Sedimentation (siltation) has been listed repeatedly by KDOW as the most common stressor of aquatic communities in the upper Kentucky River basin (KDOW 2010, pp. 70-84; KDOW 2013a, pp. 189-214; KDOW 2013b, pp. 88-94). Sedimentation comes from a variety of sources, but KDOW identified the primary sources of sediment as loss of riparian habitat, surface coal mining, legacy coal extraction, logging, and land development (KDOW 2010, pp. 70-84; KDOW 2013b, pp. 88-94). All of these activities can result in canopy removal, channel disturbance, and increased siltation, thereby degrading habitats used by Kentucky arrow darters for both feeding and reproduction.

    Resource extraction activities (e.g., surface coal mining, legacy coal extraction, logging, oil and gas exploration and drilling) are major sources of sedimentation in streams (Paybins et al. 2000, p. 1; Wiley et al. 2001, pp. 1-16; KDOW 2013a, pp. 189-214). Similarly, logging activities can adversely affect Kentucky arrow darters and other fishes through removal of riparian vegetation, direct channel disturbance, and sedimentation of instream habitats (Allan and Castillo 2007, pp. 332-333). Stormwater runoff from unpaved roads, ATV trails, and driveways represents a significant but difficult to quantify source of sediment that impacts streams in the upper Kentucky River basin.

    Sediment has been shown to damage and suffocate fish gills and eggs, larval fishes, bottom-dwelling algae, and other organisms; reduce aquatic insect diversity and abundance; and, ultimately, negatively impact fish growth, survival, and reproduction (Berkman and Rabeni 1987, pp. 285-294; Waters 1995, pp. 5-7; Wood and Armitage 1997, pp. 211-212; Meyer and Sutherland 2005, pp. 2-3).

    Invasion of Hemlock Wooly Adelgid

    The hemlock woolly adelgid (Adelges tsugae), an aphid-like insect native to Asia, represents a potential threat to the Kentucky arrow darter because it has the potential to severely damage stands of eastern hemlocks (Tsuga canadensis) that occur within the species' range. Loss of hemlocks along Kentucky arrow darter streams has the potential to result in increased solar exposure and subsequent elevated stream temperatures, bank erosion, and excessive inputs of woody debris that will clog streams and cause channel instability and erosion (Townsend and Rieske-Kinney 2009, pp. 1-3). We expect these impacts to occur in some Kentucky arrow darter watersheds; however, we do not believe these impacts will be widespread or severe because eastern hemlocks are not abundant in all portions of the Kentucky arrow darter's range, and even where hemlocks are more common, we expect them to be replaced by other tree species.

    In summary, habitat loss and modification represent threats to the Kentucky arrow darter. Severe degradation from contaminants, sedimentation, and physical habitat disturbance have contributed to extirpations of Kentucky arrow darter populations, and these threats continue to impact water quality and habitat conditions across the species' range. Contaminants associated with surface coal mining (metals, other dissolved solids), domestic sewage (bacteria, nutrients), and agriculture (fertilizers, pesticides, herbicides, and animal waste) cause degradation of water quality and habitats through increased conductivity and sulfates, instream oxygen deficiencies, excess nutrification, and excessive algal growths. Sedimentation from surface coal mining, logging, agriculture, and land development negatively affect the Kentucky arrow darter by burying or covering instream habitats used by the species for foraging, reproduction, and sheltering. These impacts can cause reductions in growth rates, disease tolerance, and gill function; reductions in spawning habitat, reproductive success, and egg, larval, and juvenile development; modifications of migration patterns; decreased food availability through reductions in prey; and reduction of foraging efficiency. Furthermore, these threats faced by the Kentucky arrow darter are the result of ongoing land uses that are expected to continue indefinitely.

    Factor B: Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

    The Kentucky arrow darter is not believed to be utilized for commercial, recreational, scientific, or educational purposes. Individuals may be collected occasionally in minnow traps by recreational anglers and used as live bait, but we believe these activities are practiced infrequently and do not represent a threat to the species. Our review of the available information does not indicate that overutilization is a threat to the Kentucky arrow darter now or likely to become so in the future.

    Factor C: Disease or Predation

    No specific information is available suggesting that disease is a threat to the Kentucky arrow darter; however, in marginal Kentucky arrow darter streams (those with impacts from industrial or residential development), the occurrence of sewage-bacteria (Sphaerotilus) may a pose a threat with respect to fish condition and health (Pond 2015, pers. comm.). These bacteria are prevalent in many eastern Kentucky streams where straight-pipe sewage discharges exist and can often affect other freshwater organisms. The presence of these bacteria could also indicate the presence of other pathogens. Gill and body parasites such as flukes (flatworms) and nematodes (roundworms) have been noted in other species of Etheostoma (Page and Mayden 1981, p. 8), but it is unknown if these parasites infest or harm the Kentucky arrow darter.

    Although the Kentucky arrow darter is undoubtedly consumed by native predators (e.g., fishes, amphibians, and birds), this predation is naturally occurring and a normal aspect of the species' population dynamics. Nonnative rainbow trout (Oncorhynchus mykiss) represent a potential predation threat (Etnier and Starnes 1993, p. 346) in one Kentucky arrow darter stream, Big Double Creek (Clay County), because KDFWR stocks up to 1,000 trout annually in the stream, with releases occurring in March, April, May, and October. To assess the potential predation of rainbow trout on Kentucky arrow darters or other fishes, the Service and DBNF surveyed a 2.1-km (1.3-mile) reach of Big Double Creek on April 21, 2014, which was 17 days after KDFWR's April stocking event (250 trout). A total of seven rainbow trout were captured, and the gut contents of these individuals were examined. Food items were dominated by Ephemeroptera (mayflies), with lesser amounts of Plecoptera (stoneflies), Trichoptera (caddisflies), Diptera (flies), Decapoda (crayfish), and terrestrial Coleoptera (beetles). No fish remains were observed. Based on all these factors and the absence of rainbow trout from the majority (98 percent) of Kentucky arrow darter streams demonstrates that predation by nonnative rainbow trout does not pose a threat to the species.

    In short, our review of available information indicates that neither disease nor predation is currently a threat to the species or likely to become a threat to the Kentucky arrow darter in the future.

    Factor D: The Inadequacy of Existing Regulatory Mechanisms

    The Kentucky arrow darter has been identified as a threatened species within Kentucky (KSNPC 2014, p. 40), but this State designation conveys no legal protection for the species or its habitat. Kentucky law prohibits the collection of the Kentucky arrow darter (or other fishes) for scientific purposes without a valid State-issued collecting permit (Kentucky Revised Statutes (KRS) sec. 150.183). Kentucky regulations (301 KAR 1:130, sec. 1(3)) also allow persons who hold a valid Kentucky fishing license (obtained from KDFWR) to collect up to 500 minnows per day (a minnow is defined as any nongame fish less than 6 inches in length, with the exception of federally listed species). These existing regulatory mechanisms provide some protections for the species.

    Streams within UK's Robinson Forest (Coles Fork, Snag Ridge Fork, and Clemons Fork) are currently protected from the effects of surface coal mining due to a 1990 “lands unsuitable for mining” designation (405 KAR 24:040). Streams within Robinson Forest (e.g., Clemons Fork and Coles Fork) are also protected from general disturbance by management guidelines approved by the UK's Board of Trustees in 2004 (Stringer 2015, pers. comm.). These guidelines provide general land use allocations, sustainable allowances for active research and demonstration projects involving overstory manipulation, allocations of net revenues from research and demonstration activities, and management and oversight responsibilities (Stringer 2015, pers. comm.). Under these guidelines, public access to Robinson Forest is controlled and potential impacts from such activities as recreational ATV use are avoided.

    A significant portion (about 47 percent) of the species' remaining populations are located on the DBNF and receive management and protection through DBNF's land and resource management plan (LRMP) (USFS 2004, pp. 7-16) and a recently signed CCA between the DBNF and the Service (see Comment and Response #20 in the Summary of Comments and Recommendations section). Both of these documents contain conservation measures and protective standards that are intended to conserve the Kentucky arrow darter on the DBNF. Populations within the DBNF have benefited from management goals, objectives, and protective standards included in the LRMP. Collectively, these streams contain some of the best remaining habitats for the species and support some of the species' most robust populations.

    The Kentucky arrow darter and its habitats are afforded some protection from water quality and habitat degradation under the Federal Water Pollution Control Act of 1977, commonly referred to as the Clean Water Act (33 U.S.C. 1251 et seq.); the Federal Surface Mining Control and Reclamation Act (SMCRA) (30 U.S.C. 1201 et seq.) of 1977; Kentucky's Forest Conservation Act of 1998 (KRS secs. 149.330-355); Kentucky's Agriculture Water Quality Act of 1994 (KRS secs. 224.71-140); and additional Kentucky laws and regulations regarding natural resources and environmental protection (KRS secs. 146.200-360; KRS sec. 224; 401 KAR secs. 5:026, 5:031). While these laws have undoubtedly resulted in some improvements in water quality and stream habitat for aquatic life, including the Kentucky arrow darter, sedimentation and other nonpoint-source pollutants continue to pose a threat to the species.

    The KDOW has not established total maximum daily load (TMDLs) pursuant to the Clean Water Act for identified pollutants within portions of the upper Kentucky River basin historically occupied by the Kentucky arrow darter. TMDLs do not address chemical pollutants or sedimentation of aquatic habitats. The Service is also not aware of any other current or future changes to State or Federal water quality or mining laws that will substantially address the currently observed degradation of water quality.

    Despite the current laws to prevent sediment and other pollutants from entering waterways, nonpoint-source pollution, originating from mine sites, unpaved roads, ATV trails, driveways, logging skid trails, and other disturbed habitats is considered to be a continuing threat to Kentucky arrow darter habitats.

    Kentucky State laws and regulations regarding oil and gas drilling are generally designed to protect fresh-water resources like the Kentucky arrow darter's habitat, but these regulatory mechanisms do not contain specific provisions requiring an analysis of project impacts to fish and wildlife resources (Kentucky Division of Oil and Gas et al. 2012, entire). Current regulations also do not contain or provide any formal mechanism requiring coordination with, or input from, the Service or the KDOW regarding the presence of federally endangered, threatened, or candidate species, or other rare and sensitive species.

    In July of 2015, the Office of Surface Mining Reclamation and Enforcement published in the Federal Register a notice of availability for a draft environmental impact statement regarding a proposed Stream Protection Rule (80 FR 42535, July 17, 2015) and the proposed Stream Protection Rule itself (80 FR 44436, July 27, 2015). The preamble for that proposed rule stated that the rule would better protect streams, fish, wildlife, and related environmental values from the adverse impacts of surface coal mining operations and provide mine operators with a regulatory framework to avoid water pollution and the long-term costs associated with water treatment (80 FR 44436, July 27, 2015; see SUMMARY). While the OSM proposed rule may provide benefits for the Kentucky arrow darter in the future, until the rule is finalized and implemented, we are unable to evaluate its potential effectiveness with regard to the Kentucky arrow darter and its habitat.

    In summary, degradation of habitat for the Kentucky arrow darter is ongoing despite existing regulatory mechanisms.

    Factor E: Other Natural or Manmade Factors Affecting Its Continued Existence Restricted Range and Population Size

    The disjunct nature of some Kentucky arrow darter populations (figures 2 and 3, above) likely restricts the natural exchange of genetic material between populations and could make natural repopulation following localized extirpations of the species unlikely without human intervention. Populations can be further isolated by anthropogenic barriers, such as dams, perched culverts, and fords, which can limit natural dispersal and restrict or eliminate connectivity among populations (Eisenhour and Floyd 2013, pp. 82-83). Such dispersal barriers can prevent reestablishment of Kentucky arrow populations in reaches where they suffer localized extinctions due to natural or human-caused events. The localized nature and small size of many populations also likely makes them vulnerable to extirpation from intentional or accidental toxic chemical spills, habitat modification, progressive degradation from runoff (nonpoint-source pollutants), natural catastrophic changes to their habitat (e.g., flood scour, drought), and other stochastic disturbances (Soulé 1980, pp. 157-158; Hunter 2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). Inbreeding and loss of neutral genetic variation associated with small population size can further reduce the fitness of the population (Reed and Frankham 2003, pp. 230-237), subsequently accelerating population decline (Fagan and Holmes 2006, pp. 51-60).

    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 (Soulé 1980, pp. 157-158; Hunter 2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). It is likely that some of the Kentucky arrow darter populations are below the effective population size required to maintain long-term genetic and population viability (Soulé 1980, pp. 162-164; Hunter 2002, pp. 105-107). 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). These separate populations are essential for the species to recover and adapt to environmental change (Noss and Cooperrider 1994, pp. 264-297; Harris 1984, pp. 93-104).

    Climate Change

    The Intergovernmental Panel on Climate Change (IPCC) concluded that warming of the climate system is unequivocal (IPCC 2014, p. 3). 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 Kentucky arrow darter to random catastrophic events (McLaughlin et al. 2002, pp. 6060-6074; Thomas et al. 2004, pp. 145-148) associated with an expected increase in both severity and variation in climate patterns with extreme floods, strong storms, and droughts becoming more common (Cook et al. 2004, pp. 1015-1018; Ford et al. 2011, p. 2065; IPCC 2014, pp. 58-83). 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. However, data on recent trends and predicted changes for Kentucky (Girvetz et al. 2009, pp. 1-19), and, more specifically, the upper Kentucky River drainage (Alder and Hostetler 2013, entire), provide some insight for evaluating the potential threat of climate change to the Kentucky arrow darter. These models provide estimates of average annual increases in maximum and minimum temperature, precipitation, snowfall, and other variables.

    There is uncertainty about the specific effects of climate change (and their magnitude) on the Kentucky arrow darter; however, climate change is almost certain to affect aquatic habitats in the upper Kentucky River drainage of Kentucky through increased water temperatures and more frequent droughts (Alder and Hostetler 2013, entire), 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 Kentucky arrow darter.

    In summary, we have determined that other natural and manmade factors, such as geographical isolation, small population size, and climate change, are threats to remaining populations of the Kentucky arrow darter across its range. The severity of these threats is high because of the species' reduced range and population size, which result in a reduced ability to adapt to environmental change. Further, our review of the best available scientific and commercial information indicates that these threats are likely to continue or increase in the future.

    Determination

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Kentucky arrow darter. As described in detail above, the Kentucky arrow darter has been extirpated from about 49 percent of its historical range (36 of 74 historical streams), 16 of these extirpations have occurred since the mid-1990s, populations in nearly half of the species' occupied streams are ranked as vulnerable (see table 1, above), and remaining populations are fragmented and isolated. Despite existing regulatory mechanisms (Factor D) and conservation efforts, the species 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).

    Anthropogenic activities such as surface coal mining, logging, oil/gas development, land development, agriculture, and inadequate sewage treatment have all contributed to the degradation of stream habitats within the species' range (Factor A). These land use activities have led to chemical and physical changes to stream habitats that continue to affect the species. Specific stressors include inputs of dissolved solids and elevation of instream conductivity, sedimentation/siltation of stream substrates, turbidity, and inputs of nutrients and organic enrichment. These high-magnitude stressors, especially the inputs of dissolved solids and sedimentation, have had profound negative effects on Kentucky arrow 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; however, recent extirpations have occurred (16 streams since the 1990s), and 21 streams within the species' historical range have been added to Kentucky's 303(d) list of impaired streams. The Kentucky arrow darter's vulnerability to these threats is even greater due to its reduced range, fragmented populations, and small or declining population sizes (Factor E) (Primack 2012, pp. 146-150). 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 Kentucky arrow darter meets the definition of a threatened species based on the immediacy, severity, and scope of the threats identified above. The species' overall range has been reduced substantially, most of the species' historical habitat has been degraded, and much of the remaining habitat exists primarily in fragmented patches. Despite existing regulatory mechanisms and conservation efforts, current Kentucky arrow darter habitats continue to be lost or degraded due to surface coal mining, logging, oil/gas development, land development, agriculture, and inadequate sewage treatment, and it appears this trend will continue in the future. Extant populations are known from 47 streams, but these populations continue to be threatened by small population size, isolation, fragmentation, climate change, and the habitat degradation summarized above. All of these factors make the species particularly susceptible to extinction in the future.

    We find that endangered status is not appropriate for the Kentucky arrow darter because we do not consider the species' threats to be so severe that extinction is imminent. Although threats to the species are ongoing, often severe, and occurring across the range, populations continue to occupy 47 scattered streams, 23 of which appear to support stable populations (see table 1, above). Additionally, a significant number of extant Kentucky arrow darter populations (49 percent) occur primarily on public lands (i.e., DBNF and Robinson Forest) that are at least partially managed to protect habitats used by the species. For example, the CCA with the U.S. Forest Service (USFS) for DBNF should provide an elevated level of focused management and conservation for portions of 20 streams that support populations of the Kentucky arrow darter. Based on all these factors, the Kentucky arrow darter does not meet the definition of an endangered species. Therefore, on the basis of the best available scientific and commercial information, we are listing the Kentucky arrow darter as a threatened species in accordance with sections 3(19) and 4(a)(1) of the Act.

    Under the Act and our implementing regulations, a species may warrant listing if it is an endangered or threatened species throughout all or a significant portion of its range. Because we have determined that the Kentucky arrow darter is a threatened species 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).

    Available Conservation Measures

    Conservation measures provided to species listed as endangered or threatened 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 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. The plan may be revised to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened or for 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 Kentucky 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.

    Following publication of this final rule, 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 Kentucky would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Kentucky arrow darter. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Please let us know if you are interested in participating in recovery efforts for the Kentucky arrow darter. 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 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)(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 consultation as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the USFS; issuance of section 404 Clean Water Act permits by the U.S. Army Corps of Engineers; construction and maintenance of gas pipeline and power line rights-of-way by the Federal Energy Regulatory Commission; USEPA pesticide registration; construction and maintenance of roads or highways by the Federal Highway Administration; and projects funded through Federal loan programs, which may include, but are not limited to, roads and bridges, utilities, recreation sites, and other forms of development.

    The Service, in cooperation with KDFWR, KSNPC, the U.S. Geological Survey (USGS), KDOW, DBNF, CFI, and The Appalachian Wildlife Foundation, Inc., completed a conservation strategy for the Kentucky arrow darter in 2014 (Service 2014, entire). The strategy was developed as a guidance document that would assist the Service and its partners in their conservation efforts for the species. The strategy is divided into four major sections: (1) Biology and status, (2) listing factors/current threats, (3) current conservation efforts, and (4) conservation objectives/actions. The strategy's first conservation objective addresses current informational needs on the species' biology, ecology, viability, and survey methods, while the remaining three conservation objectives address specific threats facing the species (Factors A and E, respectively).

    Several conservation efforts have been completed or are ongoing for the Kentucky arrow darter, and some of these efforts have been described previously in this listing determination. Previously mentioned efforts include the development of a CCA with the USFS (see Public Comments, Comment 20), a propagation and reintroduction study by KDFWR and CFI (see Background—Habitat and Life History), field investigations to determine the predatory risk posed by nonnative trout (see Factor C: Disease or Predation), and a movement and ecological study by EKU, KDFWR, and the Service (Baxter 2015, entire). Other important conservation actions include studies on the species' distribution, status, and population size; movement and microhabitat characteristics; genetics; and response to changes in water quality (e.g., conductivity). Details of these efforts are provided below.

    In 2013, KSNPC and the Service initiated a study to investigate the distribution, status, population size, and habitat use of the Kentucky arrow darter within the upper Kentucky River basin. One important aspect of the study was to account for imperfect detection when surveying for the species. Studies that do not account for imperfect detection can often lead to an underestimation of the true proportion of sites occupied by a species and can bias assessments and sampling efforts (MacKenzie et al. 2002, entire; MacKenzie et al. 2005, entire). From June to September 2013, KSNPC and the Service visited 80 randomly chosen sites (ranging from first- to third-order) across the upper Kentucky River basin in order to address these concerns and meet project objectives. As expected, Kentucky arrow darters were rare during the study and were observed at only 7 of the 80 sites, including two new localities (Granny Dismal Creek in Owsley County and Spring Fork Quicksand Creek in Breathitt County) and one historical stream (Hunting Creek, Breathitt County) where the species was not observed during status surveys by Thomas (2008, pp. 1-33) and the Service (2012, pp. 1-4). Presently, KSNPC and the Service are in the data analysis stage of this project.

    In July 2013, EKU, the Service, and KSNPC initiated a population estimate and microhabitat characterization study on Clemons Fork, Breathitt County. The study was designed to estimate the Kentucky arrow darter's current population size and average density within Clemons Fork and to compare current densities with historical densities reported by Lotrich (1973). Additionally, population densities and habitat parameters will be compared to data from Gilberts Big Creek and Elisha Creek (both DBNF) to aid in delineation of essential habitat characteristics and development and implementation of conservation efforts. Field surveys were completed in August 2013. Data analyses are incomplete, but initial results include a mean density of 9.69 Kentucky arrow darters per sampling reach and a population estimate of 986 to 2,113 darters in Clemons Fork (95 percent confidence intervals). Preliminary findings of this study were presented at the 2013 Southeastern Fishes Council Meeting, Lake Guntersville, Alabama (November 14-15, 2013).

    Austin Peay State University is currently working with KDFWR and the Service on the first comprehensive assessment of genetic variation and gene flow patterns across the range of the Kentucky arrow darter (Johansen et al. 2013, pp. 1-3). Approximately 25 individuals per population from up to 12 populations across the range of the species will be genotyped using microsatellite markers. Resulting data will be used to generate robust estimates of effective population sizes and overall population and species' variability. This information is essential to the development of effective conservation and recovery measures to ensure the long-term persistence of the species. Funding for this project is being provided through the Service's section 6 program.

    Through Service-USGS Quick Response funding, the USGS Leetown Science Center evaluated the relationship between Kentucky arrow darter abundance and stream conductivity in the upper Kentucky River basin (Hitt 2014, entire). Nonlinear regression techniques were used to evaluate significant thresholds and associated confidence intervals for Kentucky arrow darter abundance related to conductivity levels. As a contrast to Kentucky arrow darter, Dr. Hitt also evaluated blackside dace occurrence in this regard. Data for the study were supplied by the Service's Kentucky and Tennessee field offices, KDFWR, and KSNPC. Nonlinear regressions indicated a distinct decline in Kentucky arrow darter abundance at 258 µS/cm (95 percent confidence intervals 155-590 µS/cm), above which abundances were negligible. Nonlinear threshold declines for blackside dace were observed at 343 µS/cm, and 95 percent confidence intervals bounded this relationship between 123-632 µS/cm. Boosted regression results indicated that stream conductivity was the strongest predictor in separate analyses of Kentucky arrow darter and blackside dace abundance. Hitt (2014, pp. 7-8) concluded that the similar responses of these ecologically distinct taxa suggest the general importance of this water quality attribute for stream fish ecology in central Appalachia.

    4(d) Rule

    Under section 4(d) of the Act, the Service has discretion to issue regulations that we find necessary and advisable to provide for the conservation of threatened wildlife. We may also prohibit by regulation, with respect to threatened wildlife, any act that is prohibited by section 9(a)(1) of the Act for endangered wildlife. Exercising this discretion, the Service has developed general prohibitions that are appropriate for most threatened species at 50 CFR 17.31 and exceptions to those prohibitions at 50 CFR 17.32. While most of the prohibitions of §§ 17.31 and 17.32 are appropriate for the Kentucky arrow darter, we find that some activities that would normally be prohibited under §§ 17.31 and 17.32 are necessary for the conservation of this species because the species could benefit from habitat improvements in first- to third-order streams that are physically degraded (e.g., unstable stream channels, eroding banks, no canopy cover). Therefore, the Service has determined that a species-specific section 4(d) rule is appropriate to promote the conservation of the Kentucky arrow darter. As discussed in the Summary of Factors Affecting the Species section of this rule, the primary threat to the species is the continuing loss and degradation of habitat. Physical habitat degradation is widespread within the species' range, and sediment has been identified as the most common stressor (KDOW 2013a, pp. 189-214; KDOW 2013b, pp. 88-94). Sedimentation may originate from areas outside of the stream channel as a result of land use activities associated with surface coal mining, legacy coal extraction, logging, land development, channel relocations, and riparian clearing. All of these activities can cause sedimentation, but they may also lead to canopy removal, clearing of riparian vegetation, and elevation of stream temperatures, thereby degrading habitats used by Kentucky arrow darters for feeding, sheltering, and reproduction. Sedimentation may also originate from areas within the stream channel as a result of channel instability and bank or stream bed erosion. Numerous streams within the species' current range have been identified as impaired (primarily due to siltation) and have been included on Kentucky's 303(d) list of impaired waters (see table 2, above). Activities such as stream reconfiguration/riparian restoration, bridge and culvert replacement or removal, bank stabilization, and stream crossing repair and maintenance that follow the provisions of the species-specific 4(d) rule below will improve or restore physical habitat quality for the Kentucky arrow darter and will provide an overall conservation benefit to the species.

    The 4(d) rule will not remove or alter in any way the consultation requirement under section 7 of the Act. However, we expect the 4(d) rule to provide greater certainty to Federal agencies and any third parties (e.g., permit applicants) in the consultation process for activities conducted in accordance with the provisions of the 4(d) rule. The consultation process may be further streamlined through programmatic consultations between Federal agencies and the Service for these activities.

    Provisions of the 4(d) Rule

    This 4(d) rule exempts from the general prohibitions in 50 CFR 17.32 take that is incidental to the following activities when conducted within habitats currently occupied by the Kentucky arrow darter. All of the activities listed below must be conducted in a manner that (1) maintains connectivity of suitable Kentucky arrow darter habitats, allowing for dispersal between streams; (2) minimizes instream disturbance by conducting activities during low-flow periods when possible; and (3) maximizes the amount of instream cover that is available for the species:

    (1) Channel reconfiguration or restoration projects that create natural, physically stable, ecologically functioning streams (or stream and wetland systems) that are reconnected with their groundwater aquifers (Parola and Biebighauser 2011, pp. 8-13; Parola and Hansen 2011, pp. 2-7; Floyd et al. 2013, pp. 129-135). These projects can be accomplished using a variety of methods, but the desired outcome is a natural, sinuous channel with low shear stress (force of water moving against the channel); low bank heights and reconnection to the floodplain; a reconnection of surface and groundwater systems, resulting in perennial flows in the channel; riffles and pools composed of existing soil, rock, and wood instead of large imported materials; low compaction of soils within adjacent riparian areas; and inclusion of riparian wetlands. First- to third-order, headwater streams reconstructed in this way would offer suitable habitats for the Kentucky arrow darter and contain stable channel features, such as pools, glides, runs, and riffles, which could be used by the species for spawning, rearing, growth, feeding, migration, and other normal behaviors.

    (2) Bank stabilization projects that utilize bioengineering methods outlined by the Kentucky Energy and Environment Cabinet and Kentucky Transportation Cabinet (Kentucky Environmental and Public Protection Cabinet and Kentucky Transportation Cabinet 2005, pp. 116-128) to replace pre-existing, bare, eroding stream banks with vegetated, stable stream banks, thereby reducing bank erosion and instream sedimentation and improving habitat conditions for the species. Following these methods, stream banks may be stabilized using live stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), live fascines (live branch cuttings, usually willows, bound together into long, cigar-shaped bundles), or brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill). These methods would not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures.

    (3) Bridge and culvert replacement/removal projects that remove migration barriers (e.g., collapsing, blocked, or perched culverts) or generally allow for improved upstream and downstream movements of Kentucky arrow darters while maintaining normal stream flows, preventing bed and bank erosion, and improving habitat conditions for the species.

    (4) Repair and maintenance of USFS concrete plank stream crossings in the DBNF that allow for safe vehicle passage while maintaining instream habitats, reducing bank and stream bed erosion and instream sedimentation, and improving habitat conditions for the species. These concrete plank crossings have been an effective stream crossing structure in the DBNF and have been used for decades. Over time, the planks can be buried by sediment or undercut during storm events, or simply break down and decay. If these situations occur, the DBNF must make repairs or replace the affected plank.

    We believe that these actions and activities, while they may have some minimal level of mortality, harm, or disturbance to the Kentucky arrow darter, are not expected to adversely affect the species' conservation and recovery efforts. In fact, we believe that they would have a net beneficial effect on the species. Across the species' range, instream habitats have been degraded physically by sedimentation and by direct channel disturbance. The activities identified in this rule will correct some of these problems, creating more favorable habitat conditions for the species.

    Based on the rationale above, the provisions included in this 4(d) rule are necessary and advisable to provide for the conservation of the Kentucky arrow darter. Nothing in this 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the Kentucky arrow darter.

    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 scientific purposes, to enhance the propagation or survival of the species, economic hardship, zoological exhibition, educational purposes, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibited activities, 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 (for this species, those section 9 prohibitions adopted through the 4(d) rule). The intent of this policy is to increase public awareness of the effect of a final listing on proposed and ongoing activities within the range of a listed species. 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, although this list is not comprehensive:

    (1) Normal agricultural and silvicultural practices, including herbicide and pesticide use, which are carried out in accordance with any existing regulations, permit and label requirements, and best management practices; and

    (2) Surface coal mining and reclamation activities conducted in accordance with the 1996 BO between the Service and OSM.

    However, we believe the following activities may potentially result in a violation of section 9 of the Act, although this list is not comprehensive:

    (1) Unauthorized collecting or handling of the species.

    (2) Destruction or alteration of the habitat of the Kentucky arrow darter (e.g., unpermitted instream dredging, impoundment, water diversion or withdrawal, channelization, discharge of fill material) that impairs essential behaviors such as breeding, feeding, or sheltering, or results in killing or injuring a Kentucky arrow darter.

    (3) Discharges or dumping of toxic chemicals, contaminants, or other pollutants into waters supporting the Kentucky arrow darter that kills or injures individuals, or otherwise impairs essential life-sustaining behaviors such as breeding, feeding, or sheltering.

    Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Kentucky Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Required Determinations 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, 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. No tribal lands or other interests are affected by the rule.

    References Cited

    A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov in Docket No. FWS-R4-ES-2015-0132 and upon request from the Kentucky Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this final rule are the staff members of the Kentucky Ecological Services Field Office.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

    2. Amend § 17.11(h) by adding an entry for “Darter, Kentucky arrow” 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.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules *         *         *         *         *         *         * FISHES *         *         *         *         *         *         * Darter, Kentucky arrow Etheostoma spilotum Wherever found T 81 FR [Insert Federal Register page where the document begins]; October 5, 2016, 50 CFR 17.44(p)4d, 50 CFR 17.95(e) CH. *         *         *         *         *         *         *
    3. Amend § 17.44 by adding paragraph (p) to read as follows:
    § 17.44 Special rules—fishes.

    (p) Kentucky arrow darter (Etheostoma spilotum).

    (1) Prohibitions. Except as noted in paragraph (p)(2) of this section, all prohibitions and provisions of 50 CFR 17.31 and 17.32 apply to the Kentucky arrow darter.

    (2) Exceptions from prohibitions.

    (i) All of the activities listed in paragraph (p)(2)(ii) of this section must be conducted in a manner that:

    (A) Maintains connectivity of suitable Kentucky arrow darter habitats, allowing for dispersal between streams;

    (B) Minimizes instream disturbance by occurring during low-flow periods when possible; and

    (C) Maximizes the amount of instream cover that is available for the species.

    (ii) Incidental take of the Kentucky arrow darter will not be considered a violation of section 9 of the Act if the take results from any of the following when conducted within habitats currently occupied by the Kentucky arrow darter:

    (A) Channel reconfiguration or restoration projects that create natural, physically stable, ecologically functioning streams (or stream and wetland systems) that are reconnected with their groundwater aquifers. These projects can be accomplished using a variety of methods, but the desired outcome is a natural, sinuous channel with low shear stress (force of water moving against the channel); low bank heights and reconnection to the floodplain; a reconnection of surface and groundwater systems, resulting in perennial flows in the channel; riffles and pools composed of existing soil, rock, and wood instead of large imported materials; low compaction of soils within adjacent riparian areas; and inclusion of riparian wetlands. First- to third-order headwater streams reconstructed in this way would offer suitable habitats for the Kentucky arrow darter and contain stable channel features, such as pools, glides, runs, and riffles, which could be used by the species for spawning, rearing, growth, feeding, migration, and other normal behaviors.

    (B) Bank stabilization projects that use State-approved bioengineering methods (specified by the Kentucky Energy and Environment Cabinet and the Kentucky Transportation Cabinet) to replace preexisting, bare, eroding stream banks with vegetated, stable stream banks, thereby reducing bank erosion and instream sedimentation and improving habitat conditions for the species. Following these methods, stream banks may be stabilized using live stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), live fascines (live branch cuttings, usually willows, bound together into long, cigar-shaped bundles), or brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill). These methods would not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures.

    (C) Bridge and culvert replacement/removal projects that remove migration barriers (e.g., collapsing, blocked, or perched culverts) or generally allow for improved upstream and downstream movements of Kentucky arrow darters while maintaining normal stream flows, preventing bed and bank erosion, and improving habitat conditions for the species.

    (D) Repair and maintenance of U.S. Forest Service concrete plank stream crossings on the Daniel Boone National Forest (DBNF) that allow for safe vehicle passage while maintaining instream habitats, reducing bank and stream bed erosion and instream sedimentation, and improving habitat conditions for the species. These concrete plank crossings have been an effective stream crossing structure on the DBNF and have been used for decades. Over time, the planks can be buried by sediment, undercut during storm events, or simply break down and decay. If these situations occur, the DBNF must make repairs or replace the affected plank.

    Dated: September 19, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-23545 Filed 10-4-16; 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-2015-0164; 4500030113] RIN 1018-BA16 Endangered and Threatened Wildlife and Plants; Endangered Species Status for the Miami Tiger Beetle (Cicindelidia floridana) AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973 (Act), as amended, for the Miami tiger beetle (Cicindelidia floridana), a beetle species from Miami-Dade County, Florida. The effect of this regulation will be to add this species to the Federal List of Endangered and Threatened Wildlife and extend the Act's protections to this species.

    DATES:

    This rule becomes effective November 4, 2016.

    ADDRESSES:

    This final rule is available on the internet at http://www.regulations.gov and at http://www.fws.gov/verobeach/. Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at http://www.regulations.gov. Comments, materials, and documentation that we considered in this rulemaking will be available by appointment, during normal business hours at: U.S. Fish and Wildlife Service, South Florida Ecological Services Office, 1339 20th Street, Vero Beach, FL 32960; telephone 772-562-3909; facsimile 772-562-4288.

    FOR FURTHER INFORMATION CONTACT:

    Roxanna Hinzman, Field Supervisor, U.S. Fish and Wildlife Service, South Florida Ecological Services Office, 1339 20th Street, Vero Beach, FL 32960, by telephone 772-562-3909 or by facsimile 772-562-4288. 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 Endangered Species Act, a species may warrant protection through listing if it is endangered or threatened throughout all or a significant portion of its range. Listing a species as an endangered or threatened species can only be completed by issuing a rule.

    The basis for our action. Under the Endangered Species 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 the threats to the Miami tiger beetle consist of habitat loss, degradation, and fragmentation, and proposed future development of habitat (Factor A); collection, trade, and sale (Factor B); inadequate protection from existing regulatory mechanisms (Factor D); and a small isolated population with a restricted geographical range, limited genetic exchange, and restricted dispersal potential that is subject to demographic and environmental stochasticity, including climate change and sea level rise (Factor E).

    Peer review and public comment. We sought comments from independent specialists to ensure that our designation is based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment on our listing proposal. We also considered all other comments and information received during the comment period.

    Previous Federal Action

    Please refer to the proposed listing rule for the Miami tiger beetle (80 FR 79533), published on December 22, 2015, for a detailed description of previous Federal actions concerning this species. We will also be proposing a designation of critical habitat for the Miami tiger beetle under the Act in the near future.

    Background

    The discussion below incorporates revisions to the discussion in the proposed listing rule for the Miami tiger beetle (80 FR 79533; December 22, 2015) on taxonomy, distribution, and population estimates and status based on internal and peer review and public comments. Please refer to the proposed listing rule for discussion of the species' description, habitat, and biology.

    Taxonomy

    Determining the taxonomy of a plant or animal and the relationship that this plant or animal has with similar, closely related members of its taxon involves the review of comparative morphology and descriptive characteristics, geographic range and separation of members, reproductive capabilities between members, and the genetic distinctiveness between them. Together the available information is assessed to determine the validity of a species.

    The Miami tiger beetle (Cicindelidia floridana Cartwright) is a described species in the Subfamily Cicindelinae of the Family Carabidae (ground beetles). Previously, tiger beetles were considered a separate family, but are now classified as a subfamily of the family Carabidae on the basis of recent genetic studies and other characters (Bousquet 2012, p. 30). The Miami tiger beetle is in the C. abdominalis group that also includes the eastern pinebarrens tiger beetle (C. abdominalis), scabrous tiger beetle (C. scabrosa), and Highlands tiger beetle (C. highlandensis). New treatments of tiger beetles (Bousquet 2012, p. 30; Pearson et al. 2015, p. 138) have also elevated most of the previous subgenera of tiger beetles to genera, resulting in a change of the genus of the tiger beetles in the C. abdominalis group from Cicindela to Cicindelidia. These genera were originally proposed by Rivalier (1954, entire) and are widely used by European scientists (Wiesner 1992, entire), but are considered subgenera by many American scientists. The return to Rivalier's system has also been supported by genetic evidence (Pearson et al. 2015, p. 16).

    The four species in the Cicindelidia abdominalis group all share a small body size (7-11 mm (0.28-0.43 in) long) and orange underside, and they occur in inland sandy habitats. The four beetles maintain separate ranges along the U.S. east coast and exhibit a significant gradient in range size: The eastern pinebarrens tiger beetle occurs from New York south along the coastal plain to north Florida; the scabrous tiger beetle is present throughout much of peninsular Florida, south to Ft. Lauderdale; the Highlands tiger beetle is restricted to the Lake Wales Ridge of Highlands and Polk Counties, Florida; and the Miami tiger beetle is found only in Miami-Dade County, Florida.

    The Miami tiger beetle was first documented from collections made in 1934, by Frank Young (see Distribution, below). There were no observations after this initial collection, and the species was thought to be extinct until it was rediscovered in 2007, at the Zoo Miami Pine Rockland Preserve in Miami-Dade County. The rediscovery of a Miami tiger beetle population provided additional specimens to the 1934 collection and prompted a full study of its taxonomic status, which elevated it to a full species, Cicindelidia floridana (Brzoska et al. 2011, entire).

    The Miami tiger beetle is distinguished from the three other species of the abdominalis group based on: (1) Morphology (color, maculation (spots or markings), and elytral (modified front wing) microsculpture); (2) distribution; (3) habitat requirements; and (4) seasonality (Brzoska et al. 2011, entire; Bousquet 2012, p. 313; Pearson et al. 2015, p. 138). This array of distinctive characters is comparable to the characters used to separate the other three species of the C. abdominalis group.

    Although color is often variable and problematic as a sole diagnostic trait in tiger beetles, it is useful when combined with other factors (Brzoska et al. 2011, p. 4). In comparison with the closely related scabrous tiger beetle, the Miami tiger beetle has a green or bronze-green elytra, rarely with a post median marginal spot, and without evidence of a middle band, while the scabrous tiger beetle has a black elytra, with a post median marginal spot, usually with a vestige of a middle band (Brzoska et al. 2011, p. 6) (see Brzoska et al. 2011 for detailed description, including key). There are also noticeable differences in the width of the apical lunule (crescent shape), with the Miami tiger beetle's being thin and the scabrous tiger beetle's medium to thick.

    In addition, the Miami tiger beetle has a narrower, restricted range where its distribution does not overlap with the other three species in the C. abdominalis group (i.e., the Miami tiger beetle has only been documented in Miami-Dade County). The Miami tiger beetle also occupies a unique habitat type (i.e., pine rockland versus scrub or open sand and barren habitat). These habitats also provide different larval microhabitat, which has been recognized as an important factor that separates species (T. Schultz, 2016, pers. comm.).

    Lastly, the Miami tiger beetle has a broader period of adult activity than the “late spring to mid-summer” cycle that is observed in the scabrous tiger beetle (Brzoska et al. 2011, p. 6) (see also Distribution, Habitat, and Biology sections, below). Adult Miami tiger beetles have been observed from early May through mid-October; this is an unusually long flight period that suggests either continual emergence or two emergence periods (Brzoska et al. 2011, p. 6). In summary, the Miami tiger beetle is recognized as a distinct full species, based upon its differences in morphology, distribution, habitat, and seasonality (Brzoska et al. 2011, entire; Bousquet 2012, p. 313; Pearson et al. 2015, p. 138).

    Genetics information is also commonly used to identify taxonomic relatedness. Genetic analyses for the Miami tiger beetle to date are limited to one non-peer-reviewed study, and available techniques (e.g., genomics, which can better study the process of speciation) are evolving. A limited genetic study using mitochondrial DNA (mtDNA) suggested that the eastern pinebarrens tiger beetle, Highlands tiger beetle, scabrous tiger beetle, and Miami tiger beetle are closely related and recently evolved (Knisley 2011a, p. 14). As with other similar Cicindela groups, these three sister species were not clearly separable by mtDNA analysis alone (Knisley 2011a, p. 14). The power of DNA sequencing for species resolution is limited when species pairs have very recent origins, because in such cases new sister species will share alleles for some time after the initial split due to persistence of ancestral polymorphisms, incomplete lineage sorting, or ongoing gene flow (Sites and Marshall 2004, pp. 216-221; McDonough et al. 2008, pp. 1312-1313; Bartlett et al. 2013, pp. 874-875). Changing sea levels and coincidental changes in the size of the land mass of peninsular Florida during the Pleistocene Era (2.6 million years ago to 10,000 years ago) is thought to be the key factor in the very recent evolutionary divergence and speciation of the three Florida species from C. abdominalis (Knisley 2015a, p. 5; Knisley 2015b, p. 4).

    Despite the apparent lack of genetic distinctiveness from the one non-peer-reviewed, limited genetic study, tiger beetle experts and peer-reviewed scientific literature agree that, based on the morphological uniqueness, geographic separation, habitat specialization, and extended flight season, the Miami tiger beetle warrants species designation (Brzoska et al. 2011, entire; Bousquet 2012, p. 313; Pearson et al. 2015, p. 138). The most current peer-reviewed scientific information confirms that Cicindelidia floridana is a full species, and this taxonomic change is used by the scientific community (Brzoska et al. 2011, entire; Bousquet 2012, p. 313; Pearson et al. 2015, p. 138; Integrated Taxonomic Information System (ITIS), 2016, p. 1).

    The ITIS was created by a White House Subcommittee on Biodiversity and Ecosystem Dynamics to provide scientifically credible taxonomic information and standardized nomenclature on species. The ITIS is partnered with Federal agencies, including the Service, and is used by agencies as a source for validated taxonomic information. The ITIS recognizes the Miami tiger beetle as a valid species (ITIS, 2016, p. 1). Both the ITIS (2016, p. 1) and Bousquet (2012, p. 313) continue to use the former genus, Cicindela (see discussion above). The Florida Natural Areas Inventory (FNAI) (2016, p. 16) and NatureServe (2015, p. 1) also accepts the Miami tiger beetle's taxonomic status as a species; however, FNAI uses the new generic designation, Cicindelidia. In summary, although there is some debate about the appropriate generic designation (Cicindelidia versus Cicindela), based upon the best available scientific information, the Miami tiger beetle is a valid species.

    Distribution Historical Range

    The historical range of the Miami tiger beetle is not completely known, and available information is limited based on the single historical observation prior to the species' rediscovery in 2007. It was initially documented from collections made in 1934 by Frank Young within a very restricted range in the northern end of the Miami Rock Ridge, in a region known as the Northern Biscayne Pinelands. The Northern Biscayne Pinelands, which extend from the city of North Miami south to approximately SW. 216th Street, are characterized by extensive sandy pockets of quartz sand, a feature that is necessary for the Miami tiger beetle (Service 1999, p. 3-162). The type locality (the place where the specimen was found) was likely pine rockland habitat, though the species is now extirpated from the area (Knisley and Hill 1991, pp. 7, 13; Brzoska et al. 2011, p. 2; Knisley 2015a, p. 7). The exact location of the type locality in North Miami was determined by Rob Huber, a tiger beetle researcher who contacted Frank Young in 1972. Young recalled collecting the type specimens while searching for land snails at the northeast corner of Miami Avenue and Gratigny Road (119th Street), North Miami. Huber checked that location the same year and found that a school had been built there. A more thorough search for sandy soil habitats throughout that area found no potential habitat (Knisley and Hill 1991, pp. 7, 11-12). Although the contact with Young did not provide habitat information for the type locality, a 1943 map of habitats in the Miami area showed pine rockland with sandy soils reaching their northern limit in the area of the type locality (Knisley 2015a, p. 27), and Young's paper on land snails made reference to pine rockland habitat (Young 1951, p. 6). Recent maps, however, show that the pine rockland habitat has been mostly developed from this area, and remaining pine rockland habitat is mostly restricted to sites owned by Miami-Dade County in south Miami (Knisley 2015a, p. 7).

    In summary, it is likely that the Miami tiger beetle historically occurred throughout pine rockland habitat on the Miami Rock Ridge. Given the lack of recorded collection of the species for nearly 70 years, it may have always had a localized distribution (Schultz, 2016, pers. comm.).

    Current Range

    The Miami tiger beetle was thought to be extinct until 2007, when a population was discovered at the Richmond Heights area of south Miami, Florida, known as the Richmond Pine Rocklands (Brzoska et al. 2011, p. 2; Knisley 2011a, p. 26). The Richmond Pine Rocklands is a mixture of publicly and privately owned lands that retain the largest area of contiguous pine rockland habitat within the urbanized areas of Miami-Dade County and outside of the boundaries of Everglades National Park (ENP). Surveys and observations conducted at Long Pine Key in ENP have found no Miami tiger beetles, and habitat conditions are considered unsuitable for the species (Knisley 2015a, p. 42; J. Sadle, 2015, pers. comm.). At this time, the Miami tiger beetle is known to occur in only two separate locations within pine rockland habitat in Miami-Dade County. The Richmond population occurs on four contiguous parcels within the Richmond Pine Rocklands: (1) Zoo Miami Pine Rockland Preserve (Zoo Miami) (293 hectares (ha); 723 acres (ac)), (2) Larry and Penny Thompson Park (121 ha; 300 ac), (3) U.S. Coast Guard property (USCG) (96 ha; 237 ac), and (4) University of Miami's Center for Southeastern Tropical Advanced Remote Sensing property (CSTARS) (31 ha; 76 ac) (see Table 1 in Supporting Documents on http://www.regulations.gov). The second population, which was recently identified (September 2015) is within approximately 5.0 km (3.1 mi) of the Richmond population and separated by urban development (D. Cook, 2015a, pers. comm.). Based on historical records, current occurrences, and habitat needs of the species (see Habitat section, below), the current range of the species is considered to be any pine rockland habitat (natural or disturbed) within the Miami Rock Ridge (Knisley 2015a, p. 7; CBD et al. 2014, pp. 13-16, 31-32).

    Miami tiger beetles within the four contiguous occupied parcels in the Richmond population are within close proximity to each other. There are apparent connecting patches of habitat and few or no barriers (contiguous and border each other on at least one side) between parcels. Given the contiguous habitat with few barriers to dispersal, frequent adult movement among individuals is likely, and the occupied Richmond parcels probably represent a single population (Knisley 2015a, p. 10). Information regarding Miami tiger beetles at the new location is very limited, but beetles here are within approximately 5.0 km (3.1 mi) of the Richmond population and separated by ample urban development, which likely represents a significant barrier to dispersal, and the Miami tiger beetles at the new location are currently considered a second population.

    The Richmond population occurs within an approximate 2-square-kilometer (km2) (494-ac) block, but currently much of the habitat is overgrown with vegetation, leaving few remaining open patches for the beetle. Survey data documented a decline in the number of open habitat patches, and Knisley (2015a, pp. 9-10) estimated that less than 10 percent of the mostly pine rockland habitat within this area supports the species in its current condition.

    Population Estimates and Status

    The visual index count is the standard survey method that has been used to determine presence and abundance of the Miami tiger beetle. Using this method, surveyors either walk slowly or stand still in appropriate open habitats, while taking a count of any beetle observations. Although the index count has been the most commonly used method to estimate the population size of adult tiger beetles, various studies have demonstrated it significantly underestimates actual numbers present. As noted earlier, several studies comparing various methods for estimating adult tiger beetle abundance have found numbers present at a site are typically two to three times higher than that produced by the index count (Knisley and Schultz 1997, p. 15; Knisley 2009, entire; Knisley and Hill 2013, pp. 27, 29). Numbers are underestimated because tiger beetles are elusive, and some may fly off before being detected while others may be obscured by vegetation in some parts of the survey area. Even in defined linear habitats like narrow shorelines where there is no vegetation and high visibility, index counts produce estimates that are two to three times lower than the numbers present (Knisley and Schultz 1997, p. 152).

    Information on the Richmond population size is limited because survey data are inconsistent, and some sites are difficult to access due to permitting, security, and liability concerns. Of the occupied sites, the most thoroughly surveyed site for adult and larval Miami tiger beetles is the Zoo Miami parcel (over 30 survey dates from 2008 to 2014) (Knisley 2015a, p. 10). Adult beetle surveys at the CSTARS and USCG parcels have been infrequent, and access was not permitted in 2012 through early summer of 2014. In October 2014, access to both the CSTARS and USCG parcels was permitted, and no beetles were observed during October 2014 surveys. As noted earlier, Miami tiger beetles were recently found at Larry and Penny Thompson Park (D. Cook, 2015b, pers. comm.); however, thorough surveys at this location have not been conducted. For details on index counts and larval survey results from the three surveyed parcels (Zoo Miami, USCG, and CSTARS), see Table 2 in Supporting Documents on http://www.regulations.gov.

    Raw index counts found adults in four areas (Zoo A, Zoo B, Zoo C, and Zoo D) of the Zoo Miami parcel. Two of these patches (Zoo C and Zoo D) had fewer than 10 adults during several surveys at each location. Zoo A, the more northern site where adults were first discovered, had peak counts of 17 and 22 adults in 2008 and 2009, but declined to 0 and 2 adults in six surveys from 2011 to 2014, despite thorough searches on several dates throughout the peak of the adult flight season (Knisley 2015a, pp. 9-10). Zoo B, located south of Zoo A, had peak counts of 17 and 20 adults from 2008 to 2009, 36 to 42 adults from 2011 to 2012, and 13 and 18 adults in 2014 (Knisley 2015a, pp. 9-10). These surveys at Zoo A and Zoo B also recorded the number of suitable habitat patches (occupied and unoccupied). Surveys between 2008 and 2014 documented a decline in both occupied and unoccupied open habitat patches. Knisley (2015, pp. 9-10) documented a decrease at Zoo A from 7 occupied of 23 patches in 2008, to 1 occupied of 13 patches in 2014. At Zoo B, there was a decrease from 19 occupied of 26 patches in 2008, to 7 occupied of 13 patches in 2014 (Knisley 2015a, pp. 9-10). Knisley (2015a, p. 10) suggested this decline in occupied and unoccupied patches is likely the result of the vegetation that he observed encroaching into the open areas that are required by the beetle.

    At the CSTARS site, the only survey during peak season was on August 20, 2010, when much of the potential habitat was checked. This survey produced a raw count of 38 adults in 11 scattered habitat patches, with 1 to 9 adults per patch, mostly in the western portion of the site (Knisley 2015a, p. 10). Three surveys at the USCG included only a portion of the potential habitat and produced raw adult counts of two, four, and two adults in three separate patches from 2009, 2010, and 2011, respectively (Knisley 2015a, p. 10). Additional surveys of the CSTARS and the USCG parcels on October 14 to 15, 2014, surveyed areas where adults were found in previous surveys and some new areas; however, no adults were observed. The most likely reasons for the absence of adults were because counts even during the peak of the flight season were low (thus detection would be lower off-peak), and mid-October is recognized as the end of the flight season (Knisley 2014a, p. 2). As was noted for the Zoo Miami sites, habitat patches at the CSTARS and USCG parcels that previously supported adults seemed smaller due to increased vegetation growth, and consequently these patches appeared less suitable for the beetle than in the earlier surveys (Knisley 2015a, p. 10).

    Surveys of adult numbers over the years, especially the frequent surveys in 2009, did not indicate a bimodal adult activity pattern (two cohorts of adults emerge during their active season) (Knisley 2015a, p. 10). Knisley (2015a, p. 10) suggests that actual numbers of adult Miami tiger beetles could be two to three times higher than indicated by the raw index counts. Several studies comparing methods for estimating population size of several tiger beetle species, including the Highlands tiger beetle, found total numbers present were usually more than two times that indicated by the index counts (Knisley and Hill 2013, pp. 27-28). The underestimates from raw index counts are likely to be comparable or greater for the Miami tiger beetle, because of its small size and occurrence in small open patches where individuals can be obscured by vegetation around the edges, making detection especially difficult (Knisley 2015a, p. 10).

