Federal Register Vol. 81, No.22,

Federal Register Volume 81, Issue 22 (February 3, 2016)

Page Range5573-5880
FR Document

81_FR_22
Current View
Page and SubjectPDF
81 FR 5879 - National Teen Dating Violence Awareness and Prevention Month, 2016PDF
81 FR 5877 - National African American History Month, 2016PDF
81 FR 5873 - American Heart Month, 2016PDF
81 FR 5703 - Revised Sunshine Act Meeting NoticePDF
81 FR 5784 - Sunshine Act MeetingPDF
81 FR 5792 - Exelon Generation Company, LLC, Braidwood Station, Units 1 and 2PDF
81 FR 5573 - Kiwifruit Grown in California; Increased Assessment RatePDF
81 FR 5707 - Foreign-Trade Zone 279-Terrebonne Parish, Louisiana; Application for Subzone; Thoma-Sea Marine Constructors, LLC, Houma and Lockport, LouisianaPDF
81 FR 5781 - Proposed Information Collection; Special Park Use ApplicationsPDF
81 FR 5585 - Amendments to the Rules of Practice and Procedure To Allow Each Signatory Party and the Commission To Administer a Single Process for the Review and Adjudication of ProjectsPDF
81 FR 5704 - Foreign-Trade Zone (FTZ) 196-Fort Worth, Texas; Notification of Proposed Production Activity, General Electric Transportation (Locomotives, Drill Equipment, Off-Highway Vehicle Wheels, Inverters and Brake Systems); Fort Worth and Haslet, TexasPDF
81 FR 5821 - Citizens Coinage Advisory Committee MeetingPDF
81 FR 5744 - Rocky Mountain Region Transmission, Ancillary Services, and Sale of Surplus Products-Rate Order No. WAPA-174PDF
81 FR 5740 - Record of Decision for the Windy Gap Firming ProjectPDF
81 FR 5778 - Endangered Species; Receipt of Applications for PermitPDF
81 FR 5718 - Applications for New Awards; State Personnel Development Grants ProgramPDF
81 FR 5712 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative ReviewPDF
81 FR 5708 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Advance Notification of Sunset ReviewsPDF
81 FR 5709 - Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Preliminary Results of Antidumping Duty New Shipper Review; 2014-2015PDF
81 FR 5710 - Honey From the People's Republic of China: Initiation of Antidumping Duty New Shipper Review; 2014-2015PDF
81 FR 5707 - Certain Lined Paper Products From India: Notice of Partial Rescission of Antidumping Duty Administrative Review; 2014-2015PDF
81 FR 5711 - Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Initiation of Antidumping Duty New Shipper ReviewPDF
81 FR 5715 - Privacy Act of 1974; System of RecordsPDF
81 FR 5758 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Guidance on Meetings With Industry and Investigators on the Research and Development of Tobacco ProductsPDF
81 FR 5811 - Defense Trade Advisory Group; Notice of MembershipPDF
81 FR 5812 - Advisory Committee on International Economic Policy; Notice of Open MeetingPDF
81 FR 5812 - 30-Day Notice of Proposed Information Collection: Special Immigrant Visa Biodata FormPDF
81 FR 5749 - Farm, Ranch, and Rural Communities Advisory Committee; Notice of Charter RenewalPDF
81 FR 5749 - Proposed Information Collection Request; Comment Request; Application for Registration and Pesticide Report for Pesticide-Producing and Device-Producing EstablishmentsPDF
81 FR 5600 - Cyazofamid; Pesticide TolerancesPDF
81 FR 5627 - Fisheries of the Exclusive Economic Zone off Alaska; Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management AreaPDF
81 FR 5627 - Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in Statistical Area 610 in the Gulf of AlaskaPDF
81 FR 5820 - Open Meeting of the Advisory Committee on Risk-Sharing MechanismsPDF
81 FR 5628 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Vessels Using Pot Gear in the Central Regulatory Area of the Gulf of AlaskaPDF
81 FR 5666 - Small Business Investment Company Program-Impact SBICsPDF
81 FR 5703 - Submission for OMB Review; Comment Request; CorrectionPDF
81 FR 5716 - Privacy Act of 1974; System of RecordsPDF
81 FR 5715 - Submission for OMB Review; Comment RequestPDF
81 FR 5766 - Public Meeting of the Presidential Commission for the Study of Bioethical IssuesPDF
81 FR 5726 - DOE Response to Recommendation 2015-1 of the Defense Nuclear Facilities Safety Board, Emergency Preparedness and Response at the Pantex PlantPDF
81 FR 5658 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Intent To Establish a Working Group for Circulator Pumps To Negotiate a Notice of Proposed Rulemaking for Energy Conservation StandardsPDF
81 FR 5727 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open MeetingsPDF
81 FR 5741 - Desert Southwest Customer Service Region Network Integration Transmission Service and Ancillary Services-Rate Order No. WAPA-175PDF
81 FR 5750 - Agency Information Collection Activities; Submission for OMB Review; Comment RequestPDF
81 FR 5756 - Availability of Draft Toxicological Profile; GlutaraldehydePDF
81 FR 5748 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Recordkeeping for Institutional Dual Use Research of Concern (iDURC) Policy CompliancePDF
81 FR 5813 - Notice of Statute of Limitations on Claims; Notice of Final Federal Agency Actions on Proposed Highway in CaliforniaPDF
81 FR 5814 - Notice of Application for Approval of Discontinuance or Modification of a Railroad Signal SystemPDF
81 FR 5815 - Notice of Application for Approval of Discontinuance or Modification of a Railroad Signal SystemPDF
81 FR 5814 - Petition for Waiver of CompliancePDF
81 FR 5813 - Notice of Final Federal Agency Actions on Proposed Highway in California; Statute of Limitations on ClaimsPDF
81 FR 5780 - Notice of Public Meeting, Resource Advisory Council to the Boise District, Bureau of Land Management, U.S. Department of the InteriorPDF
81 FR 5781 - Notice of Public Meeting, BLM Alaska Resource Advisory CouncilPDF
81 FR 5782 - Certain Computing or Graphics Systems, Components Thereof, and Vehicles Containing Same; Institution of InvestigationPDF
81 FR 5809 - Submission for OMB Review; Comment RequestPDF
81 FR 5738 - Whitewater Creek Hydroelectric Project; Notice of Cultural Resource MeetingPDF
81 FR 5739 - Advantage Investment Group, LLC, Spencer Mountain Hydropower, LLC; Notice of Application for Transfer of License and Soliciting Comments, Motions To Intervene, and ProtestsPDF
81 FR 5731 - South Carolina Electric & Gas Company; South Carolina Parr Hydroelectric Project; Notice of Proposed Revised Restricted Service List for a Programmatic AgreementPDF
81 FR 5735 - PJM Interconnection, LLC; Supplemental Notice of Technical ConferencePDF
81 FR 5730 - 3 Phases Renewables, Inc.; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 5729 - Electric Power Supply Association, Retail Energy Supply Association, Dynegy Inc., Eastern Generation, LLC, NRG Power Marketing LLC and GenOn Energy Management, LLC v. FirstEnergy Solutions Corporation, Ohio Edison Company, The Cleveland Electric Illuminating Company and The Toledo Edison Company; Notice of ComplaintPDF
81 FR 5730 - Electric Power Supply Association, Retail Energy Supply Association, Dynegy Inc., Eastern Generation, LLC, NRG Power Marketing LLC, GenOn Energy Management, LLC v. AEP Generation Resources, Inc., Ohio Power Company; Notice of ComplaintPDF
81 FR 5728 - Columbia Gas Transmission, LLC; Notice of Availability of the Environmental Assessment for the Proposed Line Wb2va Integrity ProjectPDF
81 FR 5728 - Combined Notice of Filings #2PDF
81 FR 5732 - Combined Notice of Filings #1PDF
81 FR 5596 - Update to Product ListsPDF
81 FR 5752 - General Motors, LLC; Analysis of Proposed Consent Order To Aid Public CommentPDF
81 FR 5751 - Jim Koons Management Company; Analysis of Proposed Consent Order To Aid Public CommentPDF
81 FR 5754 - Lithia Motors, Inc.; Analysis of Proposed Consent Order To Aid Public CommentPDF
81 FR 5717 - Invitation to Unmanned Aircraft Industry for Review and Comment Period on Edition 1 of NATO Standardization Agreement (STANAG) 4703 Light Unmanned Aircraft Systems (UAS) Airworthiness Requirements (AEP-83)PDF
81 FR 5816 - Notice of Request for Comments on Update to the Uniform System of Accounts (USOA) and Changes to the National Transit Database (NTD) Reporting RequirementsPDF