    Surveys for larvae at the Zoo Miami parcel (Zoos A and B) were conducted for several years during January when lower temperatures would result in a higher level of larval activity and open burrows (Knisley and Hill 2013, p. 38) (see Table 2 in Supporting Documents on http://www.regulations.gov). The January 2010 survey produced a count of 63 larval burrows, including 5 first instars, 36 second instars, and 22 third instars (Knisley 2013, p. 4). All burrows were in the same bare sandy patches where adults were found. In March 2010, a followup survey indicated most second instar larvae had progressed to the third instar (Knisley 2015a, p. 11). Additional surveys to determine larval distribution and relative abundance during January or February in subsequent years detected fewer larvae in section Zoo B: 5 larvae in 2011, 3 larvae in 2012, 3 and 5 larvae in 2013, 3 larvae in 2014, and 15 larvae in 2015 (Knisley 2013, pp. 4-5; Knisley 2015c, p. 1). The reason for this decline in larval numbers (i.e., from 63 in 2010, to 15 or fewer in each survey year from 2011 to 2015) is unknown. Possible explanations are that fewer larvae were present because of reduced recruitment by adults from 2010 to 2014, increased difficulty in detecting larval burrows that were present due to vegetation growth and leaf litter, environmental factors (e.g., temperature, precipitation, predators), or a combination of these factors (Knisley 2015a, pp. 10-11).

    Larvae, like adults, also require open patches free from vegetation encroachment to complete their development. The January 2015 survey of Zoo B observed vegetation encroachment, as indicated by several of the numbered tags marking larval burrows in open patches in 2010 covered by plant growth and leaf litter (Knisley 2015c, p. 1). No larvae were observed in the January 2015 survey of Zoo A (Knisley 2015c, p. 1). Knisley (2015c, p. 3) reported that the area had been recently burned (mid-November) and low vegetation was absent, resulting in mostly bare ground with extensive pine needle coverage below trees, which made the identification of previous open patches with adults difficult.

    Surveys for the beetle's presence outside of its currently known occupied range found no Miami tiger beetles at a total of 42 sites (17 pine rockland sites and 25 scrub sites) throughout Miami-Dade, Broward, Palm Beach, and Martin Counties (Knisley 2015a, pp. 9, 41-45). The absence of the Miami tiger beetle from sites north of Miami-Dade was probably because it never ranged beyond pine rockland habitat of Miami-Dade County and into scrub habitats to the north (Knisley 2015a, p. 9). Sites without the Miami tiger beetle in Miami-Dade County mostly had vegetation that was too dense and were lacking the open patches of sandy soil that are needed by adults for oviposition and larval habitat (Knisley 2015a, pp. 9, 41-45).

    The Miami tiger beetle is considered as one of two tiger beetles in the United States most in danger of extinction (Knisley et al. 2014, p. 93). The viability of the remaining population is unknown, as no population viability analysis is available (B. Knisley, 2015d, pers. comm.). The Florida Fish and Wildlife Conservation Commission (FWC) (2012, p. 89) regarded it as a species of greatest conservation need. The Miami tiger beetle is currently ranked S1 and G1 by the FNAI (2016, p.16), meaning it is critically imperiled globally because of extreme rarity (5 or fewer occurrences, or fewer than 1,000 individuals) or because of extreme vulnerability to extinction due to some natural or manmade factor.

    In summary, the overall population size of the Miami tiger beetle is exceptionally small and viability is uncertain. Based upon the index count data to date, it appears that the two populations exist in extremely low numbers (Knisley 2015a, pp. 2, 10-11, 24).

    Summary of Comments and Recommendations

    In the proposed rule published on December 22, 2015 (80 FR 79533), we requested that all interested parties submit written comments on the proposal by February 22, 2016. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Miami Herald. We held a public hearing on January 13, 2016.

    Peer Reviewer Comments

    In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from seven knowledgeable individuals with scientific expertise that included familiarity with tiger beetles and their habitat, biological needs, and threats. We appreciate the responses received from five of the peer reviewers.

    We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the listing of the Miami tiger beetle. All peer reviewers supported the endangered listing, and four of the five specifically stated that the best available scientific information was used in the proposed listing. The peer reviewers concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

    (1) Comment: One peer reviewer recommended the immediate use of fire management in pine rockland habitat for the Miami tiger beetle.

    Our Response: We also recognize, as discussed below (see Summary of Factors Affecting the Species), the need for better land management, including the use of prescribed fire, additional survey and life-history data, further investigation into laboratory rearing for possible reintroduction, more extensive genetic analysis, and designation of critical habitat.

    (2) Comment: One peer reviewer stated that one of the most relevant ecological factors that separate tiger beetle species is soil type and microhabitat of the larvae, and the limestone substrate of the Miami tiger beetle as opposed to the sandy habitats of the scabrous tiger beetle (C. scabrosa) reflect subsequent adaptation to a local habitat following a geographic separation.

    Our Response: We have modified the language under Taxonomy above to incorporate this statement regarding larval microhabitat.

    (3) Comment: One peer reviewer stated that the lack of collection of the Miami tiger beetle for decades after its initial discovery may indicate that it has always been very localized in its distribution.

    Our Response: We have modified the language under Distribution above to incorporate this statement regarding a localized distribution.

    (4) Comment: One peer reviewer stated that development in and around Miami tiger beetle habitat will present a decline to habitat quality through runoff from structures.

    Our Response: We have modified Factor A below to incorporate this information.

    (5) Comment: One peer reviewer stated that the negative impact of pesticides may be increased with the spread of the Zika virus.

    Our Response: We have incorporated this information under Factor E below.

    Comments From States

    The Miami tiger beetle occurs only in Florida, and we received one comment letter from the Florida Fish and Wildlife Conservation Commission (FWC). FWC stated its plans to continue working with stakeholders to assess known and potential Miami tiger beetle habitat, conduct surveys, and advise on issues relating to Miami tiger beetle conservation and habitat management.

    Comments From the Public

    During the comment period for the proposed listing rule, we received a total of 73 comments from local governments, nongovernmental organizations, and private citizens. Of these 73 comments, 65 indicated support of the proposed listing. We appreciate all comments and have incorporated them into the final rule or responded to them below, as appropriate.

    (6) Comment: Several commenters questioned the taxonomy as a result of Choate's work, use of best scientific and commercial data, morphological characteristics, and seasonality of the Miami tiger beetle.

    Our Response: In accordance with section 4 of the Act, we are required to make listing determinations on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards under the Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines (www.fws.gov/informationquality/), provide criteria and guidance, and establish procedures to ensure that our decisions are based on the best scientific data and commercial data available.

    The Taxonomy section above discusses the taxonomic designation of the Miami tiger beetle. The most currently peer-reviewed scientific information confirms that the Miami tiger beetle is a full species, and this taxonomic designation is used by the scientific community (Brzoska et al. 2011, entire; Bousquet 2012, p. 313; Pearson et al. 2015, p. 138; ITIS, 2016, p. 1; FNAI 2016, p. 16; NatureServe 2015, p. 1). The works referenced by commenters (Choate 1984 and 2003) pre-date the rediscovery of the Miami tiger beetle in 2007 and do not include the most currently accepted taxonomic standing of the species. Prior to the rediscovery, the species had not been observed since its original collection in 1934. Choate did not examine specimens of the Miami tiger beetle when he synonymized it with the scabrous tiger beetle (NatureServe 2015, p. 1).

    Brzoska et al. (2011, entire) established taxonomic criteria and did not intend for color and other morphological features to be used in isolation as intended in the taxonomic criteria set. Color and maculation are commonly used to identify tiger beetles, especially in combination with geographic range and habitat (Knisley and Schultz 1997, pp. 5-10; Pearson et al. 2015, pp. 19-20). Color, morphological features (post median marginal spot, middle band, and apical (apex, the top or highest part forming a point) lunule (crescent-shaped), distribution, seasonality, and habitat type of the Miami tiger beetle are only used in combination to differentiate it from the scabrous tiger beetle (Brzoska et al. 2011, entire), so minor overlap in individual features, such as post median marginal spot as noted by the commenters, is not necessarily a uniquely identifying feature until taken into consideration with the other identifying factors.

    Regarding color, all specimens of the Miami tiger beetle observed by Brzoska et al. (2011, entire) were bright metallic green dorsally on the head, pronotum, and elytron, while the scabrous tiger beetle is metallic black dorsally, with only a few individuals having a greenish head and pronotum (prominent plate-like structure that covers all or part of the thorax). Likewise, no Miami tiger beetles had a thick lunule or a middle band. This suite of characteristics identified by Brzoska et al. (2011, entire), clearly differentiate the Miami tiger beetle from the scabrous tiger beetle. Since Brzoska et al. (2011, entire), there has been no debate in the scientific literature about the taxonomic characters used to identify the Miami tiger beetle as a species, and to our knowledge all literature since Brzoska et al. (2011, entire) recognize it as a valid species (Bousquet 2012, p. 313; Pearson et al. 2015, p. 138; ITIS 2016, p. 1; FNAI 2016, p. 16; NatureServe 2015, p. 1).

    Finally, we agree that there is some overlap in the adult activity period between the Miami tiger beetle and its closely related sister species, the scabrous tiger beetle; however, the adult flight season for the Miami tiger beetle extends into October, while that of the scabrous tiger beetle, which is far more widespread and has been collected on a more routine basis, does not. The Miami tiger beetle has been observed during October surveys for three separate years (2008, 2009, and 2011). Seasonality is only one of several factors used to differentiate the Miami tiger beetle from the scabrous tiger beetle.

    (7) Comment: Three commenters stated that the genetic study on the Miami tiger beetle should not be rejected.

    Our Response: We agree that distinct differences in DNA can be helpful in delineating species. The single genetic study that is available on the Miami tiger beetle was used in the listing determination process and is discussed in Taxonomy above. This genetic study concluded that the Miami, Highlands, scabrous, and eastern pinebarrens tiger beetles are all closely related, recently evolved, and not clearly separable by the mtDNA analysis conducted. This finding is not uncommon among closely related Cicindela groups (Woodcock and Knisley 2009, entire; Knisley 2011a, p. 14). The lack of genetic distinctiveness in the study does show that the mtDNA markers used (cytochrome b and cytochrome oxidase subunit 1) were not in agreement with the morphological, seasonal, ecological, and geographic criteria that have been used to identify the species (Choate 1984, entire; Brzoska et al. 2011, entire), but this finding is not necessarily an indication that they are not separate species.

    Determining the taxonomy of a species and its evolutionary relationships with similar, closely related members of its taxon involves the review of comparative morphology and descriptive characteristics, geographic range and separation of members, reproductive capabilities between members, and the genetic distinctiveness between them. Together the available information is assessed to determine the validity of a species. This determination is not based on any one single factor in isolation, but rather on the weight of evidence from the suite of factors available. The identifying criteria that clearly define the sister species used in the genetic study (Choate 1984, entire; Brzoska et al. 2011, entire) have been peer reviewed and are accepted in the scientific literature (Bousquet 2012, p. 313; Pearson et al. 2015, p. 138; ITIS 2016, p. 1; FNAI 2016, p. 16; NatureServe 2015, p. 1). As suggested by one peer reviewer, an analysis using nuclear DNA, with multiple different genes, instead of the two that were used in the genetic analysis, may be more useful in the case of these closely related sister species.

    (8) Comment: Five commenters provided information on observations of Miami tiger beetles at the following locations: University of Miami, Zoo Miami, Larry and Penny Thompson Park, Gold Coast Railroad Museum, U.S. Coast Guard, and an undisclosed location, miles away from the Richmond Pine Rocklands.

    Our Response: The proposed rule listed the Miami tiger beetle as occurring on Zoo Miami, the University of Miami CSTARS Campus, Larry and Penny Thompson Park, the U.S. Coast Guard, and an undisclosed location within approximately 5 km (3 mi) of the Richmond Pine Rocklands. The Gold Coast Railroad Museum was not included in the proposed rule because it is the first reported observation of Miami tiger beetles. Since receiving this information, we have searched scientific and commercial data to validate this location. The Gold Coast Railroad Museum parcel is within close proximity to known occupied sites within the Richmond Pine Rocklands. Because of the contiguous habitat with few barriers to dispersal, many of the parcels within the Richmond Pine Rocklands are suitable or potentially suitable for the Miami tiger beetle.

    (9) Comment: Two commenters expressed concern that the proposed rule lacked specificity in range or habitat boundaries for the Miami tiger beetle, which presents uncertainty for anyone planning development within the range of the species. So that the economic consequence of the rule can be appropriately evaluated, one commenter requested that the Service collect more survey data to better delineate habitat boundaries and make this data available for review and comment, prior to publication of a final rule.

    Our Response: Under the Endangered Species Act, listing determinations must be made based on the best available scientific and commercial information. Economic and other potential impacts are not considered in the listing determination, but rather in the consideration of exclusion of areas from critical habitat under section 4(b)(2) of the Act, when in the process of designating critical habitat for a species. As discussed below (see Critical Habitat), we have found that critical habitat is not determinable at this time.

    The Distribution section, above, discusses the historical and current range of the Miami tiger beetle. Additionally, we are continuing to study and define the specificity in range and habitat boundaries for the Miami tiger beetle.

    (10) Comment: One commenter stated that the proposed rule did not appropriately capture the single-season survey data points collected by Miami-Dade County and Fairchild Tropical Botanic Garden, which provide some perspective on the population of the Miami tiger beetle in the Richmond Pine Rocklands.

    Our Response: We received the survey data points collected by Miami-Dade County and others on January 29, 2016, after the proposed listing rule publication on December 22, 2015. Our description of the species' extant occurrences within the Richmond Pine Rocklands in the Distribution section above is consistent with the new data presented to us by Miami-Dade County (i.e., the Miami tiger beetle is known from four contiguous parcels within the Richmond Pine Rocklands: Zoo Miami Pine Rockland Preserve, Larry and Penny Thompson Park, University of Miami's Center for Southeastern Tropical Advanced Remote Sensing, and U.S. Coast Guard).

    (11) Comment: One commenter stated that we incorrectly reported that no robber flies have been observed in areas where the Miami tiger beetles occur.

    Our Response: We have revised Factor C below to include observations of potential predators, such as robber flies.

    (12) Comment: One commenter recommended 12 pine rockland sites throughout Miami-Dade County be thoroughly surveyed for the Miami tiger beetle.

    Our Response: We support further surveys for the species at sites throughout Miami-Dade County and appreciate the list provided of areas to target.

    (13) Comment: Two commenters stated that the range of the Miami tiger beetle is unknown and improperly assumed to be limited. Both questioned why we did not reference Choate's (2003) field guide, which lists the scabrous tiger beetle as occurring in Miami-Dade County.

    Our Response: Since Choate's published work considered the Miami tiger beetle a synonym for the scabrous tiger beetle, then it is logical that he listed the distribution as within Miami-Dade County. We used the more recent publication by Brzoska et al. (2011, entire) that elevated the Miami tiger beetle to species and is widely accepted in the scientific literature (Bousquet 2012, p. 313; Pearson et al. 2015, p. 138; ITIS 2016, p. 1; FNAI 2016, p. 16; NatureServe 2015, p. 1).

    (14) Comment: Two commenters stated that the surveying efforts have been inadequate to conclude that the Miami tiger beetle is rare.

    Our Response: Surveys (during the summers of 2008 and 2010) for the Miami tiger beetle have included 42 sites (17 pine rockland sites and 25 scrub sites) throughout Miami-Dade, Broward, Palm Beach, and Martin Counties (Knisley 2015a, pp. 9, 41-45). To date, the Miami tiger beetle is known to occur in only two small populations: The Richmond Pine Rocklands and an undisclosed pine rockland within 5 km (3.1 mi) of the Richmond population and separated by urban development. Limitations to surveys are noted above in Population Estimates and Status.

    (15) Comment: Four of the comments received raised a question about the habitat of the type locality.

    Our Response: The original description of the Miami tiger beetle (Cartwright 1939, p. 364) provided no detailed information regarding habitat type, other than being in Miami, Florida. Based on later correspondence between tiger beetle researchers and the collector of the type specimen, the general area of the collection was narrowed down to the vicinity of Gratigny Road and present-day Barry University (Brzoska et al. 2011, pp. 1-2). This general area was just north (approximately 2.2 km (1.4 mi)) of the northern extent of the pine rocklands on the Miami Rock Ridge in the 1940s (Davis 1943, entire), approximately 10 years after the collection from the type locality. In the 1980s and 1990s, collectors did look for the species in this general location, but this area was fully developed, with no remaining natural habitat. Based on the habitat types of the other closely related Cicindelidia that occur in Florida, it was assumed that the Miami tiger beetle, too, likely occupied scrub habitats. The species was then rediscovered in 2007 from pine rockland habitat. Based on historical photos and documents on Barry University (http://www.barry.edu/about/history/historic-photo-tour/ [accessed April 27, 2016]; Rice 1989, pp. 7, 10), there is evidence that the land currently occupied by Barry University had pine habitat with abundant pine trees and sandy soils. While this information is not irrefutable proof that it was pine rockland habitat, this area is consistent with the habitat type at the known currently occupied locations.

    (16) Comment: One commenter stated that data do not support the conclusion that collection is a threat to the Miami tiger beetle.

    Our Response: Based on data from other insects, including tiger beetles, we consider collection to be a significant threat to the Miami tiger beetle in light of the few known remaining populations, low abundance, and highly restricted range. Since publication of the proposed rule, we have received information on known unpermitted collection of Miami tiger beetles (Wirth, 2016a, pers. comm.). This new information is incorporated under Factor B below.

    (17) Comment: One commenter expressed concern that disease and predation was not identified as a threat for the Miami tiger beetle.

    Our Response: This topic is addressed under Factor C. below. We concluded that potential impact from predators or parasites to the Miami tiger beetle is unknown at this time, and, therefore it was not identified as a threat in the listing determination. However, Factor C below has been updated to include new observations on potential predators at a location known to have Miami tiger beetles.

    (18) Comment: One commenter stated that existing regulatory mechanisms are adequate to protect the Miami tiger beetle, citing existing critical habitat for other listed species.

    Our Response: These topics are discussed under Factor D below. The Miami tiger beetle is far rarer (i.e., fewer populations with fewer individuals within a limited distribution) than any of the other listed species with critical habitat that occur within pine rocklands in Miami-Dade County. As an unlisted species, the Miami tiger beetle is afforded limited protection from sections 7 and 10 of the Act based on its co-occurrence with listed species or their critical habitat; however, effects determinations and minimization and avoidance criteria for any of these listed species are unlikely to be fully protective. Critical habitat designations for other species also would not afford the beetle protections from take.

    (19) Comment: One commenter stated that Miami-Dade County's regulatory and land protection programs protect Miami tiger beetle habitat. The commenter also specified that county's Environmentally Endangered Lands (EELs) program should be included under Factor A.

    Our Response: This topic, including EELs, is addressed under Factor D below. Because Miami-Dade County's Natural Forested Communities (NFCs) designation allows for partial development of pine rockland habitat and there is known unpermitted development and destruction of pine rockland that continues to occur, the regulation is not fully protective against loss of Miami tiger beetles or their habitat. The county's EELs program funds the acquisition and maintenance of pine rockland habitat. Because these lands are not burned as frequently as needed to maintain suitable beetle habitat, they are not included in the discussion under Factor A, Conservation Efforts to Reduce the Present or Threatened Destruction, Modification, or Curtailment of Habitat or Range. We have incorporated this clarification into the final rule under Factor D below.

    (20) Comment: One commenter stated that listing could be counter-productive to conducting valuable prescribed burns and habitat management by the Florida Forest Service.

    Our Response: We agree that habitat management, including fire break and trail maintenance, prescribed fire, and mechanical and chemical treatment, is highly valuable for the Miami tiger beetle, but disagree that listing could be counter-productive to implementing prescribed burns or other habitat management activities by the Florida Forest Service. The Act requires us to make a determination using the best available scientific and commercial data after taking into account those efforts, if any, being made by any State, or any political subdivision of a State to protect such species, whether by predatory control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction. Further, the listing of a species does not obstruct the development of conservation agreements or partnerships to conserve the species. Once a species is listed as either endangered or threatened, the Act provides many tools to advance the conservation of listed species. Conservation of listed species in many parts of the United States is dependent upon working partnerships with a wide variety of entities, including the voluntary cooperation of non-Federal landowners.

    (21) Comment: One commenter stated that the best available science does not indicate that few, small, isolated populations are a threat for the Miami tiger beetle. They concluded that the Miami tiger beetle can persist in the long term with relatively small populations, and that we fail to explain why the Miami tiger beetle requires a different population target than other beetles.

    Our Response: We acknowledge that populations of some tiger beetle species (e.g., northeastern beach, puritan, and Highlands tiger beetles) are able to persist with low population size, while other populations (e.g., Coral Pink Sand Dunes tiger beetles) have been extirpated. One peer reviewer stated that, given the small population sizes, the Miami tiger beetle could be extirpated by environmental fluctuations. Another peer reviewer stated that the vulnerability of the Miami tiger beetle is clearly established in the proposed rule due to the few remaining small populations and little remaining habitat. Given that the Miami tiger beetle is known only from two remaining isolated populations with few individuals, any significant decrease in the population size could easily result in extinction of the species. This issue is discussed under Factor E, below.

    The proposed rule set no specific population target for the Miami tiger beetle. The species is considered rarer than any of the listed tiger beetle species (Knisley et al. 2014, p. 106). In an evaluation on the status of 62 tiger beetles in the United States, the Miami tiger beetle was considered as one of two tiger beetles most in danger of extinction (Knisley et al. 2014, p. 93). Florida Natural Areas Inventory (2016, p. 16) considered the species extremely vulnerable to extinction. One peer reviewer stated that the Miami tiger beetle is probably the most endangered species of tiger beetle in North America. Survey data to date indicate that the two populations exist in extremely low numbers. This topic is discussed under Population Estimates and Status above.

    (22) Comment: One commenter stated that pesticide exposure in the Richmond Pine Rocklands is largely mitigated by current efforts to protect the Bartram's scrub-hairstreak butterfly. The commenter states that we fail to present the differing opinion on pesticides from Knisley (2014).

    Our Response: We acknowledge that Miami-Dade Mosquito Control's (MDMCs) recent implementation of truck-based spray buffers around critical habitat for the Bartram's scrub-hairstreak butterfly have greatly reduced pesticide exposure to the Miami tiger beetle, and mosquito control is currently not considered a major threat for the known populations at this time. However, the current spray buffers are not regulations and are subject to change based on human health concerns, which is likely with the spread of the Zika virus as pointed out by one peer reviewer (see peer review comment (5) above). In addition, if the Miami tiger beetle was found to occur on habitat that is not protected by the butterfly's critical habitat, then exposure is possible. This topic is discussed under Factor E, below.

    Regarding the Service not disclosing a differing opinion by Knisley (2014), it is unclear which Knisley (2014) opinion is referenced by the commenter. The supplemental documents provided by the commenter do not include a Knisley (2014) reference that addresses pesticides. Knisley's (2015a, pp. 15-16) species assessment on the Miami tiger beetle, which was modified from a Service species assessment, identified pesticides as a potential threat.

    (23) Comment: One commenter stated that our analysis on the threat of climate change failed to present evidence on how the Miami tiger beetle is affected, since it has survived operations of a former naval air station, hurricanes, and operations by Zoo Miami. In addition, the commenter stated that, under most climate change predictions, Miami-Dade County's efforts should protect the pine rockland habitat from saltwater intrusion and must be included as the best available data.

    Our Response: We agree that the Miami tiger beetle has survived operations of a former naval air station, hurricanes, and operations by Zoo Miami; however, we do not know the impact of these events on the Miami tiger beetle, because no surveys were conducted until after its rediscovery in 2007. All of the projected climate change scenarios indicate negative effects on pine rockland habitat throughout Miami-Dade County. This includes everything from rising temperatures, increased storm frequency and severity, changes in rainfall patterns, rising sea levels, and “coastal squeeze,” which occurs when the habitat is pressed between rising sea levels and coastal development. Even before projected inundation, pine rocklands are likely to undergo transitions including increased salinity in the water table and soils, which would cause vegetation shifts and potential impacts to the beetle. This issue is addressed in Factor E below. The commenter did not provide a reference to support its statement that Miami-Dade County's efforts should protect the pine rockland habitat from saltwater intrusion. Based on the best available scientific and commercial data available, we consider climate change a threat to the Miami tiger beetle.

    (24) Comment: One commenter identified an editorial error under Factor A of the proposed rule (80 FR 79533, December 22, 2015; page 79540), which states that the two known populations of the Miami tiger beetle occur within the Richmond Pine Rocklands.

    Our Response: We acknowledge that this was an editorial error, as the Miami tiger beetle is known from two populations, only one of which is found within the Richmond Pine Rocklands. We have revised this text under Factor A, below.

    (25) Comment: One commenter stated that the proposed listing rule failed to present the positive examples of using prescribed fire in an urban landscape in citations from Snyder and URS. The commenter pointed out that the URS citation discussed the necessity of prescribed fire to avoid catastrophic risk to surrounding property, including homes, and even loss of life.

    Our Response: We have incorporated these concepts under Factor A below.

    (26) Comment: One commenter stated that the Service has been presented with the boundary limits of the proposed Miami Wilds development.

    Our Response: We agree that the proposed boundary limits of the proposed Miami Wilds development have been presented to us. However, the statement in the proposed rule under Factor A, below, that plans have yet to be finalized, is accurate, since no formal review of the project has been initiated by the proposed applicant.

    (27) Comment: One commenter expressed concern that routine operational maintenance in existing and potential future transmission and distribution right-of-ways (ROW), such as but not limited to vegetation management and power restoration, may be limited or hindered. The commenter requested that “utilities development” be excluded from the section 9 prohibited actions and that language be added indicating that permits will not be required for ROW maintenance activities.

    Our Response: This type of request can be covered under a rule issued under section 4(d) of the Act, which allows for some “take” of a threatened species when the overall outcome of the allowed actions are “necessary and advisable to provide for the conservation of the species.” However, a special rule may not be promulgated for species listed as endangered, such as the Miami tiger beetle.

    We strongly encourage that anyone conducting activities, including utilities development and maintenance on lands potentially supporting Miami tiger beetles to consult with the Service on their activities to ensure they do not jeopardize the continued survival and recovery of the beetle and that incidental take may be authorized. The Miami tiger beetle is one of several federally listed species that occurs in Miami-Dade County. Consultation could be done on a programmatic basis for power restoration and routine maintenance of ROWs for all listed species.

    (28) Comment: Three comments received addressed the FWC's biological status review of the Miami tiger beetle. Two of the comments questioned how the FWC and Service would coordinate efforts. One of the commenters stated that the FWC should take the lead without duplication of efforts at the Federal level.

    Our Response: It is our policy to coordinate with the FWC on all proposed and final listings, and we will continue to do so for all future actions. As stated in the Previous Federal Actions section of the proposed rule, the Service was petitioned to list the Miami tiger beetle. The Service's listing process and the Commission's biological status review are two separate and independent actions. However, we have incorporated language under Factor D below to reflect that the FWC was requested to undertake a biological status review on the Miami tiger beetle and is currently doing so.

    (29) Comment: One commenter requested that any underlying data that were used in the proposed rule (e.g., field notes; photographs with notes on use of lighting, equipment, filters, or adjustments; any statistical analyses, collection, and laboratory data from genetic work; and peer review comments from Brzoska et al. (2011)) be included in a re-publication of the proposed rule.

    Our Response: In rulemaking decisions under the Act, the Service makes available all cited literature used that is not already publicly available. We post grey literature, information from States, or other unpublished resources on http://www.regulations.gov concurrent with the Federal Register publication.

    (30) Comment: One commenter stated that it was inappropriate to make references to the Coral Reef Commons proposed development and habitat conservation plan (HCP) in the proposed rule.

    Our Response: Under Factor A below we discuss the threat of proposed development in the Richmond Pine Rocklands, but we do not directly use the name “Coral Reef Commons.” Information about this proposed development was cited using the publicly available draft HCP. This discussion is appropriate and required under section 4 of the Act (16 U.S.C. 1533), because the proposed development of Coral Reef Commons is within suitable Miami tiger beetle habitat and, therefore, must be included in an analysis of the threatened destruction of habitat.

    (31) Comment: Two commenters questioned the peer review of documents used in the proposed listing rule, the reliance on the work of Dr. Barry Knisley, and the affiliation between Dr. Knisley and one of the petitioners.

    Our Response: Dr. Knisley is regarded as one of the nation's foremost experts on tiger beetles generally (e.g., has (co)authored 58 publications including 3 books on tiger beetles) and the Miami tiger beetle specifically, and he has performed the vast majority of research on the Miami tiger beetle, including extensive surveys under contract with the Service. Thus, the heavy reliance on his work in the listing rule is fully appropriate. Christopher Wirth, one of the petitioners, was a former student and research assistant under Dr. Knisley; however, Dr. Knisley is not included as one of the petitioners. As noted by the commenters, Dr. Knisley has stated that his research focuses on the conservation of rare tiger beetles and unique natural areas. There is no basis or evidence to support the commenters' claims of bias on Dr. Knisley's part.

    (32) Comment: Two commenters claim that photographs published in Brzoska et al. (2011, entire) appear to be digitally enhanced and, if so, must be fully disclosed. One of these commenters also presents pictures of the Miami and scabrous tiger beetles from the Florida State Collection of Arthropods (FSCA) and claims there are no discernible differences other than color.

    Our Response: Photographs of specimens in Brzoska et al. (2011, entire) were taken by Christopher Wirth. He has informed us that the photographs were not digitally enhanced, and rely only on reflected flash lighting (Wirth, 2016b, pers. comm.). In regard to the photographs taken from the FSCA, it appears that the Miami and scabrous tiger beetles not only differ in coloration, but also the presence of a medial spot and thicker apical lunule (crescent shape) in the scabrous tiger beetle.

    Summary of Changes From the Proposed Rule

    Based on information we received in peer review and public comments, we made the following changes:

    In the Background section:

    (1) We included larval microhabitat as an important factor to differentiate species.

    (2) We revised the historical range of the Miami tiger beetle as possibly localized considering the lack of collection for nearly 70 years.

    (3) We updated literature citations to those most currently available and replaced and removed citations from Duran and Gwiazdowski (in preparation) and Spomer (2014, pers. comm.), respectively.

    In the Summary of Factors Affecting the Species section:

    (4) We included run-off from potential development as a threat to habitat quality.

    (5) We included discussion of the Zika virus under the potential for pesticide exposure.

    (6) We included new observations of robber fly species in Miami tiger beetle habitat.

    (7) We revised wording related to the location of the two known Miami tiger beetle populations.

    (8) We added a citation and text pertaining to the necessity of fire to maintain pine rockland habitat.

    (9) We included the State of Florida's biological status review of the Miami tiger beetle.

    (10) We included new information on known collection of the Miami tiger beetle.

    (11) We included text regarding maintenance of EELs lands within Miami-Dade County.

    (12) We made minor editorial changes in verb tense, language clarification, and redundant word usage.

    Summary of Factors Affecting the Species

    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(a)(1) of the Act, we may list a 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; 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. Each of these factors is discussed below:

    Factor A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

    The Miami tiger beetle is threatened by habitat loss and modification caused by changes in land use and inadequate land management, including the lack of prescribed burns and vegetation (native and nonnative) encroachment (discussed separately below). Habitat loss and modification are expected to continue and increase, affecting any populations on private lands as well as those on protected lands that depend on management actions (i.e., prescribed fire) where these actions could be precluded by surrounding development.

    Habitat Loss

    The Miami tiger beetle has experienced substantial destruction, modification, and curtailment of its habitat and range (Brzoska et al. 2011, pp. 5-6; Knisley 2013, pp. 7-8; Knisley 2015a, p. 11). The pine rockland community of south Florida, on which the beetle depends, is critically imperiled globally (FNAI 2013, p. 3). Destruction of the pinelands for economic development has reduced this habitat by 90 percent on mainland south Florida (O'Brien 1998, p. 208). Outside of ENP, only about 1 percent of the Miami Rock Ridge pinelands have escaped clearing, and much of what is left is in small remnant blocks isolated from other natural areas (Herndon 1998, p. 1).

    One of the two known populations of the Miami tiger beetle occurs within the Richmond Pine Rocklands, on parcels of publicly or privately owned lands that are partially developed, yet retain some undeveloped pine rockland habitat. In the 1940s, the Naval Air Station Richmond was built largely on what is currently the Zoo Miami parcel. Much of the currently occupied Miami tiger beetle habitat on the Zoo Miami parcel was scraped for the creation of runways and blimp hangars (Wirth 2015, entire). The fact that this formerly scraped pine rockland area now provides suitable habitat for the Miami tiger beetle demonstrates the restoration potential of disturbed pine rockland habitat (Possley 2015, entire; Wirth 2015, entire).

    Any current known or unknown, extant Miami tiger beetle populations or potentially suitable habitat that may occur on private lands or non-conservation public lands, such as elsewhere within the Richmond Pine Rocklands or surrounding pine rocklands, are vulnerable to habitat loss. Miami-Dade County leads the State in gross urban density at 8,343 people per square mile (https://www.bebr.ufl.edu/population/publications/measuring-population-density-counties-florida [accessed May 18, 2016]), and development and human population growth are expected to continue in the future. By 2025, Miami-Dade County is predicted to near or exceed a population size of 3 million people (Rayer and Wang 2016, p. 7). This predicted economic and population growth will further increase demands for land, water, and other resources, which will undoubtedly exacerbate the threats to the survival and recovery of the Miami tiger beetle.

    Remaining habitat is at risk of additional losses and degradation. Of high and specific concern are proposed development projects within the Richmond Pine Rocklands (CBD et al. 2014, pp. 19-24). In 2013, plans for potential development on portions of the Zoo Miami and USCG parcels were announced in local newspapers (Munzenrieder 2013, entire) and subsequently advertised through other mechanisms (https://www.miamidade.gov/dpmww/SolicitationDetails.aspx?Id=Invitation%20To%20Negotiate%20(ITN) [accessed April 24, 2014]). The proposed development includes the following: Theme park rides; a seasonally opened water park; a 400-room hotel with a Sony Music Theatre performance venue; a 2,900-square meter (30,000-square feet) retail and restaurant village; an entertainment center with movie theaters and bowling; an outdoor area for sports; a landscaped pedestrian and bike path; parking; and a 2.4-km (1.5-mi) transportation link that unifies the project's parts (Dinkova 2014a, p. 1). The proposed development will require at least a portion of the USCG parcel, which would occur through purchase or a land swap (Dinkova 2014b, p. 1).

    The Service notified Miami-Dade County in a December 2, 2014, letter about proposed development concerns with potential impacts to listed, candidate, and imperiled species, including the Miami tiger beetle. Plans for the proposed development on the Zoo Miami and USCG parcels have yet to be finalized, so potential impacts to the Miami tiger beetle and its habitat cannot be fully assessed. However, based upon available information provided to date, it appears that the proposed development will impact suitable or potentially suitable beetle habitat.

    In July 2014, the Service became aware of another proposed development project on privately owned lands within the Richmond Pine Rocklands. In a July 15, 2014, letter to the proposed developer, the Service named the Miami tiger beetle (along with other federally listed and proposed species and habitats) as occurring within the project footprint, and expressed concern over indirect impacts (e.g., the ability to conduct prescribed fire within the Richmond Pine Rocklands). Based upon applicant plans received in May 2015, the proposed project will contain a variety of commercial, residential, and other development within approximately 56 ha (138 ac) (Ram 2015, p. 4). It is unknown if the Miami tiger beetle occurs on the proposed development site, as only one limited survey has been conducted on a small portion (approximately 1.7 ha (4.3 ac)) of the proposed development area and more surveys are needed. Based upon available information, it appears that the proposed developments will likely impact suitable or potentially suitable beetle habitat, because roughly 13 ha (33 ac) of the proposed development are planned for intact and degraded pine rocklands (Ram 2015, p. 91). The Service has met with the developers to learn more about their plans and how they will address listed, candidate, and imperiled species issues; negotiations are continuing, and a draft habitat conservation plan has been developed (Ram 2015, entire).

    Given the species' highly restricted range and uncertain viability, any additional losses are significant. Additional development might further limit the ability to conduct prescribed burns or other beneficial management activities that are necessary to maintain the open areas within pine rockland habitat that are required by the beetle. The pattern of public and private ownership presents an urban wildland interface, which is a known constraint for implementing prescribed fire in similar pine rockland habitats (i.e., at National Key Deer Refuge and in southern Miami-Dade County) (Snyder et al. 2005, p. 2; Service 2009, p. 50; 79 FR 47180, August 12, 2014; 79 FR 52567, September 4, 2014). The Florida Department of Forestry has limited staff in Miami-Dade County, and they have been reluctant to set fires for liability reasons (URS 2007, p. 39) (see “Land Management,” below). In addition to constraints with fire management, run-off from development (e.g., structures, asphalt, concrete) into adjacent pine rockland habitat will likely increase and further alter the habitat quality (Schultz, 2016, pers. comm.).

    In summary, given the Miami tiger beetle's highly restricted range and uncertain viability, any additional losses of habitat within its current range present substantial threats to its survival and recovery.

    Land Management

    The threat of habitat destruction or modification is further exacerbated by a lack of adequate fire management (Brzoska et al. 2011, pp. 5-6; Knisley 2013, pp. 7-8; Knisley 2015a, p. 2). Historically, lightning-induced fires were a vital component in maintaining native vegetation within the pine rockland ecosystem, as well as for opening patches in the vegetation required by the beetles (Loope and Dunevitz 1981, p. 5; Slocum et al. 2003, p. 93; Snyder et al. 2005, p. 1; Knisley 2011a, pp. 31-32). Open patches in the landscape, which allow for ample sunlight for thermoregulation, are necessary for Miami tiger beetles to perform their normal activities, such as foraging, mating, and oviposition (Knisley 2011a, p. 32). Larvae also require these open patches to complete their development free from vegetation encroachment.

    Without fire, successional change from tropical pineland to hardwood hammock is rapid, and displacement of native plants by invasive, nonnative plants often occurs, resulting in vegetation overgrowth and litter accumulation in the open, bare, sandy patches that are necessary for the Miami tiger beetle. In the absence of fire, pine rockland will succeed to tropical hardwood hammock in 20 to 30 years, as a thick duff layer accumulates and eventually results in the appearance of organic rich humic soils rather than organic poor mineral soils (Alexander 1967, p. 863; Wade et al. 1980, p. 92; Loope and Dunevitz 1981, p. 6; Snyder et al. 1990, p. 260). Fire is not only a necessity for maintaining pine rockland habitat, but also for preventing catastrophic loss to surrounding property and life in an urban landscape (URS 2007, p. 38). Studies and management plans have emphasized the necessity of prescribed fire in pine rockland habitat and highlighted it as preferential, compared to the alternatives to prescribed fire (e.g., herbicide application and mechanical treatment) (Snyder et al. 2005, p. 1; URS 2007, p. 39).

    Miami-Dade County has implemented various conservation measures, such as burning in a mosaic pattern and on a small scale, during prescribed burns, to help conserve the Miami tiger beetles and other imperiled species and their habitats (URS, 2007, p. J. Maguire, 2010, pers. comm.). Miami-Dade County Parks and Recreation staff has burned several of its conservation lands on fire return intervals of approximately 3 to 7 years. However, implementation of the county's prescribed fire program has been hampered by a shortage of resources, logistical difficulties, smoke management, and public concern related to burning next to residential areas (Snyder et al. 2005, p. 2; FNAI 2010, p. 5). Many homes and other developments have been built in a mosaic of pine rockland, so the use of prescribed fire in many places has become complicated because of potential danger to structures and smoke generated from the burns. The risk of liability and limited staff in Miami-Dade County has hindered prescribed fire efforts (URS 2007, p. 39). Nonprofit organizations, such as the Institute for Regional Conservation, have faced similar challenges in conducting prescribed burns, due to difficulties with permitting and obtaining the necessary permissions, as well as hazard insurance limitations (Bradley and Gann 2008, p. 17; G. Gann, 2013, pers. comm.). Few private landowners have the means or desire to implement prescribed fire on their property, and doing so in a fragmented urban environment is logistically difficult and costly (Bradley and Gann 2008, p. 3). Lack of management has resulted in rapid habitat decline on most of the small pine rockland fragments, with the disappearance of federally listed and candidate species where they once occurred (Bradley and Gann 2008, p. 3).

    Despite efforts to use prescribed fire as a management tool in pine rockland habitat, sites with the Miami tiger beetle are not burned as frequently as needed to maintain suitable beetle habitat. Most of the occupied beetle habitat at Miami-Dade County's Zoo Miami parcel was last burned in January and October of 2007; by 2010, there was noticeable vegetation encroachment into suitable habitat patches (Knisley 2011a, p. 36). The northern portion (Zoo A) of the Zoo Miami site was burned in November 2014 (Knisley 2015c, p. 3). Several occupied locations at the CSTARS parcel were burned in 2010, but four other locations at CSTARS were last burned in 2004 and 2006 (Knisley 2011a, p. 36). No recent burns are believed to have occurred at the USCG parcel (Knisley 2011a, p. 36). The decline in adult numbers at the two primary Zoo Miami patches (A and B) in 2014 surveys, and the few larvae found there in recent years, may be a result of the observed loss of bare open patches (Knisley 2015a, p. 12; Knisley 2015c, pp. 1-3). Surveys of the CSTARS and USCG parcels in 2014 found similar loss of open patches from encroaching vegetation (Knisley 2015a, p. 13).

    Alternatives to prescribed fire, such as mechanical removal of woody vegetation, are not as ecologically effective as fire. Mechanical treatments do not replicate fire's ability to recycle nutrients to the soil, a process that is critical to many pine rockland species (URS 2007, p. 39). To prevent organic soils from developing, uprooted woody debris requires removal, which adds to the required labor. The use of mechanical equipment can also damage soils and inadvertently include the removal or trampling of other nontarget species or critical habitat (URS 2007, p. 39).

    Nonnative plants have significantly affected pine rocklands (Bradley and Gann 1999, pp. 15, 72; Bradley and Gann 2005, numbers not applicable; Bradley and van der Heiden 2013, pp. 12-16). As a result of human activities, at least 277 taxa of nonnative plants have invaded pine rocklands throughout south Florida (Service 1999, p. 3-175). Neyraudia neyraudiana (Burma reed) and Schinus terebinthifolius (Brazilian pepper), which have the ability to rapidly invade open areas, threaten the habitat needs of the Miami tiger beetle (Bradley and Gann 1999, pp. 13, 72). S. terebinthifolius, a nonnative tree, is the most widespread and one of the most invasive species. It forms dense thickets of tangled, woody stems that completely shade out and displace native vegetation (Loflin 1991, p. 19; Langeland and Craddock Burks 1998, p. 54). Acacia auriculiformis (earleaf acacia), Melinis repens (natal grass), Lantana camara (shrub verbena), and Albizia lebbeck (tongue tree) are some of the other nonnative species in pine rocklands. More species of nonnative plants could become problems in the future, such as Lygodium microphyllum (Old World climbing fern), which is a serious threat throughout south Florida.

    Nonnative, invasive plants compete with native plants for space, light, water, and nutrients, and make habitat conditions unsuitable for the Miami tiger beetle, which responds positively to open conditions. Invasive nonnatives also affect the characteristics of a fire when it does occur. Historically, pine rocklands had an open, low understory where natural fires remained patchy with low temperature intensity. Dense infestations of Neyraudia neyraudiana and Schinus terebinthifolius cause higher fire temperatures and longer burning periods. With the presence of invasive, nonnative species, it is uncertain how fire, even under a managed situation, will affect habitat conditions or Miami tiger beetles.

    Management of nonnative, invasive plants in pine rocklands in Miami-Dade County is further complicated because the vast majority of pine rocklands are small, fragmented areas bordered by urban development. Fragmentation results in an increased proportion of “edge” habitat, which in turn has a variety of effects, including changes in microclimate and community structure at various distances from the edge (Margules and Pressey 2000, p. 248); altered spatial distribution of fire (greater fire frequency in areas nearer the edge) (Cochrane 2001, pp. 1518-1519); and increased pressure from nonnative, invasive plants and animals that may out-compete or disturb native plant populations. Additionally, areas near managed pine rockland that contain nonnative species can act as a seed source of nonnatives, allowing them to continue to invade the surrounding pine rockland (Bradley and Gann 1999, p. 13).

    Conservation Efforts To Reduce the Present or Threatened Destruction, Modification, or Curtailment of Habitat or Range

    In 2005, the Service funded the Institute for Regional Conservation (IRC) to facilitate restoration and management of privately owned pine rockland habitats in Miami-Dade County. This initiative included prescribed burns, nonnative plant control, light debris removal, hardwood management, reintroduction of pines where needed, and development of management plans. The Pine Rockland Initiative includes 10-year cooperative agreements between participating landowners and the Service/IRC to ensure restored areas will be managed appropriately during that time. Although most of these objectives regarding nonnative plant control, creation of firebreaks, removal of excessive fuel loads, and management plans have been achieved, IRC has not been able to conduct the desired prescribed burns, due to logistical difficulties as discussed above (see “Land Management”). IRC has recently resolved some of the challenges regarding contractor availability for prescribed burns and the Service has extended IRC's funding period through August 2016. Results from anticipated fire management restoration activities will be available in the fall of 2016.

    Fairchild Tropical Botanic Garden, with the support of various Federal, State, local, and nonprofit organizations, has established the “Connect to Protect Network.” The objective of this program is to encourage widespread participation of citizens to create corridors of healthy pine rocklands by planting stepping stone gardens and rights-of-way with native pine rockland species, and restoring isolated pine rockland fragments. Although these projects may serve as valuable components toward the conservation of pine rockland species and habitat, they are dependent on continual funding, as well as participation from private landowners, both of which may vary through time.

    Summary of Factor A

    We have identified a number of threats to the habitat of the Miami tiger beetle that occurred in the past, continue currently, and are expected to impact the species in the future. Habitat loss, fragmentation, and degradation, and associated pressures from increased human population, are major threats; these threats are expected to continue, placing the species at greater risk. The species' occurrence on pine rocklands that are partially protected from development (see “Local” under Factor D, below) tempers some impacts, yet the threat of further loss and fragmentation of habitat remains. Various conservation programs are in place, and while these help to reduce some threats of habitat loss and modification, these programs are limited in nature. In general, available resources and land management activities (e.g., prescribed fire and invasive plant control) on public and private lands are inadequate to prevent modification and degradation of the species' habitat. Therefore, based on our analysis of the best available information, the present and future loss and modification of the species' habitat are major threats to the Miami tiger beetle throughout its range.

    Factor B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Collection

    Rare beetles, butterflies, and moths are highly prized by collectors. Tiger beetles are the subject of more intense collecting and study than any other single beetle group (Pearson 1988, pp. 123-124; Knisley and Hill 1992a, p. 9; Choate 1996, p. 1; Knisley et al. 2014, p. 94). Interest in the genus Cicindela (and Cicindelidia) is reflected in a journal entitled “Cicindela,” which has been published quarterly since 1969 and is exclusively devoted to the genus. Tiger beetle collecting and the sale and trade of specimens have increased in popularity in recent years (Knisley et al. 2014, p. 138). Among the professional researchers and many amateurs that collect tiger beetles are individuals that take only small numbers; however, there are also avid collectors who take as many specimens as possible, often for sale or trade. At present, it is estimated that nationally 50 to 100 individuals collect tiger beetles, and approximately 50 individuals are avid collectors (Knisley 2015b, p. 14). Knowledge of and communication with many of these collectors suggest sale and trading of specimens has become much more common in recent years. The increased interest in collecting, along with photographing specimens, seems to have been stimulated in part due to the publication of the tiger beetle field guide (Pearson et al. 2006, entire). Collectors are especially interested in the less common forms, and may have little regard for their conservation (Knisley 2015b, p. 14). Recently, there was posting on social media from a tiger beetle collector with images of several rare species, including nine specimens of the Miami tiger beetle that are thought to have been collected at Zoo Miami (Wirth, 2016a, pers. comm.). There is ample evidence of collectors impacting imperiled and endangered butterflies (Gochfeld and Burger 1997, pp. 208-209) and even contributing to extirpations (Duffey 1968, p. 94). For example, the federally endangered Mitchell's satyr (Neonympha mitchellii mitchellii) is believed to have been extirpated from New Jersey due to overcollecting (57 FR 21567, May 20, 1992; Gochfeld and Burger 1997, p. 209).

    Collection is a serious threat to the Miami tiger beetle due to the species' extreme rarity (a factor that increases demand by collectors) and vulnerability (i.e., uncertain status and viability with just two known populations and few individuals). Collection is especially problematic if adults are taken prior to oviposition or from small, isolated, or poor-quality sites. Because no large, high-quality sites are currently known, any collection can have serious ramifications on the survival of the remaining population(s).

    The recent description of the species did not disclose the exact locations of occurrence, due to concerns with collection (Brzoska et al. 2011, p. 5); however, it is now believed that occurrences at Zoo Miami, USCG, and CSTARS in the Richmond population are fairly well known, especially in the tiger beetle collecting community (B. Knisley, 2014b, pers. comm.). We have no specific information on the collection pressure for the Miami tiger beetle, but it is expected to be high based upon what has transpired in comparable situations with other federally listed and imperiled tiger beetles and butterflies both nationwide and in Florida. For example, the federally endangered Ohlone tiger beetle (Cicindela ohlone) was collected from its type locality in California after its description in the scientific literature (66 FR 50340, October 3, 2001) (Knisley 2015a, p. 14). Similarly, overcollection of the Highlands tiger beetle may have contributed to the extirpation of that species from its type locality in Florida (Knisley and Hill 1992a, p. 9). An estimated 500 to 1,000 adult Highlands tiger beetles had been collected at this site during a several year period after its initial discovery (Knisley and Hill 1992a, p. 10).

    Markets currently exist for tiger beetles. Specimens of two Florida tiger beetles, the Highlands tiger beetle, a Federal candidate species, and the scabrous tiger beetle are regularly offered for sale or trade through online insect dealers (The Bugmaniac 2015 and eBay 2015). Considering the recent rediscovery of the Miami tiger beetle and concerns regarding its continued existence, the desirability of this species to private collectors is expected to increase, which may lead to similar markets and increased demand.

    Another reason it is not possible to assess actual impacts from collection is that known occurrences of the Miami tiger beetle are not regularly monitored. Two known occurrences on the USCG and CSTARS parcels are gated and accessible only by permit, so collection from these sites is unlikely unless authorized by the property owners. However, other occupied and potential habitats at neighboring and surrounding areas are much more accessible. Risk of collection is concerning at any location and is more likely at less secure sites. Collection potential at Zoo Miami and other accessible sites is high, in part because it is not entirely gated and only periodically patrolled (Knisley, 2014b, pers. comm.). Most of the remaining pine rockland habitat outside of ENP in Miami-Dade County is owned by the County or in private ownership and not regularly monitored or patrolled.

    We consider collection to be a significant threat to the Miami tiger beetle in light of the few known remaining populations, low abundance, and highly restricted range. Even limited collection from the remaining populations could have deleterious effects on reproductive and genetic viability of the species and could contribute to its extinction. Removal of adults early in the flight season or prior to oviposition can be particularly damaging, as it further reduces potential for successful reproduction. A population may be reduced to below sustainable numbers (Allee effect) by removal of females, reducing the probability that new occurrences will be founded. Small and isolated occurrences in poor habitat may be at greatest risk (see Factor E discussion, below) as these might not be able to withstand additional losses. Collectors may be unable to recognize when they are depleting occurrences below the thresholds of survival or recovery (Collins and Morris 1985, pp. 162-165).

    With regard to scientific research, we do not believe that general techniques used to date have had negative impacts on the species or its habitat. Visual index surveys and netting for identification purposes have been performed during scientific research and conservation efforts with the potential to disturb or injure individuals or damage habitat. Limited collection as part of laboratory rearing studies or taxonomic verification has occurred at some sites, with work authorized by permits. Based on the extreme rarity of the species, various collecting techniques (e.g., pitfall traps, Malaise traps, light traps) for other more general insect research projects should be considered a potential threat.

    Summary of Factor B

    Collection interest in tiger beetles, especially rare species, is high, and markets currently exist. While it is not possible to quantify the impacts of collection on the Miami tiger beetle, collection of the Highlands tiger beetle has been documented in large numbers, and collection is currently occurring. The risk of collection of the Miami tiger beetle from both occupied and other potential habitat is high, as some sites are generally accessible and not monitored or patrolled. Due to the combination of few remaining populations, low abundance, and restricted range, we have determined that collection is a significant threat to the species and could potentially occur at any time. Even limited collection from the remaining populations could have negative effects on reproductive and genetic viability of the species and could contribute to its extinction.

    Factor C. Disease or Predation

    There is no evidence of disease or pathogens affecting the Miami tiger beetle, although this threat has not been investigated. Parasites and predators, however, have been found to have significant impacts on adult and larval tiger beetles. In general, parasites are considered to have greater effects on tiger beetles than predators (Nagano 1982, p. 34; Pearson 1988, pp. 136-138). While parasites and predators play important roles in the natural dynamics of tiger beetle populations, the current small size of the Miami tiger beetle populations may render the species more vulnerable to parasitism and predation than historically, when the species was more widely distributed and, therefore, more resilient.

    Known predators of adult tiger beetles include birds, lizards, spiders, and especially robber flies (family Asilidae) (Pearson et al. 2006, p. 183). Researchers and collectors have often observed robber flies in the field capturing tiger beetles out of the air. Pearson (1985, pp. 68-69; 1988, p. 134) found tiger beetles with orange abdomens (warning coloration) were preyed upon less frequently than similar-sized tiger beetles without the orange abdomens. His field trials also determined that size alone provided some protection from robber flies, which are usually only successful in killing prey that is smaller than they are. This was the case with the hairy-necked tiger beetle (Cicindela hirticollis) being attacked at a significantly higher rate than the larger northeastern beach tiger beetle in Maryland (Knisley and Hill 2010, pp. 54-55).