81 FR 5779 - Agency Information Collection Activities: Request for CommentsPDF
81 FR 5766 - Meeting of the Presidential Advisory Council on HIV/AIDS; CorrectionPDF
81 FR 5661 - Regulatory Capital Rules: The Federal Reserve Board's Framework for Implementing the U.S. Basel III Countercyclical Capital BufferPDF
81 FR 5717 - Agency Information Collection Activities; Comment Request; 2016-17 Baccalaureate and Beyond Longitudinal Study (B&B:16/17) Field Test Data CollectionPDF
81 FR 5803 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change Amending the NYSE MKT Company Guide To Create a New Section 146 Under Which a Certain Category of Newly Listed Issuers Would Be Entitled To Receive Complimentary Products and Services From the ExchangePDF
81 FR 5795 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Options Regulatory FeePDF
81 FR 5809 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving Proposed Rule Change To Provide for Price Collar Thresholds for Trading Halt AuctionsPDF
81 FR 5800 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Options Regulatory FeePDF
81 FR 5802 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Change Modifying the NYSE Amex Options Fee Schedule To Add an Early Adopter Specialist CreditPDF
81 FR 5806 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Schedule of FeesPDF
81 FR 5811 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To Make Permanent the Pilot Program Eliminating Minimum Value Sizes for Opening Transactions in New Series of FLEX OptionsPDF
81 FR 5796 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Make Minor Changes to Rule 1064, Crossing, Facilitation and Solicited OrdersPDF
81 FR 5807 - Self-Regulatory Organizations; New York Stock Exchange LLC; Order Approving a Proposed Rule Change Deleting Rule 410B Governing Reporting Requirements for Off-Exchange TransactionsPDF
81 FR 5793 - Self-Regulatory Organizations; NYSE MKT LLC; Order Approving a Proposed Rule Change Deleting Rule 410B-Equities Governing Reporting Requirements for Off-Exchange TransactionsPDF
81 FR 5798 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Reflect Changes to the Investment Strategy for the PowerShares S&P 500® Downside Hedged PortfolioPDF
81 FR 5677 - Strengthening Oversight of Over-Income Tenancy in Public Housing; Advance Notice of Proposed RulemakingPDF
81 FR 5778 - Final Fair Market Rents for the Housing Choice Voucher Program and Moderate Rehabilitation Single Room Occupancy Program Fiscal Year 2016; RevisedPDF
81 FR 5777 - 60 Day Notice of Proposed Information Collection: Indian Community Capital Initiative: Withdrawal NoticePDF
81 FR 5735 - Transcontinental Gas Pipe Line Company, LLC; Supplemental Notice of Intent for the Proposed Dalton Expansion Project, Request for Comments on Environmental Issues Related to New Route Modifications Under ConsiderationPDF
81 FR 5733 - Combined Notice of Filings #1PDF
81 FR 5734 - Records Governing Off-the-Record Communications; Public NoticePDF
81 FR 5739 - Texas Gas Transmission, LLC; Notice of Availability of the Environmental Assessment for the Proposed Northern Supply Access ProjectPDF
81 FR 5737 - Combined Notice of Filings #3PDF
81 FR 5730 - Combined Notice of Filings #2PDF
81 FR 5767 - National Institute of Nursing Research; Notice of Closed MeetingsPDF
81 FR 5771 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 5772 - National Institute of Diabetes and Digestive Kidney Diseases; Notice of Closed MeetingsPDF
81 FR 5767 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 5770 - Center for Scientific Review; Notice of Closed MeetingPDF
81 FR 5770 - National Institute of Environmental Health Sciences; Notice of Closed MeetingPDF
81 FR 5769 - National Institute of Mental Health; Notice of Closed MeetingPDF
81 FR 5771 - National Center for Advancing Translational Sciences; Notice of Closed MeetingPDF
81 FR 5773 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
81 FR 5770 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingsPDF
81 FR 5771 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
81 FR 5784 - Polyethylene Terephthalate (PET) Resin From Canada, China, India, and Oman; Revised Schedule for Hearing in Final InvestigationsPDF
81 FR 5791 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; National Guard Youth ChalleNGe Job ChalleNGe Evaluation; CorrectionPDF
81 FR 5791 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Placement Verification and Follow Up of Job Corps Participants; CorrectionPDF
81 FR 5791 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Institutional Analysis of American Job Centers Study; CorrectionPDF
81 FR 5679 - Drawbridge Operation Regulation; Broad Creek, Laurel, DEPDF
81 FR 5774 - Collection of Information Under Review by Office of Management and Budget; OMB Control Number: 1625-0001PDF
81 FR 5773 - Collection of Information Under Review by Office of Management and Budget; OMB Control Number: 1625-0112PDF
81 FR 5776 - Collection of Information Under Review by Office of Management and Budget; OMB Control Number: 1625-0016PDF
81 FR 5575 - Hispanic-Serving Agricultural Colleges and Universities (HSACU)PDF
81 FR 5760 - Enforcement Policy on National Health Related Item Code and National Drug Code Numbers Assigned to Devices; Draft Guidance for Industry and Food and Drug Administration Staff; Availability and Request for CommentsPDF
81 FR 5619 - Pacific Island Pelagic Fisheries; Exemption for Large U.S. Longline Vessels To Fish in Portions of the American Samoa Large Vessel Prohibited AreaPDF
81 FR 5681 - Fisheries of the Exclusive Economic Zone Off Alaska; Bycatch Management in the Bering Sea Pollock FisheryPDF
81 FR 5756 - List of Highest Priority Devices for Human Factors Review; Draft Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
81 FR 5764 - Human Factors Studies and Related Clinical Study Considerations in Combination Product Design and Development; Draft Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
81 FR 5762 - Applying Human Factors and Usability Engineering to Medical Devices; Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
81 FR 5764 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Guidance for Industry on Postmarketing Adverse Event Reporting for Nonprescription Human Drug Products Marketed Without an Approved ApplicationPDF
81 FR 5764 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Postmarketing Adverse Drug Experience ReportingPDF
81 FR 5763 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Biosimilar User Fee Cover Sheet; Form FDA 3792PDF
81 FR 5792 - Arts Advisory Panel MeetingsPDF
81 FR 5676 - Proposed Establishment of Class E Airspace; Moriarty, NMPDF
81 FR 5784 - Agency Information Collection Activities; Proposed eCollection; eComments Requested; Renewal of a Currently Approved Collection: Office of Justice Programs' Community Partnership Grants Management System (GMS)PDF
81 FR 5792 - Advisory Committee for Environmental Research and Education; Notice of MeetingPDF
81 FR 5785 - Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
81 FR 5789 - Investigations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
81 FR 5579 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
81 FR 5584 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
81 FR 5577 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
81 FR 5581 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
81 FR 5629 - Animal Welfare; Marine MammalsPDF
81 FR 5819 - Notice of Request for Clearance of a Revision of a Currently Approved Information Collection: National Census of Ferry OperatorsPDF
81 FR 5589 - Center for Food Safety and Applied Nutrition Library Address; Technical AmendmentsPDF
81 FR 5823 - Medicare Program; Medicare Shared Savings Program; Accountable Care Organizations-Revised Benchmark Rebasing Methodology, Facilitating Transition to Performance-Based Risk, and Administrative Finality of Financial CalculationsPDF
81 FR 5605 - Pole Attachment RatesPDF