    On the basis of these field studies, it was estimated that robber flies may cause over 50 percent mortality to the hairy-necked tiger beetle and 6 percent to the northeastern beach tiger beetle population throughout the flight season (Knisley and Hill 2010, pp. 54-55). The small body size of the Miami tiger beetle, even with its orange abdomen, suggests it would be susceptible to robber fly attack. A few species of robber flies (Polacantha gracilis, Triorla interrupta, Efferia sp., and Diogmites sp.) have been observed in pine rocklands where the Miami tiger beetle is present (Mays and Cook 2015, p. 5; J. Kardys, 2016, pers. comm.); however, they are a common predator of the closely related Highlands tiger beetle (Knisley and Hill 2013, p. 40). In 24 hours of field study, Knisley and Hill (2013, p. 40) observed 22 attacks by robber flies on Highlands tiger beetles, 5 of which resulted in the robber fly killing and consuming the adult beetles.

    Most predators of adult tiger beetles are opportunistic, feeding on a variety of available prey and, therefore, probably have only a limited impact on tiger beetle populations. However, predators, and especially parasites, of larvae are more common, and some attack only tiger beetles. Ants are regarded as important predators on tiger beetles, and although not well studied, they have been reported having significant impact on first instar larvae of some Arizona tiger beetles (Cicindela spp.) (Knisley and Juliano 1988, p. 1990). A study with the Highlands tiger beetle found ants accounted for 11 to 17 percent of larval mortality at several sites, primarily involving first instars (Knisley and Hill 2013, p. 37). During surveys for the Miami tiger beetle, various species of ants were commonly seen co-occurring in the sandy patches with adults and larvae, but their impact, if any, is unknown at this time.

    Available literature indicates that the most important tiger beetle natural enemies are tiphiid wasps and bombyliid flies, which parasitize larvae (Knisley and Schultz 1997, pp. 53-57). The wasps enter the larvae burrows, and paralyze and lay an egg on the larvae. The resulting parasite larva consumes the host tiger beetle larva. Bombyliid flies (genus Anthrax) drop eggs into larval burrows with the resulting fly larvae consuming the tiger beetle larva. These parasitoids accounted for 20 to 80 percent mortality in larvae of several northeastern tiger beetles (Pearson and Vogler 2001, p. 172). Parasitism from bombyliid flies accounted for 13 to 25 percent mortality to larvae of the Highlands tiger beetle at several sites (Knisley and Hill 2013, p. 37). Generally, these rates of parasitism are similar to those reported for other species of tiger beetles (Bram and Knisley 1982, p. 99; Palmer 1982, p. 64; Knisley 1987, p. 1198). No tiphiid wasps or bombyliid flies were observed during field studies with the Miami tiger beetle (Knisley 2015a, p. 15); however, tiphiid wasps are small, secretive, and evidence of their attacks is difficult to find (Knisley 2015b, p. 16).

    Summary of Factor C

    Potential impacts from predators or parasites to the Miami tiger beetle are unknown. Given the small size of the Miami tiger beetle's two populations, the species is likely vulnerable to predation and parasitism.

    Factor D. The Inadequacy of Existing Regulatory Mechanisms

    Section 4(b)(1)(A) of the Act requires the Service to take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species. . . .” In relation to Factor D, we interpret this language to require the Service to consider relevant Federal, State, and Tribal laws, plans, regulations, and other such mechanisms that may minimize any of the threats we describe in threat analyses under the other four factors, or otherwise enhance conservation of the species. We give strongest weight to statutes and their implementing regulations and to management direction that stems from those laws and regulations. An example would be State governmental actions enforced under a State statute or constitution, or Federal action under statute.

    Federal

    The Miami tiger beetle currently has no Federal protective status and has limited regulatory protection in its known occupied and suitable habitat. The species is not known to occur on National Wildlife Refuge System or National Park Service land. The Miami tiger beetle is known to occur on USCG lands within the Richmond Pinelands Complex, and there are limited protections for the species on this property; any USCG actions or decisions that may have an effect on the environment would require consideration and review under the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.). No Federal permit or other authorization is currently needed for potential impacts to known occurrences on county-owned and private land. The Miami tiger beetle could be afforded limited protections from sections 7 and 10 of the Act based on its co-occurrence with listed species or their critical habitat, if applicable, within the Richmond Pine Rocklands, including species such as the Bartram's scrub-hairstreak butterfly (Strymon acis bartrami), Florida leafwing butterfly (Anaea troglodyta floridalis), Florida bonneted bat (Eumops floridanus), Brickellia mosieri (Florida brickell-bush), Linum carteri var. carteri (Carter's small-flowered flax), Chamaesyce deltoidea ssp. deltoidea (deltoid spurge), and Polygala smallii (tiny polygala). However, effect determinations and minimization and avoidance criteria for any of these listed species are unlikely to be fully protective to the Miami tiger beetle considering its extreme rarity. The listed species have broader distributions that allow for more flexibility with appropriate conservation measures. In contrast, with only two known populations and few remaining adults, the Miami tiger beetle has a much lower threat tolerance. Although the beetle is not currently federally protected, the Service has met with Miami-Dade County, the USCG, the University of Miami, and potential developers to express our concern regarding listed, proposed, candidate, and imperiled species in the Richmond Pine Rocklands, including the Miami tiger beetle. We have recommended that management and habitat conservation plans include and fully consider this species and its habitat.

    State

    The Miami tiger beetle is not currently listed as endangered or threatened by the State of Florida, so there are no existing regulations designated to protect it. The Miami tiger beetle is recognized as a species of greatest conservation need by the FWC (FWC 2012, p. 89). Species of greatest conservation need designation is part of the State's strategy to recognize and seek funding opportunities for research and conservation of these species, particularly through the State Wildlife Grants program. The list is extensive and, to date, we are unaware of any dedicated funding from this program for the beetle. The State was also petitioned and has started a biological status review of the species. The Miami tiger beetle is not known to occur on lands owned by the State of Florida; however, not all State-owned pine rockland parcels have been adequately surveyed. It is possible that some State-owned parcels do provide potentially suitable habitat for, and support occurrences of, the Miami tiger beetle.

    Local

    In 1984, section 24-49 of the Code of Miami-Dade County established regulation of County-designated Natural Forested Communities (NFCs), which include both pine rocklands and tropical hardwood hammocks. These regulations were placed on specific properties throughout the county by an act of the Board of County Commissioners in an effort to protect environmentally sensitive forest lands. The Miami-Dade County Department of Regulatory and Economic Resources (RER) has regulatory authority over NFCs, and is charged with enforcing regulations that provide partial protection on the Miami Rock Ridge. Miami-Dade Code typically allows up to 20 percent of a pine rockland designated as NFC to be developed, and requires that the remaining 80 percent be placed under a perpetual covenant. In certain circumstances, where the landowner can demonstrate that limiting development to 20 percent does not allow for “reasonable use” of the property, additional development may be approved. NFC landowners are also required to obtain an NFC permit for any work within the boundaries of the NFC on their property. The NFC program is responsible for ensuring that NFC permits are issued in accordance with the limitations and requirements of the code and that appropriate NFC preserves are established and maintained in conjunction with the issuance of an NFC permit. The NFC program currently regulates approximately 600 pine rockland or pine rockland/hammock properties, comprising approximately 1,200 ha (3,000 ac) of habitat (J. Joyner, 2013, pers. comm.). When RER discovers unpermitted activities, it takes appropriate enforcement action, and seeks restoration when possible. Because these regulations allow for development of pine rockland habitat, and because unpermitted development and destruction of pine rockland continues to occur, the regulations are not fully effective at protecting against loss of Miami tiger beetles or their potential habitat.

    Under Miami-Dade County ordinance (section 26-1), a permit is required to conduct scientific research (rule 9) on county environmental lands. In addition, rule 8 of this ordinance provides for the preservation of habitat within County parks or areas operated by the Parks and Recreation Department. The scientific research permitting effectively allows the County to monitor and manage the level of scientific research and collection of the Miami tiger beetle, and the preservation of pine rockland habitat benefits the beetle.

    Fee Title Properties: In 1990, Miami-Dade County voters approved a 2-year property tax to fund the acquisition, protection, and maintenance of environmentally endangered lands (EEL). The EEL Program identifies and secures these lands for preservation. Under this program to date, Miami-Dade County has acquired a total of approximately 255 ha (630 ac) of pine rocklands. In addition, approximately 445 ha (1,550 ac) of pine rocklands are owned by the Miami-Dade County Parks and Recreation Department and managed by the EEL Program, including some of the largest remaining areas of pine rockland habitat on the Miami Rock Ridge outside of ENP (e.g., Larry and Penny Thompson Park, Zoo Miami pinelands, and Navy Wells Pineland Preserve) (http://www.miamidade.gov/environment/endangered-lands.asp#1 [Accessed May 11, 2016]). Unfortunately, many of these pine rocklands are not managed to maintain the open, sparsely vegetated areas that are needed by the beetle.

    Summary of Factor D

    There are some regulatory mechanisms currently in place to protect the Miami tiger beetle and its habitat on non-Federal lands. However, there are no Federal regulatory protections for the Miami tiger beetle, other than the limited protections afforded for listed species and critical habitat that co-occur with the Miami tiger beetle. While local regulations provide some protection, they are generally not fully effective (e.g., NFC regulations allow development of 20 percent or more of pine rockland habitat) or implemented sufficiently (e.g., unpermitted clearing of pine rockland habitat) to alleviate threats to the Miami tiger beetle and its habitat. The degradation of habitat for the Miami tiger beetle is ongoing despite existing regulatory mechanisms. Based on our analysis of the best available information, we find that existing regulatory measures, due to a variety of constraints, are inadequate to fully address threats to the species throughout its range.

    Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence Few, Small, Isolated Populations

    The Miami tiger beetle is vulnerable to extinction due to its severely reduced range, the fact that only two small populations remain, and the species' relative isolation.

    Demographic stochasticity refers to random variability in survival or reproduction among individuals within a population (Shaffer 1981, p. 131). Demographic stochasticity can have a significant impact on population viability for populations that are small, have low fecundity, and are short-lived. In small populations, reduced reproduction or die-offs of a certain age-class will have a significant effect on the whole population. Although of only minor consequence to large populations, this randomly occurring variation in individuals becomes an important issue for small populations.

    Environmental stochasticity is the variation in birth and death rates from one season to the next in response to weather, disease, competition, predation, or other factors external to the population (Shaffer 1981, p. 131). For example, drought or predation, in combination with a low population year, could result in extirpation. The origin of the environmental stochastic event can be natural or human-caused.

    In general, tiger beetles that have been regularly monitored consistently exhibit extreme fluctuations in population size, often apparently due to climatic or other habitat factors that affect recruitment, population growth, and other population parameters. In 20 or more years of monitoring, most populations of the northeastern beach and puritan tiger beetles (Cicindela puritan) have exhibited 2 to 5 or more fold differences in abundance (Knisley 2012, entire). Annual population estimates of the Coral Pink Sand Dunes tiger beetle (Cicindela albissima) have ranged from fewer than 600 to nearly 3,000 adults over a 22-year period (Gowan and Knisley 2014, p. 124). The Miami tiger beetle has not been monitored as extensively as these species, but in areas where Miami tiger beetles were repeatedly surveyed, researchers found fluctuations that were several fold in numbers (Knisley 2015a, p. 24). While these fluctuations appear to be the norm for populations of tiger beetles (and most insects), the causes and effects are not well known. Among the suggested causes of these population trends are annual rainfall patterns for the Coral Pink Sand Dunes tiger beetle (Knisley and Hill 2001, p. 391; Gowan and Knisley 2014, p. 119), and shoreline erosion from storms for the northeastern beach and puritan tiger beetles (Knisley 2011b, p. 54). As a result of these fluctuations, many tiger beetle populations will experience episodic low numbers (bottlenecks) or even local extinction from genetic decline, the Allee effect, or other factors. Given that the Miami tiger beetle is known from only two remaining populations with few adult individuals, any significant decrease in the population size could easily result in extinction of the species.

    Dispersal and movement of the Miami tiger beetle is unknown, but is considered to be very limited. A limited mark-recapture study with the closely related Highlands tiger beetle found that adult beetles moved no more than 150 m (490 ft), usually flying only 5-10 m (16-33 ft) at a time (Knisley and Hill 2013). Generally, tiger beetles are known to easily move around, so exchange of individuals among separated sites will commonly occur if there are habitat connections or if the sites are within dispersal range—which is not the case with the population structure of the Miami tiger beetle. Species in woodland, scrub, or dune habitats also seem to disperse less than water-edge species (Knisley and Hill 1996, p. 13). Among tiger beetles, there is a general trend of decreasing flight distance with decreasing body size (Knisley and Hill 1996, p. 13). The Miami tiger beetle has a small body size. Given these factors, dispersal may be limited for the Miami tiger beetle.

    Small, isolated population size was listed as one of several of the threats in the petition received to list the Miami tiger beetle (CBD et al. 2014, pp. 17, 30). The effects of low population size on population viability are not known for tiger beetles, but population viability analyses for the northeastern beach, puritan, and Coral Pink Sand Dunes tiger beetles determined that stochasticity, specifically the fluctuations in population size, was the main factor accounting for the high risk of extinction (Gowan and Knisley 2001, entire; 2005, p. 13; Knisley and Gowan 2009, pp. 13-23). The long-term monitoring of northeastern beach and puritan tiger beetles found that, despite the fluctuations, some small populations with fewer than 50 to 100 adults experienced several fold declines, but persisted (Knisley 2015b, p. 20). Several Highlands tiger beetle sites with fewer than 20 to 50 adults were lost over the past 15-20 years, while several others have persisted during that period (Knisley 2015b, p. 20). Losses may have been due to habitat disturbance or low population size effects. Knisley predicts that the Highlands tiger beetle populations (extinct and extant) are isolated from each other with little chance for dispersal between populations and immigration rescues (Knisley, 2015d, pers. comm.). With only two known populations of the Miami tiger beetle, separated by substantial urban development, the potential for immigration rescue is low.

    Pesticides

    Pesticides used in and around pine rockland habitat are a potential threat to the Miami tiger beetle through direct exposure to adults and larvae, secondary exposure from insect prey, overall reduction in availability of adult and larval prey, or any combination of these factors. The use of pesticides for agriculture and mosquito control presents potential risks to nontarget insects, especially imperiled insects (EPA 2002, p. 32; 2006a, p. 58; 2006b, p. 44). The negative effect of insecticides on several tiger beetle species was suggested by Nagano (1982, p. 34) and Stamatov (1972, p. 78), although impacts from pesticides do not appear to be well studied in tiger beetles.

    Efforts to control mosquitoes and other insect pests in Florida have increased as human activity and population size have increased. To control mosquito populations, organophosphate (naled) and pyrethroid (permethrin) adulticides are applied by mosquito control districts throughout south Florida, including Miami-Dade County. These compounds have been characterized as being highly toxic to nontarget insects by the U.S. Environmental Protection Agency (2002, p. 32; 2006a, p. 58; 2006b, p. 44). The use of such pesticides (applied using both aerial and ground-based methods) for mosquito control presents a potential risk to the Miami tiger beetle, and this risk may increase with the spread of any mosquito-borne disease, such as the Zika virus, as current guidelines to incorporate no-spray buffers around butterfly critical habitat are not necessarily adhered to if there is a public health concern (Florida Administrative Code 5E-13.036; Service 2015, entire).

    In order for mosquito control pesticides to be effective, they must make direct contact with mosquitoes. For this to happen, pesticides are applied using methods to promote drift through the air, so as to increase the potential for contact with their intended target organism. Truck-based permethrin application methods are expected to produce a swath of suspended pesticides approximately 91 m (300 ft) wide (Prentiss 2007, p. 4). The extent of pesticide drift from this swath is dependent on several factors, including wind speed, wind direction, and vegetation density. Hennessey and Habeck (1989, pp. 1-22; 1991, pp. 1-68) and Hennessey et al. (1992, pp. 715-721) illustrated the presence of mosquito spray residues long after application in habitat of the federally endangered Schaus swallowtail butterfly (Heraclides aristodemus ponceanus), as well as the Florida leafwing butterfly (Anaea troglodyta floridalis), Bartram's scrub-hairstreak butterfly, and other imperiled species. Residues of aerially applied naled were found 6 hours after application in a pineland area that was 750 m (2,460 ft) from the target area; residues of fenthion (an adulticide previously used in the Florida Keys) applied via truck were found up to 50 m (160 ft) downwind in a hammock area 15 minutes after application in adjacent target areas (Hennessey et al. 1992, pp. 715-721).

    More recently, Pierce (2009, pp. 1-17) monitored naled and permethrin deposition following mosquito control application. Permethrin, applied by truck, was found to drift considerable distances from target areas, with residues that persisted for weeks. Permethrin was detected at concentrations lethal to three butterfly species at a distance of approximately 227 m (745 ft) away from targeted truck routes. Naled, applied by plane, was also found to drift into nontarget areas, but was much less persistent, exhibiting a half-life (time for half of the naled applied to chemically break down) of approximately 6 hours. To expand this work, Pierce (2011, pp. 6-11) conducted an additional deposition study in 2010, focusing on permethrin drift from truck spraying, and again documented low but measurable amounts of permethrin in nontarget areas. In 2009, Bargar (2012, p. 3) conducted two field trials that detected significant naled residues at locations within nontarget areas up to 366 m (1,200 ft) from the edge of zones targeted for aerial applications. After this discovery, the Florida Keys Mosquito Control District recalibrated the on-board model (Wingman, which provides flight guidance and flow rates). Naled deposition was reduced in some of the nontarget zones following recalibration (Bargar 2012, p. 3).

    In addition to mosquito control chemicals entering nontarget areas, the toxic effects of such chemicals to nontarget organisms have also been documented. Lethal effects on nontarget moths and butterflies have been attributed to fenthion and naled in both south Florida and the Florida Keys (Emmel 1991, pp. 12-13; Eliazar and Emmel 1991, pp. 18-19; Eliazar 1992, pp. 29-30). Zhong et al. (2010, pp. 1961-1972) investigated the impact of single aerial applications of naled on the endangered Miami blue butterfly (Cyclargus thomasi bethunebakeri) larvae in the field. Survival of butterfly larvae in the target zone was 73.9 percent, which was significantly lower than in both the drift zone (90.6 percent) and the reference (control) zone (100 percent), indicating that direct exposure to naled poses significant risk to Miami blue butterfly larvae. Fifty percent of the samples in the drift zone also exhibited detectable concentrations, once again exhibiting the potential for mosquito control chemicals to drift into nontarget areas. Bargar (2012, p. 4) observed cholinesterase activity depression, to a level shown to cause mortality in the laboratory, in great southern white (Ascia monuste) and Gulf fritillary butterflies (Agraulis vanillae) exposed to naled in both target and nontarget zones.

    Based on these studies, it can be concluded that mosquito control activities that involve the use of both aerial and ground-based spraying methods have the potential to deliver pesticides in quantities sufficient to cause adverse effects to nontarget species in both target and nontarget areas. Pesticide drift at a level of concern to nontarget invertebrates (butterflies) has been measured up to approximately 227 m (745 ft) from truck routes (Pierce 2011, pp. 3-5, 7; Rand and Hoang 2010, pp. 14, 23) and 400 m (1,312 ft) from aerial spray zones (Bargar 2012, p. 3). It should be noted that many of the studies referenced above dealt with single application scenarios and examined effects on only one or two butterfly life stages. Under a realistic scenario, the potential exists for exposure to all life stages to occur over multiple applications in a season. In the case of a persistent compound like permethrin, whose residues remain on vegetation for weeks, the potential exists for nontarget species to be exposed to multiple pesticides within a season (e.g., permethrin on vegetation coupled with aerial exposure to naled).

    Prior to 2015, aerial applications of mosquito control pesticides occurred on a limited basis (approximately two to four aerial applications per year since 2010) within some of Miami-Dade County's pine rockland areas. The Miami tiger beetle is not known to occupy any of these aerial spray zone sites, but any unknown occupied sites could have been exposed, either directly or through drift. The Richmond Pine Rocklands region is not directly treated either aerially or by truck (C. Vasquez, 2013, pers. comm.), so any potential pesticide exposure in this area would be through drift from spray zones adjacent to the Richmond area. Pesticide drift from aerial spray zones to the two known populations of Miami tiger beetles is unlikely, based on the considerable distance from spray zone boundaries to known occurrences of the beetle (estimated minimum distances range from 2.0-3.0 km (1.2-1.9 mi) from the Richmond population and 434 m (0.3 mi) for the second population). In the past, truck-based applications occurred within 227 m (745 ft) of known occupied Miami tiger beetle habitat, a distance under which pesticide drift at a concentration of concern for nontarget invertebrates had been measured (Pierce 2011, pp. 3-5, 7; Rand and Hoang 2010, pp. 14, 23).

    For the 2015 mosquito season (May through October), Miami-Dade Mosquito Control coordinated with the Service to institute 250-m truck-based and 400-m aerial spray buffers around critical habitat for the Bartram's scrub-hairstreak butterfly, with the exclusion of pine rocklands in the Navy Wells area, which is not known to be occupied by the Miami tiger beetle. These newly implemented buffers will also reduce exposure to any other imperiled species occurring on pine rockland habitat within Bartram's scrub-hairstreak butterfly critical habitat, such as the Miami tiger beetle. Assuming that the Miami tiger beetle is no more sensitive to pesticide exposure than the tested butterfly species, these spray buffers should avoid adverse impacts to the Miami tiger beetle population.

    Based on Miami-Dade Mosquito Control's implementation of spray buffers, mosquito control pesticides are not considered a major threat for the Miami tiger beetle at this time. If these buffers were to change or Miami tiger beetles were found to occur on habitat that is not protected by Bartram's scrub-hairstreak butterfly critical habitat, then the threat of pesticide exposure would have to be reevaluated.

    Human Disturbance

    Human disturbance, depending upon type and frequency, may or may not be a threat to tiger beetles or their habitats. Knisley (2011b, entire) reviewed both the negative and positive effects of human disturbances on tiger beetles. Vehicles, bicycles, and human foot traffic have been implicated in the decline and extirpation of tiger beetle populations, especially for species in more open habitats like beaches and sand dunes. The northeastern beach tiger beetle was extirpated throughout the northeast coincidental with the development of recreational use from pedestrian foot traffic and vehicles (Knisley et al. 1987, p. 301). Habroscelimorpha dorsalis media (southeastern beach tiger beetle) was extirpated from a large section of Assateague Island National Seashore, Maryland, after the initiation of off-highway vehicle (OHV) use (Knisley and Hill, 1992b, p. 134). Direct mortality and indirect effects on habitat from OHVs have been found to threaten the survival of Coral Pink Sand Dunes tiger beetle (Gowan and Knisley 2014, pp. 127-128). The Ohlone tiger beetle has been eliminated from nearly all natural grassland areas in Santa Cruz, California, except where pedestrian foot traffic, mountain bike use, or cattle grazing has created or maintained trails and open patches of habitat (Knisley and Arnold 2013, p. 578). Similarly, over 20 species of tiger beetles, including Cicindela decemnotata (Badlands tiger beetle) at Dugway Proving Ground in Utah, are almost exclusively restricted to roads, trails, and similar areas kept open by vehicle use or similar human disturbances (Knisley 2011b, pp. 44-45).

    Vehicle activity on seldom-used roads may have some negative effect on the Miami tiger beetle (i.e., lethal impacts to adults or larvae or impacts to the habitat), but limited field observations to date indicate that effects are minimal (Knisley 2015a, p. 16). Observations in 2014 at Zoo Miami found a few adults along a little-used road and the main gravel road adjacent to interior patches where adults were more common (Knisley 2015a, p. 16). These adults may have dispersed from their primary interior habitat, possibly due to vegetation encroachment (Knisley 2015a, p. 16). Several of the adults at both CSTARS and the USCG parcels were also found along dirt roads that were not heavily used and apparently provided suitable habitat.

    The parcels that comprise the two known populations of the Miami tiger beetle are not open to the public for recreational use, so human disturbance is unlikely. For any unknown occurrences of the species, human disturbance from recreational use is a possibility, as some of the remaining pine rockland sites in Miami-Dade County are open to the public for recreational use. Miami-Dade County leads the State in gross urban density at 8,343 people per square mile (https://www.bebr.ufl.edu/population/publications/measuring-population-density-counties-florida [accessed May 18, 2016]), and development and human population growth are expected to continue in the future. By 2025, Miami-Dade County is predicted to near or exceed a population size of 3 million people (Rayer and Wang 2016, p. 7). With the expected future increase in human population and development, there will likely be an increase in the use of recreational areas, including sites with potentially suitable habitat and unknown occurrences of Miami tiger beetles. Projected future increases in recreational use may increase the levels of human disturbance and negatively impact any unknown occurrences of the Miami tiger beetle and their habitat.

    In summary, vehicular activity and recreational use within the known population of the Miami tiger beetle presents minimal impacts to the species. However, future negative impacts to unknown beetle occurrences on lands open to the public are possible and are expected to increase with the projected future population growth.

    Climate Change and Sea Level Rise

    Climatic changes, including sea level rise (SLR), are major threats to Florida, and could impact the Miami tiger beetle and the few remaining parcels of pine rockland habitat left in Miami-Dade County. Our analyses include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007a, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007a, p. 78).

    Scientific measurements spanning several decades demonstrate that changes in climate are occurring, and that the rate of change has been faster since the 1950s. Based on extensive analyses of global average surface air temperature, the most widely used measure of change, the IPCC concluded that warming of the global climate system over the past several decades is “unequivocal” (IPCC 2007a, p. 2). In other words, the IPCC concluded that there is no question that the world's climate system is warming. Examples of other changes include substantial increases in precipitation in some regions of the world and decreases in other regions (for these and additional examples, see IPCC 2007a, p. 30; Solomon et al. 2007, pp. 35-54, 82-85). Various environmental changes (e.g., shifts in the ranges of plant and animal species, increasing ground instability in permafrost regions, conditions more favorable to the spread of invasive species and of some diseases, changes in amount and timing of water availability) are occurring in association with changes in climate (see IPCC 2007a, pp. 2-4, 30-33; Global Climate Change Impacts in the United States 2009, pp. 27, 79-88).

    Results of scientific analyses presented by the IPCC show that most of the observed increase in global average temperature since the mid-20th century cannot be explained by natural variability in climate, and is “very likely” (defined by the IPCC as 90 percent or higher probability) due to the observed increase in greenhouse gas (GHG) concentrations in the atmosphere as a result of human activities, particularly carbon dioxide emissions from fossil fuel use (IPCC 2007a, pp. 5-6 and figures SPM.3 and SPM.4; Solomon et al. 2007, pp. 21-35). Further confirmation of the role of GHGs comes from analyses by Huber and Knutti (2011, p. 4), who concluded it is extremely likely that approximately 75 percent of global warming since 1950 has been caused by human activities.

    Scientists use a variety of climate models, which include consideration of natural processes and variability, as well as various scenarios of potential levels and timing of GHG emissions, to evaluate the causes of changes already observed and to project future changes in temperature and other climate conditions (e.g., Meehl et al. 2007, entire; Ganguly et al. 2009, pp. 11555, 15558; Prinn et al. 2011, pp. 527, 529). All combinations of models and emissions scenarios yield very similar projections of average global warming until about 2030. Although projections of the magnitude and rate of warming differ after about 2030, the overall trajectory of all the projections is one of increased global warming through the end of this century, even for projections based on scenarios that assume that GHG emissions will stabilize or decline. Thus, there is strong scientific support for projections that warming will continue through the 21st century, and that the magnitude and rate of change will be influenced substantially by the extent of GHG emissions (IPCC 2007a, pp. 44-45; Meehl et al. 2007, pp. 760-764; Ganguly et al. 2009, pp. 15555-15558; Prinn et al. 2011, pp. 527, 529).

    In addition to basing their projections on scientific analyses, the IPCC reports projections using a framework for treatment of uncertainties (e.g., they define “very likely” to mean greater than 90 percent probability, and “likely” to mean greater than 66 percent probability; see Solomon et al. 2007, pp. 22-23). Some of the IPCC's key projections of global climate and its related effects include: (1) It is virtually certain there will be warmer and more frequent hot days and nights over most of the earth's land areas; (2) it is very likely there will be increased frequency of warm spells and heat waves over most land areas; (3) it is very likely that the frequency of heavy precipitation events, or the proportion of total rainfall from heavy falls, will increase over most areas; and (4) it is likely the area affected by droughts will increase, that intense tropical cyclone activity will increase, and that there will be increased incidence of extreme high sea level (IPCC 2007b, p. 8, table SPM.2). More recently, the IPCC published additional information that provides further insight into observed changes since 1950, as well as projections of extreme climate events at global and broad regional scales for the middle and end of this century (IPCC 2011, entire).

    Various changes in climate may have direct or indirect effects on species. These may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as interactions of climate with other variables such as habitat fragmentation (for examples, see Franco et al. 2006; IPCC 2007a, pp. 8-14, 18-19; Forister et al. 2010; Galbraith et al. 2010; Chen et al. 2011). In addition to considering individual species, scientists are evaluating possible climate change-related impacts to, and responses of, ecological systems, habitat conditions, and groups of species; these studies include acknowledgement of uncertainty (e.g., Deutsch et al. 2008; Euskirchen et al. 2009; McKechnie and Wolf 2009; Berg et al. 2010; Sinervo et al. 2010; Beaumont et al. 2011; McKelvey et al. 2011; Rogers and Schindler 2011).

    Many analyses involve elements that are common to climate change vulnerability assessments. In relation to climate change, vulnerability refers to the degree to which a species (or system) is susceptible to, and unable to cope with, adverse effects of climate change, including climate variability and extremes. Vulnerability is a function of the type, magnitude, and rate of climate change and variation to which a species is exposed, its sensitivity, and its adaptive capacity (IPCC 2007a, p. 89; see also Glick et al. 2011, pp. 19-22). There is no single method for conducting such analyses that applies to all situations (Glick et al. 2011, p. 3). We use our expert judgment and appropriate analytical approaches to weigh relevant information, including uncertainty, in our consideration of various aspects of climate change.

    Global climate projections are informative, and, in some cases, the only or the best scientific information available for us to use. However, projected changes in climate and related impacts can vary substantially across and within different regions of the world (e.g., IPCC 2007a, pp. 8-12). Therefore, we use “downscaled” projections when they are available and have been developed through appropriate scientific procedures, because such projections provide higher resolution information that is more relevant to spatial scales used for analyses of a given species (see Glick et al. 2011, pp. 58-61, for a discussion of downscaling). For our analysis for the Miami tiger beetle, downscaled projections are available.

    According to the Florida Climate Center, Florida is by far the most vulnerable State in the United States to hurricanes and tropical storms (http://climatecenter.fsu.edu/topics/tropical-weather). Based on data gathered from 1856 to 2008, Klotzbach and Gray (2009, p. 28) calculated the climatological probabilities for each State being impacted by a hurricane or major hurricane in all years over the 152-year timespan. Of the coastal States analyzed, Florida had the highest climatological probabilities, with a 51 percent probability of a hurricane (Category 1 or 2) and a 21 percent probability of a major hurricane (Category 3 or higher). From 1856 to 2008, Florida actually experienced more major hurricanes than predicted; out of the 109 hurricanes, 36 were major hurricanes. The most recent hurricane to have major impacts to Miami-Dade County was Hurricane Andrew in 1992. While the species persisted after this hurricane, impacts to the population size and distribution from the storm are unknown, because no surveys were conducted until its rediscovery in 2007. Given the few, isolated populations of the Miami tiger beetle within a location prone to storm influences (located approximately 8 km (5 mi) from the coast), the species is at substantial risk from stochastic environmental events such as hurricanes, storm surges, and other extreme weather that can affect recruitment, population growth, and other population parameters.

    Other processes to be affected by climate change, related to environmental stochasticity, include temperatures, rainfall (amount, seasonal timing, and distribution), and storms (frequency and intensity). Temperatures are projected to rise from 2-5 degrees Celsius (°C) (3.6-9 degrees Fahrenheit (°F)) for North America by the end of this century (IPCC 2007a, pp. 7-9, 13). Based upon predictive modeling, Atlantic hurricane and tropical storm frequencies are expected to decrease (Knutson et al. 2008, pp. 1-21). By 2100, there should be a 10-30 percent decrease in hurricane frequency. Hurricane frequency is expected to drop, due to more wind shear impeding initial hurricane development. However, hurricane winds are expected to increase by 5-10 percent. This is due to more hurricane energy available for intense hurricanes. These stronger winds will result in damage to the pine rockland vegetation and an increased storm surge (discussed below). In addition to climate change, weather variables are extremely influenced by other natural cycles, such as El Niño Southern Oscillation, with a frequency of every 4-7 years; solar cycle (every 11 years); and the Atlantic Multi-decadal Oscillation. All of these cycles influence changes in Floridian weather. The exact magnitude, direction, and distribution of all of these changes at the regional level are difficult to project.

    The long-term record at Key West shows that sea level rose on average 0.229 cm (0.090 in) annually between 1913 and 2013 (National Oceanographic and Atmospheric Administration (NOAA) 2013, p. 1). This equates to approximately 22.9 cm (9.02 in) over the last 100 years. IPCC (2008, p. 28) emphasized it is very likely that the average rate of SLR during the 21st century will exceed the historical rate. The IPCC Special Report on Emission Scenarios (2000, entire) presented a range of scenarios based on the computed amount of change in the climate system due to various potential amounts of anthropogenic greenhouse gases and aerosols in 2100. Each scenario describes a future world with varying levels of atmospheric pollution, leading to corresponding levels of global warming and corresponding levels of SLR. The IPCC Synthesis Report (2007a, entire) provided an integrated view of climate change and presented updated projections of future climate change and related impacts under different scenarios.

    Subsequent to the 2007 IPCC Report, the scientific community has continued to model SLR. Recent peer-reviewed publications indicate a movement toward increased acceleration of SLR. Observed SLR rates are already trending along the higher end of the 2007 IPCC estimates, and it is now widely held that SLR will exceed the levels projected by the IPCC (Rahmstorf et al. 2012, p. 1; Grinsted et al. 2010, p. 470). Taken together, these studies support the use of higher end estimates now prevalent in the scientific literature. Recent studies have estimated global mean SLR of 1.0-2.0 m (3.3-6.6 ft) by 2100 as follows: 0.75-1.90 m (2.5-6.2 ft; Vermeer and Rahmstorf 2009, p. 21530), 0.8-2.0 m (2.6-6.6 ft; Pfeffer et al. 2008, p. 1342), 0.9-1.3 m (3.0-4.3 ft; Grinsted et al. 2010, pp. 469-470), 0.6-1.6 m (2.0-5.2 ft; Jevrejeva et al. 2010, p. 4), and 0.5-1.40 m (1.6-4.6 ft; National Research Council 2012, p. 2).

    All of the scenarios, from small climate change shifts to major changes, indicate negative effects on pine rockland habitat throughout Miami-Dade County. Prior to inundation, pine rocklands are likely to undergo habitat transitions related to climate change, including changes to hydrology and increasing vulnerability to storm surge. Hydrology has a strong influence on plant distribution in these and other coastal areas (IPCC 2008, p. 57). Such communities typically grade from salt to brackish to freshwater species. From the 1930s to 1950s, increased salinity of coastal waters contributed to the decline of cabbage palm forests in southwest Florida (Williams et al. 1999, pp. 2056-2059), expansion of mangroves into adjacent marshes in the Everglades (Ross et al. 2000, pp. 101, 111), and loss of pine rockland in the Keys (Ross et al. 1994, pp. 144, 151-155).

    In one Florida Keys pine rockland with an average elevation of 0.89 m (2.9 ft), Ross et al. (1994, pp. 149-152) observed an approximately 65 percent reduction in an area occupied by South Florida slash pine over a 70-year period, with pine mortality and subsequent increased proportions of halophytic (salt-loving) plants occurring earlier at the lower elevations. During this same time span, local sea level had risen by 15.0 cm (6.0 in), and Ross et al. (1994, p. 152) found evidence of groundwater and soil water salinization. Extrapolating this situation to pine rocklands on the mainland is not straightforward, but suggests that similar changes to species composition could arise if current projections of SLR occur and freshwater inputs are not sufficient to prevent salinization.

    Furthermore, Ross et al. (2009, pp. 471-478) suggested that interactions between SLR and pulse disturbances (e.g., storm surges) can cause vegetation to change sooner than projected based on sea level alone. Effects from vegetation shifts in the pine rockland habitat on the Miami tiger beetle are unknown, but because the beetle occurs in a narrow range and microhabitat parameters are still being studied, vegetation shifts could cause habitat changes or disturbance that would have a negative impact on beetle recruitment and survival. Alexander (1953, pp. 133-138) attributed the demise of pinelands on northern Key Largo to salinization of the groundwater in response to SLR. Patterns of human development will also likely be significant factors influencing whether natural communities can move and persist (IPCC 2008, p. 57; USCCSP 2008, p. 76).

    The Science and Technology Committee of the Miami-Dade County Climate Change Task Force (Wanless et al. 2008, p. 1) recognized that significant SLR is a very real threat to the near future for Miami-Dade County. In a January 2008 statement, the committee warned that sea level is expected to rise at least 0.9-1.5 m (3-5 ft) within this century (Wanless et al. 2008, p. 3). With a 0.9-1.2 m (3-4 ft) rise in sea level (above baseline) in Miami-Dade County: “Spring high tides would be at about 6 to 7 ft; freshwater resources would be gone; the Everglades would be inundated on the west side of Miami-Dade County; the barrier islands would be largely inundated; storm surges would be devastating; landfill sites would be exposed to erosion contaminating marine and coastal environments. Freshwater and coastal mangrove wetlands will not keep up with or offset SLR of 0.6 m (2 ft) per century or greater. With a 1.5-m (5-ft) rise (spring tides at ~2.4 m (~8 ft)), Miami-Dade County will be extremely diminished” (Wanless et al. 2008, pp. 3-4).

    Drier conditions and increased variability in precipitation associated with climate change are expected to hamper successful regeneration of forests and cause shifts in vegetation types through time (Wear and Greis 2012, p. 39). Although it has not been well studied, existing pine rocklands have probably been affected by reductions in the mean water table. Climate changes are also forecasted to extend fire seasons and the frequency of large fire events throughout the Coastal Plain (Wear and Greis 2012, p. 43). While restoring fire to pine rocklands is essential to the long-term viability of the Miami tiger beetle (see Factor A discussion, above), increases in the scale, frequency, or severity of wildfires could have negative effects on the species (e.g., if wildfire occurs over the entire area occupied by the two known populations during the adult flight season when adults are present).

    To accommodate the large uncertainty in SLR projections, researchers must estimate effects from a range of scenarios. Various model scenarios developed at Massachusetts Institute of Technology (MIT) and GeoAdaptive Inc. have projected possible trajectories of future transformation of the south Florida landscape by 2060, based upon four main drivers: Climate change, shifts in planning approaches and regulations, human population change, and variations in financial resources for conservation (Vargas-Moreno and Flaxman 2010, pp. 1-6). The scenarios do not account for temperature, precipitation, or species habitat shifts due to climate change, and no storm surge effects are considered. The current MIT scenarios range from an increase of 0.09-1.00 m (0.3-3.3 ft) by 2060.

    Based on the most recent estimates of SLR and the data available to us at this time, we evaluated potential effects of SLR using the current “high” range MIT scenario, as well as comparing elevations of remaining pine rockland fragments and extant occurrences of the Miami tiger beetle. The “high” range (or “worst case”) MIT scenario assumes high SLR (1.0 m (3.3 ft) by 2060), low financial resources, a `business as usual' approach to planning, and a doubling of human population. Based on this scenario, pine rocklands along the coast in central Miami-Dade County would become inundated. The “new” sea level (1.0 m (3.3 ft) higher) would come up to the edge of pine rockland fragments at the southern end of Miami-Dade County, translating to partial inundation or, at a minimum, vegetation shifts for these pine rocklands. While sea level under this scenario would not overtake other pine rocklands in urban Miami-Dade County, including the known locations for the Miami tiger beetle, changes in the salinity of the water table and soils would surely cause vegetation shifts that may negatively impact the viability of the beetle. In addition, many existing pine rockland fragments are projected to be developed for housing as the human population grows and adjusts to changing sea levels under this “high” range (or “worst case”) MIT scenario. Actual impacts may be greater or less than anticipated based upon high variability of factors involved (e.g., SLR, human population growth) and assumptions made in the model.

    When simply looking at current elevations of pine rockland fragments and occurrences of the Miami tiger beetle, it appears that an SLR of 1 m (3.3 ft) will inundate the coastal and southern pine rocklands and cause vegetation shifts largely as described above. SLR of 2 m (6.6 ft) appears to inundate much larger portions of urban Miami-Dade County. The western part of urban Miami-Dade County would also be inundated (barring creation of sea walls or other barriers), creating a virtual island of the Miami Rock Ridge. After a 2-m rise in sea level, approximately 75 percent of the remaining pine rockland would still be above sea level, but an unknown percentage of these fragments would be negatively impacted by salinization of the water table and soils, which would be exacerbated due to isolation from mainland fresh water flows. Above 2 m (6.6 ft) of SLR, very little pine rockland would remain, with the vast majority either being inundated or experiencing vegetation shifts.

    The climate of southern Florida is driven by a combination of local, regional, and global events, regimes, and oscillations. There are three main “seasons”: (1) The wet season, which is hot, rainy, and humid from June through October; (2) the official hurricane season that extends 1 month beyond the wet season (June 1 through November 30), with peak season being August and September; and (3) the dry season, which is drier and cooler, from November through May. In the dry season, periodic surges of cool and dry continental air masses influence the weather with short-duration rain events followed by long periods of dry weather.

    Climate change may lead to increased frequency and duration of severe storms (Golladay et al. 2004, p. 504; McLaughlin et al. 2002, p. 6074; Cook et al. 2004, p. 1015). Hurricanes and tropical storms can modify habitat (e.g., through storm surge) and have the potential to destroy the only known population of the Miami tiger beetle and its suitable habitat. With most of the historical habitat having been destroyed or modified, the two known remaining populations of the beetle are at high risk of extirpation due to stochastic events.

    Alternative Future Landscape Models and Coastal Squeeze

    The Miami tiger beetle is anticipated to face major risks from coastal squeeze, which occurs when habitat is pressed between rising sea levels and coastal development that prevents landward movement (Scavia et al. 2002, entire; FitzGerald et al. 2008, entire; Defeo et al. 2009, p. 8; LeDee et al. 2010, entire; Menon et al. 2010, entire; Noss 2011, entire). Habitats in coastal areas (i.e., Charlotte, Lee, Collier, Monroe, Miami-Dade Counties) are likely the most vulnerable. Although it is difficult to quantify impacts due to the uncertainties involved, coastal squeeze will likely result in losses in habitat for the beetles as people and development are displaced further inland.

    Summary of Factor E

    Based on our analysis of the best available information, we have identified a wide array of natural and manmade factors affecting the continued existence of the Miami tiger beetle. The beetle is immediately vulnerable to extinction, due to the effects of few remaining small populations, restricted range, and isolation. Aspects of the Miami tiger beetle's natural history (e.g., limited dispersal) and environmental stochasticity (including hurricanes and storm surge) may also contribute to imperilment. Other natural (e.g., changes to habitat, invasive and exotic vegetation) and anthropogenic (e.g., habitat alteration, impacts from humans) factors are also identifiable threats. Climate change, sea-level rise, and coastal squeeze are major concerns. Collectively, these threats have occurred in the past, are impacting the species now, and will continue to impact the species in the future.

    Cumulative Effects From Factors A Through E

    The limited distribution, small population size, few populations, and relative isolation of the Miami tiger beetle makes it extremely susceptible to further habitat loss, modification, degradation, and other anthropogenic threats. The Miami tiger beetle's viability at present is uncertain, and its continued persistence is in danger, unless protective actions are taken. Mechanisms causing the decline of this beetle, as discussed above, range from local (e.g., lack of adequate fire management, vegetation encroachment), to regional (e.g., development, fragmentation, nonnative species), to global influences (e.g., climate change, SLR). The synergistic effects of threats (such as hurricane effects on a species with a limited distribution consisting of just two known populations) make it difficult to predict population viability now and in the future. While these stressors may act in isolation, it is more probable that many stressors are acting simultaneously (or in combination) on the Miami tiger beetle.

    Determination

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Miami tiger beetle. Habitat loss, degradation, and fragmentation have destroyed an estimated 98 percent of the historical pine rockland habitat in Miami-Dade County, with only two known populations remaining. The threat of habitat loss is continuing from development, inadequate habitat management resulting in vegetation encroachment, and environmental effects resulting from climatic change (see discussions under Factors A and E). Due to the restricted range, small population size, few populations, and relative isolation (see Factor E), collection is a significant threat to the species and could potentially occur at any time (see discussions under Factor B). Additionally, the species is currently threatened by a wide array of natural and manmade factors (see Factor E). Existing regulatory mechanisms do not provide adequate protection for the species (see Factor D). As a result, impacts from increasing threats, singly or in combination, are likely to result in the extinction of the species because the magnitude of threats is high.

    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 Miami tiger beetle is presently in danger of extinction throughout its entire range based on the severity and immediacy of threats currently affecting the species. The overall range has been significantly impacted because of significant habitat loss, degradation, and fragmentation of pine rockland habitat. Newly proposed development is currently threatening one of only two known populations of this species. The fragmented nature of Miami-Dade County's remaining pine rockland habitat and the influx of development around them may preclude the ability to conduct prescribed burns or other beneficial management actions that are needed to prevent vegetation encroachment. The two known, small populations of the Miami tiger beetle appear to occupy relatively small habitat patches, which make them vulnerable to local extinction from normal fluctuations in population size, genetic problems from small population size, or environmental catastrophes. Limited dispersal abilities in combination with limited habitat may result in local extirpations.

    Therefore, on the basis of the best available scientific and commercial information, we are listing the Miami tiger beetle as endangered in accordance with sections 3(6) and 4(a)(1) of the Act. We find that a threatened species status is not appropriate for the Miami tiger beetle because of significant habitat loss (i.e., 98 percent of pine rockland habitat in Miami-Dade County) and degradation; the fact that only two known small populations of the species remain; and the imminent threat of development projects in the Richmond pine rocklands.

    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 Miami tiger beetle 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).

    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 requires that recovery actions be carried out for all 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 requires 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 identifies site-specific management actions that set a trigger for review of the five factors that control whether a species remains endangered or may be downlisted or delisted, 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 South Florida 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, Tribal, 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.

    Following publication of this final listing rule, 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 Florida will be eligible for Federal funds to implement management actions that promote the protection or recovery of the Miami tiger beetle. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Please let us know if you are interested in participating in recovery efforts for the Miami tiger beetle. 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 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)(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 any endangered or threatened 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. Coast Guard; issuance of section 404 Clean Water Act permits by the Army Corps of Engineers; 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 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 final listing on proposed and ongoing activities within the range of a listed species. Based on the best available information, the following actions may potentially result in a violation of section 9, of the Act; this list is not comprehensive:

    (1) Unauthorized possession, collecting, trapping, capturing, killing, harassing, sale, delivery, or movement, including interstate and foreign commerce, or harming or attempting any of these actions, at any life stage without a permit (research activities where Miami tiger beetles are surveyed, captured (netted), or collected will require a permit under section 10(a)(1)(A) of the Act).

    (2) Incidental take without a permit pursuant to section 10(a)(1)(B) of the Act.

    (3) Sale or purchase of specimens, except for properly documented antique specimens of this taxon at least 100 years old, as defined by section 10(h)(1) of the Act.

    (4) Unauthorized use of pesticides/herbicides that results in take.

    (5) Release of biological control agents that attack any life stage.

    (6) Discharge or dumping of toxic chemicals, silts, or other pollutants into, or other alteration of the quality of, habitat supporting the Miami tiger beetles that result in take.

    (7) Unauthorized activities (e.g., plowing; mowing; burning; herbicide or pesticide application; land leveling/clearing; grading; disking; soil compaction; soil removal; dredging; excavation; deposition of dredged or fill material; erosion and deposition of sediment/soil; grazing or trampling by livestock; minerals extraction or processing; residential, commercial, or industrial developments; utilities development; road construction; or water development and impoundment) that take eggs, larvae, or adult Miami tiger beetles or that modify Miami tiger beetle habitat in such a way that take Miami tiger beetles by adversely affecting their essential behavioral patterns, including breeding, foraging, sheltering, or other life functions. Otherwise lawful activities that incidentally take Miami tiger beetles, but have no Federal nexus, will require a permit under section 10(a)(1)(B) of the Act.

    Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the South Florida Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

    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 3(3) of the Act (16 U.S.C. 1532(3)) also defines the terms “conserve,” “conserving,” and “conservation” to mean “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.”

    In the proposed listing rule (80 FR 79533, December 22, 2015), we determined that designation of critical habitat for the Miami tiger beetle was prudent. See the Prudency Determination in the proposed rule for more information.

    Once we determine that the designation is prudent, we must find whether critical habitat for Cicindelidia floridana is determinable. Our regulations (50 CFR 424.12(a)(2)) state that critical habitat is not determinable when one or both of the following situations exists: (1) Information sufficient to perform required analysis of the impacts of the designation is lacking; or (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.

    In our proposed listing rule, we found that critical habitat was not determinable because the specific information sufficient to perform the required analysis of the impacts of the designation was lacking. We are still in the process of obtaining that information, but anticipate that a proposed rule designating critical habitat for the Miami tiger beetle will be published before the end of fiscal year 2017.

    Required Determinations 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), 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. We are not aware of any Cicindelida floridana populations on tribal lands.

    References Cited

    A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov and upon request from the South Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this final rule are the staff members of the South Florida Ecological Services Field Office.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:

    PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245; unless otherwise noted.

    2. Amend § 17.11(h) by adding the following entry to the List of Endangered and Threatened Wildlife in alphabetical order under Insects:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and
  • applicable rules
  • *         *         *         *         *         *         * Insects *         *         *         *         *         *         * Beetle, Miami tiger Cicindelidia floridana U.S.A. (FL) E 81 FR [Insert Federal Register page where the document begins]; October 5, 2016. *         *         *         *         *         *         *
    Dated: September 21, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-23945 Filed 10-4-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 130312235-3658-02] RIN 0648-XE910 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2016 Commercial Accountability Measure and Closure for South Atlantic Vermilion Snapper AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements accountability measures (AMs) for the commercial sector for vermilion snapper in the exclusive economic zone (EEZ) of the South Atlantic. NMFS projects that commercial landings of vermilion snapper will reach the commercial annual catch limit (ACL) for the July through December 2016 period on October 11, 2016. Therefore, NMFS closes the commercial sector for vermilion snapper in the South Atlantic EEZ on October 11, 2016, and it will remain closed until the start of the next fishing season on January 1, 2017. This closure is necessary to protect the South Atlantic vermilion snapper resource.

    DATES:

    This rule is effective 12:01 a.m., local time, October 11, 2016, until 12:01 a.m., local time, January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The snapper-grouper fishery of the South Atlantic includes vermilion snapper and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

    The commercial quota for vermilion snapper in the South Atlantic is divided into separate quotas for two 6-month time periods each year, January through June and July through December. For the July through December 2016 period, the commercial quota is 388,703 lb (176,313 kg), gutted weight (431,460 lb (195,707 kg), round weight), as specified in 50 CFR 622.190(a)(4)(ii)(D).

    On August 25, 2016 (81 FR 58411), NMFS published a temporary rule in the Federal Register to reduce the commercial trip limit for vermilion snapper in or from the EEZ of the South Atlantic to 500 lb (227 kg), gutted weight. The temporary rule was effective at 12:01 a.m., local time, August 28, 2016, until January 1, 2017, or until the commercial quota is reached and the commercial sector closes, whichever occurs first.

    In accordance with regulations at 50 CFR 622.193(f)(1), NMFS is required to close the commercial sector for vermilion snapper when the commercial quota for that 6-month portion of the fishing year is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial quota for South Atlantic vermilion snapper for the July through December 2016 period will be reached by October 11, 2016. Accordingly, the commercial sector for South Atlantic vermilion snapper is closed effective 12:01 a.m., local time, October 11, 2016, until 12:01 a.m., local time, January 1, 2017. The commercial quota for vermilion snapper in the South Atlantic is 388,703 lb (176,313 kg), gutted weight (431,460 lb (195,707 kg), round weight), for the January 1 through June 30, 2017 period as specified in 50 CFR 622.190(a)(4)(i)(D).

    The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having vermilion snapper onboard must have landed and bartered, traded, or sold such vermilion snapper prior to 12:01 a.m., local time, October 11, 2016. During the closure, the bag limit specified in 50 CFR 622.187(b)(5) and the possession limits specified in 50 CFR 622.187(c)(1), apply to all harvest or possession of vermilion snapper in or from the South Atlantic EEZ. During the closure, the sale or purchase of vermilion snapper taken from the EEZ is prohibited. As specified in 50 CFR 622.190(c)(1)(i), the prohibition on sale or purchase does not apply to the sale or purchase of vermilion snapper that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, October 11, 2016, and were held in cold storage by a dealer or processor. For a person on board a vessel for which a Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery has been issued, the bag and possession limits and the prohibition on sale and purchase apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1)(ii).

    Classification

    The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of South Atlantic vermilion snapper and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.193(f)(1) and is exempt from review under Executive Order 12866.

    These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

    This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the commercial sector for vermilion snapper constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the AMs has already been subject to notice and comment, and all that remains is to notify the public of the closure. Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect vermilion snapper since the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment could result in a harvest well in excess of the established commercial quota.

    For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 30, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-24105 Filed 10-4-16; 8:45 am] BILLING CODE 3510-22-P
    81 193 Wednesday, October 5, 2016 Proposed Rules DEPARTMENT OF ENERGY 10 CFR Part 430 [Docket No. EERE-2013-BT-STD-0051] RIN 1904-AD09 Energy Conservation Standards for General Service Lamps: Public Meeting AGENCY:

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

    ACTION:

    Notice of public meeting and webinar.