Issue

81 22 Wednesday, February 3, 2016 Contents Agency Toxic Agency for Toxic Substances and Disease Registry NOTICES Draft Toxicological Profile: Glutaraldehyde, 5756 2016-01972 Agricultural Marketing Agricultural Marketing Service RULES Kiwifruit Grown in California; Increased Assessment Rate, 5573-5575 2016-02067 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Animal and Plant Health Inspection Service

See

National Institute of Food and Agriculture

Animal Animal and Plant Health Inspection Service PROPOSED RULES Animal Welfare: Marine Mammals, 5629-5657 2016-01837 Army Army Department NOTICES Privacy Act; Systems of Records, 5715-5716 2016-02001 Centers Medicare Centers for Medicare & Medicaid Services PROPOSED RULES Medicare Program; Medicare Shared Savings Program: Accountable Care Organizations—Revised Benchmark Rebasing Methodology, Facilitating Transition to Performance-Based Risk, and Administrative Finality of Financial Calculations, 5824-5872 2016-01748 Civil Rights Civil Rights Commission NOTICES Meetings; Sunshine Act, 5703-5704 2016-02167 Coast Guard Coast Guard PROPOSED RULES Drawbridge Operations: Broad Creek, Laurel, DE, 5679-5681 2016-01897 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 5773-5777 2016-01896 2016-01894 2016-01895 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Defense Department Defense Department See

Army Department

NOTICES NATO Standardization Agreement 4703 Light Unmanned Aircraft Systems Airworthiness Requirements: Invitation to Unmanned Aircraft Industry for Review and Comment Period; Edition 1, 5717 2016-01943 Privacy Act; Systems of Records, 5716-5717 2016-01984
Delaware Delaware River Basin Commission RULES Amendments to the Rules of Practice and Procedure to Allow Each Signatory Party and the Commission to Administer a Single Process for the Review and Adjudication of Projects, 5585-5589 2016-02048 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: 2016-17 Baccalaureate and Beyond Longitudinal Study Field Test Data Collection, 5717-5718 2016-01933 Applications for Awards: State Personnel Development Grants Program, 5718-5726 2016-02008 Employment and Training Employment and Training Administration NOTICES Worker Adjustment Assistance Eligibility, 5785-5789 2016-01868 Worker and Alternative Trade Adjustment Assistance; Investigations, 5789-5791 2016-01867 Energy Department Energy Department See

Energy Efficiency and Renewable Energy Office

See

Federal Energy Regulatory Commission

See

Western Area Power Administration

PROPOSED RULES Establishment of Working Group to Negotiate Proposed Rulemaking for Energy Conservation Standards: Appliance Standards and Rulemaking Federal Advisory Committee; Working Group for Circulator Pumps, 5658-5661 2016-01979 NOTICES Response to Recommendation 2015-1 of the Defense Nuclear Facilities Safety Board, Emergency Preparedness and Response at the Pantex Plant, 5726-5727 2016-01981
Energy Efficiency Energy Efficiency and Renewable Energy Office NOTICES Meetings: Appliance Standards and Rulemaking Federal Advisory Committee, 5727 2016-01978 Environmental Protection Environmental Protection Agency RULES Pesticide Tolerances: Cyazofamid, 5600-5605 2016-01993 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Registration and Pesticide Report for Pesticide-Producing and Device-Producing Establishments, 5749-5750 2016-01994 Recordkeeping for Institutional Dual Use Research of Concern Policy Compliance, 5748-5749 2016-01971 Charter Renewals: Farm, Ranch, and Rural Communities Advisory Committee, 5749 2016-01995 Federal Aviation Federal Aviation Administration RULES Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments, 5577-5585 2016-01856 2016-01857 2016-01858 2016-01864 PROPOSED RULES Proposed Establishment of Class E Airspace: Moriarty, NM, 5676-5677 2016-01877 Federal Communications Federal Communications Commission RULES Implementation of Section 224 of the Act, a National Broadband Plan for Our Future, 5605-5618 2016-01182 Federal Energy Federal Energy Regulatory Commission NOTICES Applications for Transfers of Licenses: Advantage Investment Group, LLC, Spencer Mountain Hydropower, LLC, 5739-5740 2016-01958 Combined Filings, 5728-5734, 5737-5738 2016-01913 2016-01914 2016-01917 2016-01950 2016-01951 Complaints: Electric Power Supply Association, et al. v. AEP Generation Resources, Inc.; Ohio Power Co., 5730 2016-01953 Electric Power Supply Association, et al. v. FirstEnergy Solutions Corp., et al., 5729 2016-01954 Environmental Assessments; Availability, etc.: Columbia Gas Transmission, LLC; Line WB2VA Integrity Project, 5728 2016-01952 Texas Gas Transmission, LLC; Northern Supply Access Project, 5739 2016-01915 Environmental Issues Related to New Route Modifications under Consideration: Transcontinental Gas Pipe Line Company, LLC; Dalton Expansion Project, 5735-5737 2016-01918 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: 3 Phases Renewables, Inc., 5730 2016-01955 Meetings: PJM Interconnection, LLC; Technical Conference, 5735 2016-01956 Whitewater Creek Hydroelectric Project, 5738-5739 2016-01959 Records Governing Off-the-Record Communications, 5734-5735 2016-01916 Revised Restricted Service Lists for Programmatic Agreements: South Carolina Electric and Gas Co.; South Carolina Parr Hydroelectric Project, 5731-5732 2016-01957 Federal Highway Federal Highway Administration NOTICES Final Federal Agency Actions: California Proposed Highway, 5813 2016-01970 Limitation on Claims for Judicial Review, 5813-5814 2016-01965 Federal Railroad Federal Railroad Administration NOTICES Application for Approval of Discontinuance or Modification of a Railroad Signal System, 5815-5816 2016-01968 Applications for Approval of Discontinuance or Modification of a Railroad Signal System, 5814-5815 2016-01969 Petitions for Waiver of Compliance, 5814 2016-01966 Federal Reserve Federal Reserve System PROPOSED RULES Regulatory Capital: Federal Reserve Board's Framework for Implementing the U.S. Basel III Countercyclical Capital Buffer, 5661-5666 2016-01934 Federal Trade Federal Trade Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 5750-5751 2016-01975 Proposed Consent Agreements: General Motors, LLC, 5752-5754 2016-01946 Jim Koons Management Co., 5751-5752 2016-01945 Lithia Motors, Inc., 5754-5756 2016-01944 Federal Transit Federal Transit Administration NOTICES Uniform System of Accounts and Changes to the National Transit Database Reporting Requirements; Updates, 5816-5819 2016-01941 Fish Fish and Wildlife Service NOTICES Endangered and Threatened Wildlife and Plants Permit Applications, 5778-5779 2016-02011 Food and Drug Food and Drug Administration RULES Center for Food Safety and Applied Nutrition Library Address; Technical Amendments, 5589-5596 2016-01787 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Biosimilar User Fee Cover Sheet, 5763-5764 2016-01883 Guidance for Industry on Postmarketing Adverse Event Reporting for Nonprescription Human Drug Products Marketed Without an Approved Application, 5764 2016-01885 Guidance on Meetings with Industry and Investigators on the Research and Development of Tobacco Products, 5758-5760 2016-02000 Postmarketing Adverse Drug Experience Reporting, 5764 2016-01884 Guidance: Applying Human Factors and Usability Engineering to Medical Devices, 5762-5763 2016-01887 Enforcement Policy on National Health Related Item Code and National Drug Code Numbers Assigned to Devices, 5760-5762 2016-01892 Human Factors Studies and Related Clinical Study Considerations in Combination Product Design and Development, 5764-5766 2016-01888 List of Highest Priority Devices for Human Factors Review, 5756-5758 2016-01889 Foreign Claims Foreign Claims Settlement Commission NOTICES Meetings; Sunshine Act, 5784 2016-02155 Foreign Trade Foreign-Trade Zones Board NOTICES Applications for Subzone Status: Foreign Trade Zone 279, Thoma-Sea Marine Constructors, LLC, Houma and Lockport, LA, 5707 2016-02058 Proposed Production Activities: Foreign-Trade Zone 196, Fort Worth, TX, General Electric Transportation, 5704-5707 2016-02045 Geological Geological Survey NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 5779-5780 2016-01938 Health and Human Health and Human Services Department See