    SUMMARY:

    The U.S. Department of Energy (DOE) will hold a public meeting to discuss and receive comments on a proposed definition for general service lamps (GSLs) to be published in a forthcoming notice of proposed definition and data availability (NOPDDA). The meeting will cover the proposed scope of the GSL definition; DOE's approach to analyzing the 22 lamps exempted from the statutory definition of general service incandescent lamp, including available sales data; challenges manufacturers may have in meeting the statutory backstop requirement of 45 lumens per watt (lm/W) associated with the lamps meeting the GSL definition that will apply beginning in January, 2020; and options available to DOE and/or manufacturers to help manufacturers transition to the backstop requirement; and any other issues relevant to the scope of the GSL definition.

    DATES:

    DOE will hold a public meeting on October 21, 2016, from 9:30 a.m. to 4:00 p.m., in Washington, DC.

    ADDRESSES:

    The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 1E-245, 1000 Independence Avenue SW., Washington, DC 20585-0121. In addition, you can attend the public meeting via webinar. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's Web site at: https://www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=4. Participants are responsible for ensuring their systems are compatible with the webinar software. Please also note that any person wishing to bring a laptop into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing laptops, or allow an extra 45 minutes.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Lucy deButts, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-1604. Email: [email protected]

    Ms. Celia Sher, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-6122. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA or the Act), Public Law 94-163 (42 U.S.C. 6291-6309, as codified) established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances (collectively referred to as “covered products”).1 Subsequent amendments expanded Title III of EPCA to include additional consumer products, including GSLs—the products that are the focus of this notice of public meeting (NOPM).

    1 Part B was re-designated Part A on codification in the U.S. Code for editorial reasons.

    In particular, amendments to EPCA in the Energy Independence and Security Act of 2007 (EISA 2007) directed DOE to conduct two rulemaking cycles to evaluate energy conservation standards for GSLs. (42 U.S.C. 6295(i)(6)(A)-(B)) For the first rulemaking cycle, EPCA, as amended by EISA 2007, directs DOE to initiate a rulemaking no later than January 1, 2014, to evaluate standards for GSLs and determine whether exemptions for certain incandescent lamps should be maintained or discontinued. (42 U.S.C. 6295(i)(6)(A)(i)) The scope of the rulemaking is not limited to incandescent lamp technologies. (42 U.S.C. 6295(i)(6)(A)(ii)) Further, for this first cycle of rulemaking, the EISA 2007 amendments provide that DOE must consider a minimum standard of 45 lm/W. (42 U.S.C. 6295(i)(6)(A)(ii)) If DOE fails to meet the requirements of 42 U.S.C. 6295(i)(6)(A)(i)-(iv) or the final rule from the first rulemaking cycle does not produce savings greater than or equal to the savings from a minimum efficacy standard of 45 lm/W, sales of GSLs that do not meet the minimum 45 lm/W standard beginning on January 1, 2020, will be prohibited. (42 U.S.C. 6295(i)(6)(A)(v))

    On March 17, 2016, DOE published a notice of proposed rulemaking (NOPR) for energy conservation standards for GSLs. 81 FR 14527. DOE held the related NOPR public meeting on April 20, 2016. During the public meeting and in written comments, interested parties provided additional data and raised concerns regarding the scope of the proposed GSL definition, DOE's approach to analyzing the 22 incandescent lamps exempted from EPCA's definition of general service incandescent lamps, and the 45 lm/W backstop requirement. In response to these comments, DOE conducted additional research and will publish a notice of proposed definition and data availability (NOPDDA) proposing a definition of GSL; presenting additional data collected by DOE; outlining options available to DOE and/or manufacturers to help manufacturers transition to the 2020 backstop requirement; and requesting public comment on the proposed definition of GSL and the compiled data.

    After publication of the NOPDDA, DOE will hold a public meeting to discuss: (1) The proposed scope of the GSL definition; (2) DOE's approach to analyzing the 22 exemptions, including available sales data; (3) challenges manufacturers face with the 45 lm/W backstop requirement and options available to DOE and/or manufacturers to help manufacturers transition to the backstop requirement; and (4) any other issues relevant to the scope of the GSL definition.

    Public Participation

    Members of the public are welcome to observe the business of the meeting and, if time allows, may make oral statements during the specified period for public comment. To attend the meeting and/or to make oral statements, please notify the Appliance and Equipment Standards Staff at (202) 586-6636 or [email protected] In the email, please indicate your name, organization (if appropriate), citizenship, and contact information. Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE of this fact as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email ([email protected]) so that the necessary procedures can be completed.

    Anyone attending the meeting will be required to present a government photo identification, such as a passport, driver's license, or government identification. Due to the required security screening upon entry, individuals attending should arrive early to allow for the extra time needed.

    Due to the REAL ID Act implemented by the Department of Homeland Security (DHS), there have been recent changes regarding identification (ID) requirements for individuals wishing to enter federal buildings from specific states and U.S. territories. As a result, driver's licenses from several states or territory will not be accepted for building entry, and instead, one of the alternate forms of ID listed below will be required. DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, American Samoa, Arizona, Louisiana, Maine, Massachusetts, Minnesota, New York, Oklahoma, and Washington. Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced Driver's License or Enhanced ID-Card issued by the States of Minnesota, New York, or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); a military ID or other federal-government-issued photo ID-card.

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

    Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this NOPM.

    Issued in Washington, DC, on September 27, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-24063 Filed 10-4-16; 8:45 am] BILLING CODE 6450-01-P
    NUCLEAR REGULATORY COMMISSION 10 CFR Chapter I [NRC-2016-0185] Processing Fitness-for-Duty Drug and Alcohol Cases AGENCY:

    Nuclear Regulatory Commission.

    ACTION:

    Policy revision; request for comment.

    SUMMARY:

    The U.S. Nuclear Regulatory Commission (NRC) is requesting public comments on proposed revisions to its Enforcement Policy (the Policy). The NRC is proposing to revise Section 4.1, “Considerations in Determining Enforcement Actions Involving Individuals,” of the Policy to indicate that the NRC typically will not consider Fitness-for-Duty (FFD) Drug and Alcohol (D&A) related violations for enforcement unless the licensee's FFD program has apparent deficiencies.

    DATES:

    Submit comments by November 4, 2016. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.

    ADDRESSES:

    You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):

    Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0185. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: [email protected] For technical questions contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

    Email comments to: [email protected] If you do not receive an automatic email reply confirming receipt, then contact us at 301-415-1677.

    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 301-415-1101.

    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.

    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal workdays; telephone: 301-415-1677.

    For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    David Furst, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7634, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Obtaining Information and Submitting Comments A. Obtaining Information

    Please refer to Docket ID NRC-2016-0185 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

    Federal rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0185.

    NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected] The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in this document.

    NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

    B. Submitting Comments

    Please include Docket ID NRC-2016-0185 in your comment submission.

    The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

    If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

    II. Discussion

    On January 31, 2016, the NRC staff submitted to the Commission SECY-16-0009, “Recommendations Resulting from the Integrated Prioritization and Re-Baselining of Agency Activities,” dated January 31, 2016 (ADAMS Package Accession No. ML16028A189). Item 101 in Enclosure 1 of SECY-16-0009 included the NRC staff's recommendations for creating efficiencies in the Enforcement Process, in part by reducing FFD case processing.

    In developing potential efficiencies in the enforcement program, the NRC staff concluded that not processing routine cases involving D&A issues would reduce NRC staff resources without impacting safety, as discussed more fully below.

    The Commission approved the NRC staff's recommendation to reduce FFD case processing in the Staff Requirements Memorandum for SECY-16-0009, dated April 13, 2016 (ADAMS Accession No. ML16104A158).

    Part 26 of title 10 of the Code of Federal Regulations (10 CFR) requires licensees to establish D&A testing programs and report test results to the NRC. The NRC's Office of Investigations (OI) investigates FFD D&A cases, many of which involve an individual who violates FFD D&A procedures at a site. Typically, the licensee has identified the issue and conducted an internal investigation yielding evidence of an FFD D&A violation by the time they notify the NRC. In most cases, pursuant to 10 CFR part 26, the site FFD D&A policy provides penalties for specific violations. The NRC believes that individual FFD D&A issues generally are dispositioned by the licensee according to the programs in place. Therefore, NRC staff review of individual FFD D&A cases appears to be an area where the NRC can make efficiency gains. The NRC is proposing changes to the enforcement process with respect to FFD D&A cases where an individual violates the site FFD D&A procedure, but where there is no breakdown in the performance of the FFD process itself.

    On March 31, 2008 (73 FR 16965), the NRC amended 10 CFR part 26, in part, to strengthen the D&A testing requirements and broaden the scope of D&A testing to other NRC licensees (e.g., owner operators of uranium fuel fabrication facilities) and to persons who perform safety or security-significant activities within the protected areas (PA) of these sites. The NRC implemented an electronic reporting (e-reporting) system to simplify and improve FFD data reporting and to enable the reporting of additional voluntary information to the NRC.

    Based on the FFD performance information reported electronically to the NRC since 2009 and a comparison of this information to previous years and other indicators, the commercial nuclear industry continues to effectively implement the 10 CFR part 26 D&A provisions and FFD program results have directly contributed to public health and safety and the common defense and security. Licensees identify persons under the influence of illicit drugs and/or alcohol and remove them from the PA of NRC-licensed facilities, and licensees identify persons of questionable trustworthiness and reliability, in part, through rigorous testing methods (e.g., limit-of-detection testing, cutoffs, and effective monitoring during specimen collections). These outcomes provide reasonable assurance that persons who perform safety or security-significant activities, or who have unescorted access to certain NRC-licensed facilities, information, or material, are fit-for-duty, and that the public and the NRC are timely informed of FFD performance. The data indicates no adverse trends.

    Since March 31, 2008, when the NRC amended 10 CFR part 26, the NRC has processed approximately 40 FFD D&A related cases in which OI investigated instances of individuals violating FFD D&A procedures at licensee sites. These types of cases result from a range of issues including failed drug tests, alleged attempts to subvert FFD testing, alleged possession or use of illegal drugs or alcohol, or alleged misuse or failure to report the use of prescription drugs. Typically the issues are discovered, investigated by, and reported to the NRC by licensees using the e-reporting system. By the time the NRC implements the process to investigate, the licensees have imposed the appropriate 10 CFR part 26 sanctions.

    In many regards, 10 CFR part 26 is unique in comparison to other 10 CFR regulations; for example, explicit sanctions are specified for individuals who violate FFD policy. Section 26.75, “Sanctions,” specifies, in part, the minimum sanctions that licensees and other entities shall impose when an individual has violated the D&A provisions of their FFD policy (e.g., immediate unfavorable termination of the individual's authorization for at least 14 days for the first violation and 5 years for the second violation, and permanent denial of access for any act or attempted act to subvert the testing process). The requirement also states that the licensee or other entity may impose more stringent sanctions.

    A limited exception to the proposal to not process FFD cases is when NRC staff identifies an apparent breakdown of the licensee's FFD program itself. Any case involving an alleged breakdown of the FFD program itself would be reviewed and considered for an NRC enforcement sanction.

    III. Proposed Revisions

    The NRC can gain efficiency in its enforcement program if it elects to no longer pursue D&A cases; this process change is possible because 10 CFR 26.75 already requires licensees to disposition individual violations of their FFD D&A procedures. This process change could be implemented by adding the following paragraph at the end of Section 4.1, “Considerations in Determining Enforcement Actions Involving Individuals:”

    The NRC typically will not consider FFD drug and alcohol related violations for enforcement action unless there is an apparent deficiency of the licensee's FFD program.

    The proposed revision to the Policy is available in ADAMS under Accession No. ML16197A561.

    Dated at Rockville, Maryland, this 29th day of September, 2016.

    For the Nuclear Regulatory Commission.

    Annette L. Vietti-Cook, Secretary of the Commission.
    [FR Doc. 2016-24073 Filed 10-4-16; 8:45 am] BILLING CODE 7590-01-P
    SMALL BUSINESS ADMINISTRATION 13 CFR Part 107 Small Business Investment Companies—Early Stage SBICs; Public Webinar AGENCY:

    U.S. Small Business Administration.

    ACTION:

    Proposed rule; notice of public webinar.

    SUMMARY:

    The U.S. Small Business Administration (SBA) announces that it is holding a public webinar regarding its Early Stage Small Business Investment Companies proposed rule, which was published on September 19, 2016. The webinar will describe the changes proposed in the rulemaking and answer questions regarding the proposed rule.

    DATES:

    The webinar will be held on October 12, 2016, at 1 p.m. EST. Attendees must pre-register by October 10, 2016, at 11:59 p.m. EST.

    ADDRESSES:

    Parties interested in attending the webinar must pre-register by sending an email request to SBA's Office of Investment and Innovation at [email protected], as further described in section III of the SUPPLEMENTARY INFORMATION section.

    FOR FURTHER INFORMATION CONTACT:

    Scott Schaefer, SBA Office of Investment and Innovation at (202) 205-6514 or [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background Information

    The Early Stage SBIC program was launched in 2012 as a 5-year effort as part of President Obama's Startup America Initiative. The intent of the Early Stage SBIC program was to license and provide SBA-guaranteed leverage to Early Stage SBICs that would focus on making investments in early stage small businesses. Although 62 investment funds applied to the program, few satisfied SBA's licensing criteria. To date, SBA has only licensed five Early Stage SBICs.

    On September 19, 2016, SBA published a proposed rule regarding the Early Stage Small Business Investment Company (SBIC) program (81 FR 64075), which proposes to make the Early Stage SBIC program a permanent part of the SBIC program. In addition, the rule proposes changes to the Early Stage SBIC Program with respect to licensing, non-SBA borrowing, and leverage eligibility.

    The proposed Early Stage SBIC rule may be viewed at https://www.regulations.gov/document?D=SBA-2015-0002-0009. The comment period for the proposed rule closes on October 19, 2016. In order to familiarize the public with the content of the Early Stage SBIC proposed rule, SBA will host a webinar on the proposed rule before the closing date. The webinar will be transcribed and become part of the administrative record for SBA's consideration when the Agency deliberates on the final Early Stage SBIC regulations.

    II. Webinar Schedule Webinar date and time Registration closing date October 12, 2016, 1 p.m. EST October 10, 2016, 11:59 p.m. EST.

    The session is expected to last no more than 1 hour.

    III. Registration

    If you are interested in attending the webinar, you must pre-register by the registration closing date. To pre-register, send an email to [email protected] In the body of the email, please provide the following: Participant's Name, Title, Organization Affiliation, Address, Telephone Number, and Email Address. You must submit your email by the applicable registration closing date listed in this notice.

    Due to technological limitations, attendance is limited to 120 participants per session. If demand exceeds capacity for the webinar, SBA will hold another one. SBA will announce any additional sessions through a Federal Register document and on its Web site, www.sba.gov/inv/earlystage.

    SBA will confirm the registration via email along with instructions for participating. SBA will post any presentation materials associated with the webinar on the day of the webinar by 10 a.m. EST at www.sba.gov/inv/earlystage.

    If there are specific questions you would like SBA to address in the webinar, SBA must receive them no later than October 9, 2016. Since the Early Stage SBIC regulations are in the proposed rulemaking stage, SBA will not be able to answer questions that are outside of clarification of the proposed rule.

    Mark L. Walsh, Associate Administrator for Investment and Innovation.
    [FR Doc. 2016-24031 Filed 10-4-16; 8:45 am] BILLING CODE 8025-01-P
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 100 [Docket No. FR-5508-N-03] Application of the Fair Housing Act's Discriminatory Effects Standard to Insurance AGENCY:

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

    ACTION:

    Reconsideration of public comments; implementation of the Fair Housing Act's Discriminatory Effects Standard.

    SUMMARY:

    HUD is issuing this document to supplement its responses to certain insurance industry comments to HUD's proposed rule implementing the Fair Housing Act's (“Act”) discriminatory effects standard. These commenters requested, inter alia, total or partial exemptions or safe harbors from liability under the Act's discriminatory effects standard. After careful reconsideration of the insurance industry comments in accordance with the court's decision in Property Casualty Insurers Association of America (PCIAA) v. Donovan, HUD has determined that categorical exemptions or safe harbors for insurance practices are unworkable and inconsistent with the broad fair housing objectives and obligations embodied in the Act. HUD continues to believe that the commenters' concerns regarding application of the discriminatory effects standard to insurance practices can and should be addressed on a case-by-case basis.

    DATES:

    Supplemental Responses issued on October 5, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Jeanine Worden, Associate General Counsel for Fair Housing, Office of General Counsel, U.S. Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410-0500; (202) 402-5188 (this is not a toll-free number). Persons with hearing or speech impairments may contact this number via TTY by calling the toll-free Federal Relay Service at 800-877-8399.

    SUPPLEMENTARY INFORMATION:

    Background

    Title VIII of the Civil Rights Act of 1968, as amended (“Fair Housing Act” or “Act”), prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status, or national origin.1 On November 16, 2011, HUD issued a proposed rule seeking to formalize, through notice-and-comment rulemaking, HUD's longstanding interpretation of the Act as prohibiting practices with an unjustified discriminatory effect and to standardize the analytical framework for evaluating such cases.2 In response to the proposed rule, HUD received nearly one hundred comments from a range of interested parties, including from three insurance trade associations requesting exemptions or safe harbors. The National Association of Mutual Insurance Companies (“NAMIC”) and the American Insurance Association (“AIA”) requested an exemption from discriminatory effects liability for all insurance practices. NAMIC also requested, in the alternative, exemptions for insurance pricing, for Fair Access to Insurance Requirements (“FAIR”) plans, and/or safe harbors for recognized risk factors. The Property Casualty Insurers Association of America (“PCIAA”) requested an exemption for all insurance underwriting practices.

    1 42 U.S.C. 3601-3619.

    2 76 FR 70921 (Nov. 16, 2011).

    On February 15, 2013, HUD published its final rule, entitled “Implementation of the Fair Housing Act's Discriminatory Effects Standard” (“Rule”).3 In the Rule, HUD declined to grant the requested exemptions or safe harbors for any insurance practices, explaining that the commenters' concerns could be addressed on a case-by-case basis. On November 27, 2013, PCIAA filed an action in the U.S. District Court for the Northern District of Illinois (“the court”) alleging that HUD's Rule violated the McCarran-Ferguson Act 4 (“McCarran-Ferguson”) and the Administrative Procedure Act.5

    3 78 FR 11460 (Feb. 15, 2013).

    4 15 U.S.C. 1011-1015.

    5 5 U.S.C. 551-559.

    On September 3, 2014, the court issued a decision in PCIAA v. Donovan. 6 The court upheld the Rule's burden-shifting framework for analyzing discriminatory effects claims as a reasonable interpretation of the Fair Housing Act.7 The court also held that a violation of McCarran-Ferguson can be adjudicated by a court only in the context of a concrete dispute challenging the application of the Rule to a particular insurance practice, and not in the abstract.8 Distinguishing between adjudication and agency rulemaking, the court concluded that HUD had not adequately explained why case-by-case adjudication was preferable to using its rulemaking authority to provide exemptions or safe harbors related to homeowners insurance.9 The court remanded the matter to HUD for further proceedings consistent with its ruling.10

    6Prop. Cas. Insurers Ass'n of Am. v. Donovan (PCIAA), 66 F. Supp. 3d 1018 (N.D. Ill. 2014).

    7Id. at 1051-53.

    8Id. at 1037-42.

    9Id. at 1049.

    10Id. at 1054.

    After careful reconsideration of the comments from insurance industry representatives and the court's opinion, HUD continues to believe that case-by-case adjudication is preferable to creating the requested exemptions or safe harbors for insurance practices. The Fair Housing Act's broad prohibitions on discrimination in housing are intended to eliminate segregated living patterns while moving the nation toward a more integrated society. When Congress enacted the Fair Housing Act in 1968 and amended it in 1988, it established exemptions for certain practices 11 but not for insurance. Rather, Congress stated that the Act is intended to provide for fair housing throughout the United States.12 The Supreme Court has recognized the Act's broad remedial purpose.13 Among other things, the Act requires HUD to affirmatively further fair housing in all of its housing-related programs and activities,14 one of which is the administration and enforcement of the Act.15 McCarran-Ferguson, enacted in 1945, restricts only those applications of federal law that directly conflict with state insurance laws, frustrate a declared state policy, or interfere with a State's administrative regime.16 For HUD to create the requested exemptions or safe harbors would allow to go uncorrected at least some discriminatory insurance practices that can be subject to disparate impact challenges consistent with McCarran-Ferguson and the filed rate doctrine. Thus, to create such exemptions or safe harbors would undermine the efficacy of the Act and run counter to the Act's purpose and HUD's statutory responsibilities. The concerns raised by the insurance industry commenters do not outweigh this loss of efficacy in the administration and enforcement of the Act. Rather, the case-by-case approach appropriately balances these concerns against HUD's obligation to give maximum force to the Act by taking into account the diversity of potential discriminatory effects claims, as well as the variety of insurer business practices and differing insurance laws of the states, as they currently exist or may exist in the future. Moreover, in light of the variety of practices and relevant state laws, as well as the substantial range of possible discriminatory effects claims, it is practically impossible for HUD to define the scope of insurance practices covered by an exemption or safe harbor with enough precision to avoid case-by-case disputes over its application.

    11See, e.g., 42 U.S.C. 3605(c) (exempting appraisal practices from disparate impact liability), 3607(b)(1) (exempting reasonable governmental occupancy limits from disparate impact liability), 3607(b)(4) (exempting practices related to certain controlled substance convictions from disparate impact liability); see also Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2520-21 (2015) (discussing these “exemptions from liability”).

    12See 42 U.S.C. 3601.

    13See Havens Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982) (recognizing Congress's “broad remedial intent” in passing the Act); Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972) (recognizing the “broad and inclusive” language of the Act); see also Inclusive Cmtys., 135 S. Ct. at 2521 (describing the “central purpose” of the Act as “to eradicate discriminatory practices within a sector of our Nation's economy”).

    14See 42 U.S.C. 3608(e)(5).

    15See, e.g., 42 U.S.C. 3608 (the Secretary's administrative responsibilities under the Act), 3609 (education, conciliation, conferences, and reporting obligations to further the purposes of the Act), 3610 (investigative authority), 3611 (subpoena power), 3612 (administrative enforcement authority), 3614a (rulemaking authority), 3616 (authority to cooperate with state and local agencies in carrying out the Secretary's responsibilities under the Act), 3616a (authority to fund of state and local agencies and private fair housing groups to eliminate discriminatory housing practices prohibited by the Act).

    16Humana Inc. v. Forsyth, 525 U.S. 299, 310 (1999) (“When federal law does not directly conflict with state regulation, and when application of the federal law would not frustrate any declared state policy or interfere with a State's administrative regime, the McCarran-Ferguson Act does not preclude its application.”).

    Accordingly, HUD has determined that categorical exemptions or safe harbors for insurance practices are unworkable and inconsistent with HUD's statutory mandate. The discriminatory effects standard imposes liability only for those insurance practices that actually or predictably result in a discriminatory effect and that lack a legally sufficient justification.17 It takes into account an insurer's interest in the challenged practice and, for the reasons explained below, any conflict with a specific state insurance law can and should be addressed on a case-by-case basis in the context of that state law. HUD provides the following supplemental responses to the public comments submitted by the three insurance trade associations that sought exemptions or safe harbors.

    17See 24 CFR 100.500(b).

    Revised Responses to Insurance Industry Comments

    Issue: Two commenters requested exemptions from the Rule for all insurance practices, and a third commenter requested an exemption for insurance underwriting practices. All three of these insurance industry commenters raised McCarran-Ferguson in support of their requests for an exemption. One of these three commenters urged HUD to delete the insurance example from the Rule, stating that McCarran-Ferguson dictates that “state insurance law trumps the application of any federal law to state regulated insurance, except under very narrow circumstances, which are not met here.” 18 Another questioned “whether non-racially motivated and sound actuarial underwriting principles recognized by state insurance regulators that permit accurate risk-based pricing for consumers can be prohibited by federal regulators who find them to have a `disparate impact.' ” 19

    18 American Insurance Association, Comment Letter on Proposed Rule on Implementation of the Fair Housing Act's Discriminatory Effects Standard (Jan. 17, 2012).

    19 Property Casualty Insurers Association of America, Comment Letter on Proposed Rule on Implementation of the Fair Housing Act's Discriminatory Effects Standard (Jan. 17, 2012).

    The third commenter was concerned that “the disparate impact standards would impair state unfair discrimination standards,” which have “historically been a cost based concept” prohibiting “underwriting and rating distinctions `between individuals or risks of the same class and essentially the same hazard.' ” 20 The commenter expressed concern that if the Rule is applied to homeowners insurance, “accurate risk assessment will be threatened, adverse selection will increase, and coverage availability will suffer.” 21 This commenter also sought, in the alternative, “safe harbors for long-recognized risk-related factors,” stating that “[f]ailure to provide safe harbor protection for the use of factors historically allowed by state insurance regulators would subject insurers to baseless litigation and threaten the sound actuarial standards underpinning the insurance market.” 22

    20 National Association of Mutual Insurance Companies, Comment Letter on Proposed Rule on Implementation of the Fair Housing Act's Discriminatory Effects Standard (Jan. 17, 2012).

    21Id.

    22Id.

    HUD Response: HUD does not agree that it is necessary or appropriate to create an exemption from discriminatory effects liability for all insurance practices or for all underwriting practices in order to accommodate the insurance industry's concerns. McCarran-Ferguson does not require HUD to do so, and categorical exemptions would undermine the Act's broad remedial purpose and contravene HUD's own statutory obligation to affirmatively further fair housing. HUD also declines to create safe harbors from discriminatory effects liability for the use of particular risk factors. HUD disagrees with the commenter's assertions about the consequences that would befall the insurance industry if HUD does not grant the requested safe harbors for “long-recognized risk-related factors” or “historically allowed” factors. Establishing safe harbors for specific risk-related criteria would be overbroad, arbitrary, and quickly outdated.

    The Act's broad remedial purpose is “to provide . . . for fair housing throughout the United States.” 23 Thus, the Act plays a “continuing role in moving the Nation toward a more integrated society.” 24 Ensuring that members of all protected classes can access insurance free from discrimination is necessary to achieve the Act's objective because obtaining a mortgage for housing typically requires obtaining insurance, too.25 Likewise, obtaining insurance may be a precondition to securing a home in the rental market.26 Insurance is also critical to maintaining housing because fire, storms, theft, and other perils frequently result in property damage or loss that would be too costly to repair or replace without insurance coverage.

    23 42 U.S.C. 3601; see also cases cited supra note 13.

    24Inclusive Cmtys., 135 S. Ct. at 2526.

    25NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287, 297 (7th Cir. 1992) (“No insurance, no loan; no loan, no house; lack of insurance thus makes housing unavailable.”).

    26See, e.g., Or. Rev. Stat. 90.222(1) (“A landlord may require a tenant to obtain and maintain renter's liability insurance in a written rental agreement.”); Va. Code Ann. 55-248.7:2(B) (“A landlord may require as a condition of tenancy that a tenant have renter's insurance. . . .”).

    Yet the history of discrimination in the homeowners insurance industry is long and well documented,27 beginning with insurers overtly relying on race to deny insurance to minorities and evolving into more covert forms of discrimination.28 At times, agents were given plainly discriminatory instructions, such as “`get away from blacks' and sell to `good, solid premium-paying white people,'” or they simply were told, “We don't write Blacks or Hispanics.” 29 Underwriting guidelines contained discriminatory statements, such as listing “population and racial changes” among “red flags for agents.” 30 Minorities were offered inferior products, such as coverage for repairs rather than replacement, or were subject to additional hurdles during the quote and underwriting process.31 Additionally, discrimination took the form of insurers redlining predominantly minority neighborhoods and disproportionately placing agents and offices in predominately white neighborhoods.32 Minorities also were denied access to insurance through property-location and property-age restrictions, even when data had demonstrated that such restrictions are not justified by risk of loss.33 This history of discrimination led to minorities being unjustifiably denied insurance policies or paying higher premiums.34

    27 Although the discussion that follows focuses on race and national origin discrimination because of their historic prevalence, examples of discrimination in insurance against other protected classes exist as well. See e.g., Nevels v. W. World Ins. Co., 359 F. Supp. 2d 1110, 1120-21 (W.D. Wash. 2004) (disability).

    28See generally, Homeowners' Insurance Discrimination: Hearings Before the S. Comm. on Banking, Housing and Urban Affairs, 103d Cong. (1994) [hereinafter 1994 Hearings]; Insurance Redlining Practices: Hearings before the Subcom. on Commerce, Consumer Protection & Competitiveness of the H. Comm. on Energy and Commerce, 103d Cong. (1993) [hereinafter Mar. 1993 Hearings]; Insurance Redlining: Fact or Fiction: Hearing before the Subcom. On Consumer Credit and Insurance of the H. Comm. on Banking, Finance & Urban Affairs, 103d Cong. (1993) [hereinafter Feb. 1993 Hearing]; Insurance Redlining: Fact Not Fiction (Feb. 1979) [hereinafter Comm'n on Civil Rights] (report of the Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin Advisory Committees to the U.S. Commission on Civil Rights); President's National Advisory Panel on Insurance in Riot-Affected Areas, Meeting the Insurance Crisis of Our Cities (1968) [hereinafter Nat'l Advisory Panel].

    29See 139 Cong. Rec. 22,459 (1993) (statement of Rep. Joseph P. Kennedy, II); see also, e.g., Nat'l Advisory Panel, supra note 28, at 116 (quoting an insurance broker as explaining, “No matter how good [a customer] is, they [the insurers] take that into consideration, the fact he is a Negro.”).

    30Feb. 1993 Hearing, supra note 28 at 19, 27 (statement of Gregory Squires, Prof. U. Wis. Milwaukee).

    311994 Hearings, supra note 28, at 15, 47-48 (statements of Deval Patrick, DOJ Ass't Attorney Gen. for Civil Rights); id. at 18-19, 51 (statements of Roberta Achtenberg, HUD Ass't Sec'y of Fair Hous. & Equal Opportunity).

    32Feb. 1993 Hearing, supra note 28, at 7 (statement of John Garamendi, Cal. Ins. Comm'r) (“There may be some people that deny that redlining exists. They are not telling you the truth, or they just don't know what they are talking about. It is real, it does exist, and it is a very serious socioeconomic problem.”); Comm'n on Civil Rights, supra note 28, at 5 (listing “[p]lacing agents selectively in order to reduce the opportunity to secure business in certain areas” among the types of documented redlining practices).

    33See, e.g., Comm'n on Civil Rights, supra note 28, at 34-39 (“The greater the minority concentration of an area and the older the housing, independent of fire and theft, the less voluntary insurance is currently being written.”); 1994 Hearings, supra note 28, at 18 (statement of Roberta Achtenberg, HUD Ass't Sec'y of Fair Hous. & Equal Opportunity) (noting the “disparate impact on minority communities” of property age and value requirements, and explaining that “47 percent of black households, but just 23 percent of white households, live in homes valued at less than $50,000” and that “40 percent of black households compared to 29 percent of white households live in homes build before 1950.”).

    34See, e.g. 139 Cong. Rec. 22,459 (1993) (statement of Rep. Joseph P. Kennedy, II) (“[S]hocking anecdotal evidence was supported by 12 years of data submitted by Missouri State Insurance Commissioner Jay Angoff. . . . It shows that, in the cities of St. Louis and Kansas City, low-income minorities had to pay more money for less coverage than their white counterparts, despite the fact that losses in minority areas were actually less than those in white areas. This evidence directly challenges industry assertions that minorities are too risky to insure.”).

    HUD's long experience in administering the Act counsels that discriminatory effects liability does not threaten the fundamental nature of the insurance industry. HUD's position that discriminatory effects liability applies to insurance dates back more than three decades,35 as does the industry's concern that such liability makes it “near impossible for an insurer to successfully defend himself.” 36 HUD has maintained for decades that remedying discrimination in insurance, including discriminatory effects claims, requires examination of each allegedly discriminatory insurance practice on a case-by-case basis,37 and HUD sees no reason to deviate now from this longstanding approach.

    35Fair Housing Amendments Act of 1979: Hearings before the Subcom. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 96th Cong. 79 (1979) (statement of Patricia Roberts Harris, Sec'y of HUD).

    36Fair Housing Act: Hearings before the Subcom. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 95th Cong. 20, 616 (1978) (statement of the Am. Ins. Ass'n.).

    371994 Hearings, supra note 28, at 19 (statement of Roberta Achtenberg, HUD Ass't Sec'y of Fair Hous. & Equal Opportunity) (discussing insurers' property age and value requirements and stating that “when practices with such racial impacts are not legally or otherwise justified, a case-by-case, Fair Housing Act analysis is warranted”); id at 50 (stating that “it is important to stress that the finding of a [Fair Housing Act] violation occurs on a case by case basis” for insurance practices that are “neutral on their face [but] have a disproportionate racial impact” and “cannot meet the established test of business necessity and . . . less discriminatory alternative”).

    HUD recognizes that risk-based decision making is an important aspect of sound insurance practice, and nothing in the Rule prohibits insurers from making decisions that are in fact risk-based. Under the standard established by the Rule, practices that an insurer can prove are risk-based, and for which no less discriminatory alternative exists, will not give rise to discriminatory effects liability.38 All the Rule requires is that if an insurer's practices are having a discriminatory effect on its insureds and “an adjustment . . . can still be made that will allow both [parties'] interests to be satisfied,” the insurer must make that change.39 Risk-based decision making is not unique to insurance, and discriminatory effects liability has proven workable in other contexts involving risk-based decisions, such as mortgage lending, without the need for exemptions or safe harbors.40 Moreover, some states provide for discriminatory effects liability against insurers under state laws, further undermining the industry's claim that providing for such liability as a matter of federal law threatens the fundamental nature of the industry.41

    38 24 CFR 100.500(b); see also Toledo Fair Hous. Ctr. v. Nationwide Mut. Ins. Co., 94 Ohio Misc. 2d 151, 157 (Ohio Ct. Com. Pl. 1997) (“[T]he disparate-impact approach does not unduly undermine the business of selling insurance. Assuming . . . that the insurance industry is based on `fair' risk discrimination, the disparate-impact approach will not impede such fair discrimination if the insurer can show a business necessity.”).

    39Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d 493, 513 (9th Cir. 2016).

    40See, e.g., Policy Statement on Discrimination in Lending, 59 FR 18266 (Apr. 15, 1994); Interagency Fair Lending Examination Procedures (Aug. 2009); see also 1994 Hearings, supra note 28, at 20 (statement of Roberta Achtenberg, HUD Ass't Sec'y of Fair Hous. & Equal Opportunity) (“As in other areas of fair housing law enforcement, standards to determine [insurance] discrimination will . . . [include] disparate impact. . . . The investigative techniques we will utilize will include those that have grown from our fair housing investigative experience across the board . . . the kinds of tactics that we currently utilize . . . in lending discrimination investigations.”).

    41See infra notes 61 thru 64 and accompanying text.

    Consistent with the Act's broad scope and purpose, as well as HUD's own obligation to affirmatively further fair housing, HUD declines to foreclose viable discrimination claims by creating an overbroad exemption. For the reasons detailed below, wholesale exemptions for all insurance practices or all insurance underwriting practices would necessarily be overbroad, allowing some practices with unjustified discriminatory effects to go uncorrected. Wholesale exemptions also would invariably sweep within their scope potential intentional discrimination in the insurance market as well because “disparate-impact liability under the [Fair Housing Act] also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.” 42

    42Inclusive Cmtys., 135 S. Ct. at 2522.

    Some discriminatory effects claims against insurers will survive a McCarran-Ferguson defense depending on a host of case-specific variables, and therefore wholesale exemptions would be overbroad. McCarran-Ferguson specifically provides that “[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance . . . unless such Act specifically relates to the business of insurance.” 43 As interpreted by the Supreme Court in Humana v. Forsyth, McCarran-Ferguson applies only when a particular application of a federal law directly conflicts with a specific state insurance regulation, frustrates a declared state policy, or interferes with a State's administrative regime.44 Accordingly, the mere fact that a state has the authority to regulate insurance or has adopted ratemaking regulations does not suffice on its own to create the kind of conflict, frustration of purpose, or interference that triggers McCarran-Ferguson.45 Rather, the inquiry required by Humana depends on the relevant state law and other case-specific variables.46

    43 15 U.S.C. 1012(b).

    44Humana, 525 U.S. at 310 (“When federal law does not directly conflict with state regulation, and when application of the federal law would not frustrate any declared state policy or interfere with a State's administrative regime, the McCarran-Ferguson Act does not preclude its application.”).

    45Dehoyos v. Allstate Corp., 345 F.3d 290, 295 (5th Cir. 2003) (disparate impact under the Act); Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351, 1363 (6th Cir. 1995) (disparate treatment under the Act); Moore v. Liberty Nat'l Life Ins. Co., 267 F.3d 1209, 1221 (11th Cir. 2001) (disparate treatment in life insurance).

    46See PCIAA, 66 F. Supp. 3d at 1038 (“McCarran-Ferguson challenges to housing discrimination claims [depend on] the particular, allegedly discriminatory practices at issue and the particular insurance regulations and administrative regime of the state in which those practices occurred.”).

    For example, in Dehoyos v. Allstate,47 the Fifth Circuit rejected a McCarran-Ferguson defense to a disparate impact claim where the insurer did not identify a specific state law that was impaired. In so ruling, the Fifth Circuit reasoned that the Seventh Circuit's holding in Doe v. Mutual of Omaha48 does not foreclose all discriminatory effects claims against insurers as barred by McCarran-Ferguson. Instead, the Fifth Circuit distinguished Doe, where McCarran-Ferguson was held to bar a claim of discrimination under the Americans with Disabilities Act 49 (“ADA”), by explaining that “[i]n Doe, there was an actual state insurance law which purportedly conflicted with the application of the [ADA] to the particular question at issue.” 50 Thus, where no state law is impaired, McCarran-Ferguson will not bar a discriminatory effects claim against an insurer.

    47Dehoyos, 345 F.3d 290.

    48 179 F.3d 557 (7th Cir. 1999).

    49 42 U.S.C. 12101-12213.

    50Dehoyos, 345 F.3d at 298 n.6. Although in HUD's view the Fifth Circuit persuasively distinguished the Seventh Circuit's holding in Doe, the case-by-case approach appropriately accommodates any variations among the circuits that may exist, now or in the future, as to how McCarran-Ferguson should be applied. This includes the Second Circuit's skepticism over whether McCarran-Ferguson applies at all to “subsequently enacted civil rights legislation.” Viens v. Am. Empire Surplus Lines Ins. Co., 113 F. Supp. 3d 555, 572 (D. Conn. 2015) (quoting Spirt v. Teachers Ins. & Annuity Ass'n, 691 F.2d 1054, 1065 (2d Cir. 1982)).

    Past cases demonstrate also that discriminatory effects claims brought under the Fair Housing Act against insurers survive McCarran-Ferguson defenses even when an insurer points to a specific state law and alleges that it is impaired. Although the commenters provided examples of cases in which state laws were found to be impaired by a particular discriminatory effects challenge, other cases provide examples of state laws that were not. For instance, in Lumpkin v. Farmers Group, the court rejected a McCarran-Ferguson defense to a disparate impact challenge to credit scoring in insurance pricing, holding that disparate impact liability in that context did not impair the state's law mandating that “insurance rates cannot be `unfairly discriminatory.' ” 51 In so ruling, the court held it erroneous to read a state law prohibiting “unfairly discriminatory” rates “too broadly” and rejected the insurer's argument that such state laws require that practices with an unjustified discriminatory effect must be permitted “as long as the rates are actuarially sound.”52 The court then cited other provision of the state's insurance code specifically dealing with credit scoring, concluding that they too were not impaired.53

    51Lumpkin v. Farmers Grp. (Lumpkin II), No. 05-2868 Ma/V, 2007 U.S. Dist. LEXIS 98949, at *19 (W.D. Tenn. July 6, 2007).

    52Id.

    53Id. at *19-20.

    McCarran-Ferguson requires a fact-intensive inquiry that will vary state by state and claim by claim. Thus, even those cases in which impairment was found support the case-by-case approach herein adopted by HUD because, in such cases, the finding of impairment was made only after considering the particularities of the challenged practices and the state law at hand. In Saunders v. Farmers Insurance Exchange, for example, prior to ruling that McCarran-Ferguson barred a discriminatory effects claim under the Act,54 the Eighth Circuit first remanded the case for further inquiry into several unknowns about the facts and Missouri law.55

    54Saunders v. Farmers Ins. Exch. (Saunders II), 537 F.3d 961 (8th Cir. 2008).

    55Saunders v. Farmers Ins. Exch. (Saunders I), 440 F.3d 940 (8th Cir. 2006). These variables included whether Missouri insurance law provided a private right of action to challenge the conduct at issue, and whether determinations by the state insurance agency were subject to judicial review. The court explained that “the mere fact of overlapping complementary remedies under federal and state law does not constitute impairment for McCarran-Ferguson purposes.” Id. at 945.

    The many ways in which one state's insurance laws can differ from another's, as well as the ways in which a single state's insurance laws can change over time, mean that even an exemption for specific insurance practices would be overbroad and quickly outdated. For example, variations in state insurance laws have resulted in discriminatory effects challenges to similar insurance practices surviving a McCarran-Ferguson defense in regard to some state laws but not others.56 Past cases also demonstrate that the insurance laws of each state can change over time in significant ways,57 and state insurance regulators respond to new practices as they become common and their effects become clear.58 Given the variation in state insurance laws across more than fifty jurisdictions and over time, HUD declines to fashion a one-size-fits-all exemption that would inevitably insulate insurers engaged in otherwise unlawful discriminatory practices from Fair Housing Act liability.

    56 For example, in cases challenging the discriminatory effect of insurers' reliance on credit scores, the McCarran-Ferguson defense has failed in some states but succeeded in others. Compare Dehoyos, 345 F.3d 290 (McCarran-Ferguson defense fails) and Lumpkin II, 2007 U.S. Dist. LEXIS 98949 (same) with Saunders II, 537 F.3d 961 (McCarran-Ferguson defense succeeds) and McKenzie v. S. Farm Bureau Cas. Ins. Co., No. 3:06CV013-B-A, 2007 U.S. Dist. LEXIS 49133 (N.D. Miss. July 5, 2007) (same). See also PCIAA, 66 F. Supp. 3d at 1039 (“Variations among state regulatory regimes . . . provide an additional variable that may complicate any hypothetical McCarran-Ferguson analysis.”).

    57Compare Ojo v. Farmers Grp., Inc., 356 SW.3d 421 (Tex. 2011) (recognizing a McCarran-Ferguson defense to a credit scoring disparate impact claim based on the state legislature “expressly authoriz[ing] the use of credit scoring in setting insurance rates in 2003”) with Dehoyos, 345 F.3d 290 (rejecting a McCarran-Ferguson defense to the same type of claim based on Texas law in effect before 2003).

    58See, e.g., Nat'l Ass'n of Ins. Comm'rs, Price Optimization White Paper (Nov. 19, 2015) http://www.naic.org/documents/committees_c_catf_related_price_optimization_white_paper.pdf [hereinafter NAIC White Paper] (discussing the responses of state regulators to the rising increase in use of price optimization practices by insurance providers).

    A one-size-fits-all exemption is also inappropriate in light of the fact that insurance practices are not governed solely by “hermetically sealed” state insurance codes,59 but are also governed by a range of other state laws, including state fair housing laws. Many state fair housing laws track the Act's applicability to insurance and provision of effects liability, indicating that those states do not consider disparate impact liability to conflict with the nature of insurance. Categorical exemptions or safe harbors of the types requested by the commenters would deprive all states of federal support in addressing discriminatory insurance practices—even those states that welcome or depend on such support. This outcome would be at odds with the purpose of McCarran-Ferguson to support the autonomy and sovereignty of each individual state in the field of insurance.60 Connecticut's Discriminatory Housing Practices Act, for example, “provides similar (albeit broader) protection against housing discrimination as the [Fair Housing Act], which is strong indication that application of the federal antidiscrimination law will not impair Connecticut's regulation of the insurance industry, but rather is complementary with Connecticut's overall regulatory scheme.” 61 Similarly, a state court found that “the disparate-impact approach does not conflict with Ohio Insurance law” and thus allowed a disparate impact claim against an insurer to proceed under the state's fair housing law.62 In another case where the court rejected a McCarran-Ferguson defense to a discriminatory effects claim against an insurer, the court explained that it was “not persuaded that California law would allow [the challenged] practice” and therefore “the Fair Housing Act complements California law in this regard.” 63 Furthermore, the allocation of authority to enforce a state's protections against discrimination in insurance can impact whether McCarran-Ferguson is a viable defense to a discriminatory effects claim in a given state.64 The case-by-case approach thus affirms state autonomy and furthers the Act's broad remedial goals by ensuring that HUD is not hindered in fulfilling its statutory charge to support and encourage state efforts to protect fair housing rights.65

    59Humana, 525 U.S. at 312.

    60See 15 U.S.C. 1011 (explaining the purpose of McCarran-Ferguson as “the continued regulation . . . by the several States of the business of insurance is in the public interest”).

    61Viens, 113 F. Supp. 3d at 573 n.20 (finding that McCarran-Ferguson does not bar an FHA disparate impact claim against an insurer related to a property located in Connecticut).

    62Toledo, 94 Ohio Misc. 2d at 157.

    63Jones v. Travelers Cas. Ins. Co. of Am., Tr. of Proceedings Before the Honorable Lucy H. Koh U.S. District Judge, No. C-13-02390 LHK (N.D. Cal. May 7, 2015), ECF No. 269-1.

    64Toledo, 94 Ohio Misc. 2d at 157 (recognizing discriminatory effects liability in homeowners insurance under state law in part because the Superintendent of Insurance lacks “primary jurisdiction” over such claims).

    65See, e.g., 42 U.S.C. 3610(f); 24 CFR pt. 115 (HUD's Fair Housing Assistance Program); 42 U.S.C. 3608(d); 80 FR 42272 (July 16, 2015) (HUD's rule on Affirmatively Furthering Fair Housing).

    The commenters' concerns about the incompatibility between HUD's Rule and the fundamental nature of insurance do not warrant the requested exemptions. Although the commenters assert that a broad exemption for all insurance practices or all underwriting decisions is necessary to preserve “sound actuarial underwriting” and the “risk-based insurance `unfair discrimination' standard,” HUD declines to create a broad exemption of that sort because doing so would immunize a host of potentially discriminatory insurance practices that do not involve actuarial or risk-based calculations. Insurers regularly engage in practices, such as marketing and claims processing and payment, that do not involve risk-based decision making and to which the Act applies in equal force.66 In addition, a discriminatory effects claim also can challenge an insurer's underwriting policies as “not purely risk-based” without infringing on the insurer's “right to evaluate homeowners insurance risks fairly and objectively.” 67 Even practices such as ratemaking that are largely actuarially-based can incorporate an element of non-actuarially-based subjective judgment or discretion under state law. Indeed, many of the state statutes referenced by commenters mandating that rates be reasonable, not excessive, inadequate, or unfairly discriminatory permit insurers, via the very same section of the insurance code, to rely on “judgment factors” in ratemaking.68 The example of price optimization practices,69 which a minority of states have started regulating, illustrates how non-actuarial factors, such as price elasticity of market demand,70 can impact insurance pricing in a manner similar to how such considerations affect pricing of products in non-actuarial industries.71

    66See, e.g., Franklin v. Allstate Corp., No. C-06-1909 MMC, 2007 U.S. Dist. LEXIS 51333 (N.D. Cal. July 3, 2007) (applying the Act to claims processing); Burrell v. State Farm & Cas. Co., 226 F. Supp. 2d 427 (S.D.N.Y. 2002) (same).

    67Nat'l Fair Hous. Alliance v. Prudential Ins. Co. of Am., 208 F. Supp. 2d 46, 60 (D.D.C. 2002).

    68See e.g., Ga. Code Ann. 33-9-4; Mont. Code Ann. 33-16-201; see also NAIC White Paper, supra note 58, at 1 ¶ 5 (“Making adjustments to actuarially indicated rates is not a new concept; it has often been described as `judgment.' ”).

    69 The term “price optimization” can refer to “the process of maximizing or minimizing a business metric using sophisticated tools and models to quantify business considerations,” such as “marketing goals, profitability and policyholder retention.” NAIC White Paper, supra note 58, at 4 ¶ 14(a).

    70 The term “price elasticity of demand” refers to “the rate of response of quantity demanded due to a price change. Price elasticity is used to see how sensitive the demand for a good is to a price change.” Id. at 4 ¶ 14(f) (internal quotations omitted).

    71Id. at 9 ¶ 30 (“Price optimization has been used for years in other industries, including retail and travel. However, the use of model-driven price optimization in the U.S. insurance industry is relatively new.”).

    HUD likewise declines to craft a safe harbor for any risk-based factor or for the specific “long-recognized” factors suggested by one commenter because it would be arbitrary and overbroad. Creating a safe harbor for the use of any factor that an insurer could prove is in fact risk-based would be overbroad because it would foreclose claims where the plaintiff could prove the existence of a less discriminatory alternative, such as an alternative risk-based practice. Moreover, if HUD were to provide a safe harbor for the use of any factor that an insurer could prove is purely risk-based, entitlement to the safe harbor would inevitably necessitate a determination of whether the use of the factor is, in fact, risk-based. As stated above, if an insurance practice is provably risk-based, and no less discriminatory alternative exists, the insurer will have a legally sufficient justification under the Rule as is. The arguments and evidence that would be necessary to establish whether a practice qualifies for the requested exemption would effectively be the same as the arguments and evidence necessary for establishing a legally sufficient justification. Thus, an exemption for all provably risk-based factors would offer little added value for insurers not already provided by the Rule itself while foreclosing potentially meritorious claims in contravention of the Act's broad remedial goals and HUD's obligation to affirmatively further fair housing.

    Selecting a few factors for exemption, such as those suggested by the commenter, based on bare assertions about their actuarial relevance, without data and without a full survey of all factors utilized by the homeowners insurance industry, would also be arbitrary. Even if such data were available and a full survey performed, safe harbors for specific factors would still be overbroad because the actuarial relevance of a given factor can vary by context.72 Also, while use of a particular risk factor may be generally correlated with probability of loss, the ways in which an insurer uses that factor may not be. Furthermore, the actuarial relevance of any given factor may change over time as societal behaviors evolve, new technologies develop, and analytical capabilities improve.

    72 For example, in some high-crime neighborhoods the higher-than-average risk of loss from theft could be offset by a lower-than-average risk of other losses, such as those caused by weather. Therefore, the legitimacy of declining to issue insurance policies in all locations with high crime rates would depend on other features of those locations.

    In light of the long, documented history of discrimination in the homeowners' insurance industry, including the use of “risk factors” by insurers and regulators that were subsequently banned as discriminatory, as well as the fact-specific nature of McCarran-Ferguson analysis and the non-actuarial or hybrid nature of many insurance practices, HUD considers it inappropriate to craft any exemptions or safe harbors for insurance practices. HUD's longstanding case-by-case approach can adequately address any McCarran-Ferguson concerns and better serves the Act's broad remedial purpose and HUD's statutory obligation to affirmatively further fair housing, including by supporting fair housing efforts undertaken by states.73

    73Cf. CROSSRDS v. MSP Crossroads Apts., LLC, No. 16-233 ADM/KMM, 2016 U.S. Dist. LEXIS 86965 at *32 n.6 (D. Minn. July 5, 2016) (declining to adopt a per se rule that a certain category of disparate impact claims could not be brought in part because “HUD has indicated a preference for case-by-case review of practices alleged to cause a disparate impact”).

    Issue: One commenter requested that HUD “exempt insurance pricing from the discriminatory effects standards.” The commenter argued that pricing is not covered by the Act because the Act only covers insurance practices that “make[ ] homeowners insurance unavailable” and pricing does not do so. The commenter also asserted that pricing is “subject to the filed rate doctrine” and should therefore be exempted because the filed rate doctrine precludes “private claims for damages based on challenges to filed rates.”

    HUD Response: HUD disagrees with the commenter's characterization of the Act as only covering insurance practices that make insurance unavailable, as well as with the commenter's premise that pricing does not do so. HUD also declines to craft an exemption for insurance pricing based on the filed rate doctrine because HUD does not anticipate that the filed rate doctrine will bar discriminatory effects claims involving insurance pricing. In light of the broad remedial goals of the Act and HUD's obligation to affirmatively further fair housing, HUD continues to prefer case-by-case adjudication over the requested exemption.

    In addition to Section 804(a),74 which prohibits discrimination that “make[s] unavailable” a dwelling, there are several other provisions of the Act that can prohibit discriminatory insurance practices, including pricing.75 One of those is Section 805(a),76 which prohibits discrimination in the “terms or conditions” of “residential real estate-related transactions.” Another is Section 804(b),77 which prohibits discrimination in the “provision of services . . . in connection” with a dwelling. Indeed, HUD's fair housing regulations since 1989 have specifically stated that the Act prohibits “[r]efusing to provide . . . property or hazard insurance for dwellings or providing such . . . insurance differently” because of a protected characteristic.78 Courts have applied the Act to insurance pricing,79 as well as to other practices such as marketing and claims processing,80 irrespective of whether the discriminatory conduct occurred in conjunction with or subsequent to the acquisition of a dwelling.

    74 42 U.S.C. 3604(a).

    75 Depending on the circumstances, discriminatory insurance practices can violate 42 U.S.C. 3604(a), (b), (c), (f)(1), (f)(2), 3605, and 3617. See, e.g., Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d at 1360 (holding that section 3604 of the Act prohibits discriminatory insurance underwriting); Nevels, 359 F. Supp. 2d at 1120-21 (recognizing that sections 3604(f)(1), 3604(f)(2), 3605 and 3617 of the Act cover insurance practices); Nat'l Fair Hous. Alliance, 208 F. Supp. 2d at 55-58 (holding that sections 3604(a), 3604(b), and 3605 of the Act prohibit discriminatory insurance underwriting practices); Owens v. Nationwide Mut. Ins. Co., No. 3:03-CV-1184-H, 2005 U.S. Dist. LEXIS 15701, at *16-17 (N.D. Tex. Aug. 2, 2005) (holding that section 3604(b) of the Act prohibits discriminatory insurance practices); Francia v. Mount Vernon Fire Ins. Co., No. CV084032039S, 2012 Conn. Super. LEXIS 665 (Conn. Super. Ct. Mar. 6, 2012) (relying on section 3604(c) to interpret an analogous state law as prohibiting a discriminatory statement in an insurance quote).

    76 42 U.S.C. 3605(a).

    77 42 U.S.C. 3604(b).

    78 24 CFR 100.70(d)(4) (emphasis added). As used in this regulation, the phrase “property or hazard insurance for dwellings” includes insurance purchased by an owner, renter, or anyone else seeking to insure a dwelling. See 42 U.S.C. 3602(b) (defining “dwelling” without reference to whether the residence is owner- or renter-occupied).

    79See, e.g., NAACP, 978 F.2d at 301 (“Section 3604 of the Fair Housing Act applies to discriminatory denials of insurance, and discriminatory pricing, that effectively preclude ownership of housing because of the race of the applicant.”) (emphasis added); Dehoyos, 345 F.3d at 293 (holding that a claim alleging discriminatory insurance pricing was not barred by McCarran-Ferguson).

    80See sources cited supra note 66; see also Owens, 2005 U.S. Dist. LEXIS 15701, at *17 (Insurance practices are covered by the Act “whether the insurance is sought in connection with the maintenance of a previously purchased home or with an application to purchase a home.”); Lindsey v. Allstate Ins. Co., 34 F. Supp. 2d 636, 643 (W.D. Tenn. 1999) (“It would seem odd to construe a statute purporting to promote fair housing as prohibiting discrimination in providing property insurance to those seeking a home, but allowing that same discrimination so long as it takes place in the context of renewing those very same insurance policies.”).

    HUD is not aware of any case, and no commenter cited one, in which a court has applied the filed rate doctrine to defeat any sort of claim under the Act, although several courts have rejected such attempts.81 “The filed rate doctrine bars suits against regulated utilities grounded on the allegation that the rates charged by the utility are unreasonable.” 82 The doctrine primarily serves two purposes: First, preventing litigants from securing more favorable rates than their non-litigant competitors, and second, preserving for agencies rather than courts the role of ratemaking.83

    81See Saunders I, 440 F.3d at 944-46 (“The district court erred in invoking the judicially created filed rate doctrine to restrict Congress's broad grant of standing to seek judicial redress for race discrimination.”); Dehoyos, 345 F.3d at 297 n.5 (finding “unpersuasive” the argument that the filed rate doctrine barred a Fair Housing Act disparate impact claim); Lumpkin v. Farmers Grp., Inc. (Lumpkin I), No. 05-2868 Ma/V, 2007 U.S. Dist. LEXIS 98994, at *20-22 (W.D. Tenn. Apr. 26, 2007) (ruling that “the filed rate doctrine does not apply” to a Fair Housing Act disparate impact claim).

    82Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir. 1994).

    83Id.

    The fit between the filed rate doctrine and discriminatory effects claims is attenuated, at best, because discriminatory effects claims “do not challenge the reasonableness of the insurance rates” but rather their discriminatory effects.84 To the extent there is any conflict between the directives of the federal Fair Housing Act and those of state ratemaking regulations, “the Supremacy Clause tips any legislative competition in favor of the federal antidiscrimination statutes.” 85 Unlike filed rate doctrine cases involving a conflict between federal ratemaking and a federal statute, applying the filed rate doctrine to prioritize state ratemaking over a federal statute “would seem to stand the Supremacy Clause on its head.” 86 Moreover, the filed rate doctrine “does not preclude injunctive relief or prohibit the Government from seeking civil or criminal redress,” 87 which are types of relief often obtained for violations of the Act.88

    84Lumpkin I, 2007 U.S. Dist. LEXIS 98994, at *21; see also Dehoyos, 345 F.3d at 297 n.5 (“[T]he application of anti-discrimination laws cannot be reasonably construed to supplant the specific insurance rate controls of [states].”).

    85Saunders I, 440 F.3d at 944.

    86Perryman v. Litton Loan Servicing, LP, No. 14-cv-02261-JST, 2014 U.S. Dist. LEXIS 140479, at *20-22 (N.D. Cal. Oct. 1, 2014).

    87In re Title Ins. Antitrust Cases, 702 F. Supp. 2d 840, 849 (N.D. Ohio 2010); see also Marcus v. AT&T Corp., 138 F.3d 46, 62 (2d Cir. 1998).

    88See 42 U.S.C. 3612(g)(3), 3613(c), 3614(d).

    Because “the law on the filed rate doctrine is extremely creaky,” 89 abundant variations exist among the courts as to how the doctrine applies. Even where it does apply, a filed rate doctrine defense “must be examined specifically in the context of the laws and regulatory structures at issue.” 90 This would be a “fact-intensive issue” 91 that would include consideration of the particular state's ratemaking structures.92 The case-by-case approach best accommodates these variations.

    89Town of Norwood v. New England Power Co., 202 F.3d 408, 420 (1st Cir. 2000). The filed rate doctrine has also been described as a “weak and forcefully criticized doctrine.” Cost Mgmt. Servs. v. Wash. Natural Gas Co., 99 F.3d 937, 946 (9th Cir. 1996).

    90Munoz v. PHH Corp., 659 F. Supp. 2d 1094, 1099 (E.D. Cal. 2009).

    91Saunders I, 440 F.3d at 945.

    92 For example, the Seventh Circuit has questioned the applicability of the filed rate doctrine to any claims involving property insurance in Illinois because “[a]lthough [a property insurance provider] is required to file its insurance rates with the Illinois Department of Insurance, it is not at all clear that the Department has the authority to approve or disapprove property-insurance rates.” Cohen v. Am. Sec. Ins. Co., 735 F.3d 601, 607 (7th Cir. 2013). States vary considerably in the degree to which they regulate rate-setting, with six different types of rate regulatory systems in use across the country: Prior approval; file and use; use and file; flex rating; modified prior approval; and no file. See NAIC, 2 Compendium of State Laws on Insurance Topics, Health/Life/Property/Casualty II-PA-10-21 (2011). As the classifications indicate, these rate regulatory systems vary with respect to whether or when an insurance company is required to file its rates with a state insurance agency before those rates can be used.

    For all the foregoing reasons, HUD does not agree that the filed rate doctrine, nor the commenter's assertions about the Act's scope, warrant an exemption for insurance pricing.

    Issue: One commenter sought an exemption from discriminatory effects liability for FAIR plans because “the operation of FAIR plans facilitates private conduct that otherwise would not have occurred.”

    HUD Response: FAIR plans were first enacted by many states in response to the federal Urban Property Protection and Reinsurance Act of 1968,93 which was passed by Congress to address the problem of inadequate property insurance availability in the nation's urban areas due to insurance redlining. FAIR plans operate as insurance pools that sell property insurance to individuals who are unable to purchase insurance in the voluntary market.

    93 Public Law 90-448, 82 Stat. 555 (1968).

    HUD declines to categorically exempt FAIR plans from discriminatory effects liability under the Act. To do so, without any consideration of the particular insurance practice or state requirements at issue, would be inconsistent with the broad remedial purpose of the Act and HUD's obligation to affirmatively further fair housing. Like state regulation of voluntary market insurance practices, state laws governing the provision and pricing of FAIR plans vary across jurisdictions. Variations in state regulation of FAIR plans include the types of coverage provided by such plans,94 the amount of coverage allowed under such plans,95 and the conditions under which an individual or property will qualify for such plans.96 Additionally, even within a given state, FAIR plan regulations are subject to revision over time.

    94Compare, e.g., Conn. Agencies Regs. 38a-328-3(c) (defining “basic insurance” for purposes of the Connecticut FAIR plan to include liability coverage for any dwelling of up to three families) with Mass. Gen. Laws ch. 175c, § 1 (defining “basic property insurance” for purposes of the Massachusetts FAIR plan to include liability coverage for only non-owner occupied dwellings of up to four families) and 98-08 Wash. Reg. 4 (April 15, 1998) (excluding liability coverage from the definition of “essential property insurance” for purposes of the Washington FAIR plan).

    95Compare, e.g., Mo. Rev. Stat. 379.825 (limiting maximum insurance coverage for a dwelling under the Missouri FAIR plan to $200,000) with 98-08 Wash. Reg. 5 (April 15, 1998) (limiting maximum insurance coverage for a dwelling under the Washington FAIR plan to $1.5 million).

    96Compare, e.g., Ohio Rev. Cod. Ann. 3929.44(D) (requiring applicant to certify that two insurance companies declined to provide coverage for purposes of FAIR plan eligibility) with 215 Ill. Comp. Stat. 5/524(1) (restricting FAIR plan eligibility to applicants who have been declined insurance coverage by three companies).

    Given such variation and changeability, exempting all FAIR plans from application of the discriminatory effects standard would be overbroad and would deprive individuals of the protections afforded by the Fair Housing Act. Indeed, one state court has held “the disparate impact approach does not interfere with the Ohio FAIR Plan.” 97 In light of this demonstrated compatibility, and because insurers retain some discretion in the operation of FAIR plans,98 HUD determines that case-by-case adjudication is preferable to the requested exemption of FAIR plans.

    97Toledo, 94 Ohio Misc. 2d at 157.

    98See, e.g., Cal. Ins. Code 10094 (leaving discretion to governing committee of participating insurers to establish “reasonable underwriting standards” for determining whether a property for which FAIR plan coverage is sought is insurable); 215 Ill. Comp. Stat. 5/524(1) (same); Ohio Rev. Code. Ann. 3929.43(C) (same).

    Dated: September 23, 2016. Gustavo Velasquez, Assistant Secretary for Fair Housing and Equal Opportunity.
    [FR Doc. 2016-23858 Filed 10-4-16; 8:45 am] BILLING CODE 4210-67-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2016-0489; FRL-9953-63-Region 4] Air Plan Approval; Georgia: Volatile Organic Compounds AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve portions of two revisions to the Georgia State Implementation Plan submitted by the Georgia Department of Environmental Protection on July 25, 2014, and November 1, 2015. These revisions modify the definition of “volatile organic compounds” (VOC). Specifically, these revisions add two compounds to the list of those excluded from the VOC definition on the basis that these compounds make a negligible contribution to tropospheric ozone formation. This action is being taken pursuant to the Clean Air Act.

    DATES:

    Written comments must be received on or before November 4, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-OAR-2016-0489 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    In the Final Rules Section of this Federal Register, EPA is approving the State's implementation plan revision as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this document. Any parties interested in commenting on this document should do so at this time.

    Dated: September 23, 2016. V. Anne Heard, Acting Regional Administrator, Region 4.
    [FR Doc. 2016-23971 Filed 10-4-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Bureau of Land Management 43 CFR Part 8360 [LLCO913000.L16300000.NU0000.16X] Notice of Proposed Supplementary Rules for Public Lands in Colorado AGENCY:

    Bureau of Land Management, Interior.

    ACTION:

    Proposed supplementary rules.

    SUMMARY:

    The Bureau of Land Management (BLM) is proposing supplementary rules to protect natural resources and provide for public health and safety. The proposed supplementary rules would apply to all public lands and BLM facilities in Colorado.

    DATES:

    You should submit your comments by December 5, 2016.

    ADDRESSES:

    You may submit comments by the following methods: Mail or hand deliver to John Bierk, State Chief Ranger, BLM Colorado State Office, 2850 Youngfield Street, Lakewood, CO 80215. You may also submit comments via email to [email protected] (include “Proposed Supplementary Rules” in the subject line).

    FOR FURTHER INFORMATION CONTACT:

    John Bierk, State Chief Ranger (see ADDRESSES listed above), or by phone at (303) 239-3893. Persons who use a telecommunications device for the deaf may call the Federal Information Relay Service (FIRS) at (800) 877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, seven days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.

    SUPPLEMENTARY INFORMATION:

    I. Public Comment Procedures

    Written comments on the proposed supplementary rules should be specific, confined to issues pertinent to the proposed supplementary rules, and explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposed supplementary rules that the comments are addressing. The BLM is not obligated to consider or include in the Administrative Record for the final supplementary rules comments delivered to an address other than the one listed above (see ADDRESSES) or that the BLM receives after the close of the comment period (see DATES), unless they are postmarked or electronically dated before the deadline. Comments, including names, street addresses, and other contact information of respondents, will be available for public review at the address listed above during regular business hours (7:30 a.m. to 4:30 p.m. Monday through Friday, except on Federal holidays). Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

    II. Background

    The BLM Colorado State Office has issued various statewide supplementary rules to protect natural resources and provide for public health and safety since 1990. Individual BLM field offices have also issued various supplementary rules for travel management, protection of natural resources, and public health and safety since 1995. Although these supplementary rules have addressed a wide variety of natural resource and public health and safety concerns, evolving social trends and recreational uses of public land have necessitated additional statewide supplementary rules.

    III. Discussion of the Proposed Supplementary Rules

    These proposed supplementary rules would apply to all public lands and BLM facilities in Colorado. Proposed supplementary rule numbers 1-11 would address general public conduct on public lands and at BLM facilities. Many of these proposed supplementary rules were intentionally written using language found in Title 18 of the Colorado Revised Statutes.

    Proposed supplementary rule numbers 12-16 would address resource damage and public safety concerns involving the use of exploding targets, flammable devices, and target shooting. The BLM consulted with the Shooting Sports Roundtable during the drafting of the proposed supplementary rules. The Shooting Sports Roundtable requested that the proposed rules be clear, specific, and enforceable, and asked the BLM to provide a comprehensive outreach effort prior to enforcement.

    The BLM incorporated most of the recommendations from the Shooting Sports Roundtable into the proposed supplementary rules and is planning to issue press releases, post the new supplementary rules on the BLM State and Field Office Web sites, and will have BLM Law Enforcement Rangers conduct public education activities.

    The BLM must consider risks to public safety and natural resources in light of increasing fire danger and development in the wildland urban interface. The USFS reported at least 16 wildfires were associated with exploding targets in 2013, causing millions of dollars in fire suppression costs and threatening the safety and well-being of surrounding communities. The USFS subsequently issued an order banning exploding targets in forests and grasslands in Colorado, Wyoming, Kansas, Nebraska, and South Dakota in August 2013. Accordingly, the BLM believes that the proposed supplementary rules regarding exploding targets are warranted.

    Proposed supplementary rule numbers 17-19 clarify existing Federal regulations found in 43 CFR 9264.1(h) relating to vehicles, game animals, boating, and outfitters. Proposed supplementary rule number 20 would address mechanized vehicle use within Wilderness Study Areas (WSA) off of a designated route. Until Congress makes a final determination on a WSA, the BLM manages these areas to preserve their suitability for designation as wilderness. Existing regulations in 43 CFR 8341.1 limit off-road vehicles to designated routes of travel, but this part does not apply to non-motorized vehicles. Existing regulations in 43 CFR 6302.20(d) restrict the use of mechanical transport in a congressionally designated Wilderness Area, but do not apply to WSAs. Proposed supplementary rule number 20 affirms that the use of mechanical transport is generally prohibited in WSAs, consistent with Resource Management Plan decisions.

    Proposed supplementary rule number 21 would address the burning of wood or wood pallets containing nails or staples on public land. Campsites in popular areas on public land are used repeatedly throughout the spring, summer, and fall. As use increases, the availability of firewood decreases, leading more campers to bring construction debris or wood pallets containing nails or staples to use as firewood. The nails and staples inadvertently end up in campfire ash left at the campsite. In an effort to return campsites to a more primitive condition, many campers scatter ashes and rock rings before leaving their campsite. The nails or staples end up on the ground surface, causing flat tires. Proposed supplementary rule number 21 would reduce the risk of tire damage and personal injury from discarded nails and/or staples in popular camping areas.

    The proposed supplementary rules are in conformance with the following Resource Management Plans (RMPs):

    • Uncompahgre Basin RMP (1989);

    • San Luis Resource Area RMP (1991);

    • Gunnison RMP (1993);

    • Royal Gorge RMP (1996);

    • Colorado Canyons National Conservation Area and Black Ridge Canyons Wilderness RMP (2004);

    • Little Snake RMP (2010);

    • Canyons of the Ancients National Monument RMP (2010);

    • Tres Rios RMP (2015);

    • Colorado River Valley RMP (2015);

    • Kremmling RMP (2015);

    • White River RMP (2015); and

    • Grand Junction RMP (2015).

    IV. Procedural Matters Executive Order 12866, Regulatory Planning and Review

    These proposed supplementary rules are not a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Order 12866. They would not have an annual effect of $100 million or more on the economy. They would not adversely affect, in a material way, the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities. They would not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. They would not materially alter the budgetary effects of entitlements, grants, user fees, loan programs, or the rights or obligations of their recipients, nor would they raise novel legal or policy issues. The proposed supplementary rules would merely establish rules of conduct for public use of a limited area of public lands.

    National Environmental Policy Act (NEPA)

    The BLM has found that the proposed supplementary rules comprise a category or kind of action that has no significant individual or cumulative effect on the quality of the human environment. See 40 CFR 1508.4; 43 CFR 46.210. Specifically, the promulgation of the proposed supplementary rules is an action that is of an administrative, financial, legal, technical, or procedural nature within the meaning of 43 CFR 46.210(i). Therefore, the proposed action is categorically excluded from further documentation under NEPA in accordance with 43 CFR 46.205(b) and 46.210(i). BLM has reviewed the proposed action and none of the extraordinary circumstances listed at 43 CFR 46.215 are applicable. The NEPA Categorical Exclusion (CX) documentation is on file at the Colorado State Office under NEPA No. DOI-BLM-CO-0000-2015-0002-CX.

    Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. These proposed supplementary rules would have no effect on business entities of any size. They would merely impose reasonable restrictions on certain recreational activities on certain public lands to protect natural resources and the environment and human health and safety. Therefore, the BLM has determined under the RFA that these supplementary rules would not have a significant economic impact on a substantial number of small entities.

    Small Business Regulatory Enforcement Fairness Act

    These proposed supplementary rules are not a “major rule” as defined under 5 U.S.C. 804(2). Proposed supplemental rule number 12 would restrict the possession, discharge, or use of exploding targets on public land in Colorado. Limiting the use of exploding targets on public land in Colorado would not have a significant effect on commercial sale of these targets.

    Unfunded Mandates Reform Act

    These proposed supplementary rules would not impose an unfunded mandate on State, local, or tribal governments of more than $100 million per year; nor would they have a significant or unique effect on small governments or the private sector. The proposed supplementary rules would merely impose reasonable rules of conduct on public lands in Colorado to protect natural resources and public safety. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.).

    Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights (Takings)

    The proposed supplementary rules are not a government action capable of interfering with constitutionally protected property rights. The proposed supplementary rules would not address property rights in any form and would not cause the impairment of constitutionally protected property rights. Therefore, the BLM has determined that these proposed supplementary rules would not cause a “taking” of private property or require further discussion of takings implications under this Executive Order.

    Executive Order 13132, Federalism

    The proposed supplementary rules would not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, the BLM has determined that these proposed supplementary rules would not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.

    Executive Order 12988, Civil Justice Reform

    Under Executive Order 12988, the BLM has determined that these proposed supplementary rules would not unduly burden the judicial system and that they meet the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.

    Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

    In accordance with Executive Order 13175, the BLM has found that these proposed supplementary rules do not include policies that have tribal implications, and would have no bearing on trust lands or on lands for which title is held in fee status by Indian tribes or U.S. Government-owned lands managed by the Bureau of Indian Affairs.

    Information Quality Act

    In developing these proposed supplementary rules, the BLM did not conduct or use a study, experiment or survey requiring peer review under the Information Quality Act (Section 515 of Pub. L. 106-554).

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

    These proposed supplementary rules do not comprise a significant energy action. These proposed supplementary rules would not have an adverse effect on energy supply, production, or consumption, and have no connection with energy policy.

    Executive Order 13352, Facilitation of Cooperative Conservation

    In accordance with Executive Order 13352, the BLM has determined that the proposed supplementary rules would not impede facilitating cooperative conservation; would take appropriate account of and consider the interests of persons with ownership or other legally recognized interests in land or other natural resources; would properly accommodate local participation in the Federal decision-making process; and would provide that the programs, projects, and activities are consistent with protecting public health and safety.

    Paperwork Reduction Act

    These proposed supplementary rules do not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521.

    Author

    The principal author of these proposed supplementary rules is John Bierk, State Chief Ranger, BLM Colorado State Office.

    V. Proposed Rules

    For the reasons stated in the preamble, and under the authority of 43 U.S.C. 315a, 1733(a), and 1740, and 43 CFR 8365.1-6, the State Director proposes supplementary rules for public lands and BLM facilities in Colorado, to read as follows:

    Supplementary Rules for Public Lands in Colorado Definitions

    Alcoholic beverage means a beverage as defined in 23 CFR 1270.3 (a).

    BLM facility means any BLM office, storage yard, warehouse, or building owned or leased by the BLM directly or through the General Services Administration.

    Camp means erecting a tent or shelter of natural or synthetic material; preparing a sleeping bag or other bedding material; parking a motor vehicle, motor home, or trailer; or mooring a vessel for the apparent purpose of overnight occupancy.

    Demonstrations means public protests, assemblies, picketing, speechmaking, parades, marching, placement of signs or banners, holding vigils or religious services, and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to attract a crowd or onlookers. The term does not include casual use of public lands or BLM facilities in Colorado that is not reasonably likely to attract a crowd or onlookers.

    Designated travel routes means roads and trails open to specified modes of travel and identified on a map of designated roads and trails that is maintained and available for public inspection at the BLM. Designated roads and trails are open to public use in accordance with such limits and restrictions as are, or may be, specified in the Resource Management Plan (RMP) or travel management plan governing applicable public lands and BLM facilities in Colorado, or in future decisions implementing the RMP. This definition excludes any road or trail with BLM-authorized restrictions that prevent use of the road or trail. Restrictions may include signs or physical barriers such as gates, fences, posts, branches, or rocks.

    Disorderly conduct means to intentionally, knowingly, or recklessly:

    (a) Make a coarse and obviously offensive utterance, gesture, or display in a public place when the utterance, gesture, or display tends to incite an immediate breach of the peace;

    (b) Make unreasonable noise in a public place or near a private residence that he or she has no right to occupy;

    (c) Fight with another in a public place except in an amateur or professional contest of athletic skill;

    (c) Discharge a firearm or other projectile shooting device in a public place except when engaged in lawful target practice or hunting; or (d) Display a deadly weapon, display any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon, or represent verbally or otherwise that he or she is armed with a deadly weapon in a public place in a manner calculated to alarm.

    Existing travel routes means immediately recognizable motor vehicle travel routes or two-track trails that are not identified as closed to motorized vehicle use by a BLM sign or map.

    Federal Officer means any delegated Federal law enforcement officer.

    Firearm or Other Projectile Shooting Device means all firearms, air rifles, pellet and BB guns, spring guns, bows and arrows, slings, paint ball markers, other instruments that can propel a projectile (such as a bullet, dart, or pellet by combustion, air pressure, gas pressure, or other means), or any instrument that can be loaded with and fire blank cartridges.

    Indecent exposure means to knowingly:

    (a) expose a person's genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person with the intent to arouse or to satisfy the sexual desire of any person; or

    (b) perform an act of masturbation in a manner which exposes the act to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person.

    Intimate parts mean the external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person.

    Mechanized vehicle means a human-powered mechanical device or contrivance for moving people or material in or over land, water, snow, or air that has moving parts, including, but not limited to, bicycles, game carriers, carts, and wagons, not powered by a motor. The term does not include wheelchairs, skis, or snowshoes.

    Motorized vehicle means a vehicle that is propelled by a motor or engine, such as a car, truck, off-highway vehicle, motorcycle, or snowmobile.

    Open alcoholic beverage container means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and:

    (a) That is open or has a broken seal; or

    (b) The contents of which are partially removed.

    Passenger area means the area designed to seat the driver and passengers while a motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in his or her seating position, including, but not limited to, the glove compartment.

    Public indecency means to perform any of the following acts in a public place or where the conduct may reasonably be expected to be viewed by members of the public:

    (a) An act of sexual intercourse;

    (b) A lewd exposure of an intimate part of the body, not including the genitals, done with intent to arouse or to satisfy the sexual desire of any person;

    (c) A lewd fondling or caress of the body of another person; or

    (d) A knowing exposure of the person's genitals to the view of a person under circumstances in which such conduct is likely to cause affront or alarm to the other person.

    Public land means any land or interest in land owned by the United States and administered by the Secretary of the Interior through the BLM without regard to how the United States acquired ownership.

    Public place means a place to which the public has access.

    Riot means a public disturbance involving an assemblage of three or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs the performance of any governmental function.

    Wheelchair means a device designed solely for use by a mobility-impaired person for locomotion that is suitable for use in an indoor pedestrian area.

    Prohibited Acts on Public Lands and BLM Facilities in Colorado

    1. You must not engage in disorderly conduct.

    2. You must not engage in actions or behaviors that are intended to prevent or disrupt any lawful BLM meeting, procession, or gathering; or significantly obstruct or interfere with said meeting, procession, or gathering by physical action, verbal utterance, or any other means.

    3. You must not willfully deny any member of the public, public official, BLM employee, volunteer, invitee, or agent thereof, their lawful rights to gain access to, enter, use, or leave a BLM facility.

    4. You must not willfully impede any public official, BLM employee, or volunteer in the lawful performance of duties or activities through the use of restraint, abduction, coercion, or intimidation, or by force and violence or threat thereof.

    5. You must not willfully refuse or fail to leave a BLM facility upon being requested to do so by a Federal Officer, Field Office Manager, Acting Manager, or privately contracted security officer assigned to the facility if you have willfully committed, are committing, threaten to commit, or are inciting others to commit any act which did, or would, if completed, disrupt, impair, interfere with, or obstruct the lawful missions, processes, procedures, or functions being carried on in the BLM facility.

    6. You must not willfully impede, disrupt, or hinder the normal proceedings of any BLM meeting or session conducted by any public official, BLM employee, volunteer, invitee, or agent thereof by any act of intrusion into the chamber or other areas designated for use of the body or official conducting the meeting or session or by any act designed to intimidate, coerce, or hinder any public official, BLM employee, volunteer, invitee, or agent thereof.

    7. You must not conduct, participate in, or engage in demonstrations outside of designated demonstration areas when BLM has established such areas. BLM will establish designated demonstration areas only where it finds, in writing, that demonstrations would: (i) Cause injury or damage to public lands or BLM facilities in Colorado; (ii) unreasonably impair the atmosphere of peace and tranquility maintained in wilderness, natural, or historic areas; (iii) unreasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of BLM; (iv) substantially impair the operation of public use facilities or services; (v) present a clear and present danger to the public health and safety; or (vi) be incompatible with the nature and traditional use of the particular area of public land or BLM facility involved.

    8. You must not remain or camp at any BLM facility past the normal business hours posted on the facility, unless otherwise authorized.

    9. You must not incite or urge a group of five or more persons to engage in a current or impending riot or give commands, instructions, or signals to a group of five or more persons in furtherance of a riot.

    10. You must not engage in a riot.

    11. You must not engage in public indecency or indecent exposure.

    12. You must not possess, discharge, or use explosives, incendiary or chemical devices, or exploding targets without prior authorization.

    13. You must not engage in rifle or pistol target shooting activities unless they are conducted towards and into a backstop of material that prevents further travel beyond the intended target and/or ricochet of the bullet or projectile.

    14. You must not rifle or pistol target shoot at materials other than paper, plastic, or steel targets manufactured for shooting sports or biodegradable clay pigeons.

    15. You must not leave targets, target debris (except pieces of biodegradable clay pigeons), cartridge “brass,” or shell casings at any shooting area.

    16. You must not possess, discharge, or use flammable devices including, but not limited to, gasoline bombs commonly referred to as “Sobe Bombs” or flammable projectiles discharged from a launching tube or other device.

    17. You must not drink an alcoholic beverage or possess an open alcoholic beverage container while in the passenger area of a motorized vehicle.

    18. You must not tow or be in possession of a trailer requiring registration under Colorado Revised Statutes that is either unregistered or has expired registration.

    19. You must not violate any Colorado Revised Statute regarding hunting, fishing, boating, or outfitters.

    20. You must not operate a mechanized vehicle within a designated Wilderness Study Area except on travel routes identified for such use by a BLM sign or map.

    21. You must not burn wood or wood pallets containing nails or staples.

    Exemptions

    The following persons are exempt from these supplementary rules: Any Federal, State, local, and/or military employees acting within the scope of their official duties; members of any organized rescue or fire fighting force performing an official duty; and persons who are expressly authorized or approved by the BLM.

    Enforcement

    Any person who violates any of these supplementary rules may be tried before a United States Magistrate and fined in accordance with 18 U.S.C. 3571, imprisoned for no more than 12 months under 43 U.S.C. 1733(a) and 43 CFR 8360.0-7, or both. In accordance with 43 CFR 8365.1-7, State or local officials may also impose penalties for violations of Colorado law.

    Ruth Welch, BLM Colorado State Director.
    [FR Doc. 2016-21934 Filed 10-4-16; 8:45 am] BILLING CODE 4310-JB-P
    SURFACE TRANSPORTATION BOARD 49 CFR Part 1152 [Docket No. EP 729] Offers of Financial Assistance AGENCY:

    Surface Transportation Board.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Surface Transportation Board (Board) is proposing changes to its rules pertaining to Offers of Financial Assistance to improve the process and protect it against abuse.

    DATES:

    Comments are due by December 5, 2016. Reply comments are due by January 3, 2017.

    ADDRESSES:

    Comments and replies may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the “E-FILING” link on the Board's Web site, at “http://www.stb.gov.” Any person submitting a filing in the traditional paper format should send an original and 10 copies to: Surface Transportation Board, Attn: Docket No. EP 729, 395 E Street SW., Washington, DC 20423-0001. Copies of written comments and replies will be available for viewing and self-copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site.

    FOR FURTHER INFORMATION CONTACT:

    Jonathon Binet, (202) 245-0368. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339.

    SUPPLEMENTARY INFORMATION:

    In the ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 803 (1995) (ICCTA), Congress revised the process for filing Offers of Financial Assistance (OFAs) for continued rail service, codified at 49 U.S.C. 10904. Under the OFA process, as implemented in the Board's regulations at 49 CFR 1152.27, financially responsible parties may offer to temporarily subsidize continued rail service over a line on which a carrier seeks to abandon or discontinue service, or offer to purchase a line and provide continued rail service on a line that a carrier seeks to abandon.

    Upon request, the abandoning or discontinuing carrier must provide certain information required under 49 U.S.C. 10904(b) and 49 CFR 1152.27(a) to a party that is considering making an OFA. A party that decides to make an OFA (the offeror) must submit the OFA to the Board, including the information specified in 49 CFR 1152.27(c)(1)(ii). If the Board determines that the OFA is made by a “financially responsible” offeror, the abandonment or discontinuance authority is postponed to allow the parties to negotiate a sale or subsidy arrangement. 49 U.S.C. 10904(d)(2); 49 CFR 1152.27(e). If the parties cannot agree to the terms of a sale or subsidy, they may request that the Board set binding terms under 49 U.S.C. 10904(f)(1). After the Board has set the terms, the offeror can accept the terms or withdraw the OFA. When the operation of a line is subsidized to prevent abandonment or discontinuance of service, it may only be subsidized for up to one year, unless the parties mutually agree otherwise. 49 U.S.C. 10904(f)(4)(b). When a line is purchased pursuant to an OFA, the buyer must provide common carrier service over the line for a minimum of two years and may not resell the line (except to the carrier from which the line was purchased) for five years after the purchase. 49 U.S.C. 10904(f)(4)(A); 49 CFR 1152.27(i)(2).

    On May 26, 2015, Norfolk Southern Railway Company (NSR) filed a petition to institute a rulemaking proceeding to address abuses of Board processes. In particular, NSR sought to have the Board establish new rules regarding the OFA process. NSR proposed that the Board establish new rules creating a pre-approval process for filings submitted by parties deemed abusive filers, financial responsibility presumptions, and additional financial responsibility certifications. In a decision served on September 23, 2015, the Board denied NSR's petition, stating that the Board would instead seek to address the concerns raised in the petition through increased enforcement of existing rules and by instituting an Advanced Notice of Proposed Rulemaking (ANPRM) to consider possible changes to the OFA process. Pet. of Norfolk S. Ry. to Institute a Rulemaking Proceeding to Address Abuses of Board Processes (NSR Petition), EP 727, slip op. at 4 (STB served Sept. 23, 2015).

    The Board issued the ANPRM on December 14, 2015. In that ANPRM, the Board explained that its experiences have shown that there are areas where clarifications and revisions could enhance the OFA process and protect it against abuse. Accordingly, the Board requested public comments on whether and how to improve any aspect of the OFA process, including enhancing its transparency and ensuring that it is invoked only to further its statutory purpose of preserving lines for continued rail service. The Board also specifically requested comments on methods for ensuring offerors are financially responsible, addressing issues related to the continuation of rail service, and clarifying the identities of potential offerors.

    The Board received comments on the ANPRM from 10 commenters: The Department of the Army Military Surface Deployment and Distribution Command (Army); NSR; CSX Transportation, Inc. (CSXT); the Association of American Railroads (AAR); the Rails-to-Trails Conservancy (Rails-to-Trails); Union Pacific Railroad Corporation (UP); Consolidated Rail Corporation (Conrail); the City of Jersey City (Jersey City); the American Short Line and Regional Railroad Association (ASLRRA); and Mr. James Riffin (Riffin). Based on the comments, the Board has a sufficient record on which to develop specific changes that could improve the OFA process. In Section I, the Board addresses the comments and how they have formed the basis of the rule proposed here. Even if not specifically discussed, the Board has carefully reviewed all comments on the ANPRM and taken each comment into account in developing the proposed rule. In Section II, the Board explains the newly proposed rule.

    I. Comments in Response to the ANPRM

    Financial Responsibility. The Board's regulations require that a potential offeror demonstrate that it is “financially responsible,” but those regulations do not fully define this concept or what facts or evidence a party must provide to demonstrate financial responsibility. Accordingly, in the ANPRM, the Board sought comments regarding how to modify its regulations so that the definition of financial responsibility is more transparent and understandable. In particular, the Board asked parties to comment on a number of methods of ensuring that an offeror is in fact financially responsible, which are discussed below.

    a. Documentation

    The Board sought comment on what documentation a potential offeror should be required to submit to show financial responsibility. AAR suggested generally that the Board clarify the documentation needed to show financial responsibility (AAR Comments 7-8), while the individual railroads and ASLRRA proposed specific evidence that should be required from offerors, including income statements, balance sheets, letters of credit, statements of financial resources, and evidence of adequate insurance or the ability to obtain such insurance. (See Conrail Comments 6-7, ASLRRA Comments 5, UP Comments 4, CSXT Comments 9.) Riffin commented that the Board's current financial responsibility requirements are too strict and should be broadened to allow offerors to provide evidence of non-liquid assets, ability to borrow money, including on credit cards, and demonstrations of cash. (Riffin Comments 17.)

    The Board disagrees with Riffin that the financial responsibility requirements are currently too strict, and the Board does not believe that the types of evidence he suggests would show an offeror's financial ability to actually purchase and operate, or subsidize the operation of, a railroad, as is the purpose of an OFA. The Board agrees with the railroad commenters that clarification of the financial responsibility requirements is necessary, but finds that requiring specific documentation would likely place too heavy a burden on legitimate offerors. Instead, as discussed below, the Board proposes to provide clarifying examples of documentation the Board would accept as evidence of financial responsibility, including those documents suggested by the railroad and association commenters, and documentation the Board will not accept, including some of the types of evidence proposed by Riffin.

    b. Notice of Intent To File an OFA

    Another question posed by the Board in the ANPRM was whether it should require that potential offerors file notices of intent to file an OFA in abandonment and discontinuance proceedings by a date certain. Under the Board's current regulations, a notice of intent to file an OFA is required only when the carrier seeks abandonment or discontinuance authority through the Board's class exemption process, but not through a petition for exemption or application. 49 CFR 1152.27(c)(2)(i).

    The railroad and association commenters expressed support for the idea that the Board require offerors to file notices of intent (NOIs) to file an OFA by a date certain in all cases. (See Conrail Comments 4, AAR Comments 5-6, NSR Comments 3, 5-6, CSXT Comments 5-6, ASLRRA Comments 5.) AAR and NSR specifically suggested that the Board require NOIs to be filed within 10 days of the publication of a notice of exemption or a petition, and within 45 days after the publication of notice of an application. (AAR Comments 5-6, NSR Comments 5-6.) Several commenters also proposed that the Board require these NOIs to contain specific financial and other certifications about the offeror. (See Conrail Comments 5, AAR Comments 6, CSXT Comments 5-6.) Jersey City and Riffin commented that NOIs should not be required. (Jersey City Comments 33-35, Riffin Comments 18.) Riffin argued that the purpose of NOIs in class exemption proceedings is to stay the proceeding to allow an offeror to obtain data from the carrier. Riffin also argued that potential offerors often do not know a line is going to be discontinued or abandoned until a Board decision is served or that potential offerors may decide after a petition, exemption, or application is filed that they want to file an OFA, making it difficult to file a NOI so early in the process. (Riffin Comments 19.)

    As discussed further below, the Board proposes to require OFA NOIs in all abandonment or discontinuance proceedings, with the deadlines proposed by AAR and NSR. Congress expedited the abandonment process so that carriers could promptly relieve themselves of unprofitable assets, and the OFA process should move quickly so that carriers can know where things stand. The Board believes that the benefit of providing notice to the abandoning or discontinuing carrier that a party is considering an OFA will help expedite the process. Although Riffin argues that a party may not know so early in the process that it wants to file an OFA, the proposed filing deadlines for an NOI should still allow potential offerors sufficient time to consider their options. However, the Board believes the detailed certification and information requirements proposed by many of the commenters place too heavy a burden on legitimate potential OFA offerors at the NOI stage, and thus we propose to require only the information that is currently required as part of the class exemption process, as well as a minimal preliminary financial responsibility showing described further below.

    c. Preliminary Financial Responsibility

    In the ANPRM, the Board also sought comment on whether it should require potential offerors to make a financial responsibility showing before carriers are required to provide financial information to the offerors. ASLRRA, NSR, and AAR supported the idea, Jersey City and Riffin opposed it, and the Army commented that this should not be required for governmental entities. (ASLRRA Comments 5-6, NSR Comments 6-8, AAR Comments 6, Jersey City Comments 38-40, Riffin Comments 15-17, Army Comments 2.) ASLRRA proposed requiring prima facie evidence of the ability to purchase, operate, and maintain the line, along with a preliminary determination of financial responsibility from the Board. (ASLRRA Comments 5-6.) NSR proposed requiring financial information at the NOI stage, including statements on the potential offeror's financing abilities. (NSR Comments 7-8.) Jersey City commented that the statute requires carriers to provide valuation information before a showing of financial responsibility. (Jersey City Comments 38.) Riffin commented that no financial responsibility showing should be required at the NOI stage because a potential offeror at this stage will not have the information required to determine the net liquidation value (NLV) of the line, and he suggested as an alternative that a potential offeror should have 30 days after NLV is disclosed by a carrier to demonstrate financial responsibility. (Riffin Comments 15-17.)

    The Board is convinced that it makes sense to require offerors to demonstrate some degree of financial responsibility before requiring the railroads to turn over their financial information to offerors. However, the Board also recognizes that a potential offeror cannot be expected to make a full financial responsibility showing based on the value of a rail line without financial information from the carrier. Accordingly, as discussed in more detail in Section II, the Board proposes requiring potential offerors to make a minimal, preliminary financial responsibility showing, but one that does not require any information from the carrier beyond that provided in the notice, petition, or application for abandonment or discontinuance.

    With regard to Jersey City's comment that the current requirements for exchanging information is mandated by statute, the regulations proposed here would still require carriers to provide valuation information before a full financial responsibility showing is required. The Board simply proposes this preliminary minimal showing to ensure that potential offerors are legitimate and are not seeking to abuse the OFA process to cause delay in the abandonment or discontinuance process.

    With regard to the Army's comment that no financial responsibility showing be required by governmental entities prior to obtaining financial information from the carrier, under 49 CFR 1152.27(c)(1)(ii)(B), governmental entities are presumed financially responsible and the Board does not propose to change that presumption in this rulemaking. Governmental entities, therefore, would not to be subject to this preliminary financial responsibility requirement, although this presumption of financial responsibility would still be rebuttable. See Ind. Sw. Ry.—Aban. Exemption—in Posey & Vanderburgh Ctys., Ind., AB 1065X, slip op. at 5 (STB served Apr. 8, 2011) (finding government entity was not financially responsible, dismissing its OFA, and stating that the presumption that government entities are financially responsible, “although entitled to significant weight, is not conclusive”).

    d. Definition of Financial Responsibility

    The Board also sought comment on the definition of financial responsibility. Conrail, ASLRRA, and AAR supported the idea of amending the definition of financial responsibility to include the ability to purchase and operate for at least two years, or subsidize for one year, a line being abandoned or to subsidize for one year service being discontinued. (See Conrail Comments 4, ASLRRA Comments 6, AAR Comments 8.) Jersey City supported such a requirement for private offerors, but not for governmental entities, though the City states that it believes it may be difficult to administer a requirement for financial responsibility for two years of operation. (Jersey City Comments 43-46.) AAR commented that the Board should establish a rebuttable presumption that an offeror that has been previously found not to be financially responsible remains not financially responsible. (AAR Comments 8.) CSXT proposed a detailed definition of financial responsibility that would include an offeror having to show immediately available funds for a number of payments and purchases, including locomotives and cars, insurance, and 15 days of working capital. (CSXT Comments 9.) Riffin opposed including the ability to purchase and operate or to subsidize in the definition of financial responsibility, arguing that it would be contrary to Congressional intent. Riffin also opposes AAR's proposal and CSXT's proposal. (Riffin Comments 11, 15, Riffin Reply Comments 5.)

    The Board declines to create a rebuttable presumption of the sort proposed by AAR: That an offeror that has been previously found not to be financially responsible remains not financially responsible. Under the current rules, all offerors (except government entities) bear the burden of showing that they are financially responsible, regardless of whether they have or have not been found financially responsible in the past. As such, there would be little benefit, if any, from AAR's proposed presumption.

    The Board, however, does propose to make clear in its rules that, consistent with current Board precedent, an offeror attempting to make the proposed preliminary financial responsibility showing must, at a minimum, demonstrate some ability to purchase and operate the line, or, if there is no active service, at least maintain the line. See, e.g., Consol. Rail Corp.—Aban. Exemption—in Phila. Pa., AB 167 (Sub-No. 1191X) et al., slip op. at 2 (STB served Mar. 14, 2012) (rejecting OFA because offerors “failed to include any evidence to demonstrate that they are financially responsible to acquire and operate the OFA Segment”); Greenville Cty. Econ. Dev. Corp.—Aban. & Discontinuance Exemption—in Greenville Cty, S.C., AB 490 (Sub-No. 1X), slip op. at 1 (STB served Oct. 27, 2005) (finding offeror financially responsible where it had “sufficient financial resources to acquire and operate” the line); CSX Transp. Inc.—Aban.—in Atkinson & Ware Ctys, Ga., AB 55 (Sub-No. 640), slip op. at 1 (STB served Jan. 7, 2004) (finding offeror financially responsible because it had “the financial resources to acquire and operate the line”). Accordingly, the Board proposes requiring as part of a NOI a minimal showing that this basic requirement can be met. The specifics of the proposed preliminary financial responsibility showing are discussed in Section II below.

    e. Railroads' Duty To Provide Information

    In the ANPRM, the Board also questioned whether it should alter the process for carriers to provide required financial information to potential offerors. CSXT commented that carriers should only be required to provide the information they are required to disclose by statute and should not be required to provide publicly available information. (CSXT Comments 6-8.) Jersey City argued that most of the delay in the OFA process arises because carriers do not timely provide valuation information, and that to avoid this delay, the Board should require that valuation information be provided with a carrier's initial filing, or create a rule that failure to provide such information promptly waives the carrier's ability to object to an offeror's valuation of a line. (Jersey City 21, 25.) Riffin also suggested that carriers could be required to provide valuation information with the carrier's initial abandonment or discontinuance filing, or within 30 days thereafter. (Riffin Comments 23.) AAR opposed this idea as unnecessary. (AAR Reply Comments 4.)

    The Board agrees with AAR that requiring valuation information to be submitted with a carrier's initial filing would place an unnecessarily high burden on carriers at the abandonment or discontinuance filing stage because an OFA may never be filed. Indeed, in most abandonment and discontinuance proceedings, OFAs are not filed. We also reject CSXT's suggestion that the Board limit the carriers' disclosure to evidence required by statute and that is not publicly available. Under 49 U.S.C. 10904(b)(4), the Board has the authority to require carriers to provide potential OFA offerors with “any other information that the Board considers necessary to allow a potential offeror to calculate an adequate subsidy or purchase offer,” and the Board does not wish to foreclose this ability in the regulations.

    f. Earnest Money/Escrow

    The Board also requested comment on whether or not offerors should be required to make an earnest money payment or escrow payment, or to obtain a bond for some portion of their offer. ASLRRA supported an escrow or bond requirement, also suggesting that if the Board determines an OFA to be a sham or abuse of the OFA process, the escrow amount should be paid to the carrier to compensate it for delays and costs. (ASLRRA Comments 6.) UP also supported an earnest money payment, suggesting the payment should be in the amount of the OFA filing fee 1 and made to the carrier before the carrier is required to produce the financial information required under 49 CFR 1152.27(a). (UP Comments 5.) UP argued that the railroad should be allowed to keep the payment, either as part of the final purchase price of the rail line if a sale occurs or to compensate it for the time and expense involved in providing financial information to the offeror if a sale does not occur. (UP Comments 5-6.) Jersey City opposed the idea, arguing that initial payments or bonds should not be required for governmental entities and that the Board has not shown such a requirement is necessary. (Jersey City Comments 48-49.) Riffin also opposed the Board's proposal, arguing that bonds are not feasible within the OFA timeline, that earnest money would not be useful because settlement in an OFA proceeding usually happens quickly after abandonment or discontinuance authority is granted, and that escrow would take too much time and cost the offeror too much money. (Riffin Comments 18.)

    1 The filing fee for “an offer of financial assistance under 49 U.S.C. 10904 relating to the purchase of or subsidy for a rail line proposed for abandonment” is currently set at $1,700. See Regulations Governing Fees for Servs. Performed in Connection with Licensing & Related Servs.—2016 Updated, EP 542 (Sub-No. 24) (STB served Aug. 2, 2016).

    As detailed in the proposed rule, the Board proposes to require an offeror to include with its OFA evidence proof that the offeror has placed in escrow with a reputable financial institution 10% of the preliminary financial responsibility amount that would be calculated at the NOI stage under the proposed rule. The Board believes that the proposed escrow requirement would reduce illegitimate offers from parties that may later be found not to be financially responsible. Many significant financial transactions, like real estate transactions, involve escrow, and the Board sees no reason why the purchase or subsidization of a rail line is any different. If an offeror is legitimately interested in an OFA and legitimately capable of acquiring or subsidizing the subject line, this amount is unlikely to be burdensome, especially at the actual offer stage when an offeror should have financing in place. While the Board believes a payment of some kind by an offeror would be a useful tool for the offeror to show the legitimacy of its participation in the OFA process, we do not believe this payment should be made to either the Board or the carrier, nor should this payment go to the carrier other than as part of the purchase or subsidy price in the event of a successful OFA. For that reason, the Board believes escrow would be the best choice for the format of this payment.

    Lastly, we note that although governmental entities are presumed to be financially responsible, as discussed below, the Board proposes that these entities also be subject to this escrow requirement.

    g. Abusive Filers

    In the ANPRM, the Board also requested comment as to whether to prohibit filings by individuals or entities that have abused the Board's processes in the past, and if so, what standards the Board should apply to such a determination. ASLRRA, NSR, and Conrail supported such a prohibition, with ASLRRA and NSR offering potential standards for such a finding. (ASLRRA Comments 7, NSR Comments 8-9, Conrail Comments 8.) ASLRRA proposed prohibiting parties from filing an OFA when they have repeatedly submitted filings without following through on those filings or have submitted false or misleading information. (ASLRRA Comments 7.) NSR proposed that the Board create a “demonstrated unqualified offeror” status for parties who have been found not financially responsible in their most recent prior OFA, have failed to consummate their most recent OFA, or are currently subject to an active bankruptcy proceeding. (NSR Comments 8-9.) NSR proposed that such parties be subject to pre-approval requirements before being allowed to participate in the OFA process. (Id.) Jersey City commented that the Board should not make any changes to its regulations, but instead enforce its existing rules to prevent abusive filings. (Jersey City Comments 52-56.) Riffin commented against a prohibition, arguing that a frequent litigant is not the same as an abusive filer. (Riffin 20-22.)

    The Board continues to be concerned with inappropriate and vexatious filings and the burden they place on the Board's resources and the resources of the parties that come before the Board. But given that many parties file for bankruptcy and later reestablish themselves financially, prior bankruptcy should not be an absolute bar to using the Board's processes. Nor does the failure to follow through on one OFA necessarily indicate that a party would not follow through on the next one. Finally, even if a party files a vexatious pleading, as the Board has witnessed, we are not persuaded on this record that a special rule is warranted to protect the agency and the public in OFA and other cases.2 Rather, at this time, we believe that the best way to handle inappropriate filings is to increase enforcement of the existing rules, including 49 CFR 1104.8.3

    2 We are aware that one option could be to require a pro se party found to have abused the Board's processes in one proceeding to be represented by counsel in any future matters. The idea would be that a licensed attorney would exercise some control over the filings made by the pro se party. Although we will not propose that approach in this NPRM, if parties believe that it could improve our processes, they may wish to address the matter in their comments.

    3 In a recent case the Board rejected a vexatious filing. See Norfolk S. Ry.—Acquis. & Operation—Certain Rail Lines of Del. & Hudson Ry., FD 35873 (STB served Mar. 24, 2016).

    h. Other Issues

    Parties also commented on other aspects of financial responsibility. Conrail commented that the Board should eliminate the presumption of financial responsibility for governmental entities, should require governmental entities to show they have taken the necessary steps to authorize the acquisition of the property subject to an OFA and the common carrier obligation, and should require governmental entities to show community support for continued rail operations. (Conrail Comments 7.) The Army and Riffin commented that the Board should keep the presumption of financial responsibility for governmental entities. (Army Comments 2, Riffin Comments 17.) The Board agrees. Conrail has not shown that any changes to the presumption of financial responsibility for governmental entities are necessary to prevent an abuse of the Board's processes, and the Board therefore does not propose to adopt these proposals.4

    4 Community support for continued rail operations—with respect to all offerors, not only governmental entities—is discussed further below.

    Riffin also suggested that, if a party acquiring a line via OFA fails to make a good faith effort to provide rail service, the line should be subject to reversion to the carrier or made available to other entities that may be able to provide service. (Riffin Reply Comments 8-9.) The Board rejects this proposal, as there are existing remedies before the Board if a carrier fails to meet its common carrier obligation, such as Feeder Line applications, unreasonable practice complaints, emergency service orders, or assistance through the Board's Rail Customer & Public Assistance program.

    Continuation of Rail Service. Another area where the Board sought comment concerns whether a party seeking to subsidize or acquire a line through the OFA process is doing so based on a genuine interest in and ability to preserve the line for rail service. Specifically, the Board inquired whether offerors should be required to address whether there is a commercial need for rail service as demonstrated by support from shippers or receivers on the line or through other evidence of immediate and significant commercial need; whether there is community support for rail service; and whether rail service is operationally feasible.

    The railroad commenters supported a requirement that offerors address whether there is a commercial need for rail service using the criteria laid out by the Board in Los Angeles County Metropolitan Transportation Authority—Abandonment Exemption—in Los Angeles County, California (LACMTA), AB 409 (Sub-No. 5X), slip op. at 3 (STB served June 16, 2008). (See Conrail Comments 9-10, UP Comments 6-8, ASLRRA Comments 7, AAR Comments 8-10, NSR Comments 9-10, CSXT Comments 5.) Some commenters further suggested that the Board require an offeror to present specific evidence that the OFA would enable continued rail service and that the offeror would be able to provide that service, as demonstrated by a business plan, traffic projections, service plans and contracts with shippers on the line. (AAR Comments 9, NSR Comments 9-10 (agreeing with AAR's proposal).) Several commenters also suggested that the burden on an offeror should be higher when a carrier has filed a notice of exemption to abandon or discontinue, given that in such cases, there has been no traffic on the line for at least two years, making the need for continued rail service more doubtful. Some commenters provide specific suggestions for what that burden should be. (Conrail Comments 10, CSXT Comments 11, AAR Comments 9, NSR Comments 10.) NSR argues that a higher burden should also apply when abandonment or discontinuance is sought through a petition for exemption. (NSR Comments 10.)

    Jersey City argued against a detailed requirement for offerors to address commercial need, suggesting instead that offerors only be required to show support from one shipper, potential shipper, or interested governmental entity. (Jersey City Reply Comments 10-11.) Jersey City contended that requiring a more substantial showing that the line is needed for continued rail service conflicts with the agency's prior interpretations of ICCTA. (Jersey City Comments 59-61.) Finally, the Army argued there should be no requirement for governmental entities and shippers to address commercial need (Army Comments 2), but as Conrail points out in response, the Army's comments seem to contemplate a subsidy (not purchase) scenario, in which case “neither the need for rail service nor its operational feasibility will likely be a serious issue.” (Conrail Reply Comments 1.)

    The Board agrees with the railroad commenters on the benefit of imposing a requirement that offerors demonstrate a need for continuation of rail service, as it would ensure that the OFA is being sought for the reason Congress intended. Accordingly, as discussed below, the Board proposes to require offerors to address the continued need for rail service when submitting an OFA. However, instead of requiring an offeror to satisfy the specific LACMTA criteria or additional criteria, the Board proposes to list those criteria as examples of what the Board will accept as evidence of continued need. The Board also will not adopt a requirement that offerors must submit specific information to show continued need for rail service.

    The Board disagrees with Jersey City's argument that requiring such a showing is contrary to the Board's prior ICCTA interpretation. Although the Board, when it adopted regulations implementing ICCTA, concluded that 10904 as revised did not require such a showing, the Board later concluded that an OFA nevertheless must be for continued rail service. Roaring Fork R.R. Holding Auth.—Aban.—in Garfield, Engle, & Pitkin Ctys., Colo., AB 547X (STB served May 21, 1997). That determination has been judicially affirmed. E.g., Kulmer v. STB, 236 F.3d 1255, 1256-57 (10th Cir. 2001); Redmond-Issaquah R.R. Preservation Ass'n v. STB, 223 F.3d 1057, 1061-63 (9th Cir. 2000).

    OFA Exemptions. The Board also sought comment on whether it should establish criteria and deadlines for carriers that seek exemptions from the OFA process. Some commenters generally supported the idea of establishing criteria and deadlines for carriers seeking exemptions from the OFA process, but they did not agree how stringent the criteria should be. (See ASLRRA Comments 8-9, Riffin Comments 28-29.) Other commenters suggested the Board should even establish a class exemption from the OFA process in certain scenarios, including: where the abandoning carrier has entered into an agreement to sell or donate the line for a public purpose (AAR Comments 10, UP Comments 9 (agreeing with AAR's proposal)), where there has been no local traffic for five years (UP Comments 10), or for all notice of exemption and petition for exemption proceedings (NSR Comments 4-5). In addition, Jersey City and Rails-to-Trails also commented that, when determining whether to grant an exemption from the OFA process, greenway or trail projects should be treated with equal importance to other public projects when balanced against the commercial need for continued rail service. (Jersey City 64-65, Rails-to-Trails Comments 3.) In other words, they argue an OFA exemption should be granted if the public importance of the greenway or trail project outweighs the commercial need for continued rail service.

    Based on the comments, the Board is not convinced that establishing criteria or deadlines for exemptions from the OFA process is needed. The Board finds that reviewing requests for exemptions from the OFA process on a case-by-case basis allows it to consider the individual circumstances of each case, which the Board would not be able to do if it established specific criteria or created a class exemption. Accordingly, the Board will continue its existing practice of considering such exemptions on a case-by-case basis. We note that the proposal to require offerors to address the continued need for commercial service would ease the burden on carriers without the need for a class exemption. With regard to the comments from Jersey City and Rails-to-Trails, given the Board's conclusion that requests for exemptions from the OFA process should continue to be decided on a case-by-case basis, the Board will not generalize about how it would apply the OFA exemption test in the context of a public greenway or trail project. In addition, there are existing processes under the National Trails System Act, 16 U.S.C. 1247(d) (2014), and the public use provisions of 49 U.S.C. 10905, for seeking the use of rail corridors that would otherwise be abandoned for purposes such as trail and greenway projects.

    Other Continuation of Rail Service Comments. UP suggested the Board should allow an abandoning carrier to withdraw its request for abandonment authorization if a need for continued rail service becomes apparent during an OFA proceeding. (UP Comments 11-12.) This is an action carriers may already take in such situations. See, e.g., Reading Blue Mountain & N. R.R.—Aban. Exemption—in Schuylkill Cty, Pa., AB 996X (STB served Feb. 5, 2008); Almono LP—Aban. Exemption—in Allegheny Cty., Pa., AB 842X (Served Jan. 28, 2004); CSX Transp.—Aban. in Vermillion Cty., Ill., AB 55 (Sub-No. 193) (STB served Aug. 28, 1989). Therefore, we are not proposing to change the Board's rules.

    Conrail suggested that the Board specify that an offeror successfully acquiring a line via OFA must actually provide service for a minimum of two years before the Board will allow abandonment or discontinuance. (Conrail Reply Comments 3.) In contrast, Riffin commented that operation in the first two years after acquisition should be of little concern to the Board because the purpose of the OFA process is to preserve rail corridors for future use. (Riffin Comments 15.) While the offeror must intend to operate the line for two years, Conrail's comment does not take into account the fact that the offeror may not receive requests allowing it to provide service throughout its first two years. However, Riffin's comment is also incorrect, as the purpose of the OFA statute is not to preserve an unused rail corridor for future rail service, but to fulfill the common carrier obligation under 49 U.S.C. 11101 by providing continued rail service upon reasonable request for at least two years.

    Identity of the Offeror. In the ANPRM, the Board noted that there has been confusion in some OFA proceedings over the identity of the potential offeror and therefore sought comments regarding ideas on how to address this issue. With regard to the idea that the Board should require multiple parties submitting a joint OFA to form a single legal entity, commenters were split. As an alternative, AAR proposed the Board require joint OFA filers to clearly disclose which entity will be assuming the common carrier obligation, along with how the parties would allocate responsibility for financing the purchase or subsidy and operation of the line, if purchased. (AAR Comments 4.) As discussed below, the Board proposes to adopt AAR's alternative suggestion, as it would allow the Board to identify responsible parties without requiring parties to form a separate entity.

    The Board also inquired whether an individual filing an OFA should be required to provide his or her personal address. Commenters generally found such a requirement would be reasonable (Jersey City Comments 77-78, Conrail Comments 11, ASLRRA Comments 8, AAR Comments 4), although Riffin commented that individuals might want to keep their personal addresses out of the public record. (Riffin Comments 9.) Based on the comments, the Board believes that requiring an individual offeror to provide contact information would assist carriers and the Board in identifying the parties involved in an OFA. This is true for all offerors, not only individuals. Any legitimate party that intends to undertake the responsibility for purchasing an operating a rail line, making it subject to various federal, state, and local laws, should be willing to disclose its address. Without an address, it could be difficult for parties to engage the offeror or pursue legal recourse. As discussed below, for this reason, the Board proposes to require an address, either business or personal, and other contact information for an offeror or a representative of an offeror. This proposed requirement would apply to all offerors, including legal entities.

    With regard to the identity of private legal entities filing an OFA, commenters generally agreed that the Board should require such an entity to provide its complete legal name and state of incorporation. (Conrail Comments 11, ASLRRA Comments 8-9, AAR Comments 3-4.) AAR also suggested requiring further details regarding the ownership of an entity, while Conrail also suggested requiring entities to document that they are in good standing in their state of organization. (AAR Comments 3-4, Conrail Comments 11-12.) Riffin pointed out that the location of an entity's principal place of business is not necessary in the OFA process (Riffin Comments 9-10.), and that ownership information is not relevant to whether or not the entity is interested in providing rail service. (Riffin Reply Comments 4.)

    The Board proposes to require some information as to the ownership of a legal entity. This information, along with the other identifying information we propose to require, would assist the Board and carriers in identifying the parties involved in an OFA. Although Riffin argues that this information is currently not necessary under the OFA process, the Board is permitted to adopt regulations that will improve the process, so long as it is not contrary to statute, which this proposal is not. Contrary to Riffin's claim, we also believe that ownership information could shed light on whether the entity has a legitimate interest in providing rail service, or instead, is seeking to acquire the corridor for some other, non-rail related purpose. Moreover, ownership information could be helpful in assessing whether the entity has the means to finance the purchase or subsidization of the line.

    CSXT commented that the Board should reduce the time for consummation of an OFA once terms and conditions have been set from 90 days to 30 days. (CSXT Comments 6.) CSXT argues that carriers are now familiar with the documentation required for OFAs and can have documents ready for finalization quickly. (Id.) However, CSXT does not provide any evidence that the 90-day time period has been problematic. The Board also notes that parties are free to consummate an OFA sooner than 90 days.

    Jersey City proposed that governmental entities should be allowed to use OFAs to acquire rail lines for passenger rail service, as long as they also assume the freight common carrier obligation. (Jersey City Comments 28-29.) Jersey City argues OFAs may already be used for passenger rail service, citing Chicago & North Western Transportation Company v. United States, 678 F.2d 665 (7th Cir. 1982). As the Board has stated, “nothing in section 10904 precludes a line from being acquired under the OFA procedures to provide combined passenger/freight service and indeed there are situations where . . . it is the inclusion of passenger operations that would seem to make it financially viable for an operator to offer continued (or restored) freight service.” Trinidad Ry.—Acquis. & Operation Exemption—in Las Animas Cty., Colo., AB 573X et al., slip op. at 8 (STB served Aug. 13, 2001). See also Union Pac. R.R.—Aban. Exemption—in Rio Grande & Mineral Ctys., Colo., AB 33 (Sub-No. 132X), slip op. at 3 (STB served Apr. 22, 1999). Therefore, the Board does not believe the OFA regulations require further clarification on this point.

    Jersey City also expressed its concern that “illegal de facto abandonments” are the biggest issue surrounding the OFA process. (See, e.g., Jersey City Comments 2, 10-21, 31, 53-54.) This issue is outside the scope of this proceeding, which is focused on changes to the OFA process, not whether more abandonment filings ought to be made.

    The Army described situations in which it would make an OFA, and argued that there should be a presumption that existing carriers will retain the common carrier obligation if an OFA is successful. (Army Comments 2.) The situation described by the Army is one of an OFA subsidy, rather than a purchase, in which an existing carrier would continue operation of a line subsidized by an OFA, and would retain the common carrier obligation. Thus, in the scenario that the Army raises, existing law already provides the outcome the Army seeks. If a special situation arose for the Army involving the OFA process, the Board would work with the Army to identify a workable solution.

    II. The Proposed Rule

    The proposed rule contains eight proposed changes to the Board's regulations at 49 CFR part 1152, which are set out below: Four changes relating to financial responsibility, one relating to the continuation of rail service, and three relating to the identity of offerors.5 In proposing these changes, the Board has considered the suggestions from commenters on the ANPRM, incorporating them where appropriate and modifying them where necessary in order to propose changes to the regulations that the Board believes would best improve the OFA process and protect it from abuse.

    5 The Surface Transportation Board Reauthorization Act of 2015, Public Law 114-110, 129 Stat. 2228 (2015) revised parts of the United States Code, including re-designating chapter 7 of title 49 of the Code as chapter 13. As a result, in this rulemaking the Board is also revising the authority citation for 49 CFR part 1152 as set out below.

    Financial Responsibility. The proposed rule includes four changes intended to clarify the requirement that OFA offerors be financially responsible and to require offerors to provide additional evidence of financial responsibility to the Board.

    1. Examples of evidence of financial responsibility. First, the Board proposes to further define financial responsibility in its regulations at 49 CFR 1152.27(c)(1)(ii)(B) by including examples of the kinds of evidence the Board would accept to demonstrate that offerors are financially responsible, as well as examples of the kinds of documentation the Board would not accept as evidence of financial responsibility. Examples of documentation the Board would accept include income statements, balance sheets, letters of credit, profit and loss statements, account statements, financing commitments, and evidence of adequate insurance or ability to obtain adequate insurance. Examples of evidence the Board would not accept include the ability to borrow money on credit cards and evidence of non-liquid assets an offeror intends to use as collateral.

    Including these examples in the regulations is intended to provide guidance to offerors as to what evidence demonstrates financial responsibility in the OFA process. This change to the regulations would not create new requirements, but would simply provide guidance as to what the regulations already require. The Board proposes to provide these as examples instead of strict requirements because we recognize that each OFA offeror's financial situation may be different, and thus offerors are likely to have access to different types of evidence. The Board believes that requiring the same evidence from all offerors could place an unnecessarily heavy burden on some offerors.

    2. Notice of Intent filing. Second, the Board proposes to amend its regulations at 49 CFR 1152.27(c)(1) to require potential offerors to submit notices of intent (NOIs) to file an OFA in all abandonment and discontinuance proceedings. The Board proposes to require NOIs to be filed no later than 10 days after the Federal Register publication of notice that a petition for exemption has been filed, and no later than 45 days after the Federal Register publication of notice that an application to abandon or discontinue has been filed.

    Under 49 CFR 1152.27(c)(2)(i), potential offerors are already required to file NOIs no later than 10 days after the publication of a notice of exemption in notice of exemption proceedings. This notice is a short document providing notification to the carrier and the Board that a party intends to make an OFA. Extending this requirement to petition and application proceedings would be a relatively low burden on potential offerors, as they would only be required to indicate their interest and to make a minimal financial responsibility showing, as discussed further below, at this stage. The Board also believes that setting the deadlines for NOIs at 10 days after the publication of notice that a petition has been filed and 45 days after the filing of an application would provide potential offerors adequate time to consider whether or not they want to participate in the OFA process in a particular proceeding and have the financial resources to do so. This small burden on potential offerors would also be balanced by the benefit NOIs would provide to the Board and to abandoning or discontinuing carriers by notifying them that a party is interested in an OFA and providing the identity of that party. Providing this notice to carriers would allow carriers to more timely assemble the financial information that, under 49 CFR 1125.27(a), they will be required to provide a potential offeror on request. Identifying potential offerors at an early stage may also provide an opportunity for carriers to work with those seeking to make an OFA and allow the parties to come to a mutually beneficial agreement outside of the OFA process.

    3. Preliminary showing of financial responsibility. Third, the Board proposes to amend its regulations at 49 CFR 1152.27(c)(1) to require a preliminary showing of financial responsibility with the filing of an NOI, before the railroad is required to provide financial information to the potential offeror. The Board has identified an initial minimal financial responsibility showing as a useful tool to ensure offerors are legitimately interested in, and capable of, participating in the OFA process and are not seeking to abuse the Board's processes or cause delay in abandonment or discontinuance proceedings. The Board proposes calculating the amounts required for this showing using the following formulas.

    For a potential OFA to subsidize service, the Board proposes that the preliminary financial responsibility showing at the NOI stage be calculated as a minimum maintenance cost for the line per mile for the one-year mandatory subsidy period. To determine this amount, the Board proposes multiplying the standard per-mile per-year maintenance cost for rail lines by the length of the line in miles. As discussed below, the Board proposes setting the standard per-mile per-year maintenance cost at $4,000. The potential offeror would then provide the Board with evidence of its preliminary financial responsibility at that level.

    In the past, the Board has accepted base maintenance costs for rail line of between $4,000 and $11,000 per mile per year. See Wis. Cent. Ltd.—Aban.—in Ozaukee, Sheboygan, & Manitowoc Ctys., Wis., AB 303 (Sub-No. 27), slip op. at 6 (STB served Oct. 18, 2004) (accepting forecast year maintenance-of-way and structures cost of approximately $4,300 per mile in granting petition for abandonment exemption); Union Pac. R.R.—Aban.—in Harris, Fort Bend, Austin, Wharton, & Colo. Ctys., Tex., AB 33 (Sub-No. 156), slip op. at app. (STB served Nov. 8, 2000) (accepting total forecast year costs for maintenance-of-way and structures of $529,833 in granting application for abandonment exemption for 49.42-mile rail line, for a maintenance cost of just under $11,000 per mile per year); SWKR Operating Co.—Aban. Exemption—in Cochise Cty., Ariz., AB 441 (Sub-No. 2X), slip op. at 6 (STB served Feb. 14, 1997) (accepting rail line maintenance costs of just over $6,000 per-mile per-year in granting petition for abandonment exemption and stating that “[w]e know from extensive experience that $6,000 per mile/per year is a reasonable figure for maintenance by a Class III railroad.”). We believe that it is appropriate to use the lowest end of this range so as not to unintentionally discourage parties that have a legitimate interest in pursuing an OFA too early in the process. In addition, while the maintenance cost per mile will naturally vary for each rail line subject to an OFA, the purpose here is to set a standard cost that can be applied easily in each case. We believe that requiring potential offerors to specifically identify that value and provide the Board with evidence to support it would create additional complexity that is contrary to the purpose of the preliminary financial responsibility showing. We therefore propose to set the per-mile per-year maintenance cost to be used in the preliminary financial responsibility calculation at a standard $4,000.

    For a potential OFA to purchase a line, the Board proposes that the preliminary financial responsibility showing at the NOI stage be calculated as the sum of (a) the current rail steel scrap price per ton, multiplied by 132 tons per track mile as the estimated weight of the track, multiplied by the total track length in miles, plus (b) the $4,000 minimum maintenance cost per mile described above, multiplied by the total track length in miles, multiplied by two (because an OFA purchaser is responsible for operating the acquired line for at least two years).6 As noted previously, although the Board is declining to propose rebuttable presumptions or specific requirements for a showing of financial responsibility, these elements would be consistent with the Board precedent that an offeror must at least demonstrate some ability to purchase and operate the line, or, if there is no active service, at least maintain the line.

    6 OFAs to purchase rail lines normally include the value of the land. Because the value of land varies widely across the country and is not easily identified at this stage, the Board does not propose to include land value in the preliminary financial responsibility calculation.

    The current rail steel scrap price is available at no charge from Web sites that track steel prices. The Board proposes requiring the potential offeror to use one of these publicly available sources to determine the price of steel and then submit to the Board documentation showing the source the offeror uses, with a requirement that this source price be dated within 30 days of the submission of the NOI. We propose to set the estimated weight of the steel per mile of track at 132 tons per mile of track.7 The Board believes that this amount, which is at or near the low end of the weight range for track materials generally associated with the OFA process, would be a reasonable standard weight to be used in this calculation at the NOI stage. The Board proposes to set a standard weight to be used in this calculation in order to simplify the preliminary financial responsibility calculation and avoid requiring offerors to determine actual weights of rail. The length of the track would be taken from the carrier's filing. The potential offeror would calculate the total cost as described above and provide evidence of its financial responsibility at that level.

    7 Seventy-five pounds per yard of rail equals 25 pounds per foot. Twenty-five pounds per foot multiplied by 5,280 feet per mile equals 132,000 pounds per mile. One hundred thirty-two thousand pounds per mile multiplied by two (the number of rails per track) equals 264,000 pounds, or 132 tons, of rail per mile of track.

    Upon receipt of the potential offeror's NOI with the preliminary financial responsibility evidence, the Board would review the information submitted. If the Board finds the information is inadequate to determine the potential offeror's preliminary financial responsibility, it would issue a decision within 10 days of the receipt of the information, either requesting further information from the potential offeror or rejecting the potential offeror's NOI. If after 10 days the Board has not issued a decision on the NOI, the potential offeror would be presumed to be preliminarily financially responsible for the minimum subsidy or purchase cost of the line, and the carrier would be required to provide the potential offeror with the information required under 49 CFR 1152.27(a) upon request. Being preliminarily financially responsible under this process would not create any presumption that the party will be found financially responsible under 49 CFR 1152.27(c)(1)(iv) if an OFA is submitted later.

    The Board believes this calculation would result in an amount that is a reasonable measure of interest and capability. We acknowledge that the result of this calculation would be an amount somewhat below (in some cases substantially below) the actual subsidy or purchase price of the line, but the purpose is merely to discourage abusive OFAs. Additionally, the Board believes doing this calculation at the NOI stage, while representing an extra step, would not be a significant burden on potential offerors. This calculation could be done without the need for any additional information from the carrier or the Board beyond what is in the carrier's filing.

    As noted above in the discussion of comments on this proposal, governmental entities would continue to be presumptively financially responsible under 49 CFR 1152.27(c)(1)(ii)(B), although this presumption is rebuttable at the OFA stage. Governmental entities would therefore not be subject to this proposed requirement, but they would still be required to file the NOI described above.

    4. Escrow requirement. Fourth, the Board proposes to require offerors to demonstrate in their OFA that they have placed in escrow with a reputable financial institution 10% of the preliminary financial responsibility amount calculated at the NOI stage. The deposit into escrow would allow the offeror to show the abandoning or discontinuing carrier and the Board that its offer and interest in the line are legitimate. The Board has identified escrow as the best option for this financial demonstration because, similar to the use of escrow in other significant financial transactions, it would require the offeror to make a concrete showing of its finances and interest in the OFA without giving funds over to the Board or to the involved carrier. The Board would not administer this process, and the funds would never go to either the Board or the abandoning or discontinuing carrier as a penalty. If at any time before consummation of the transaction the offeror were to decide to end its involvement in the OFA process, it would be entitled to return of the escrowed funds. The escrowed funds would be given over to the carrier involved in the OFA transaction only as part of the purchase or subsidy price of the line if and when the OFA is successfully completed.

    The Board believes that 10% of the preliminary financial responsibility amount calculated at the NOI stage would be the appropriate amount for an escrow deposit for several reasons. Although, as noted, the proposed preliminary financial responsibility amount will be lower than the eventual amount of the subsidy or purchase price, it is an amount that is easily identified by the offeror without the need to assess the overall value of the rail line. It is also an amount based on the length of the rail line. Ten percent of the preliminary financial responsibility amount would therefore also bear some relation to the size of the overall financial transaction. However, 10% of this amount would not likely be so burdensome as to discourage an otherwise qualified offeror from submitting an OFA. At the offer stage when this escrow deposit would be required, a qualified offeror should already have financing in place. For this reason, the Board proposes requiring governmental entities to comply with this escrow requirement. Although governmental entities are presumed financially responsible, since they too should have financing in place, the Board does believe it would be unreasonable or burdensome to require them to also meet this requirement.

    Continuation of Rail Service. The Board proposes to amend 49 CFR 1152.27 to require offerors to demonstrate in their OFA that continued rail service on the line the offeror seeks to subsidize or purchase would be needed and feasible. Examples of evidence to be provided would include: (1) Evidence of a demonstrable commercial need for service, as reflected by support from shippers or receivers on the line or other evidence of an immediate and significant commercial need; (2) evidence of community support for continued rail service; (3) evidence that acquisition of freight operating rights would not interfere with any current and planned transit services; and (4) evidence that continued service is operationally feasible.

    The requirement for an OFA to show evidence of a continued need for service is already laid out in Board precedent. See LACMTA, AB 409 (Sub-No. 5X), slip op. at 3. By explicitly placing this requirement in our regulations, the Board would be able to ensure that this requirement is addressed in all OFAs and that there is a genuine need to preserve the line for rail service in all OFA cases. Additionally, by including examples of how an offeror may demonstrate the need for continued service, the amended regulations would provide guidance to offerors to assist them in meeting this requirement in their OFAs. The Board notes that, in cases of two year out-of-service notices of exemption, the burden on the offeror to show the continued need for rail service would remain the same as in other proceedings. However, because of the nature of the exemption process, where there has been no service for at least two years, an offeror would need to present concrete evidence of a continued need for rail service.

    Identity of Offerors. The Board proposes three amendments to 49 CFR 1152.27 to clarify the identity of offerors in their OFAs.

    1. Mailing address. First, the Board proposes to require offerors to provide a mailing address, either business or personal, and other contact information, including a phone number and email address, for the offeror or a representative. The Board notes that a Post Office Box would be an acceptable mailing address for an offeror to provide.

    2. Disclosure of identity. Second, the Board proposes to require offerors that are legal entities to include in their offer the entity's full legal name, state of organization or incorporation, and a description of the ownership of the entity.

    3. Identify entity to hold common carrier responsibility. Third, the Board proposes to require multiple parties filing a single OFA to clearly identify which entity or individual would be assuming the common carrier obligation and to clearly identify how the parties would allocate responsibility for financing the purchase or subsidy and, if purchased, the operation of the line.

    As noted in the ANPRM, in the past the Board has encountered confusion in the OFA process over the identity of offerors. See CSX Transp. Inc.—Aban. Exemption—in Allegany Cty., Md., AB 55 (Sub-No. 659X), slip op. at 1 n.2 (STB served Apr. 24, 2008) (describing confusion over proper name and existence of entity that filed OFA in 2005 but may not have been a legal entity until 2007 or the correct legal entity to receive deed for rail line). This additional information the Board proposes to require in OFAs would allow the Board and the carrier receiving an OFA to identify the individuals or entities submitting the offer. It is essential for the Board to be able to identify the parties involved in an OFA in order to assess the ability of the party or parties to carry out an OFA, including assessing the financial responsibility of the offeror(s). It is also important for a carrier receiving an OFA to be able to identify the party or parties involved in an offer so that the carrier can effectively negotiate with them. Furthermore, the benefit of this information in clarifying the identity of an offeror would far outweigh the relatively small additional burden requiring this information places on an offeror.

    The Board seeks comments from all interested persons on the proposed rule. Importantly, the Board encourages interested persons to propose and discuss potential modifications or alternatives to the proposed rule. The Board will carefully consider all recommended proposals in an effort to establish the most useful changes to the OFA regulations.

    Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, 603(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities.” 605(b). The impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).

    It is possible that the rule proposed here could have a significant economic impact on certain small entities.8 Parties may comment on any information relevant to the burden, if any, the proposed rule will have on small entities as defined by the RFA.

    8 Effective June 30, 2016, for the purpose of RFA analysis, the Board defines a “small business” as only including those rail carriers classified as Class III rail carriers under 49 CFR 1201.1-1. See Small Entity Size Standards Under the Regulatory Flexibility Act, EP 719 (STB served June 30, 2016) (with Board Member Begeman dissenting). Class III carriers have annual operating revenues of $20 million or less in 1991 dollars, or $38,060,383 or less when adjusted for inflation using 2014 data. Class II rail carriers have annual operating revenues of up to $250 million in 1991 dollars or up to $475,754,802 when adjusted for inflation using 2014 data. The Board calculates the revenue deflator factor annually and publishes the railroad revenue thresholds on its Web site. 49 CFR 1201.1-1.

    Description of the reasons why the action by the agency is being considered.

    On May 26, 2015, NSR filed a petition to institute a rulemaking proceeding to address abuses of Board processes. In a decision served on September 23, 2015, the Board denied NSR's petition but stated it would institute a separate rulemaking proceeding to examine the OFA process. On December 14, 2015 the Board instituted this proceeding, issuing an ANPRM requesting comments from the public and stating that, based on NSR's petition and on the Board's experiences since ICCTA was enacted in 1995, there are areas where clarifications and revisions to the Board's OFA process could enhance the process and protect it against abuse.

    Succinct statement of the objectives of, and legal basis for, the proposed rule.

    The objectives of this proposed rule are to update the Board's regulations regarding the OFA process and identify changes that can be made to improve the OFA process and protect it from abuse. The Board believes the changes proposed in this NPRM would achieve this by ensuring that parties that participate in the OFA process are legitimate and are doing so for the purpose intended by Congress, which is to preserve rail service. The legal basis for the proposed rule is 49 U.S.C. 1321.

    Description of, and, where feasible, an estimate of the number of small entities to which the proposed rule will apply.

    The proposed rule would apply to all entities making offers of financial assistance to subsidize or purchase rail lines subject to abandonment or discontinuance under the Board's regulations. In the past 20 years since ICCTA was enacted, the Board has received approximately 100 OFAs, or an average of five per year. Of those, the Board estimates that about 80, or 80%, were filed by small entities. Over the last six years, the Board has received six OFAs, or an average of one per year. Of those, the Board estimates that about four, or 66%, were filed by small entities. The majority of these small entities have been small businesses, including shippers and Class III railroads, but this has also included small governmental jurisdictions and small nonprofits. We therefore estimate that this rule will affect up to four small entities per year.

    Description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the types of professional skills necessary for preparation of the report or record.

    The proposed rule would require additional information from entities interested in or submitting OFAs at two stages. First, an entity would have to file a notice of intent (NOI) soon after the railroad files for abandonment or discontinuance authority (the NOI stage). Second, entities would have to provide new information when the actual offer is submitted (the offer stage), which occurs soon after the railroad has obtained abandonment or discontinuance authority from the Board. The Board is seeking approval from the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act (PRA) for these requirements through a revision to a broader, existing OMB-approved collection, as described in the Appendix.

    At the NOI stage, potential offerors would be required to submit an NOI in all notice of exemption, petition for exemption, and application proceedings, rather than only in notice of exemption proceedings as is now required. This NOI would be a simple notice to the Board and the carrier involved in the proceeding that a party is interested in making an OFA to subsidize or purchase the rail line. Potential offerors would also be required to calculate a preliminary financial responsibility amount for the line using information contained in the carrier's filing and other publicly available information, and provide to the Board evidence of their financial responsibility at that level. This calculation would require research on the part of the potential offeror to determine the current scrap price of steel, which is publicly available at no cost. This calculation would not require professional expertise, however, as it is intended to be relatively simple.

    At the offer stage, offerors would be required to provide additional relevant identifying information depending on whether the offeror is an individual, a legal entity, or multiple parties seeking to submit a joint OFA. Offerors would also be required to address the continued need for rail service in their offer, to place 10% of the minimum subsidy or purchase price of the line (taken from the calculation done at the NOI stage) in an escrow account, and to provide evidence with their offer that they have completed the escrow requirement.

    All small entities participating in the OFA process would be subject to these requirements. As discussed above, in the past these small entities have included small businesses, Class III railroads, small nonprofits, and small governmental entities. Many, but not all, entities participating in the OFA process are represented by legal counsel, though such representation is not required. These new requirements may take additional time, as detailed in the Paperwork Reduction Act analysis below, but the Board does not believe they would require additional professional expertise beyond that already required by the OFA process.

    The Board estimates these new requirements would add a total annual hour burden of 42 hours and no total annual “non-hour burden” cost under the Paperwork Reduction Act, as detailed below and in the Appendix. The Board seeks comment on these estimates and on the actual time, costs, or expenditures of compliance with the proposed rule.

    Identification, to the extent practicable, of all relevant federal rules that may duplicate, overlap, or conflict with the proposed rule.

    The Board is unaware of any duplicative, overlapping, or conflicting federal rules. The Board seeks comments and information about any such rules.

    Description of any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and that minimize any significant economic impact of the proposed rule on small entities, including alternatives considered, such as: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; (4) any exemption from coverage of the rule, or any part thereof, for such small entities.

    Under the proposed rule, offerors and potential offerors participating in the OFA process would be required to submit additional information as described above at the NOI stage and at the offer stage of the process. One alternative to the NOI requirements in the proposed rule would be to exempt small entities from the preliminary financial responsibility showing. An alternative to the escrow requirement would be to require small entities to place a smaller percentage of the of the minimum subsidy or purchase price of the line in escrow, or to exempt small entities from the escrow requirement altogether. But because many of the problems with OFAs have involved parties that could be classified as small entities, applying these alternatives could defeat the purpose of the proposed rule.

    An alternative to the proposed rule as a whole would be to exempt small entities from compliance with the rule. This would significantly weaken the effect of the rule because, as discussed above, approximately 66% to 80% of OFAs, depending on sample size, are filed by small entities. The Board could also take no action to revise the OFA regulations, though this would not allow the Board to meet its objectives of improving the OFA process and protecting it from abuse. Commenters should, if they advance any of these or any other alternatives in their comments, address how such alternatives would be consistent or inconsistent with the goals envisioned by the proposed rules.

    Paperwork Reduction Act. Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521, and Office of Management and Budget (OMB) regulations at 5 CFR 1320.8(d)(3), the Board seeks comments about each of the proposed collections regarding: (1) Whether the collection of information, as modified in the proposed rule and further described below, is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate. Information pertinent to these issues is included in the Appendix. This proposed rule will be submitted to OMB for review as required under 44 U.S.C. 3507(d) and 5 CFR 1320.11(b). Comments received by the Board regarding the information collection will also be forwarded to OMB for its review when the final rule is published.

    List of Subjects in 49 CFR Part 1152

    Administrative practice and procedure, Railroads, Reporting and recordkeeping requirements, Uniform System of Accounts.

    It is ordered:

    1. Comments are due by December 5, 2016. Reply comments are due by January 3, 2017.

    2. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.

    3. Notice of this decision will be published in the Federal Register.

    4. This decision is effective on its service date.

    Decided: September 28, 2016.

    By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.

    Marline Simeon, Clearance Clerk.

    For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend title 49, chapter X, subchapter B, part 1152 of the Code of Federal Regulations as follows:

    PART 1152—ABANDONMENT AND DISCONTINUANCE OF RAIL LINES AND RAIL TRANSPORTATION UNDER 49 U.S.C. 10903 1. The authority citation for part 1152 is revised to read as follows: Authority:

    11 U.S.C. 1170; 16 U.S.C. 1247(d) and 1248; 45 U.S.C. 744; and 49 U.S.C. 1301, 1321(a), 10502, 10903-10905, and 11161.

    2. Amend § 1152.27 as follows: a. In paragraph (a) introductory text, add the words “who has proven itself preliminarily financially responsible under paragraph (c)(1)(ii) of this section” after the word “service”. b. Redesignate paragraphs (c)(1)(i) and (ii) as paragraphs (c)(1)(iii) and (iv), respectively, and add new paragraphs (c)(1)(i) and (ii). c. Revise newly redesignated paragraph (c)(1)(iv)(B) and add paragraphs (c)(1)(iv)(D), (E), (F), (G), and (H). d. In paragraph (c)(2)(i), add the words “and demonstrating that they are preliminarily financially responsible as described in paragraph (c)(1)(ii) of this section” after the words “(i.e., subsidy or purchase)”. e. In paragraph (c)(2)(iii), remove “(c)(1)(ii)” and add in its place “(c)(1)(iv)”. f. In paragraph (d), remove “or a formal expression of intent under paragraph (c)(2)(i) of this section indicating an intent to offer financial assistance” and add in its place “, or satisfaction of the preliminary financial responsibility requirement under paragraph (c)(1)(ii) of this section”. g. In paragraph (e)(1), remove “(c)(1)(i)(C)” and add in its place “(c)(1)(iii)(C)”. h. In paragraph (e)(2), remove “(c)(1)(i)(C)” and add in its place “(c)(1)(iii)(C)”.

    The revisions and additions read as follows:

    § 1152.27 Financial assistance procedures.

    (c) * * *

    (1) * * *

    (i) Expression of intent to file offer. Persons with a potential interest in providing financial assistance must, no later than 45 days after the Federal Register publication described in paragraph (b)(1) of this section or no later than 10 days after the Federal Register publication described in paragraph (b)(2)(i) of this section, submit to the carrier and the Board a formal expression of their intent to file an offer of financial assistance, indicating the type of financial assistance they wish to provide (i.e., subsidy or purchase) and demonstrating that they are preliminarily financially responsible as described in paragraph (c)(1)(ii) of this section. Such submissions are subject to the filing requirements of § 1152.25(d)(1) through (3).

    (ii) Preliminary financial responsibility. Persons submitting an expression of intent to file an offer of financial assistance as described in paragraph (c)(1)(i) or paragraph (c)(2)(i) of this section must demonstrate that they are financially responsible, under the definition set forth in paragraph (c)(1)(iv)(B) of this section, for the calculated preliminary financial responsibility amount of the rail line they seek to subsidize or purchase. If they seek to subsidize, the preliminary financial responsibility amount shall be $4,000 (representing a standard annual per-mile maintenance cost) times the number of miles of track. If they seek to purchase, the preliminary financial responsibility amount shall be the sum of: the rail steel scrap price per ton (dated within 30 days of the submission of the expression of intent), times 132 tons per track mile, times the total track length in miles; plus $4,000 times the number of miles of track times two. Persons submitting an expression of intent must provide evidentiary support for their calculations. If the Board does not issue a decision regarding the preliminary financial responsibility demonstration within ten days of receipt of the expression of intent, the party submitting the expression of intent will be presumed to be preliminarily financially responsible and, upon request, the applicant must provide the information required under paragraph (a) of this section. This presumption does not create a presumption that the party will be financially responsible for an offer submitted under paragraph (c)(1)(iv) of this section.

    (iv) * * *

    (B) Demonstrate that the offeror is financially responsible; that is, that it has or within a reasonable time will have the financial resources to fulfill proposed contractual obligations. Examples of documentation the Board will accept as evidence of financial responsibility include income statements, balance sheets, letters of credit, profit and loss statements, account statements, financing commitments, and evidence of adequate insurance or ability to obtain adequate insurance. Examples of documentation the Board will not accept as evidence of financial responsibility include the ability to borrow money on credit cards and evidence of non-liquid assets an offeror intends to use as collateral. Governmental entities will be presumed to be financially responsible;

    (D) Demonstrate that the offeror has placed in escrow with a reputable financial institution funds equaling 10% of the preliminary financial responsibility amount calculated pursuant to paragraph (c)(1)(ii) of this section;

    (E) Demonstrate that there is a continued need for rail service on the line, or portion of the line, in question. Examples of evidence to be provided include: evidence of a demonstrable commercial need for service (as reflected by support from shippers or receivers on the line or other evidence of an immediate and significant commercial need); evidence of community support for continued rail service; evidence that acquisition of freight operating rights would not interfere with current and planned transit services; and evidence that continued service is operationally feasible;

    (F) Identify the offeror and provide a mailing address, either business or personal, and other contact information including phone number and email address as available, for the offeror or a representative;

    (G) If the offeror is a legal entity, include the entity's full name, state of organization or incorporation, and a description of the ownership of the entity; and

    (H) If multiple parties seek to make a single offer of financial assistance, clearly identify which entity or individual will assume the common carrier obligation if the offer is successful, and clearly describe how the parties will allocate responsibility for financing the subsidy or purchase of the line and, if purchased, the operation of the line.

    Note:

    The following appendix will not appear in the Code of Federal Regulations.

    Appendix Information Collection

    Title: Preservation of Rail Service (including Offers of Financial Assistance (OFAs) and Notices of Intent to File an OFA).

    OMB Control Number: 2140-0022.

    Form Number: None.

    Type of Review: Revision of a currently approved collection.

    Summary: As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521 (PRA), the Surface Transportation Board (Board) gives notice that it is requesting from the Office of Management and Budget (OMB) approval for the revision of the currently approved information collection, Preservation of Rail Service, OMB Control No. 2140-0022, as further described below. The requested revision to the currently approved collection is necessitated by this NPRM, which amends certain information collected by the Board in OFAs and notices of intent to file an OFA. See 49 CFR 1152.27. All other information collected by the Board in the currently approved collection is without change from its approval (currently expiring on January 31, 2019).

    Respondents: Affected shippers, communities, or other interested persons seeking to preserve rail service over rail lines that are proposed or identified for abandonment, and railroads that are required to provide information to the offeror or applicant.

    Number of Respondents: 40.

    Frequency of Response: On occasion.

    Table—Number of Yearly Responses Type of filing Number of
  • filings
  • Offer of Financial Assistance 1 Notice of Intent to File an OFA 4 OFA—Railroad Reply to Request for Information 2 OFA—Request to Set Terms and Conditions 1 Request for Public Use Condition 1 Feeder Line Application 1 Trail-Use Request 27 Trail-Use Request Extension 24

    Total Burden Hours (annually including all respondents): 400 hours (sum total of estimated hours per response × number of responses for each type of filing).

    Table—Estimated Hours per Response Type of filing Number of
  • hours per
  • response
  • Offer of Financial Assistance 50 Notice of Intent to File an OFA 6 OFA—Railroad Reply to Request for Information 10 OFA—Request to Set Terms and Conditions 40 Request for Public Use Condition 2 Feeder Line Application 70 Trail-Use Request 4 Trail-Use Request Extension 4

    Total Annual “Non-Hour Burden” Cost: None identified. Filings are submitted electronically to the Board.

    Needs and Uses: Under the Interstate Commerce Act, as amended by the ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 803 (1995), and Section 8(d) of the National Trails System Act, 16 U.S.C. 1247(d) (Trails Act), persons seeking to preserve rail service may file pleadings before the Board to acquire or subsidize a rail line for continued service, or to impose a trail use or public use condition. Under 49 U.S.C. 10904, the filing of a notice of intent to file an OFA alerts the Board and the public that the filing of an OFA may be imminent. The filing of an OFA then starts a process of negotiations to define the financial assistance needed to purchase or subsidize the rail line sought for abandonment. In this rulemaking, the Board is proposing to seek additional information in its collection of both (a) notices of intent to file and OFA and (b) OFAs. During the OFA process, the offeror may request additional information from the railroad, which the railroad must provide. If the parties cannot agree to the sale or subsidy, either party also may file a request for the Board to set the terms and conditions of the financial assistance. Under 10905, a public use request allows the Board to impose a 180-day public use condition on the abandonment of a rail line, permitting the parties to negotiate a public use for the rail line. Under 10907, a feeder line application provides the basis for authorizing an involuntary sale of a rail line. Finally, under 16 U.S.C. 1247(d), a trail-use request, if agreed upon by the abandoning carrier, requires the Board to condition the abandonment by issuing a Notice of Interim Trail Use or Certificate of Interim Trail Use, permitting the parties to negotiate an interim trail use/rail banking agreement for the rail line.

    The collection by the Board of these offers, requests, and applications, and the railroad's replies (when required), enables the Board to meet its statutory duty to regulate the referenced rail transactions.

    [FR Doc. 2016-24056 Filed 10-4-16; 8:45 am] BILLING CODE 4915-01-P
    81 193 Wednesday, October 5, 2016 Notices DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service Submission for OMB Review; Comment Request September 29, 2016.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by November 4, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725-17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Food Safety and Inspection Service

    Title: Accredited Laboratory Annual Contact Update Form.

    OMB Control Number: 0583-0163.

    Summary of Collection: The Food Safety and Inspection Service (FSIS) has been delegated the authority to exercise the functions of the Secretary as provided in the Federal Meat Inspection Act (FMIA) (21 U.S.C. 601 et. seq.), the Poultry Products Inspection Act (PPIA) (21 U.S.C. 451, et. seq.), and the Egg Products Inspection Act (EPIA) (21 U.S.C. 1031). These statues mandate that FSIS protect the public by verifying that meat and poultry products are safe, wholesome, not adulterated, and properly labeled and packaged.

    Need and Use of the Information: FSIS will collect information using the Annual Contact Update form to maintain necessary information for responsible connected personnel at the laboratories. The completed Annual Contact Update form will also inform the Agency if a laboratory, or responsibly connected person or entity, has been charged, indicted, or convicted or any crime.

    Description of Respondents: Business or other for-profit.

    Number of Respondents: 60.

    Frequency of Responses: Reporting: Annually.

    Total Burden Hours: 15.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2016-23990 Filed 10-4-16; 8:45 am] BILLING CODE 3410-DM-P
    DEPARTMENT OF AGRICULTURE Forest Service Nez Perce-Clearwater National Forests; Idaho; Nez Perce-Clearwater National Forests Travel Planning Project AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of Intent (NOI) to Prepare a Supplemental Environmental Impact Statement (SEIS) for the Nez Perce-Clearwater National Forests Travel Planning Project.

    SUMMARY:

    The Forest Service is giving notice of its intent to prepare a SEIS for the Nez Perce-Clearwater National Forests Travel Planning project on the Nez Perce-Clearwater National Forests, Idaho. A complaint was filed on December 5, 2013 against the January 2012 Clearwater National Forest Travel Planning Record of Decision (ROD). On March 11, 2015 the United States District Court for the State of Idaho issued a Memorandum Decision and Order remanding the Travel Plan, Final Environmental Impact Statement (FEIS), and Record of Decision for reconsideration and further evaluation. This SEIS will provide additional analysis in response to the Memorandum Decision and Order.

    FOR FURTHER INFORMATION CONTACT:

    Lois Hill, Environmental Coordinator, (208) 935-4258.

    SUPPLEMENTARY INFORMATION:

    The Forest Service is announcing its intent to prepare a SEIS for the Nez Perce-Clearwater National Forests Travel Planning project. The SEIS will supplement the analysis from the Clearwater National Forest Travel Planning FEIS (2011) by providing an updated analysis of the environmental effects. The Clearwater Travel Planning FEIS evaluated the potential effects of five alternatives, including No Action and four action alternatives.

    The Nez Perce-Clearwater Forest Supervisor will issue a new ROD after evaluating the SEIS and public comments. An objection period for the new ROD will be provided, consistent with 36 CFR part 218.

    Authority:

    This NOI is being published pursuant to regulations (40 CFR 1508.22) implementing the procedural provisions of the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321 et seq.).

    Scoping: A NOI published on November 28, 2007 initiated the scoping period for the Clearwater National Forest Travel Planning project. A legal notice advertising the start of a 30-day scoping period was advertised in the Lewiston, Idaho Lewiston Tribune on November 13, 2007. The scoping period was later extended to February 29, 2008. In accordance with 40 CFR 1502.9(c)(4), there will be no scoping conducted for this SEIS. The scope of the Final Nez Perce-Clearwater National Forests Travel Planning EIS established the scope for this SEIS.

    The SEIS will be advertised for public comment as required by 40 CFR 1503.1. The Draft SEIS will be announced for public review and comment in the Federal Register, on the Nez Perce-Clearwater National Forests' project Web site, and in the Lewiston, Idaho Lewiston Tribune, as well as other local media.

    Responsible Official and Lead Agency

    The USDA Forest Service is the lead agency for this proposal. The Nez Perce-Clearwater Forest Supervisor is the responsible official.

    Decision to Be Made is whether to adopt the proposed action, in whole or in part, or another alternative; and what mitigation measures and management requirements will be implemented.

    Dated: September 27, 2016. Cheryl F. Probert, Forest Supervisor.
    [FR Doc. 2016-24047 Filed 10-4-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Black Hills National Forest Advisory Board AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Black Hills National Forest Advisory Board (Board) will meet in Rapid City, South Dakota. The Board is established consistent with the Federal Advisory Committee Act of 1972, the Forest and Rangeland Renewable Resources Planning Act of 1974, the National Forest Management Act of 1976, and the Federal Public Lands Recreation Enhancement Act. Additional information concerning the Board can be found by visiting the Board's Web site at: http://www.fs.usda.gov/main/blackhills/workingtogether/advisorycommittees.

    DATES:

    The meeting will be held on Wednesday, October 19, 2016, at 1:00 p.m.

    All meetings are subject to cancellation. For updated status of meeting prior to attendance, please contact the person listed under For Further Information Contact.

    ADDRESSES:

    The meeting will be held at the Mystic Ranger District, 8221 South Highway 16, Rapid City, South Dakota.

    Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses, when provided, are placed in the record and available for public inspection and copying. The public may inspect comments received at the Black Hills National Forest Supervisor's Office. Please call ahead at 605-440-1409 to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Scott Jacobson, Board Coordinator by phone at 605-440-1409, or by email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to provide:

    (1) Northern Long Eared Bat Listing Status and Cave Management Update;

    (2) Mines/Minerals and Geology of the Black Hills Presentation;

    (3) Black Hills Resilient Landscapes (BHRL) Project update;

    (4) Forest Health Working Group Recommendation on BHRL;

    (5) Recreation Facilities Working Group update; and

    (6) Non-motorized Trails/Over Snow Working Group update.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should submit a request in writing by October 11, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the Board may file written statements with the Board's staff before or after the meeting. Written comments and time requests for oral comments must be sent to Scott Jacobson, Black Hills National Forest Supervisor's Office, 1019 North Fifth Street, Custer, South Dakota 57730; by email to [email protected], or via facsimile to 605-673-9208.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation for access to the facility or proceedings by contacting the person listed in the section titled For Further Information Contact. All reasonable accommodation requests are managed on a case by case basis.

    Dated: September 29, 2016. Mark Van Every, Forest Supervisor.
    [FR Doc. 2016-24096 Filed 10-4-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Rural Housing Service Notice of Request for Extension of a Currently Approved Information Collection AGENCY:

    Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, USDA.

    ACTION:

    Proposed collection: Comments requested.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of USDA Farm Service Agency's (FSA) and Rural Development, henceforth collectively known as Rural Development, or individually as Housing and Community Programs, Business and Cooperative Programs, Utility Programs, to request an extension for a currently approved information collection in support of compliance with applicable acts for planning and performing construction and other development work.

    DATES:

    Comments on this notice must be received by December 5, 2016 to be assured consideration.

    FOR FURTHER INFORMATION CONTACT:

    William R. Downs, Supervisory Architect, Program Support Staff, RHS, U.S. Department of Agriculture, Stop 0761, 1400 Independence Avenue SW., Washington, DC 20250-0761, Telephone (202) 720-1499 or (202) 720-9619 or via email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Title: RD 1924-A, “Planning and Performing Construction and Other Development.”

    OMB Number: 0575-0042.

    Expiration Date of Approval: January 31, 2017.

    Type of Request: Extension of a currently approved information collection.

    Abstract: The information collection under OMB Number 0575-0042 enables the Agencies to effectively administer the policies, methods, and responsibilities in the planning and performing of construction and other development work for the related construction programs.

    Section 501 of Title V of the Housing Act of 1949, as amended, authorizes the Secretary of Agriculture to extend financial assistance to construct, improve, alter, repair, replace, or rehabilitate dwellings; farm buildings; and/or related facilities to provide decent, safe, and sanitary living conditions, as well as adequate farm buildings and other structures in rural areas.

    Section 506 of the Act requires that all new buildings and repairs shall be constructed in accordance with plans and specifications as required by the Secretary and that such construction be supervised and inspected.

    Section 509 of the Act grants the Secretary the power to determine and prescribe the standards of adequate farm housing and other buildings. The Housing and Urban Rural Recovery Act of 1983 amended section 509(a) and section 515 to require residential buildings and related facilities to comply with the standards prescribed by the Secretary of Agriculture, the standard prescribed by the Secretary of Housing and Urban Development, or the standards prescribed in any of the nationally recognized model building codes.

    Similar authorizations are contained in sections 303, 304, 306, and 339 of the Consolidated Farm and Rural Development Act, as amended, which authorized loans and grants for essential community services.

    In several sections of both acts, loan limitations are established as percentages of development cost, requiring careful monitoring of those costs. Also, the Secretary is authorized to prescribe regulations to ensure that Federal funds are not wasted or dissipated and that construction will be undertaken in an economic manner and will not be of elaborate or extravagant design or materials.

    The Rural Utilities Service (RUS) is the credit Agency for rural water and wastewater development within Rural Development of the United States Department of Agriculture (USDA). The Rural-Business-Cooperative Service (RBS) is the credit Agency for rural business development within Rural Development of USDA. These Agencies adopted use of forms in RD Instruction 1924-A. Information for their usage is included in this report.

    Other information collection is required to conform to numerous Pubic Laws applying to all Federal agencies, such as: Civil Rights Acts of 1964 and 1968, Davis-Bacon Act, Historic Preservation Act, Environmental Policy Act, and to conform to Executive Orders governing use of Federal funds. This information is cleared through the appropriate enforcing Agency or other executive Departments.

    The Agencies provide forms and/or guidelines to assist in the collection and submission of information; however, most of the information may be collected and submitted in the form and content which is accepted and typically used in normal conduct of planning and performing development work in private industry when a private lender is financing the activity. The information is usually submitted via hand delivery or U.S. Postal Service to the appropriate Agency office. Electronic submittal of information is also possible through email or USDA's Service Center eForms Web site.

    The information is used by the Agencies to determine whether a loan/grant can be approved, to ensure that the Agency has adequate security for the loans financed, to provide for sound construction and development work, and to determine that the requirements of the applicable acts have been met. The information is also used to monitor compliance with the terms and conditions of the Agencies' loan/grant programs and to monitor the prudent use of Federal funds.

    If the information were not collected and submitted, the Agencies would not have control over the type and quality of construction and development work planned and performed with Federal funds. The Agencies would not be assured that the security provided for loans is adequate, nor would the Agencies be certain that decent, safe, and sanitary dwelling or other adequate structures were being provided to rural residents as required by the different acts.

    Estimate of Burden: Public reporting burden for this collection of information is estimated to average .31 hours per response.

    Respondents: Individuals or households, farms, business or other for-profit, non-profit institutions, and small businesses or organizations.

    Estimated Number of Respondents: 14,448.

    Estimated Number of Responses per Respondent: 13.

    Estimated Number of Responses: 193,847.

    Estimated Total Annual Burden on Respondents: 60,476 hours.

    Copies of this information collection can be obtained from Jeanne Jacobs, Regulations and Paperwork Management Branch, at (202) 692-0040.

    Comments: Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the function of the Agencies, including whether the information will have practical utility; (b) the accuracy of the Agencies' estimate of the burden of the proposed collection of information, including the validity of methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Jeanne Jacobs, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, Rural Development, Stop 0742, 1400 Independence Avenue SW., Washington, DC 20250-0742. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

    Dated: September 26, 2016. Tony Hernandez, Administrator, Rural Housing Service.
    [FR Doc. 2016-24013 Filed 10-4-16; 8:45 am] BILLING CODE 3410-XV-P
    DEPARTMENT OF COMMERCE Economic Development Administration (EDA), National Telecommunications and Information Administration (NTIA), Bureau of Industry and Security (BIS) Membership of the Performance Review Board for EDA, NTIA and BIS AGENCY:

    EDA, NTIA and BIS, Department of Commerce.

    ACTION:

    Notice of membership on the EDA, NTIA and BIS's Performance Review Board.

    SUMMARY:

    In accordance with 5 U.S.C. 4314(c)(4), the EDA, NTIA and BIS, Department of Commerce (DOC), announce the appointment of those individuals who have been selected to serve as members of the Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and ratings of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

    DATES:

    The period of appointment for those individuals selected for EDA, NTIA and BIS's Performance Review Board begins on October 5, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Jennifer Munz, U.S. Department of Commerce, Office of Human Resources Management, Office of Executive Resources, 14th and Constitution Avenue NW., Room 51010, Washington, DC 20230, at (202) 482-4051.

    SUPPLEMENTARY INFORMATION:

    In accordance with 5 U.S.C. 4314(c)(4), the EDA, NTIA and BIS, Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of EDA, NTIA and BIS's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and ratings of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

    DATES: The period of appointment for those individuals selected for EDA, NTIA and BIS's Performance Review Board begins on October 5, 2016. The name, position title, and type of appointment of each member of the Performance Review Board are set forth below: 1. Department of Commerce, National Telecommunications and Information Administration (NTIA) Paige Atkins, Associate Administrator for Spectrum Management, Career SES 2. Department of Commerce, National Telecommunications and Information Administration (NTIA) Leonard Bechtel, Chief Financial Officer and Director of Administration, Career SES 3. Department of Commerce, Bureau of Industry and Security (BIS) Matthew Borman, Deputy Assistant Secretary for Export Administration, Career SES 4. Department of Commerce, National Telecommunications and Information Administration (NTIA) Frank Freeman, Chief Financial Officer, First Responder Network Authority, Career SES 5. Department of Commerce, National Telecommunications and Information Administration (NTIA) Jim Gwinn, Chief Information Officer, First Responder Network Authority, Career SES 6. Department of Commerce, Office of the Secretary, Office of the General Counsel (OS/OGC) Stephen D. Kong, Chief Counsel for Economic Development, Career SES, Chairperson 7. Department of Commerce, Office of the Secretary (OS), Office of the Deputy Secretary Lauren Leonard, Director, Office of White House Liaison, Non-Career SES 8. Department of Commerce, Bureau of Industry and Security (BIS) Richard Majauskas, Deputy Assistant Secretary for Export Enforcement, Career SES 9. Department of Commerce, Office of the Secretary (OS), Office of the Chief Financial Officer and Assistant Secretary for Administration (CFO/ASA) Renee A. Macklin, Director for Program Evaluation and Risk Management, Career SES 10. Department of Commerce, Office of the Secretary (OS), Office of the Deputy Secretary Alejandro Rodriguez, Chief of Staff to the Deputy Secretary, Non-Career SES 11. Department of Commerce, Bureau of Industry and Security (BIS) Carol Rose, Chief Financial Officer and Director of Administration, Career SES Dated: September 19, 2016. Denise A. Yaag, Director, Office of Executive Resources, Office of Human Resources Management, Office of the Secretary/Office of the CFO/ASA, Department of Commerce.
    [FR Doc. 2016-24049 Filed 10-4-16; 8:45 am] BILLING CODE 3510-25-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-139-2016] Foreign-Trade Zone 7—Mayagüez, Puerto Rico; Application for Subzone; Romark Global Pharma, LLC; Manatí, Puerto Rico

    An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Puerto Rico Industrial Development Company, grantee of FTZ 7, requesting subzone status for the facility of Romark Global Pharma, LLC, located in Manatí, Puerto Rico. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on September 29, 2016.

    The proposed subzone (30 acres) is located at State Road PR-686 Km 0.5, Coto Norte Ward, Manatí. The proposed subzone would be subject to the existing activation limit of FTZ 7. No authorization for production activity has been requested at this time.

    In accordance with the Board's regulations, Camille Evans of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.

    Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is November 14, 2016. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to November 29, 2016.

    A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Camille Evans at [email protected] or (202) 482-2350.

    Dated: September 29, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-24098 Filed 10-4-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-88-2016] Approval of Subzone Expansion; Tesla Motors, Inc.; Palo Alto and Fremont, California

    On June 15, 2016, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by the City of San Jose, California, grantee of FTZ 18, requesting expanded subzone status subject to the existing activation limit of FTZ 18, on behalf of Tesla Motors, Inc. (Subzone 18G), in Fremont, California.

    The application was processed in accordance with the FTZ Act and Regulations, including notice in the Federal Register inviting public comment (81 FR 40850, June 23, 2016). The FTZ staff examiner reviewed the application and determined that it meets the criteria for approval. Pursuant to the authority delegated to the FTZ Board Executive Secretary (15 CFR Sec. 400.36(f)), the application to expand Subzone 18G is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, and further subject to FTZ 18's 2,000-acre activation limit.

    Dated: September 29, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-24094 Filed 10-4-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Materials Processing Equipment Technical Advisory Committee; Notice of Partially Closed Meeting

    The Materials Processing Equipment Technical Advisory Committee (MPETAC) will meet on October 25, 2016, 9:00 a.m., Room 3884, in the Herbert C. Hoover Building, 14th Street between Pennsylvania and Constitution Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to materials processing equipment and related technology.

    Agenda Open Session 1. Opening remarks and introductions 2. Presentation of papers and comments by the Public 3. Discussions on results from last, and proposals from last Wassenaar meeting 4. Report on proposed and recently issued changes to the Export Administration Regulations 5. Other business Closed Session 6. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3)

    The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at [email protected], no later than October 18, 2016.

    A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.

    The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on April 11, 2016, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § 10(d)), that the portion of the meeting dealing with matters the premature disclosure of which would be likely to frustrate significantly implementation of a proposed agency action as described in 5 U.S.C. 552b(c)(9)(B) shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.

    For more information, call Yvette Springer at (202) 482-2813.

    Dated: September 30, 2016. Yvette Springer, Committee Liaison Officer.
    [FR Doc. 2016-24139 Filed 10-4-16; 8:45 am] BILLING CODE 3510-JT-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Sensors and Instrumentation Technical Advisory Committee; Notice of Partially Closed Meeting

    The Sensors and Instrumentation Technical Advisory Committee (SITAC) will meet on October 26, 2016, 9:30 a.m., in the Herbert C. Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to sensors and instrumentation equipment and technology.

    Agenda Public Session

    1. Welcome and Introductions.

    2. Remarks from the Bureau of Industry and Security Management.

    3. Industry Presentations.

    4. New Business.

    Closed Session

    5. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3).

    The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at [email protected] no later than October 19, 2016.

    A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to the Committee members, the Committee suggests that the materials be forwarded before the meeting to Ms. Springer.

    The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on November 5, 2015 pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § 10(d), that the portion of this meeting dealing with pre-decisional changes to the Commerce Control List and U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.

    For more information contact Yvette Springer on (202) 482-2813.

    Dated: September 30, 2016. Yvette Springer, Committee Liaison Officer.
    [FR Doc. 2016-24099 Filed 10-4-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Information Systems Technical Advisory Committee; Notice of Partially Closed Meeting

    The Information Systems Technical Advisory Committee (ISTAC) will meet on October 19 and 20, 2016, 9:00 a.m., in the Herbert C. Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to information systems equipment and technology.

    Wednesday, October 19 Open Session 1. Welcome and Introductions 2. Working Group Reports 3. Old Business 4. Wassenaar Proposals for 2017 5. Industry Presentation: Integrity Software 6. Industry Presentation: Embedded ADC/DAC in FPGAs 7. New Business Thursday, October 20 Closed Session 8. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3)

    The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at [email protected], no later than October 12, 2016.

    A limited number of seats will be available for the public session. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that public presentation materials or comments be forwarded before the meeting to Ms. Springer.

    The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on January 7, 2016, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § (10)(d))), that the portion of the meeting concerning trade secrets and commercial or financial information deemed privileged or confidential as described in 5 U.S.C. 552b(c)(4) and the portion of the meeting concerning matters the disclosure of which would be likely to frustrate significantly implementation of an agency action as described in 5 U.S.C. 552b(c)(9)(B) shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.

    For more information, call Yvette Springer at (202) 482-2813.

    Dated: September 30, 2016. Yvette Springer, Committee Liaison Officer.
    [FR Doc. 2016-24136 Filed 10-4-16; 8:45 am] BILLING CODE 4310-JT-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-840] Certain Frozen Warmwater Shrimp From India: Notice of Correction to Final Results of Antidumping Duty Administrative Review; Final Determination of No Shipments; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    FOR FURTHER INFORMATION CONTACT:

    Manuel Rey, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5518.

    SUPPLEMENTARY INFORMATION:

    On September 13, 2016, the Department of Commerce (the Department) published in the Federal Register the final results of the 2014-2015 administrative review of the antidumping duty order on certain frozen warmwater shrimp from India.1 The period of review is February 1, 2014, through January 31, 2015. In the Final Results, the Department failed to assign a final cash deposit rate of 2.20 percent to the company “Jagadeesh Marine Exports.” As a result, we now correct the final results of the 2014-2015 administrative review to assign a cash deposit rate of 2.20 percent to this company.

    1See Certain Frozen Warmwater Shrimp from India: Final Results of Antidumping Duty Administrative Review; Final Determination of No Shipments; 2014-2015, 81 FR 62867 (September 13, 2016) (Final Results).

    This correction to the final results of administrative review is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended.

    Dated: September 29, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-24122 Filed 10-4-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Membership of the International Trade Administration Performance Review Board AGENCY:

    International Trade Administration, Department of Commerce.

    ACTION:

    Notice of Membership on the International Trade Administration's Performance Review Board.

    SUMMARY:

    The International Trade Administration (ITA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of ITA's Performance Review Board. The Performance Review Board is responsible for reviewing performance appraisals and rating of Senior Executive Service (SES) members and making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

    DATES:

    The period of appointment for those individuals selected for ITA's Performance Review Board begins on October 5, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Jennifer Munz, U.S. Department of Commerce, Office of Human Resources Management, Office of Executive Resources, 14th and Constitution Avenue NW., Room 51010, Washington, DC 20230, at (202) 482-4051.

    SUPPLEMENTARY INFORMATION:

    In accordance with 5 U.S. C. 4314(c)(4), the International Trade Administration (ITA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of ITA's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

    The name, position title, and type of appointment of each member of ITA's Performance Review Board are set forth below by organization:

    Department of Commerce, International Trade Administration (ITA) Praveen M. Dixit, Deputy Assistant Secretary for Trade Policy and Analysis, Career SES Christian Marsh, Deputy Assistant Secretary for AD/CVD Operations, Career SES Jennifer L. Pilat, Director, Advocacy Center, Non-Career SES, Political Advisor Timothy Rosado, Chief Financial and Administrative Officer, Career SES, Chairperson Department of Commerce, Office of the Secretary (OS), Office of the Chief Financial Officer and Assistant Secretary for Administration (CFO/ASA) Gay G. Shrum, Director for Administrative Programs, Career SES Dated: September 19, 2016. Denise A. Yaag, Director, Office of Executive Resources, Office of Human Resources Management, Office of the Secretary/Office of the CFO/ASA, Department of Commerce.
    [FR Doc. 2016-24044 Filed 10-4-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Institute of Standards and Technology [Docket No. 160927891-6891-01] Request for Comments on U.S. Technical Participation in the 15th Conference of the International Organization of Legal Metrology (OIML) AGENCY:

    National Institute of Standards and Technology, Commerce.

    ACTION:

    Notice; request for comments.

    SUMMARY:

    The National Institute of Standards and Technology (NIST) seeks comments concerning U.S. technical participation in the 15th Conference of the International Organization of Legal Metrology (OIML) held in Strasbourg, France, Wednesday, October 19 through Thursday, October 20, 2016. This conference is held once every four years and was last held in 2012. Interested parties are requested to review and submit comments on the 16 OIML Recommendations and Documents on legal measuring instruments that will be presented for ratification by the Conference. Comments may also be submitted on other issues relevant to the Conference.

    DATES:

    Written comments should be submitted to the NIST International Legal Metrology Program no later than Wednesday, October 12, 2016, at 5:00 p.m. Eastern Time. The 15th OIML International Conference of Legal Metrology will be held in Strasbourg, France, Wednesday, October 19 through Thursday, October 20, 2016.

    ADDRESSES:

    Written comments should be submitted via email to [email protected] or be mailed to the International Legal Metrology Program, Office of Weights and Measures, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 2600, Gaithersburg, MD 20899-2600.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Ralph Richter, International Legal Metrology Program, Office of Weights and Measures, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 2600, Gaithersburg, MD 20899-2600; telephone: 301-975-3997; fax: 301-975-8091; email: [email protected]

    SUPPLEMENTARY INFORMATION: Background

    The International Organization of Legal Metrology (OIML) is an intergovernmental treaty organization in which the United States and 60 other nations are members. Its principal purpose is to harmonize national laws and regulations pertaining to testing and verifying the performance of legal measuring instruments used for equity in commerce, for public and worker health and safety, and for monitoring and protecting the environment. The harmonized results promote the international trade of measuring instruments and products affected by measurement.

    The U.S. Department of State has delegated technical participation in OIML to NIST. NIST coordinates participation of U.S. manufacturers, users of weighing and measuring instruments, legal metrology officials and other U.S. stakeholders in the technical work of OIML by circulating draft voluntary standards (called Recommendations) and other OIML publications for comment. NIST also leads U.S. delegations to OIML Technical Meetings.

    Additional Information

    All parties with an interest in the work of the OIML are requested to review and submit comments on any or all of the 16 Recommendations and Documents that will be presented for ratification by the Conference. Any submitted comments will be reviewed and considered by NIST staff in the development of U.S. positions that will be put forward at the 15th Conference of OIML. NIST will consider all feedback and will implement it into the Conference as appropriate.

    Each of the 16 Recommendations and Documents that will be presented for ratification by the Conference has already gone through a multi-year development and review process involving technical experts and legal metrology experts from the United States and around the world. Ratification by the Conference is the final step in this process. The Recommendations and Documents have been divided into two categories—Category 1: Those already approved by the International Committee of Legal Metrology (CIML) between 2013 and 2015, and Category 2: Those that are expected to be submitted directly to the Conference for ratification. Because the Recommendations and Documents in Category 2 have not yet received CIML approval, the comments received on these Recommendations and Documents are of additional importance to NIST staff. The 16 Recommendations and Documents and the OIML-member nations that held the convenership of the project group responsible for their development are listed below:

    Category 1

    • D11, “General requirements for measuring instruments—Environmental conditions” (Netherlands);

    • R46-3, “Active electrical energy meters—Part 3: Test report format” (Australia);

    • R49, “Water meters for cold potable water and hot water—Part 1: Metrological and technical requirements, Part 2: Test methods, and Part 3: Test report format” (United Kingdom);

    • R50, “Continuous totalizing automatic weighing instruments (belt weighers)—Part 1: Metrological and technical requirements, Part 2: Test procedures, Part 3: Test report format (United Kingdom);

    • R79, “Labeling requirements for prepackages” (South Africa);

    • R100, “Atomic absorption spectrometer systems for measuring metal pollutants” (United States);

    • R117, “Dynamic measuring systems for liquids other than water—Part 2: Metrological controls and performance tests, and Part 3: Test report format” (United States and Germany);

    • R137-3, “Gas meters—Part 3: Test report format (Netherlands);

    • R139, “Compressed gaseous fuels measuring systems for vehicles—Part 1: Metrological and technical requirements, Part 2: Metrological controls and performance tests, and Part 3: Test report format” (Netherlands);

    • R144, “Instruments for continuous measuring CO and NOX in stationary source emissions” (Netherlands);

    • R145, “Ophthalmic instruments—Impression and applanation tonometers” (Germany); and

    • V1, “International vocabulary of terms in legal metrology (VIML)” (Poland).

    Category 2

    • R59, “Moisture meters for cereal grains and oilseeds” (United States and P.R. China);

    • R87 “Quantity of product in prepackages” (South Africa);

    • New Recommendation (not yet numbered) “Protein measuring instruments for cereal grains and oilseeds” (Australia); and

    • New Recommendation (not yet numbered) “Standard blackbody radiator for the temperature range from −50 °C to 2500 °C” (Russian Federation).

    Parties with an expressed interest in particular topics may obtain copies of the OIML Conference technical agenda, including copies of the Recommendations to be ratified, from the OIML International Conference Web site at http://strasbourg.oiml.org, at the OIML Web site at www.oiml.org, or from the NIST International Legal Metrology Program.

    Authority:

    15 U.S.C. 272(b).

    Kevin Kimball, NIST Chief of Staff.
    [FR Doc. 2016-24076 Filed 10-4-16; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE882 Stock Status Determination for Atlantic Dusky Sharks AGENCY:

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

    ACTION:

    Notice.

    SUMMARY:

    This action serves as a notice that NMFS, on behalf of the Secretary of Commerce (Secretary), has determined that Atlantic dusky sharks (Carcharhinus obscurus) are still overfished and subject to overfishing.

    FOR FURTHER INFORMATION CONTACT:

    Tobey Curtis by phone at 978-281-9273 or Karyl Brewster-Geisz by phone at 301-427-8503.

    SUPPLEMENTARY INFORMATION: Background

    Atlantic dusky sharks are managed under the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP) and its amendments. Dusky sharks have been a prohibited species since 2000 and may not be landed or retained in any fisheries. However, multiple commercial and recreational fisheries sometimes interact with the species as bycatch during the course of normal operations. The 2016 assessment was an update to the 2011 stock assessment for dusky sharks. Thus, no new methodology was introduced, though all model inputs were updated with more recent data (i.e. effort, and 2010-2015 for all the indices of relative abundance, which included observer and survey data).

    Dusky sharks were first assessed in 2006, and all model results indicated that the stock had been heavily exploited, with depletion estimates between 62 and 80 percent from virgin biomass, and a rebuilding timeframe of 100 to 400 years. Dusky sharks were again assessed in 2011 through the Southeast Data, Assessment, and Review (SEDAR) process in SEDAR 21. The SEDAR 21 dusky shark assessment indicated that the species was overfished (spawning stock biomass [SSB]2009/SSBMSY = 0.41-0.50) and was experiencing overfishing (F2009/FMSY = 1.39-4.35).

    All documents and information regarding the 2010 SEDAR 21 benchmark assessment and 2016 update can be found on the SEDAR Web page at http://sedarweb.org/sedar-21.

    2016 Dusky Shark Stock Assessment Update Results

    The 2016 dusky shark stock assessment update used an age-structured catch-free production model since the species' prohibited status made the use of catch as an input largely impractical.

    In the 2011 SEDAR 21 assessment, the reviewers determined that there were five scenarios analyzed in the assessment that were plausible. Thus, in the 2016 update, the five scenarios reflective of plausible states of nature were analyzed and projections for each scenario were conducted. The five scenarios were: (1) The base scenario; (2) a high natural mortality scenario; (3) a U-shaped natural mortality curve allowing senescence; (4) a high productivity scenario; and (5) a low productivity scenario. Under all scenarios, the 2016 update found the stock is still overfished (spawning stock fecundity [SSF]2015/SSFMSST = 0.44-0.69). Under all scenarios, the 2016 update found the stock was also still subject to overfishing (F2015/FMSY = 1.08-2.92).

    The assessment was peer reviewed by two reviewers. Overall, the peer reviewers determined the stock assessment to be based on the best scientific information available. Based on these results, NMFS has determined that the status of dusky sharks is overfished and overfishing is occurring.

    Dated: September 30, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-24077 Filed 10-4-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE929 Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Stock Identification Work Group Post-Meeting Webinar for Atlantic Blueline Tilefish AGENCY:

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

    ACTION:

    Notice.

    SUMMARY:

    Atlantic stock(s) of blueline tilefish will be assessed through SEDAR 50. This webinar meeting is being held to provide representatives of the Scientific and Statistical Committees (SSC) of the Gulf of Mexico, South Atlantic and Mid-Atlantic Fishery Management Councils an opportunity to review blueline tilefish stock identification recommendations and provide guidance on addressing overlap between the biological stock and Council management boundaries.

    DATES:

    The SEDAR 50 Stock Identification SSC Webinar Review will be held on Friday, October 28, 2016, from 12 p.m. to 3 p.m., to view the agenda see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The Webinar is open to the public. Those interested in participating should contact Julia Byrd at SEDAR (see FOR FURTHER INFORMATION CONTACT) to request an invitation providing Webinar access information. Please request Webinar invitations at least 24 hours in advance of the Webinar.

    SEDAR Address: South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N. Charleston, SC 29405 or at their Web site, at www.sedarweb.org.

    FOR FURTHER INFORMATION CONTACT:

    Julia Byrd, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone (843) 571-4366; email: [email protected]

    SUPPLEMENTARY INFORMATION: Agenda

    The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process utilizing Webinars; and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: Data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.

    SEDAR 50 is providing an assessment of Atlantic blueline tilefish. During a Stock Identification Workshop held in July 2016, it was recommended that the western boundary of the Atlantic stock be extended to include the west coast of Florida. The SEDAR Steering Committee, responsible for program oversight and assessment project scheduling, recommended convening a meeting of SSC representatives to consider stock and management unit overlap between the Gulf and South Atlantic Council areas of jurisdiction and provide recommendations on risks to the stock posed by continued management per the Gulf Council jurisdiction. Each Council has identified representatives of its SSC to participate in this meeting.

    The items of discussion for the Stock Identification SSC Review via Webinar are as follows:

    1. Review the SEDAR 50 Stock Identification Work Group Report (SEDAR50-DW12).

    2. Provide advice on the level of overlap between the Atlantic blueline tilefish stock and the management jurisdictions of the Gulf of Mexico and South Atlantic Fishery Management Councils.

    3. Provide guidance on the risks associated with management based on the Gulf of Mexico Fishery Management Council boundary.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.

    Special Accommodations

    This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see ADDRESSES) at least 5 business days prior to the meeting.

    Note:

    The times and sequence specified in this agenda are subject to change.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 30, 2016. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-24051 Filed 10-4-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection—Renewal/Revision; Comment Request; Educational Partnership Program (EPP), Ernest F. Hollings Undergraduate Scholarship Program, Dr. Nancy Foster Scholarship Program, Recruitment, Training, and Research Program AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before December 5, 2016.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Todd Christenson, 301 628 2916 or [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    This request is for extension of a current information collection.

    The National Oceanic and Atmospheric Administration (NOAA) Office of Education (OEd) collects, evaluates and analyzes student data for the purpose of selecting successful candidates, and for generating reports and news articles to communicate the success of its program. The OEd requires applicants to its undergraduate scholarship programs to complete an application in order to be considered. The application package requires two faculty and/or academic advisors to complete a NOAA student scholar reference form in support of the scholarship application. NOAA OEd student scholar alumni are also requested to provide information to NOAA for internal tracking purposes. NOAA OEd grant recipients are required to update the student tracker database with the required student information. The collected student data supports NOAA OEd's program performance measures. The Dr. Nancy Foster Scholarship Program and the NMFS Recruiting, Training, and Research Program also collect student data for their programs and are also covered by this notice.

    II. Method of Collection

    Electronic applications and electronic forms are required from participants, and the primary methods of submittal are email and Internet submission of electronic forms. Approximately 1% of the application and reference forms may be mailed to accommodate those without internet access. New student records may also be provided via spreadsheet by OEd grant recipients for bulk upload to the student tracker database by NOAA OEd staff.

    III. Data

    OMB Number: 0648-0568.

    Form Number: None.

    Type of Review: Regular submission (extension of a current information collection).

    Affected Public: Individuals or households; business or other for-profit; not-for-profit institutions; State, Local or Tribal Government.

    Estimated Number of Respondents: Student Performance Achievement Reporting (SPAR) database form, 8; undergraduate application form, 600; reference forms, 1200; alumni update form, 200.

    Estimated Time per Response: SPAR database form, 17 hours; undergraduate application form, 8 hours; reference forms, 1 hour; alumni update form, 1 hour.

    Estimated Total Annual Burden Hours: 6,336.

    Estimated Total Annual Cost to Public: $300 in recordkeeping/reporting costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: September 30, 2016. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2016-24048 Filed 10-4-16; 8:45 am] BILLING CODE 3510-00-P
    DEPARTMENT OF COMMERCE National Telecommunications and Information Administration [Docket No. 160810714-6714-01] RIN 0660-XC029 The Incentives, Benefits, Costs, and Challenges to IPv6 Implementation AGENCY:

    National Telecommunications and Information Administration, U.S. Department of Commerce.

    ACTION:

    Notice; reopening of comment period.

    SUMMARY:

    On August 18, 2016, the National Telecommunications and Information Administration (NTIA) issued a notice and request for public comments seeking input to guide NTIA in future Internet Protocol version 6 (IPv6) promotional activities. Through this Notice, NTIA invited adopters and implementers of IPv6 as well as any other interested stakeholders to share information on the benefits, costs, and challenges they have experienced, as well as any insight into additional incentives that could aid future adoption, implementation, and support of IPv6. In response to requests for additional time in which to comment, NTIA through this notice reopens the comment period. Comments received between the October 3, 2016 due date for comments announced in the August 18, 2016 notice, and publication of this notice in the Federal Register, will be deemed to be timely.

    DATES:

    Comments are due no later than 5:00 p.m. Eastern Daylight Time on October 17, 2016.

    ADDRESSES:

    Written comments may be submitted by email to [email protected] Comments submitted by email should be machine-readable and should not be copy-protected. Written comments also may be submitted by mail to the National Telecommunications and Information Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Room 4725, Attn: IPv6 RFC 2016, Washington, DC 20230. Responders should include the name of the person or organization filing the comment, as well as a page number on each page of the submission. All comments received are a part of the public record and will generally be posted to https://www.ntia.doc.gov/federal-registernotice/2016/incentives-benefits-costsand-challenges-ipv6-implementation without change. All personal identifying information (for example, name, address) voluntarily submitted by the commenter may be publicly accessible. Please do not submit business information that is confidential or otherwise protected. NTIA will accept anonymous comments.

    FOR FURTHER INFORMATION CONTACT:

    Ashley Heineman, National Telecommunications and Information Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Room 4701, Washington, DC 20230; telephone (202) 482-0298; email [email protected] Please direct media inquiries to NTIA's Office of Public Affairs, (202) 482-7002 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The original notice sought public comment to guide NTIA in its future efforts to engage more directly in promoting IPv6 deployment and use, with a particular focus on implementation. See Notice and request for public comment, The Incentives, Benefits, Costs, and Challenges to IPv6 Implementation, 81 FR 55182 (Aug. 18, 2016), available at: http://www.ntia.doc.gov/files/ntia/publications/fr_ipv6_implementation_08182016.pdf. To assist in this purpose, NTIA is asking those who have implemented IPv6 to share their experiences and to highlight in particular the factors and circumstances that supported their decision to move ahead and adopt the protocol. NTIA hopes to utilize input received through this request for comments to guide and inform future promotion efforts, including the IPv6 Best Practice Forum being organized for the 2016 Internet Governance Forum, which will be held in December 2016, in Guadalajara, Mexico.1

    1http://www.igf2016.mx/.

    The original deadline for submission of comments was October 3, 2016. In response to requests for additional time in which to comment, NTIA reopens the comment period with this notice. Comments received between the October 3, 2016 due date for comments announced in the August 18, 2016 notice, and publication of this notice in the Federal Register, are deemed to be timely.

    Request for Comment: NTIA invites comment on the following questions, in whole or in part:

    Benefits:

    1. What are the benefits of implementing IPv6? For example, what are the direct performance benefits of implementing IPv6 for end users, or for enhanced network security, as compared to IPv4?

    2. What are the expected or unexpected benefits of implementing IPv6?

    Obstacles:

    1. What are the biggest obstacles related to IPv6 implementation? For example, is it difficult to access adequate vendor support for IPv6 hardware and/or software? Does successful implementation depend directly on another service provider?

    2. How does an organization overcome those obstacles?

    Incentives:

    1. What factors contribute to an organization's decision to implement IPv6?

    2. What additional incentives would be helpful in a decision to implement IPv6?

    3. If one factor made the crucial difference in deciding to implement IPv6, as opposed to not implementing IPv6, what is that factor?

    Motivation:

    1. What is typically the driving motivation behind an organization's decision to implement IPv6?

    2. What are the job titles and/or roles of the people within an organization typically involved in a decision to implement IPv6? What are those individuals' primary motivations when it comes to implementing IPv6?

    Return on Investment:

    1. What is the anticipated return on an IPv6-related investment? How quickly is a return on investment expected?

    2. Is return on investment a reason to implement IPv6, or is implementation considered a cost of doing business?

    Implementation:

    1. How long does the planning process for IPv6 implementation take?

    2. How long does actual implementation of IPv6 typically take? Is implementation a single event or evolutionary?

    Cost of Implementation:

    1. What are the different types of costs involved in implementing IPv6? What are the typical magnitudes of each type of cost?

    2. How does an organization cover those costs?

    3. How does an organization justify those costs?

    4. What considerations are there for cost-saving?

    5. What implication does the size of an organization implementing IPv6 have on cost?

    Promotional Efforts:

    1. What promotional efforts, if any, should NTIA take? What would have the most impact?

    2. What promotional efforts, if any, are being led by the private sector? Have they been effective?

    3. Which additional stakeholders should NTIA target? What is the most effective forum?

    4. Should NTIA partner with any particular stakeholder group?

    Additional Issues: NTIA invites commenters to provide any additional information on other issues not identified in this RFC that could contribute to NTIA's understanding of the considerations that organizations take into account when deciding to proceed with IPv6 implementation, as well as future IPv6 promotional efforts that NTIA may undertake.

    Dated: September 29, 2106. Kathy D. Smith, Chief Counsel, National Telecommunications and Information Administration.
    [FR Doc. 2016-24033 Filed 10-4-16; 8:45 am] BILLING CODE 3510-60-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION [Docket No. CFPB-2016-0043] Notice of a Public List of Companies Offering Existing Customers Free Access to a Credit Score AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Notice.

    SUMMARY:

    The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) established the Office of Financial Education within the Bureau of Consumer Financial Protection (CFPB or Bureau) to develop and launch initiatives that will educate consumers and help them make better informed financial decisions.

    The CFPB's Office of Financial Education is exploring how to produce a list of companies offering existing customers free access to a credit score (“the service”). The Bureau could leverage this list to bring consumer attention to the topic, and to develop content to educate, inform and empower consumers on the use and availability of credit scores and credit reports. The responses to this notice will help us to launch this public list.

    DATES:

    Comments must be received on or before November 4, 2016 to be assured of consideration.

    ADDRESSES:

    You may submit comments regarding the “Notice of a Public List of Companies Offering Existing Customers Free Access to a Credit Score”, identified by title and by Docket No. CFPB-2016-0043, by any of the following methods:

    Electronic: http://www.regulations.gov. Follow the instructions for submitting comments.

    Mail: Consumer Financial Protection Bureau (Attention: Office of Financial Education), 1700 G Street NW., Washington, DC 20552.

    Hand Delivery/Courier: Consumer Financial Protection Bureau (Attention: Office of Financial Education), 1275 First Street NE., Washington, DC 20002

    Instructions: The Bureau encourages the early submission of comments. All submissions must include the document title and docket number. Because paper mail in the Washington, DC area and at the Bureau is subject to delay, commenters are encouraged to submit comments electronically. In general, all comments received will be posted without change to http://www.regulations.gov. In addition, comments will be available for public inspection and copying at 1275 First Street NE., Washington, DC 20002, on official business days between the hours of 10 a.m. and 5 p.m. eastern standard time. You can make an appointment to inspect the documents by telephoning 202-435-7275.

    All submissions, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Do not include sensitive personal information such as account numbers or Social Security numbers. Comments will not be edited to remove any identifying or contact information, such as name and address information, email addresses, or telephone numbers.

    FOR FURTHER INFORMATION CONTACT:

    For general inquiries, submission process questions or any additional information, please contact Monica Jackson, Office of the Executive Secretary, at 202-435-7275. For information about the “Notice of a Public List of Companies Offering Existing Customers Free Access to a Credit Score”, please contact Irene Skricki, Office of Financial Education, at 202-435-7181.

    SUPPLEMENTARY INFORMATION: I. Background

    Over the last few years, many financial institutions, credit card issuers, and other companies have offered consumers free access to a credit score giving consumers an important tool to manage their financial lives. The Office of Financial Education of the Consumer Financial Protection Bureau (“the Bureau”), established under Section 1013(d)(1) of Dodd-Frank, would like to highlight and build consumer awareness of this practice. A core part of the mission of the Bureau is educating and empowering consumers to take more control over their financial lives. The Bureau believes that enabling consumers to see their credit scores can be a first step towards consumers learning about their credit history, checking their credit report, and ultimately making decisions about credit that serve their own financial and life goals. The Bureau is exploring how to produce a list of companies offering existing customers free access to a credit score (“the service”). The Bureau could leverage this list to bring consumer attention to the topic of credit scores, and follow up with content to educate, inform and empower consumers on the availability of credit scores and credit reports and how consumers can use this information. The responses to this notice will help us to launch this public list.

    II. Criteria To Be Included in the Public List

    If your company is a credit card issuer, fits the criteria outlined below and would like to be included in the list the Bureau plans to publish, contact us by following the instructions included in this Notice for how to submit your comments. To be included in this list, you must meet the following criteria:

    • Be a credit card issuer.1

    1 “Credit card issuer” refers to any entity to which a consumer is legally obligated, or would be legally obligated, under the terms of a credit card agreement. Alternatively, you can also be included in this list, if you are a bank or a credit union and you contract with a third party to issue credit cards on your behalf and under your brand name.

    • Offer existing customers 2 (at least some, but not necessarily all) the ability to obtain free of charge a credit score 3 which either your company, or other lenders use, for account origination, portfolio management, or for other business purposes.

    2 “Customers” refers to individuals, not corporations or small businesses.

    3 By credit score we refer to a score that is empirically derived, demonstrably and statistically sound, and based on current data from a consumer reporting agency to predict the likelihood of certain credit behavior for the applicant.

    • Offer this access to a credit score on a continuous basis, as opposed to on a time-limited or promotional basis, and periodically update the score.

    You may include other information you think is relevant for consumers reading the public list to understand whether the service applies to them. Depending on the information received, the Bureau may decide to include, or not to include, some or all of this information in the list.

    By responding to this Federal Register Notice (FRN) you are stating that you meet the criteria and are consenting to include the name of your company in a public list of credit card issuers offering free access to credit scores to their existing customers. The Bureau reserves the right to conduct due diligence on a company's assertions about meeting the criteria stated in this notice. Your response to this FRN and inclusion in this public list are completely voluntary, and your choice to do so, or refrain from doing so, is not connected to supervisory activity by the Bureau.

    If your company is not a credit card issuer, but offers existing consumer customers free access to a credit score, fits the criteria outlined below, and would like to be included in a list for companies in other markets, you may contact us as well. Depending on the feedback received, the Bureau may decide to expand the scope of the initial list of companies offering free credit scores beyond credit card issuers to companies in some other markets, include such companies in a future separate list, or decide not to publish a list of companies in other markets offering this service.

    To be considered for this potential list, you must meet the following criteria:

    • Offer or provide a consumer financial product or service;

    • Offer your existing customers 4 (at least some, but not necessarily all) the ability to obtain free of charge a credit score 5 which either your company, or other lenders use, for account origination, portfolio management, or for other business purposes.

    4 “Customers” refers to individuals, not corporations or small businesses.

    5 By credit score we refer to a score that is empirically derived, demonstrably and statistically sound, and based on current data from a consumer reporting agency to predict the likelihood of certain credit behavior for the applicant.

    • Offer this access to a credit score on a continuous basis, as opposed to on a time-limited or promotional basis, and periodically update the score.

    You may include other information you think is relevant for consumers reading the public list to understand whether the service applies to them. Depending on the information received, the Bureau may decide to include, or not to include, some or all of this information in the list.

    By responding to this Federal Register Notice (FRN) you are stating that you meet the criteria and are consenting to include the name of your company in a public list of companies offering free access to credit scores to their existing customers. The Bureau reserves the right to conduct due diligence on a company's assertions about meeting the criteria stated in this notice. Your response to this FRN and inclusion in this public list are completely voluntary, and your choice to do so, or refrain from doing so, is not connected to supervisory activity by the Bureau.

    We emphasize that these lists will be created to further inform the public about where to find a credit score, and will not be an endorsement of the financial institutions, credit card issuers, or any other company mentioned in any document the Bureau publishes.

    Thank you for your contribution to improve consumer financial awareness.

    Dated: September 27, 2016. Richard Cordray, Director, Bureau of Consumer Financial Protection.
    [FR Doc. 2016-24014 Filed 10-4-16; 8:45 am] BILLING CODE 4810-AM-P
    CONSUMER PRODUCT SAFETY COMMISSION [CPSC Docket No. 16-C0005] Best Buy Co., Inc., Provisional Acceptance of a Settlement Agreement and Order AGENCY:

    Consumer Product Safety Commission.

    ACTION:

    Notice.

    SUMMARY:

    It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the Federal Register in accordance with the terms of the Consumer Product Safety Commission's regulations. Published below is a provisionally-accepted Settlement Agreement with Best Buy Co., Inc., containing a civil penalty in the amount of 3.8 million dollars ($3,800,000) within thirty (30) days of service of the Commission's final Order accepting the Settlement Agreement.

    DATES:

    Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by October 20, 2016.

    ADDRESSES:

    Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 16-C0005 Office of the Secretary, Consumer Product Safety Commission, 4330 East-West Highway, Room 820, Bethesda, Maryland 20814-4408.

    FOR FURTHER INFORMATION CONTACT:

    Laura Thomson, Trial Attorney, Division of Compliance, Office of the General Counsel, Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7263.

    SUPPLEMENTARY INFORMATION:

    The text of the Agreement and Order appears below.1

    1 The Commission voted (4-1) to provisionally accept the Settlement Agreement and Order regarding Best Buy Co., Inc. Chairman Kaye, Commissioner Adler, Commissioner Robinson and Commissioner Mohorovic voted to provisionally accept the Settlement Agreement and Order. Commissioner Buerkle voted to reject the Settlement Agreement and Order.

    Dated: September 30, 2016. Todd A. Stevenson, Secretary. United States of America Consumer Product Safety Commission

    In the Matter of: Best Buy Co., Inc., CPSC Docket No.: 16-C0005.

    Settlement Agreement

    1. In accordance with the Consumer Product Safety Act, 15 U.S.C. §§ 2051−2089 (“CPSA”) and 16 CFR § 1118.20, Best Buy Co., Inc., and its subsidiaries (collectively, “Best Buy”), and the United States Consumer Product Safety Commission (“Commission”), through its staff, hereby enter into this Settlement Agreement (“Agreement”). The Agreement and the incorporated attached Order resolve staff's charges set forth below.

    The Parties

    2. The Commission is an independent federal regulatory agency, established pursuant to, and responsible for, the enforcement of the CPSA, 15 U.S.C. §§“2051−2089. By executing the Agreement, staff is acting on behalf of the Commission, pursuant to 16 CFR § 1118.20(b). The Commission issues the Order under the provisions of the CPSA.

    3. Best Buy is a corporation, organized and existing under the laws of the state of Minnesota, with its principal place of business in Richfield, MN.

    Staff Charges

    4. Between September 2010 and October 2015, Best Buy knowingly sold, offered for sale, and distributed in commerce recalled consumer products in violation of Section 19(a)(2)(B) of the CPSA, 15 U.S.C. § 2068(a)(2)(B). Over the course of five years, Best Buy sold units from 16 separate recalls of consumer products, totaling approximately 600 units of recalled products (the “Recalled Products”), at its retail stores, online, and through Best Buy's secondary market sales channels, more than 400 of which were the Canon Cameras described in paragraph 5, below.

    5. The Recalled Products include:

    • Toshiba Satellite Notebook Computers, recalled on September 2, 2010 (“Toshiba Notebooks”) • iSi North America Twist `n Sparkle Beverage Carbonation Systems, recalled on July 5, 2012 (“Twist `n Sparkles”) • LG Electronics Gas Dryers, recalled on August 2, 2012 (“LG Dryers”) • GE Dishwashers, recalled on August 9, 2012 (“GE Dishwashers”) • Canon EOS Rebel T4i Digital Cameras, recalled on August 14, 2012 (“Canon Cameras”) • GE Profile Front Load Washer, recalled on October 3, 2012 (“GE Washers”) • Sauder Woodworking Company Gruga Office Chairs, recalled on November 7, 2012 (“Office Chairs”) • LG Electronics Electric Ranges, recalled on November 8, 2012 (“LG Ranges”) • LG Electronics Top-Loading Washing Machines, recalled on December 18, 2012 (“LG Washers”) • Samsonite Dual-Wattage Travel Converters, recalled on February 12, 2013 (“Samsonite Converters”) • Definitive Technology SuperCube 2000 Subwoofers, recalled on March 28, 2013 (“SuperCubes”) • Gree Dehumidifiers, recalled on September 12, 2013, expanded in January 2014 and reannounced in May 2014 (“Dehumidifiers”) • Frigidaire Professional Blenders, recalled on September 19, 2013 (“Blenders”) • Schneider Electric APC Surge Arrest Surge Protector, recalled on October 3, 2013 (“Surge Protectors”) • Coby 32-inch Flat Screen TV, recalled on December 12, 2013 (“Coby TVs”), and • Whirlpool Jenn-Air Wall Oven, recalled on July 29, 2015 (Jenn-Air Wall Ovens”)

    6. Post-recall sales of the Recalled Products resulted in one reported injury. A consumer who purchased a recalled Canon Camera at a Best Buy store developed a skin irritation, which was the hazard for which the product had been recalled eight months before the purchase.

    7. On September 12, 2013, Gree dehumidifiers were recalled due to a defect that caused them to overheat and catch fire. Two weeks later, Best Buy sold a Gree dehumidifier with a model number within the scope of the recall. The unit subsequently caught fire internally. Best Buy's recordkeeping did not enable it to identify whether the sold unit bore the date range identified in the recall announcement.

    8. Fifteen of the 16 Recalled Products were subject to voluntary corrective action plans taken by the manufacturers in consultation with the Commission. Each of these recalls was also publicized by each respective manufacturer and by the Commission. The remaining Recalled Product was recalled by Best Buy and other retailers in consultation with the Commission because the manufacturer had ceased operations at the time of the recall; this recall was publicized by Best Buy, the other retailers, and by the Commission.

    9. The Recalled Products are “consumer products,” and, at all relevant times, Best Buy was a “retailer” of these consumer products, which were “distributed in commerce,” as those terms are defined or used in sections 3(a)(5), (8) and (13), of the CPSA, 15 U.S.C. 2052(a)(5), (8) and (13).

    10. Under CPSA section 19(a)(2)(B), it is unlawful for any person to sell, offer for sale, manufacture for sale, distribute in commerce, or import into the United States, any consumer product that is subject to voluntary corrective action taken by the manufacturer, in consultation with the Commission, of which action the Commission has notified the public, or if the seller, distributor, or manufacturer knew, or should have known, of such voluntary corrective action.

    11. Pursuant to section 20(a)(l) of the CPSA, 15 U.S.C. 2069(a)(1), any person who “knowingly” violates CPSA section 19 is subject to civil penalties. Under section 20(d) of the CPSA, 15 U.S.C. 2069(d), the term “knowingly” means: “(1) the having of actual knowledge, or (2) the presumed having of knowledge deemed to be possessed by a reasonable man who acts in the circumstances, including knowledge obtainable upon the exercise of due care to ascertain the truth of representations.”

    12. Best Buy sold and distributed Recalled Products because Best Buy failed to implement adequate procedures to accurately identify, quarantine, and prevent the sales of the Recalled Products across all its supply channels. For example, Best Buy added an “Inactive” or “Do Not Sell” marker to the product codes of some Recalled Products to block entry of the code into the register and prevent the sale. In some cases, however, product codes were not permanently blocked based on inaccurate information that the Recalled Product had never been, or was no longer in, inventory; at other times, the blocked codes were “turned back on” prematurely, and in a few cases, overridden.

    13. Best Buy communications show that, in July 2011, Best Buy secondary markets personnel reported to a manager that recalled Toshiba Notebooks were in inventory and sought guidance on protocol for handling the Recalled Product. Despite this information, immediate action was not taken to prevent future sales. The next month Best Buy sold at least five recalled Toshiba Notebooks, and approximately 15 the following month. Best Buy sold an additional 44 recalled Toshiba Notebooks over the next three years, the last sale occurring in October 2014.

    14. In May 2013, staff notified Best Buy that it was conducting an investigation into the sale of the recalled Canon Cameras. Shortly thereafter, Best Buy notified staff of sales of additional Recalled Products. At staff's request, Best Buy then audited its sales records for the prior two years and reported sales of other Recalled Products.

    15. Even though Best Buy advised staff of system enhancements Best Buy had implemented to reduce the risk of post-recall sales, Best Buy's sales of Recalled Products continued from June 2013 through October 2015 (including during staff's civil penalty investigation), during which time Best Buy sold approximately 35 units of Recalled Products.

    16. Best Buy knew and/or should have known of these sales of Recalled Products.

    17. Best Buy's sale and distribution of the Recalled Products was “knowing,” as that term is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d).

    18. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Best Buy is subject to civil penalties for its knowing sale of the Recalled Products, in violation of section 19(a)(2)(B) of the CPSA, 15 U.S.C. 2068(a)(2)(B).

    Response of Best Buy

    19. Best Buy's settlement of this matter does not constitute an admission of the staff's charges as set forth in paragraphs 4 through 21.

    20. Before any post-recall sales were identified, Best Buy had begun enhancing its procedures to help prevent the sale of recalled products. Moreover, in connection with this matter, Best Buy worked cooperatively with CPSC staff to identify additional process enhancements to further reduce the risk of such sales.

    Agreement of the Parties

    21. Under the CPSA, the Commission has jurisdiction over the matter involving the Recalled Products described in this Agreement and over Best Buy.

    22. The parties enter into the Agreement for settlement purposes only. The Agreement does not constitute an admission by Best Buy, or a determination by the Commission, that Best Buy knowingly violated the CPSA.

    23. In settlement of staff's charges, and to avoid the cost, distraction, delay, uncertainty, and inconvenience of protracted litigation or other proceedings, Best Buy shall pay a civil penalty in the amount of 3.8 million dollars ($3,800,000) within thirty (30) calendar days after receiving service of the Commission's final Order accepting the Agreement. All payments to be made under the Agreement shall constitute debts owing to the United States and shall be made by electronic wire transfer to the United States via: http://www.pay.gov for allocation to and credit against the payment obligations of Best Buy under this Agreement. Failure to make such payment by the date specified in the Commission's final Order shall constitute Default.

    24. All unpaid amounts, if any, due and owing under the Agreement, shall constitute a debt due and immediately owing by Best Buy to the United States, and interest shall accrue and be paid by Best Buy at the federal legal rate of interest set forth at 28 U.S.C. 1961(a) and (b), from the date of Default, until all amounts due have been paid in full (hereinafter “Default Payment Amount” and “Default Interest Balance”). Best Buy shall consent to a Consent Judgment in the amount of the Default Payment Amount and Default Interest Balance, and the United States, at its sole option, may collect the entire Default Payment Amount and Default Interest Balance, or exercise any other rights granted by law or in equity, including, but not limited to, referring such matters for private collection; and Best Buy agrees not to contest, and hereby waives and discharges any defenses to, any collection action undertaken by the United States or its agents or contractors pursuant to this paragraph. Best Buy shall pay the United States all reasonable costs of collection and enforcement under this paragraph, respectively, including reasonable attorney's fees and expenses.

    25. After staff receives this Agreement executed on behalf of Best Buy, staff shall promptly submit the Agreement to the Commission for provisional acceptance. Promptly following provisional acceptance of the Agreement by the Commission, the Agreement shall be placed on the public record and published in the Federal Register, in accordance with the procedures set forth in 16 CFR 1118.20(e). If the Commission does not receive any written request not to accept the Agreement within fifteen (15) calendar days, the Agreement shall be deemed finally accepted on the 16th calendar day after the date the Agreement is published in the Federal Register, in accordance with 16 CFR 1118.20(f).

    26. This Agreement is conditioned upon, and subject to, the Commission's final acceptance, as set forth above, and it is subject to the provisions of 16 CFR 1118.20(h). Upon the later of: (i) Commission's final acceptance of this Agreement and service of the accepted Agreement upon Best Buy, and (ii) the date of issuance of the final Order, this Agreement shall be in full force and effect and shall be binding upon the parties.

    27. Effective upon the later of: (i) The Commission's final acceptance of the Agreement and service of the accepted Agreement upon Best Buy, and (ii) and the date of issuance of the final Order, for good and valuable consideration, Best Buy hereby expressly and irrevocably waives and agrees not to assert any past, present, or future rights to the following, in connection with the matter described in this Agreement: (i) An administrative or judicial hearing; (ii) judicial review or other challenge or contest of the Commission's actions; (iii) a determination by the Commission of whether Best Buy failed to comply with the CPSA and the underlying regulations; (iv) a statement of findings of fact and conclusions of law; and (v) any claims under the Equal Access to Justice Act.

    28. Best Buy represents and agrees that it has and will maintain a compliance program designed to ensure compliance with the CPSA with respect to any consumer product imported, manufactured, distributed or sold by the Firm. The compliance program does and shall contain the following elements: Written standards, policies, and procedures designed to ensure compliance with CPSA statutes and regulations; procedures to ensure that relevant information is conveyed effectively to appropriate personnel responsible for CPSA compliance; mechanisms to communicate to all applicable Best Buy employees through training programs or otherwise, company policies and procedures to prevent violations of CPSA § 19; a program for the appropriate disposition of recalled goods; management oversight of that program, including a mechanism for confidential employee reporting of compliance-related questions or concerns to either a compliance officer or to another senior manager with authority to act as necessary; senior management responsibility for, and general board oversight of, CPSA compliance; and retention of all CPSA compliance-related records for at least five (5) years; and availability of such records to staff upon reasonable request.

    29. Best Buy represents and agrees that it has and will maintain and enforce a system of internal controls and procedures designed to ensure that, with respect to all consumer products manufactured, imported, distributed, or sold by Best Buy: Information required to be disclosed by Best Buy to the Commission is recorded, processed, and reported in accordance with applicable law; all reporting made to the Commission is timely, truthful, complete, accurate, and in accordance with applicable law; and prompt disclosure is made to Best Buy's management of any significant deficiencies or material weaknesses in the design or operation of such internal controls that are reasonably likely to affect adversely, in any material respect, Best Buy's ability to record, process, and report to the Commission in accordance with applicable law.

    30. Upon reasonable request of staff, Best Buy shall provide written documentation of its internal controls and procedures, including, but not limited to, the effective dates of the procedures and improvements thereto. Best Buy shall cooperate fully and truthfully with staff and shall make available all non-privileged information and materials, and personnel deemed necessary by staff to evaluate Best Buy's compliance with the terms of the Agreement.

    31. The parties acknowledge and agree that the Commission may publicize the terms of the Agreement and the Order.

    32. Best Buy represents that the Agreement: (i) Is entered into freely and voluntarily, without any degree of duress or compulsion whatsoever; (ii) has been duly authorized; and (iii) constitutes the valid and binding obligation of Best Buy, and each of its successors, transferees, and assigns, enforceable against Best Buy in accordance with the Agreement's terms. The individuals signing the Agreement on behalf of Best Buy represent and warrant that they are duly authorized by Best Buy to execute the Agreement.

    33. The signatories represent that they are authorized to execute this Agreement.

    34. The Agreement is governed by the laws of the United States.

    35. The Agreement and the Order shall apply to, and be binding upon, Best Buy and each of its successors, transferees, and assigns, and a violation of the Agreement or Order may subject Best Buy, and each of its successors, transferees, and assigns, to appropriate legal action.

    36. The Agreement and the Order constitute the complete agreement between the parties on the subject matter contained therein.

    37. The Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and the Order may not be used to vary or contradict their terms. For purposes of construction, the Agreement shall be deemed to have been drafted by both of the parties and shall not, therefore, be construed against any party for that reason in any subsequent dispute.

    38. The Agreement may not be waived, amended, modified, or otherwise altered, except as in accordance with the provisions of 16 CFR § 1118.20(h). The Agreement may be executed in counterparts.

    39. If any provision of the Agreement or the Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and the Order, such provision shall be fully severable. The balance of the Agreement and the Order shall remain in full force and effect, unless the Commission and Best Buy agree in writing that severing the provision materially affects the purpose of the Agreement and the Order.

    BEST BUY CO., INC. Date: September 20, 2016. By: Todd Hartman, Senior Vice President, Deputy General Counsel and Chief Compliance Officer, Best Buy Co., Inc., 7601 Penn Ave. S., Richfield, MN 55423. Date: September 22, 2016. By: Eric Rubel, Esq. Arnold & Porter LLP, 601 Massachusetts Ave. NW., Washington, DC 20001-3743, Counsel for Best Buy. U.S. CONSUMER PRODUCT SAFETY COMMISSION Mary T. Boyle, General Counsel. Mary B. Murphy, Assistant General Counsel. Date: September 22, 2016. By: Laura Thomson, Trial Attorney, Division of Compliance, Office of the General Counsel. United States of America Consumer Product Safety Commission

    In the Matter of: Best Buy Co, Inc.

    CPSC Docket No.: 16-C0005 ORDER

    Upon consideration of the Settlement Agreement entered into between Best Buy Co., Inc. (“Best Buy”), and the U.S. Consumer Product Safety Commission (“Commission”), and the Commission having jurisdiction over the subject matter and over Best Buy, and it appearing that the Settlement Agreement and the Order are in the public interest, it is:

    ORDERED that the Settlement Agreement be, and is, hereby, accepted; and it is

    FURTHER ORDERED that Best Buy shall comply with the terms of the Settlement Agreement and shall pay a civil penalty in the amount of 3.8 million dollars ($3,800,000) within thirty (30) days after service of the Commission's final Order accepting the Settlement Agreement. The payment shall be made by electronic wire transfer to the Commission via: http://www.pay.gov. Upon the failure of Best Buy to make the foregoing payment when due, interest on the unpaid amount shall accrue and be paid by Best Buy at the federal legal rate of interest set forth at 28 U.S.C. § 1961(a) and (b). If Best Buy fails to make such payment or to comply in full with any other provision of the Settlement Agreement, such conduct will be considered a violation of the Settlement Agreement and Order.

    Provisionally accepted and provisional Order issued on the 30th day of September, 2016.

    BY ORDER OF THE COMMISSION: Todd A. Stevenson, Secretary, U.S. Consumer Product Safety Commission.
    [FR Doc. 2016-24075 Filed 10-4-16; 8:45 am] BILLING CODE 6355-01-P
    DEPARTMENT OF DEFENSE Department of the Army Advisory Committee on Arlington National Cemetery, Honor Subcommittee and the Remember and Explore Subcommittee Meeting Notice AGENCY:

    Department of the Army, DoD.

    ACTION:

    Notice of open subcommittee meetings.

    SUMMARY:

    The Department of the Army is publishing this notice to announce the following Federal advisory subcommittee meetings of the Honor Subcommittee and the Remember and Explore Subcommittee of the Advisory Committee on Arlington National Cemetery (ACANC). These meetings are open to the public. For more information about the Committee and the Subcommittees, please visit http://www.arlingtoncemetery.mil/AboutUs/FocusAreas.aspx.

    DATES:

    The Honor Subcommittee will meet from 8:30 a.m. to 11:00 a.m. and the Remember and Explore Subcommittees will meet from 3:00 p.m. to 4:30 p.m. on Monday, October 24, 2016.

    ADDRESSES:

    Arlington National Cemetery Welcome Center, Conference Room, Arlington National Cemetery, Arlington, VA 22211.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Timothy Keating; Designated Federal Officer (Alternate) for the Committee and the Subcommittees, in writing at Arlington National Cemetery, Arlington VA 22211, or by email at [email protected], or by phone at 1-877-907-8585.

    SUPPLEMENTARY INFORMATION:

    This subcommittee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (U.S.C. 552b, as amended) and 41 Code of the Federal Regulations (CFR 102-3.150).

    Purpose of the Meetings: The Advisory Committee on Arlington National Cemetery is an independent Federal advisory committee chartered to provide the Secretary of the Army independent advice and recommendations on Arlington National Cemetery, including, but not limited to, cemetery administration, the erection of memorials at the cemetery, and master planning for the cemetery. The Secretary of the Army may act on the committee's advice and recommendations. The primary purpose of the Honor Subcommittee is to provide independent recommendations of methods to address the long-term future of Arlington National Cemetery, including how best to extend the active burials and on what ANC should focus once all available space has been used, the placement of commemorative monuments and the manner in which to ensure the living history of the cemetery is preserved. The primary purpose of the Remember & Explore Subcommittee is improving the quality of visitors' experiences, now and for generations to come, to review and provide recommendations on preserving and caring for the marble components of the Tomb of the Unknown Soldier (TUS), and reviewing proposed commemorative monuments requested for placement in the cemetery.

    Proposed Agenda: The Honor Subcommittee will receive an update on Southern Expansion charrette planning, continue to consider the various options for extending the life of active burials at ANC, and review ANC Strategic Communication plan. The Remember and Explore Subcommittee will discuss new security initiatives and effects on the visitor experience at ANC as well as receive an update on the status of the care and maintenance of the Tomb of the Unknown Soldier.

    Public's Accessibility to the Meeting: Pursuant to 5 U.S.C. 552b and 41 CFR 102-3.140 through 102-3.165, and the availability of space, this meeting is open to the public. Seating is on a first-come basis. The Arlington National Cemetery conference room is readily accessible to and usable by persons with disabilities. For additional information about public access procedures, contact Mr. Timothy Keating, the subcommittee's Alternate Designated Federal Officer, at the email address or telephone number listed in the FOR FURTHER INFORMATION CONTACT section.

    Written Comments and Statements: Pursuant to 41 CFR 102-3.105(j) and 102-3.140 and section 10(a)(3) of the Federal Advisory Committee Act, the public or interested organizations may submit written comments or statements to the subcommittee, in response to the stated agenda of the open meeting or in regard to the subcommittee's mission in general. Written comments or statements should be submitted to Mr. Timothy Keating, the subcommittee's Alternate Designated Federal Officer, via electronic mail, the preferred mode of submission, at the address listed in the FOR FURTHER INFORMATION CONTACT section. Each page of the comment or statement must include the author's name, title or affiliation, address, and daytime phone number. Written comments or statements being submitted in response to the agenda set forth in this notice must be received by the Designated Federal Officer at least seven business days prior to the meeting to be considered by the subcommittee. The Designated Federal Officer will review all timely submitted written comments or statements with the subcommittee Chairperson, and ensure the comments are provided to all members of the subcommittee before the meeting. Written comments or statements received after this date may not be provided to the subcommittee until its next meeting. Pursuant to 41 CFR 102-3.140d, the subcommittee is not obligated to allow the public to speak or otherwise address the subcommittee during the meeting. However, interested persons may submit a written statement or a request to speak for consideration by the subcommittee. After reviewing any written statements or requests submitted, the subcommittee Chairperson and the Designated Federal Officer may choose to invite certain submitters to present their comments verbally during the open portion of this meeting or at a future meeting. The Designated Federal Officer in consultation with the subcommittee Chairperson, may allot a specific amount of time for submitters to present their comments verbally.

    Brenda S. Bowen, Army Federal Register Liaison Officer.
    [FR Doc. 2016-24053 Filed 10-4-16; 8:45 am] BILLING CODE 5001-03-P
    DEPARTMENT OF DEFENSE Department of the Army Advisory Committee on Arlington National Cemetery Meeting Notice AGENCY:

    Department of the Army, DoD.

    ACTION:

    Notice of open committee meeting.

    SUMMARY:

    The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the Advisory Committee on Arlington National Cemetery (ACANC). The meeting is open to the public. For more information about the Committee, please visit http://www.arlingtoncemetery.mil/AboutUs/FocusAreas.aspx.

    DATES:

    The Committee will meet from 9:30 a.m. to 3:00 p.m. on Tuesday, October 25, 2016.

    ADDRESSES:

    Arlington National Cemetery Welcome Center, Arlington National Cemetery, Arlington, VA 22211.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Timothy Keating; Designated Federal Officer (Alternate) for the Committee and the Subcommittees, in writing at Arlington National Cemetery, Arlington VA 22211, or by email at [email protected], or by phone at 1-877-907-8585.

    SUPPLEMENTARY INFORMATION:

    This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (U.S.C. 552b, as amended) and 41 Code of the Federal Regulations (CFR 102-3.150).

    Purpose of the Meeting: The Advisory Committee on Arlington National Cemetery is an independent Federal advisory committee chartered to provide the Secretary of the Army independent advice and recommendations on Arlington National Cemetery, including, but not limited to, cemetery administration, the erection of memorials at the cemetery, and master planning for the cemetery. The Secretary of the Army may act on the Committee's advice and recommendations.

    Proposed Agenda: The Committee will review new security initiatives at ANC, receive an update on critical infrastructure and construction projects, review ANC Survey analysis and results as well as a status update on ANC's progress in completing the Secretary of the Army's Report to Congress in response to Public Law 114-158, which requires the Secretary to report to Congress on the estimated date ANC will reach full burial capacity and to provide recommendations on those legislative and non-legislative actions necessary to keep ANC open for active burials “well into the future”.

    Public's Accessibility to the Meeting: Pursuant to 5 U.S.C. 552b and 41 CFR 102-3.140 through 102-3.165, and the availability of space, this meeting is open to the public. Seating is on a first-come basis. The Arlington National Cemetery conference room is readily accessible to and usable by persons with disabilities. For additional information about public access procedures, contact Mr. Timothy Keating, the subcommittee's Alternate Designated Federal Officer, at the email address or telephone number listed in the FOR FURTHER INFORMATION CONTACT section.

    Written Comments and Statements: Pursuant to 41 CFR 102-3.105(j) and 102-3.140 and section 10(a)(3) of the Federal Advisory Committee Act, the public or interested organizations may submit written comments or statements to the Committee, in response to the stated agenda of the open meeting or in regard to the Committee's mission in general. Written comments or statements should be submitted to Mr. Timothy Keating, the subcommittee's Alternate Designated Federal Officer, via electronic mail, the preferred mode of submission, at the address listed in the FOR FURTHER INFORMATION CONTACT section. Each page of the comment or statement must include the author's name, title or affiliation, address, and daytime phone number. Written comments or statements being submitted in response to the agenda set forth in this notice must be received by the Designated Federal Officer at least seven business days prior to the meeting to be considered by the Committee. The Designated Federal Officer will review all timely submitted written comments or statements with the Committee Chairperson, and ensure the comments are provided to all members of the Committee before the meeting. Written comments or statements received after this date may not be provided to the Committee until its next meeting. Pursuant to 41 CFR 102-3.140d, the Committee is not obligated to allow a member of the public to speak or otherwise address the Committee during the meeting. Members of the public will be permitted to make verbal comments during the Committee meeting only at the time and in the manner described below. If a member of the public is interested in making a verbal comment at the open meeting, that individual must submit a request, with a brief statement of the subject matter to be addressed by the comment, at least three (3) days in advance to the Committee's Designated Federal Official, via electronic mail, the preferred mode of submission, at the addresses listed in the FOR FURTHER INFORMATION CONTACT section. The Designated Federal Official will log each request, in the order received, and in consultation with the Committee Chair determine whether the subject matter of each comment is relevant to the Committee's mission and/or the topics to be addressed in this public meeting. A 15-minute period near the end of meeting will be available for verbal public comments. Members of the public who have requested to make a verbal comment and whose comments have been deemed relevant under the process described above, will be allotted no more than three (3) minutes during this period, and will be invited to speak in the order in which their requests were received by the Designated Federal Official.

    Brenda S. Bowen, Army Federal Register Liaison Officer.
    [FR Doc. 2016-24046 Filed 10-4-16; 8:45 am] BILLING CODE 5001-03-P
    DEPARTMENT OF DEFENSE Office of the Secretary Advisory Panel on Streamlining and Codifying Acquisition Regulations AGENCY:

    Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics), DoD.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Defense is publishing this notice to announce the establishment of the Advisory Panel on Streamlining and Codifying Acquisition Regulations (hereafter “the Panel”). The Panel plans to meet on a monthly basis and will provide a final report to the Secretary of Defense and Congress in 2018. The agenda and meeting times will be posted on the panel Web site http://www.dau.mil/sec809.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Rider, Defense Acquisition University, 9820 Belvoir Road, Fort Belvoir, VA 22060, email: [email protected], phone: 703-805-4967.

    SUPPLEMENTARY INFORMATION:

    Section 809 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92) required the Secretary of Defense to establish “an advisory panel on streamlining acquisition regulations.” The Panel was seated on August 12, 2016.

    By Statute, the Panel is exempt from the Federal Advisory Committee Act (5 U.S.C. Appendix). Public information, including opportunities for input will be posted and periodically updated at http://www.dau.mil/sec809.

    Dated: September 30, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-24045 Filed 10-4-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary Defense Business Board; Notice of Federal Advisory Committee Meeting AGENCY:

    DoD.

    ACTION:

    Meeting notice.

    SUMMARY:

    The Department of Defense is publishing this notice to announce the following Federal advisory committee meeting of the Defense Business Board. This meeting is open to the public.

    DATES:

    The public meeting of the Defense Business Board (“the Board”) will be held on Thursday, October 20, 2016. The meeting will begin at 10:15 a.m. and end at 11:45 a.m. (Escort required; see guidance in the SUPPLEMENTARY INFORMATION section, “Public's Accessibility to the Meeting.”)

    ADDRESSES:

    Room 3E863 in the Pentagon, Washington, DC (Escort required; See guidance in the SUPPLEMENTARY INFORMATION section, “Public's Accessibility to the Meeting.”)

    FOR FURTHER INFORMATION CONTACT:

    The Board's Designated Federal Officer (DFO) is Roma Laster, Defense Business Board, 1155 Defense Pentagon, Room 5B1088A, Washington, DC 20301-1155, [email protected], 703-695-7563. For meeting information please contact Steven Cruddas, Defense Business Board, 1155 Defense Pentagon, Room 5B1088A, Washington, DC 20301-1155, [email protected], (703) 697-2168. For submitting written comments or questions to the Board, send via email to mailbox address: [email protected] Please include in the Subject line “DBB October 2016 Meeting.”

    SUPPLEMENTARY INFORMATION:

    This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140.

    Purpose of the Meeting: The Board may receive presentations from its task groups on “Logistics as a Competitive War Fighting Advantage,” “Future Models for Federally Funded Research and Development Center Contracts,” and “Best Practices for the Business of Test and Evaluation.”

    The mission of the Board is to examine and advise the Secretary of Defense on overall DoD management and governance through providing independent advice which reflects an outside private sector perspective on proven and effective best business practices that can be applied to the DoD.

    Availability of Materials for the Meeting: A copy of the agenda and the terms of reference for each Task Group study may be obtained from the Board's Web site at http://dbb.defense.gov/meetings.

    Meeting Agenda:

    10:15 a.m.-11:45 a.m.—Presentations on “Logistics as a Competitive War Fighting Advantage,” “Future Models for Federally Funded Research and Development Center Contracts,” and “Best Practices for the Business of Test and Evaluation” followed by Board discussion, deliberations and voting, if appropriate.

    Submission of written public comments is strongly encouraged, due to meeting time constraints.

    Public's Accessibility to the Meeting: Pursuant to FACA and 41 CFR 102-3.140, this meeting is open to the public. Seating is limited and is on a first-come basis. All members of the public who wish to attend the public meeting must contact Steven Cruddas at the number listed in the FOR FURTHER INFORMATION CONTACT section no later than 12:00 p.m. on Friday, October 14, 2016 to register and make arrangements for a Pentagon escort, if necessary. Public attendees requiring escort should arrive at the Pentagon Visitor's Center, located near the Pentagon Metro Station's south exit (the escalators to the left upon exiting through the turnstiles) and adjacent to the Pentagon Transit Center bus terminal, with sufficient time to complete security screening and be admitted to the Pentagon no later than 10:00 a.m. on October 20. Note: Pentagon tour groups enter through the Visitor's Center, so long lines could form well in advance. To complete security screening, please come prepared to present two forms of identification of which one must be a pictured identification card. Government and military DoD CAC holders without Pentagon access are not required to have an escort; however, they are still required to pass through the Visitor's Center to gain access to the Building.

    Special Accommodations: Individuals requiring special accommodations to access the public meeting should contact Steven Cruddas at least five (5) business days prior to the meeting so that appropriate arrangements can be made.

    Procedures for Providing Public Comments

    Pursuant to 41 CFR 102-3.105(j) and 102-3.140, and section 10(a)(3) of FACA, the public or interested organizations may submit written comments to the Board about its mission and topics pertaining to this public meeting.

    Written comments should be received by the DFO at least five (5) business days prior to the meeting date so that the comments may be made available to the Board for their consideration prior to the meeting. Written comments should be submitted via email to the email address for public comments given in the FOR FURTHER INFORMATION CONTACT section in either Adobe Acrobat or Microsoft Word format. Please include in the Subject line “DBB October 2016 Meeting.” Please note that since the Board operates under the provisions of the FACA, as amended, all submitted comments and public presentations will be treated as public documents and may be made available for public inspection, including, but not limited to, being posted on the Board's Web site.

    Dated: September 30, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-24072 Filed 10-4-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF EDUCATION Privacy Act of 1974; System of Records AGENCY:

    Office of the Under Secretary, Department of Education.

    ACTION:

    Notice of deletion of an existing system of records.

    SUMMARY:

    In accordance with the Privacy Act of 1974, as amended (Privacy Act) (5 U.S.C. 552a), the Department of Education (Department) deletes one system of records from its existing inventory of systems of records subject to the Privacy Act.

    DATES:

    This deletion is effective October 5, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Emmanuel Caudillo, Senior Advisor, White House Initiative on Educational Excellence for Hispanics, Office of the Under Secretary, U.S. Department of Education, 400 Maryland Avenue SW., Washington, DC 20202. Telephone: (202) 453-5529.

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

    Individuals with disabilities may obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed in this section.

    SUPPLEMENTARY INFORMATION:

    The Department deletes one system of records from its inventory of record systems subject to the Privacy Act. The deletion is not within the purview of subsection (r) of the Privacy Act, which requires submission of a report on a new or altered system of records.

    The system of records notice is no longer needed because the Partners in Education program ended during the Presidential Administration transition in 2009. The White House Initiative on Educational Excellence for Hispanics, currently housed in the Office of the Under Secretary, no longer uses or maintains this system of records. Furthermore, the system of records is no longer in existence; therefore, the following system of records notice is deleted:

    1. Partners in Education (18-06-05), 67 FR 4642 (January 30, 2002).

    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 30, 2016. Ted Mitchell, Under Secretary of Education.

    For the reasons discussed in the preamble, the Under Secretary of Education deletes the following system of records:

    SYSTEM NUMBER:

    18-06-05.

    SYSTEM NAME:

    Partners in Education.

    [FR Doc. 2016-24141 Filed 10-4-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY Biological and Environmental Research Advisory Committee Meeting AGENCY:

    Office of Science, Department of Energy.

    ACTION:

    Notice of open meeting.

    SUMMARY:

    This notice announces a meeting of the Biological and Environmental Research Advisory Committee (BERAC). The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the Federal Register.

    DATES:

    Thursday, October 27, 2016—9:00 a.m.-6:00 p.m. Friday, October 28, 2016—9:00 a.m.-12:30 p.m. ADDRESSES:

    Hilton Washington DC/Rockville Hotel & Executive Meeting Center, 1750 Rockville Pike, Rockville, Maryland 20852

    FOR FURTHER INFORMATION CONTACT:

    Dr. Sharlene Weatherwax, Designated Federal Officer, BERAC, U.S. Department of Energy, Office of Science, Office of Biological and Environmental Research, SC-23/Germantown Building, 1000 Independence Avenue SW., Washington, DC 20585-1290. Phone: (301) 903-3251; fax (301) 903-5051 or email: [email protected] The most current information concerning this meeting can be found on the Web site: http://science.energy.gov/ber/berac/meetings/.

    SUPPLEMENTARY INFORMATION:

    Purpose of the Committee: To provide advice on a continuing basis to the Director, Office of Science of the Department of Energy, on the many complex scientific and technical issues that arise in the development and implementation of the Biological and Environmental Research Program.

    Tentative Agenda Topics • Report from the Office of Biological and Environmental Research (BER) • News from the Biological Systems Science and Climate and Environmental Sciences Divisions (CESD) • Workshop briefings on BER Exascale Requirements, Terrestrial Aquatic Interfaces, Molecular to Mesoscale Technologies, ILAMB, IA and IAV Modeling • Overview multi-agency efforts of U.S. Global Change Research Program • Summary of findings from the CESD Committee of Visitors • Briefing and discussion on the Grand Challenges Subcommittee • Briefing on the Low Dose subcommittee • BERAC member Science Talk • New Business • Public Comment

    Public Participation: The day and a half meeting is open to the public. If you would like to file a written statement with the Committee, you may do so either before or after the meeting. If you would like to make oral statements regarding any of the items on the agenda, you should contact Sharlene Weatherwax at [email protected] (email) or (301) 903-5051 (fax). You must make your request for an oral statement at least five business days before the meeting. Reasonable provision will be made to include the scheduled oral statements on the agenda. The Chairperson of the Committee will conduct the meeting to facilitate the orderly conduct of business. Public comment will follow the 10-minute rule.

    Minutes: The minutes of this meeting will be available for public review and copying within 45 days at the BERAC Web site: http://science.energy.gov/ber/berac/meetings/berac-minutes/.

    Issued in Washington, DC, on September 29, 2016. LaTanya R. Butler, Deputy Committee Management Officer.
    [FR Doc. 2016-24058 Filed 10-4-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Environmental Management Site-Specific Advisory Board, Northern New Mexico AGENCY:

    Department of Energy.

    ACTION:

    Notice of open meeting.

    SUMMARY:

    This notice announces a combined meeting of the Environmental Monitoring and Remediation Committee and Waste Management Committee of the Environmental Management Site-Specific Advisory Board (EM SSAB), Northern New Mexico (known locally as the Northern New Mexico Citizens' Advisory Board [NNMCAB]). The Federal Advisory Committee Act(Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the Federal Register.

    DATES:

    Wednesday, October 26, 2016 1:00 p.m.-4:00 p.m.

    ADDRESSES:

    NNMCAB Office, 94 Cities of Gold Road, Pojoaque, NM 87506.

    FOR FURTHER INFORMATION CONTACT:

    Menice Santistevan, Northern New Mexico Citizens' Advisory Board, 94 Cities of Gold Road, Santa Fe, NM 87506. Phone: (505) 995-0393; Fax: (505) 989-1752 or Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Purpose of the Board: The purpose of the Board is to make recommendations to DOE-EM and site management in the areas of environmental restoration, waste management, and related activities.

    Purpose of the Environmental Monitoring and Remediation Committee (EM&R): The EM&R Committee provides a citizens' perspective to NNMCAB on current and future environmental remediation activities resulting from historical Los Alamos National Laboratory (LANL) operations and, in particular, issues pertaining to groundwater, surface water and work required under the New Mexico Environment Department Order on Consent. The EM&R Committee will keep abreast of DOE-EM and site programs and plans. The committee will work with the NNMCAB to provide assistance in determining priorities and the best use of limited funds and time. Formal recommendations will be proposed when needed and, after consideration and approval by the full NNMCAB, may be sent to DOE-EM for action.

    Purpose of the Waste Management (WM) Committee: The WM Committee reviews policies, practices and procedures, existing and proposed, so as to provide recommendations, advice, suggestions and opinions to the NNMCAB regarding waste management operations at the Los Alamos site.

    Tentative Agenda • Call to Order and Introductions • Approval of Agenda • Approval of Minutes from August 24, 2016 • Sub-Committee Breakout Session ○ Election of Fiscal Year 2017 (FY17) EM&R and WM Committee Officers ○ Draft FY17 Committee Work Plans ○ General Committee Business • Reconvene Combined Committee Meeting • Old Business ○ Requests for Future Presentations • New Business ○ Discussion on Committee Meeting Schedule for Calendar Year 2017 ○ Other Items • Update from DOE: FY17 Budget • Presentation: Update on Chromium Interim Measures Project • Public Comment Period • Adjourn

    Public Participation: The NNMCAB's Committees welcome the attendance of the public at their combined committee meeting and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Menice Santistevan at least seven days in advance of the meeting at the telephone number listed above. Written statements may be filed with the Committees either before or after the meeting. Individuals who wish to make oral statements pertaining to agenda items should contact Menice Santistevan at the address or telephone number listed above. Requests must be received five days prior to the meeting and reasonable provision will be made to include the presentation in the agenda. The Deputy Designated Federal Officer is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business. Individuals wishing to make public comments will be provided a maximum of five minutes to present their comments.

    Minutes: Minutes will be available by writing or calling Menice Santistevan at the address or phone number listed above. Minutes and other Board documents are on the Internet at: http://energy.gov/em/nnmcab/northern-new-mexico-citizens-advisory-board.

    Issued at Washington, DC, on September 29, 2016. LaTanya R. Butler, Deputy Committee Management Officer.
    [FR Doc. 2016-24057 Filed 10-4-16; 8:45 am] BILLING CODE 6405-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER16-2684-000] Nippon Dynawave Packaging Co.; 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 Nippon Dynawave Packaging Co.'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 19, 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 29, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-24109 Filed 10-4-16; 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: EC16-191-000.

    Applicants: Black Hills/Colorado Electric Utility Co, Peak View Wind Energy LLC.

    Description: Joint Application for Section 203 Authorization of Black Hills/Colorado Electric Utility Company, LP and Peak View Wind Energy LLC.

    Filed Date: 9/26/16.

    Accession Number: 20160926-5248.

    Comments Due: 5 p.m. ET 10/17/16.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-2721-007.

    Applicants: El Paso Electric Company.

    Description: Notice of Non-Material Change in Status of El Paso Electric Company.

    Filed Date: 9/28/16.

    Accession Number: 20160928-5194.

    Comments Due: 5 p.m. ET 10/19/16.

    Docket Numbers: ER12-2399-007.

    Applicants: American Transmission Systems, Incorporated, PJM Interconnection, L.L.C.

    Description: Compliance filing: ATSI submits SAs 4452, 4453, 4454 re: Settlement in Compliance w/ER12-2399-006 to be effective 9/25/2016.

    Filed Date: 9/28/16.

    Accession Number: 20160928-5151.

    Comments Due: 5 p.m. ET 10/19/16.

    Docket Numbers: ER15-1536-002.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: Compliance filing: 2016-09-28_White Pine 1 Compliance re Resettlement Costs to be effective N/A.

    Filed Date: 9/28/16.

    Accession Number: 20160928-5033.

    Comments Due: 5 p.m. ET 10/19/16.

    Docket Numbers: ER16-1363-001.

    Applicants: Arizona Public Service Company.

    Description: Compliance filing: Compliance Filing of Arizona Public Service Company to be effective 9/30/2016.

    Filed Date: 9/28/16.

    Accession Number: 20160928-5097.

    Comments Due: 5 p.m. ET 10/19/16.

    Docket Numbers: ER16-2684-000.

    Applicants: Nippon Dynawave Packaging Co.

    Description: Baseline eTariff Filing: MBRA Application to be effective 9/30/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5000.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2685-000.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: Limited, one-time waiver request of Midcontinent Independent System Operator, Inc.

    Filed Date: 9/28/16.

    Accession Number: 20160928-5200.

    Comments Due: 5 p.m. ET 10/19/16.

    Docket Numbers: ER16-2686-000.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: § 205(d) Rate Filing: 2016-09-29_Cancel Schedule 43C Edwards 1 SSR Unit to be effective 12/1/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5020.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2687-000.

    Applicants: Chisholm View Wind Project II, LLC.

    Description: Baseline eTariff Filing: MBR Tariff to be effective 10/29/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5023.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2688-000.

    Applicants: NorthWestern Corporation.

    Description: § 205(d) Rate Filing: SA 791—Agreement with Montana DOT re Armington Slope Project to be effective 9/30/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5044.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2689-000.

    Applicants: NorthWestern Corporation.

    Description: § 205(d) Rate Filing: SA 788—Agreement with Montana DOT re Lewistown 50-kV Pole Replacement to be effective 9/30/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5045.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2690-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Amendments to Service Agreements per Assignment of Queue Positions to be effective 5/10/2011.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5049.

    Comments Due: 5 p.m. ET 10/20/16.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: September 29, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-24106 Filed 10-4-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings

    Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:

    Filings Instituting Proceedings

    Docket Numbers: RP16-1250-000.

    Applicants: Equitrans, L.P.

    Description: § 4(d) Rate Filing: Negotiated Rate Service Agreement—Range Resources effective 10-1-2016 to be effective 10/1/2016.

    Filed Date: 9/26/16.

    Accession Number: 20160926-5183.

    Comments Due: 5 p.m. ET 10/11/16.

    Docket Numbers: RP16-1251-000.

    Applicants: Tennessee Gas Pipeline Company, L.L.C.

    Description: § 4(d) Rate Filing: Pipeline Safety and Greenhouse Gas Cost Adjustment Mechanism—2016 to be effective 11/1/2016.

    Filed Date: 9/27/16.

    Accession Number: 20160927-5047.

    Comments Due: 5 p.m. ET 10/11/16.

    Docket Numbers: RP16-1252-000.

    Applicants: DBM Pipeline, LLC.

    Description: § 4(d) Rate Filing: Negotiated Rate Filing to be effective 9/28/2016.

    Filed Date: 9/27/16.

    Accession Number: 20160927-5065.

    Comments Due: 5 p.m. ET 10/11/16.

    Docket Numbers: RP16-1253-000.

    Applicants: Trunkline Gas Company, LLC.

    Description: § 4(d) Rate Filing: Revisions to Rate Schedule GPS and GTC OBA to be effective 10/29/2016.

    Filed Date: 9/28/16.

    Accession Number: 20160928-5030.

    Comments Due: 5 p.m. ET 10/11/16.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    Filings in Existing Proceedings

    Docket Numbers: RP16-1217-001.

    Applicants: Equitrans, L.P.

    Description: Tariff Amendment: Allocation, Expansion, and Reservation of Capacity Errata Filing to be effective 10/1/2016.

    Filed Date: 9/27/16.

    Accession Number: 20160927-5074.

    Comments Due: 5 p.m. ET 10/11/16.

    Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: September 28, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-24108 Filed 10-4-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER16-2687-000] Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization; Chisholm View Wind Project II, LLC

    This is a supplemental notice in the above-referenced proceeding of Chisholm View Wind Project II, 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 19, 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 29, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-24110 Filed 10-4-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #2

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER15-1536-002.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: Compliance filing: 2016-09-28_White Pine 1 Compliance re Resettlement Costs to be effective N/A.

    Filed Date: 9/28/16.

    Accession Number: 20160928-5033.

    Comments Due: 5 p.m. ET 10/19/16.

    Docket Numbers: ER16-2360-001.

    Applicants: Great Western Wind Energy, LLC.

    Description: Notice of Non-Material Change in Status of Great Western Wind Energy, LLC.

    Filed Date: 9/28/16.

    Accession Number: 20160928-5195.

    Comments Due: 5 p.m. ET 10/19/16.

    Docket Numbers: ER16-2691-000.

    Applicants: Southern California Edison Company.

    Description: § 205(d) Rate Filing: DSA Mirasol Development LLC Mirasol Pomona 1 Project to be effective 1/5/2017.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5066.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2692-000.

    Applicants: Avista Corporation.

    Description: Compliance filing: Avista Corp OATT Order 827 and 828 Compliance Filing to be effective 10/14/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5081.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2693-000.

    Applicants: Northern States Power Company, a Minnesota.

    Description: § 205(d) Rate Filing: 2016-9-29 CAPX Brookings CMA-536-0.2.0—Filing to be effective 1/1/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5082.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2694-000.

    Applicants: Orange and Rockland Utilities, Inc.

    Description: Compliance filing: Docket No. ER16-896 to be effective 9/29/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5084.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2695-000.

    Applicants: ISO New England Inc., New England Power Pool Participants Committee, Eversource Energy Service Company (as agent).

    Description: Compliance filing: Amendments to ISO-NE Tariff in Compliance with Order Nos. 827 and 828 to be effective 10/5/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5085.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2696-000.

    Applicants: Louisville Gas and Electric Company.

    Description: Compliance filing: Order 827 and 828 Compliance Revised Att M and N to be effective 10/14/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5089.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2697-000.

    Applicants: Solea PJM, LLC.

    Description: Tariff Cancellation: Cancellation of MBR Tariff to be effective 9/30/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5090.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2698-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Amendment to Service Agreement Nos. 3352 and 3153, Queue No. W1-029 to be effective 11/4/2011.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5098.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2699-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Service Agreement No. 4546, Queue Position AB1-115 to be effective 8/30/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5139.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2700-000.

    Applicants: The Connecticut Light and Power Company.

    Description: § 205(d) Rate Filing: Beacon Falls Energy Park, LLC Original Service Agreement No. IA-ES-36 to be effective 9/29/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5148.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2701-000.

    Applicants: California Independent System Operator Corporation.

    Description: § 205(d) Rate Filing: 2016-09-26 Appendix C Locational Marginal Price Overlap to be effective 10/1/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5162.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2702-000.

    Applicants: Entergy Louisiana, LLC.

    Description: § 205(d) Rate Filing: ELL-SRMPA 11th Extension of Interim Agreement to be effective 10/1/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5172.

    Comments Due: 5 p.m. ET 10/20/16.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: September 29, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-24107 Filed 10-4-16; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPP-2016-0198; FRL-9952-52] Pesticide Program Dialogue Committee; Notice of Public Meeting AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    Pursuant to the Federal Advisory Committee Act, the Environmental Protection Agency's (EPA's) Office of Pesticide Programs is announcing a public meeting of the Pesticide Program Dialogue Committee (PPDC) on November 2-3, 2016. This meeting provides advice and recommendations to the EPA Administrator on issues associated with pesticide regulatory development and reform initiatives, evolving public policy and program implementation issues, and science issues associated with evaluating and reducing risks from use of pesticides.

    DATES:

    The meeting will be held on Wednesday, November 2, 2016, from 9 a.m. to 5:00 p.m., and Thursday, November 3, 2016, from 9 a.m. to 12:00 p.m.

    Agenda: A draft agenda will be posted on or before October 19, 2016.

    Accommodations requests: To request accommodation of a disability, please contact the person listed under FOR FURTHER INFORMATON CONTACT, preferably at least 10 days prior to the meeting, to give EPA as much time as possible to process your request.

    ADDRESSES:

    The PPDC Meeting will be held at 1 Potomac Yard South, 2777 S. Crystal Drive, Arlington, VA, in the lobby-level Conference Center. EPA's Potomac Yard South Bldg. is approximately 1 mile from the Crystal City Metro Station.

    FOR FURTHER INFORMATION CONTACT:

    Dea Zimmerman, Office of Pesticide Programs (LC-8J), Environmental Protection Agency, 77 W. Jackson Boulevard, Chicago, IL 60604; telephone number: (312) 353-6344; email address: [email protected]

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

    You may be potentially affected by this action if you work in agricultural settings or if you are concerned about implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Federal Food, Drug, and Cosmetic Act (FFDCA); and the amendments to both of these major pesticide laws by the Food Quality Protection Act (FQPA) of 1996; the Pesticide Registration Improvement Act, and the Endangered Species Act. Potentially affected entities may include, but are not limited to: Agricultural workers and farmers; pesticide industry and trade associations; environmental, consumer, and farm worker groups; pesticide users and growers; animal rights groups; pest consultants; State, local, and tribal governments; academia; public health organizations; and the public. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

    B. How can I get copies of this document and other related information?

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0198 is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    II. Background

    The PPDC is a federal advisory committee chartered under the Federal Advisory Committee Act (FACA), Public Law 92-463. EPA established the PPDC in September 1995 to provide advice and recommendations to the EPA Administrator on issues associated with pesticide regulatory development and reform initiatives, evolving public policy and program implementation issues, and science issues associated with evaluating and reducing risks from use of pesticides. The following sectors are represented on the current PPDC: Environmental/public interest and animal rights groups; farm worker organizations; pesticide industry and trade associations; pesticide user, grower, and commodity groups; Federal and State/local/tribal governments; the general public; academia; and public health organizations.

    III. How can I request to participate in this meeting?

    PPDC meetings are free, open to the public, and no advance registration is required. Public comments may be made during the public comment session of each meeting or in writing to the person listed under FOR FURTHER INFORMATION CONTACT.

    Authority:

    7 U.S.C. 136 et seq.

    Dated: September 22, 2016. Jack Housenger, Director, Office of Pesticide Programs.
    [FR Doc. 2016-24104 Filed 10-4-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPPT-2013-0677; FRL-9953-29] Receipt of Information Under the Toxic Substances Control Act AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    EPA is announcing its receipt of information submitted pursuant to an Enforceable Consent Agreement (ECA) issued by EPA under the Toxic Substances Control Act (TSCA). As required by TSCA, this document identifies each chemical substance and/or mixture for which information has been received; the uses or intended uses of such chemical substance and/or mixture and the information required by the applicable protocols and methodologies for the development of information; and describes the nature of the information received. Each chemical substance and/or mixture related to this announcement is identified in Unit I. under SUPPLEMENTARY INFORMATION.

    FOR FURTHER INFORMATION CONTACT:

    For technical information contact: Kathy Calvo, Chemical Control Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (202) 564-8089; email address: [email protected]

    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554-1404; email address: [email protected]

    SUPPLEMENTARY INFORMATION: I. Chemical Substances and/or Mixtures

    Information about the following chemical substance and/or mixture is provided in Unit IV.: Octamethylcyclotetrasiloxane (D4) (CASRN 556-67-2).

    II. Federal Register Publication Requirement

    Section 4(d) of TSCA (15 U.S.C. 2603(d)) requires EPA to publish a notice in the Federal Register reporting the receipt of information submitted pursuant to ECAs promulgated under TSCA section 4(a) (15 U.S.C. 2603).

    III. Docket Information

    A docket, identified by the docket identification (ID) number EPA-HQ-OPPT-2013-0677, has been established for this Federal Register document that announces the receipt of information. Upon EPA's completion of its quality assurance review, the information received will be added to the docket for the ECA that required the information. Use the docket ID number provided in Unit IV. to access the information in the docket for the related ECA.

    The docket for this Federal Register document and the docket for each related ECA is available electronically at http://www.regulations.gov or in person at the Office of Pollution Prevention and Toxics Docket (OPPT Docket), Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    IV. Information Received

    This unit contains the information required by TSCA section 4(d) for the information received by EPA.

    Octamethylcyclotetrasiloxane (D4) (CASRN 556-67-2)

    1. Chemical Use(s): D4 is used as an intermediate for silicone copolymers and other chemicals. D4 is also used in industrial processing applications as a solvent (which becomes part of a product formulation or mixture), finishing agent, and an adhesive and sealant chemical. It is also used for both consumer and commercial purposes in paints and coatings, and plastic and rubber products and has consumer uses in polishes, sanitation, soaps, detergents, adhesives, and sealants.

    2. Applicable ECA: Final Enforceable Consent Agreement for Environmental Testing for Octamethylcyclotetrasiloxane (D4) (CASRN 556-67-2).

    3. Information Received: The following listing describes the nature of the test data received. The test data will be added to the docket for the applicable ECA and can be found by referencing the docket ID number provided. EPA reviews of information will be added to the same docket upon completion.

    a. Field Sampling of Benthic Organisms: Carrolton, KY; Gresham, OR; Iowa City, IA; and Steamboat Springs, CO. The docket ID number assigned to this data is EPA-HQ-OPPT-2012-2009.

    b. Interim Progress Report. The docket ID number assigned to this data is EPA-HQ-OPPT-2012-2009.

    Authority:

    15 U.S.C. 2601 et seq.

    Dated: September 29, 2016. Maria J. Doa, Director, Chemical Control Division, Office of Pollution Prevention and Toxics.
    [FR Doc. 2016-24112 Filed 10-4-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPP-2015-0163; FRL-9952-04] Amendments, Extensions, and/or Issuances of Experimental Use Permits AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    EPA has granted amendments, extensions, and/or issuances of experimental use permits (EUPs) to the pesticide applicants described in Unit II. of the SUPPLEMENTARY INFORMATION section. An EUP allows use of a pesticide for experimental or research purposes only in accordance with the limitations in the permit.

    FOR FURTHER INFORMATION CONTACT:

    Robert McNally, Director, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

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

    This action is directed to the public in general. Although this action may be of particular interest to those persons who conduct or sponsor research on pesticides, EPA has not attempted to describe all the specific entities that may be affected by this action.

    B. How can I get copies of this document and other related information?

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

    II. EUPs

    EPA has granted amendments, extensions, and/or issuances of the following EUPs:

    1. 88877-EUP-2. (EPA-HQ-OPP-2015-0374). Amendment and Extension. University of Kentucky, Department of Entomology, S-225 Agricultural Science Center North, Lexington, KY 40546-0091. This EUP allows the use of 14,400,000 male Aedes aegypti WB1 Strain mosquitoes weighing 34.032 ounces and containing 34.032 × 10−5 ounce of the active ingredient Wolbachia pipientis, wAlbB Strain to evaluate the active ingredient's effectiveness in suppressing and eliminating Aedes aegypti mosquitoes. The program is authorized only in the states of California and Florida over 1,549 acres. The EUP is effective from August 30, 2016, to December 31, 2017. EPA received 11 comments that consist of a mix of negative, neutral, and positive comments from private citizens, a company, and a non-governmental organization. EPA's response to these comments can be found in the docket.

    2. 91163-EUP-1. (EPA-HQ-OPP-2015-0692). Issuance. Texas Corn Producers Board, 4205 North Interstate 27, Lubbock, TX 79403. This EUP allows the use of 266,000 pounds of formulated pesticide product FourSureTM and approximately 2 pounds of the active ingredients Aspergillus flavus strains TC16F, TC35C, TC38B, and TC46G to evaluate the effectiveness of the atoxigenic active ingredients in FourSureTM in displacing toxigenic (aflatoxin producing) Aspergillus flavus in cornfields. The program is authorized only in the state of Texas over 26,600 acres. The EUP is effective from August 25, 2016, to December 31, 2019, although testing will only occur in 2017, 2018, and 2019. EPA received one negative comment that was anonymous. As the anonymous commenter did not specify any particular safety concern with regard to this EUP's issuance, the comment was not considered further.

    Authority:

    7 U.S.C. 136 et seq.

    Dated: September 16, 2016. Mark A. Hartman, Acting Director, Biopesticides and Pollution Prevention Division, Office of Pesticide Programs.
    [FR Doc. 2016-24101 Filed 10-4-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPP-2014-0009 and EPA-HQ-OPP-2014-0011; FRL-9951-70] Pesticide Product Registration; Receipt of Applications for New Uses and New Active Ingredients; Correction AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice; correction.

    SUMMARY:

    EPA issued a notice in the Federal Register of August 18, 2016, concerning its receipt of applications to add new food uses on previously registered pesticide products and to register new pesticide products containing active ingredients not included in any currently registered pesticide products. This document corrects omissions within the referenced notice.

    FOR FURTHER INFORMATION CONTACT:

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

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

    The Agency included in the August 18, 2016 notice a list of those who may be potentially affected by this action.

    B. How can I get copies of this document and other related information?

    The docket for this action, identified by docket identification (ID) numbers EPA-HQ-OPP-2014-0009 and HQ-OPP-2014-0011, are available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    II. What does this correction do?

    FR Doc. 2016-19758 published in the Federal Register of August 18, 2016 (81 FR 55192) (FRL-9950-20) is corrected as follows:

    1. On page 55192, first column, under the heading SUMMARY, paragraph 1, line 1, correct “EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products.” to read “EPA has received applications to add new food uses on previously registered pesticide products and to register new pesticide products containing active ingredients not included in any currently registered pesticide products.”

    2. On page 55192, second column, under the heading “II. Registration Applications,” paragraph 4, line 1, correct “EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products.” to read “EPA has received applications to add new food uses on previously registered pesticide products and to register new pesticide products containing active ingredients not included in any currently registered pesticide products.”

    Authority:

    7 U.S.C. 136 et seq.

    Dated: September 16, 2016. Daniel J. Rosenblatt, Acting Director, Registration Division, Office of Pesticide Programs.
    [FR Doc. 2016-24103 Filed 10-4-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-0741] Information Collection Being Reviewed by the Federal Communications Commission AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.

    DATES:

    Written PRA comments should be submitted on or before December 5, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Nicole Ongele, FCC, via email [email protected] and to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.

    SUPPLEMENTARY INFORMATION:

    OMB Control Number: 3060-0741.

    Title: Technology Transitions, GN Docket No. 13-5, et al.

    Form Number(s): N/A.

    Type of Review: Revision of a currently approved collection.

    Respondents: Business or other for-profit entities.

    Number of Respondents and Responses: 5,357 respondents; 573,767 responses.

    Estimated Time per Response: 0.5-8 hours.

    Frequency of Response: On occasion and one-time reporting requirements; recordkeeping and third party disclosure requirements.

    Obligation to Respond: Required to obtain or retain benefits. Statutory authority is contained in 47 U.S.C. 251.

    Total Annual Burden: 575,840 hours.

    Total Annual Cost: No cost.

    Privacy Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: The Commission is not requesting that the respondents submit confidential information to the FCC. Respondents may, however, request confidential treatment for information they believe to be confidential under 47 CFR 0.459 of the Commission's rules.

    Needs and Uses: Section 251 of the Communications Act of 1934, as amended, 47 U.S.C. 251, is designed to accelerate private sector development and deployment of telecommunications technologies and services by spurring competition. These OMB collections are designed to help implement certain provisions of section 251, and to eliminate operational barriers to competition in the telecommunications services market. Specifically, these OMB collections will be used to implement (1) local exchange carriers' (“LECs”) obligations to provide their competitors with dialing parity and non-discriminatory access to certain services and functionalities; (2) incumbent local exchange carriers' (“ILECs”) duty to make network information disclosures; and (3) numbering administration. The Commission estimates that the total annual burden of the entire collection, as revised, is 575,840 hours. This revision relates to a change in one of many components of the currently approved collection—specifically, certain reporting, recordkeeping and/or third party disclosure requirements under section 251(c)(5). In August 2015, the Commission adopted new rules concerning certain information collection requirements implemented under section 251(c)(5) of the Act, pertaining to network change disclosures. The changes to those rules applied specifically to a certain subset of network change disclosures, namely notices of planned copper retirements. The changes were designed to provide interconnecting entities adequate time to prepare their networks for the planned copper retirements and to ensure that consumers are able to make informed choices. The Commission estimated that the 2015 revisions did not result in any additional burden hours or outlays of funds for hiring outside contractors or procuring equipment. In July 2016, the Commission revised section 51.329(c) of its network change disclosure rules to make available to filers new titles applicable to copper retirement notices. The Commission estimates that the revision does not result in any additional burden hours or outlays of funds for hiring outside contractors or procuring.

    Federal Communications Commission. Marlene H. Dortch, Secretary, Office of the Secretary.
    [FR Doc. 2016-24069 Filed 10-4-16; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL DEPOSIT INSURANCE CORPORATION FDIC Advisory Committee on Economic Inclusion (ComE-IN); Notice of Meeting AGENCY:

    Federal Deposit Insurance Corporation (FDIC).

    ACTION:

    Notice of open meeting.

    SUMMARY:

    In accordance with the Federal Advisory Committee Act, Public Law 92-463 (Oct. 6, 1972), 5 U.S.C. App. 2, notice is hereby given of a meeting of the FDIC Advisory Committee on Economic Inclusion, which will be held in Washington, DC The Advisory Committee will provide advice and recommendations on initiatives to expand access to banking services by underserved populations.

    DATES:

    Thursday, October 20, 2016, from 9:00 a.m. to 3:30 p.m.

    ADDRESSES:

    The meeting will be held in the FDIC Board Room on the sixth floor of the FDIC Building located at 550 17th Street NW., Washington, DC.

    FOR FURTHER INFORMATION CONTACT:

    Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Committee Management Officer of the FDIC, at (202) 898-7043.

    SUPPLEMENTARY INFORMATION:

    Agenda: The agenda will be focused on the FDIC's National Survey of Unbanked and Underbanked Households, the FDIC's Youth Savings Pilot, and expanding access to safe transaction accounts. The agenda may be subject to change. Any changes to the agenda will be announced at the beginning of the meeting.

    Type of Meeting: The meeting will be open to the public, limited only by the space available on a first-come, first-served basis. For security reasons, members of the public will be subject to security screening procedures and must present a valid photo identification to enter the building. The FDIC will provide attendees with auxiliary aids (e.g., sign language interpretation) required for this meeting. Those attendees needing such assistance should call (703) 562-6067 (Voice or TTY) at least two days before the meeting to make necessary arrangements. Written statements may be filed with the committee before or after the meeting. This ComE-IN meeting will be Webcast live via the Internet at: http://fdic.windrosemedia.com. Questions or troubleshooting help can be found at the same link. For optimal viewing, a high speed internet connection is recommended. The ComE-IN meeting videos are made available on-demand approximately two weeks after the event.

    Dated: September 30, 2016. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary, Federal Deposit Insurance Corporation.
    [FR Doc. 2016-24039 Filed 10-4-16; 8:45 am] BILLING CODE 6714-01-P
    FEDERAL RESERVE SYSTEM Formations of, Acquisitions by, and Mergers of Bank Holding Companies

    The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) (BHC Act), Regulation Y (12 CFR part 225), and all other applicable statutes and regulations to become a bank holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a bank or bank holding company and all of the banks and nonbanking companies owned by the bank holding company, including the companies listed below.

    The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.

    Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 31, 2016.

    A. Federal Reserve Bank of Dallas (Robert L. Triplett III, Senior Vice President), 2200 North Pearl Street, Dallas, Texas 75201-2272:

    1. Caldwell Holding Company, Columbia, Louisiana; to acquire Progressive National Financial Corporation, and thereby indirectly acquire Progressive National Bank, both in Mansfield, Louisiana.

    Board of Governors of the Federal Reserve System, September 30, 2016. Margaret McCloskey Shanks, Deputy Secretary of the Board.
    [FR Doc. 2016-24055 Filed 10-4-16; 8:45 am] BILLING CODE 6210-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-N-0001] Pharmacy Compounding Advisory Committee; Notice of Meeting AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Pharmacy Compounding Advisory Committee (PCAC). The general function of the committee is to provide advice on scientific, technical, and medical issues concerning drug compounding, as well as any other product for which FDA has regulatory responsibility, and to make appropriate recommendations to the Agency. The meeting will be open to the public.

    DATES:

    The meeting will be held on November 3, 2016, from 8:30 a.m. to 4:30 p.m.

    ADDRESSES:

    FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-0002. Answers to commonly asked questions, including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at: http://www.fda.gov/AdvisoryCommittees/AboutAdvisoryCommittees/ucm408555.htm.

    FOR FURTHER INFORMATION CONTACT:

    Cindy Hong, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, FAX: 301-847-8533, [email protected], or FDA Advisory Committee Information Line, 1-800-741-8138 (301-443-0572 in the Washington, DC area). A notice in the Federal Register about last minute modifications that impact a previously announced advisory committee meeting cannot always be published quickly enough to provide timely notice. Therefore, you should always check the Agency's Web site at http://www.fda.gov/AdvisoryCommittees/default.htm and scroll down to the appropriate advisory committee meeting link, or call the advisory committee information line to learn about possible modifications before coming to the meeting.

    Background: Section 503A of the FD&C Act (21 U.S.C. 353a) describes the conditions that must be satisfied for human drug products compounded by a licensed pharmacist in a State licensed pharmacy or a Federal facility, or licensed physician, to be exempt from the following three sections of the Federal Food, Drug, and Cosmetic Act (FD&C Act): (1) Section 501(a)(2)(B) (21 U.S.C. 351(a)(2)(B)) concerning current good manufacturing practice (CGMP); (2) section 502(f)(1) (21 U.S.C. 352(f)(1)) concerning the labeling of drugs with adequate directions for use; and (3) section 505 (21 U.S.C. 355) concerning the approval of human drug products under new drug applications (NDAs) or abbreviated new drug applications (ANDAs).

    The Drug Quality and Security Act added a new section 503B to the FD&C Act (21 U.S.C. 353b), which created a new category of compounders termed “outsourcing facilities.” Under section 503B of the FD&C Act, outsourcing facilities are defined, in part, as facilities that meet certain conditions described in section 503B, including registration with FDA as an outsourcing facility. If these conditions are satisfied, a drug product compounded for human use by or under the direct supervision of a licensed pharmacist in an outsourcing facility is exempt from three sections of the FD&C Act: (1) Section 502(f)(1) concerning the labeling of drugs with adequate directions for use); (2) section 505 concerning the approval of human drug products under NDAs or ANDAs; and (3) section 582 concerning the drug supply chain security requirements (21 U.S.C. 360eee-1). Outsourcing facilities are not exempt from CGMP requirements in section 501(a)(2)(B).

    One of the conditions that must be satisfied to qualify for the exemptions under section 503A of the FD&C Act is that a bulk drug substance (active pharmaceutical ingredient) used in a compounded drug product must meet one of the following criteria: (1) Complies with the standards of an applicable United States Pharmacopoeia (USP) or National Formulary monograph, if a monograph exists, and the USP chapter on pharmacy compounding; (2) if an applicable monograph does not exist, is a component of a drug approved by the Secretary of Health and Human Services (the Secretary); or (3) if such a monograph does not exist and the drug substance is not a component of a drug approved by the Secretary, appears on a list developed by the Secretary through regulations issued by the Secretary (the “503A Bulks List”) (see section 503A(b)(1)(A)(i) of the FD&C Act).

    Another condition that must be satisfied to qualify for the exemptions under section 503A of the FD&C Act is that the compounded drug product is not a drug product identified by the Secretary by regulation as a drug product that presents demonstrable difficulties for compounding that reasonably demonstrate an adverse effect on the safety or effectiveness of that drug product (see section 503A(b)(3)(A) of the FD&C Act).

    A condition that must be satisfied to qualify for the exemptions in section 503B of the FD&C Act is that the compounded drug is not identified (directly or as part of a category of drugs) on a list, published by the Secretary by regulation after consulting with the PCAC, of drugs or categories of drugs that present demonstrable difficulties for compounding that are reasonably likely to lead to an adverse effect on the safety or effectiveness of the drug or category of drugs, taking into account the risks and benefits to patients, or the drug is compounded in accordance with all applicable conditions identified on the list as conditions that are necessary to prevent the drug or category of drugs from presenting such demonstrable difficulties (see section 503B(a)(6)(A) and (B) of the FD&C Act).

    FDA intends to discuss with the committee bulk drug substances nominated for inclusion on the 503A Bulks List and drug products nominated for inclusion on the list of drug products that present demonstrable difficulties for compounding under sections 503A and 503B of the FD&C Act (“Difficult to Compound List”).

    Agenda: The committee intends to discuss five bulk drug substances nominated for inclusion on the section 503A Bulks List. FDA will discuss the following nominated bulk drug substances: Glycolic acid, trichloroacetic acid, kojic acid, diindolylmethane, and vasoactive intestinal peptide. The chart in this document describes which use