Agency for Toxic Substances and Disease Registry

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

NOTICES Meetings: Presidential Advisory Council on HIV/AIDS; Correction, 5766-5767 2016-01936 Presidential Commission for the Study of Bioethical Issues, 5766 2016-01982
Homeland Homeland Security Department See

Coast Guard

Housing Housing and Urban Development Department PROPOSED RULES Strengthening Oversight of Over-Income Tenancy in Public Housing, 5677-5679 2016-01921 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Indian Community Capital Initiative; Withdrawal, 5777-5778 2016-01919 Final Fair Market Rents: Housing Choice Voucher Program and Moderate Rehabilitation Single Room Occupancy Program Fiscal Year 2016, 5778 2016-01920 Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

Land Management Bureau

See

National Park Service

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Advance Notification of Sunset Reviews, 5708 2016-02006 Certain Lined Paper Products from India, 5707-5708 2016-02003 Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 5711-5712 2016-02002 Frozen Fish Fillets from the Socialist Republic of Vietnam, 5709-5710 2016-02005 Honey from the People's Republic of China, 5710-5711 2016-02004 Opportunity to Request Administrative Review, 5712-5715 2016-02007 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Computing or Graphics Systems, Components Thereof, and Vehicles Containing Same, 5782-5784 2016-01961 Polyethylene Terephthalate Resin from Canada, China, India, and Oman, 5784 2016-01901 Justice Department Justice Department See

Foreign Claims Settlement Commission

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Office of Justice Programs' Community Partnership Grants Management System, 5784-5785 2016-01875
Labor Department Labor Department See

Employment and Training Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Institutional Analysis of American Job Centers Study; Correction, 5791-5792 2016-01898 National Guard Youth ChalleNGe Job ChalleNGe Evaluation; Correction, 5791 2016-01900 Placement Verification and Follow Up of Job Corps Participants; Correction, 5791 2016-01899
Land Land Management Bureau NOTICES Meetings: BLM Alaska Resource Advisory Council, 5781 2016-01963 Resource Advisory Council to the Boise District, Bureau of Land Management, U. S. Department of the Interior, 5780-5781 2016-01964 National Endowment for the Arts National Endowment for the Arts NOTICES Meetings: Arts Advisory Panel, 5792 2016-01882 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Arts

National Institute Food National Institute of Food and Agriculture RULES Hispanic-Serving Agricultural Colleges and Universities, 5575-5577 2016-01893 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 5703 2016-01985 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 5767-5772 2016-01908 2016-01909 2016-01911 National Center for Advancing Translational Sciences, 5771 2016-01905 National Heart, Lung, and Blood Institute, 5770-5771, 5773 2016-01904 2016-01902 2016-01903 National Institute of Diabetes and Digestive Kidney Diseases, 5772-5773 2016-01910 National Institute of Environmental Health Sciences, 5770 2016-01907 National Institute of Mental Health, 5769-5770 2016-01906 National Institute of Nursing Research, 5767 2016-01912 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Pacific Cod by Vessels Using Pot Gear in the Central Regulatory Area of the Gulf of Alaska; Temporary Closure, 5628 2016-01989 Pollock in Statistical Area 610 in the Gulf of Alaska; Temporary Closure, 5627 2016-01991 Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management Area, 5627-5628 2016-01992 Pacific Island Pelagic Fisheries: Exemption for Large U.S. Longline Vessels to Fish in Portions of the American Samoa Large Vessel Prohibited Area, 5619-5626 2016-01891 PROPOSED RULES Fisheries of the Exclusive Economic Zone Off Alaska: Bycatch Management in the Bering Sea Pollock Fishery, 5681-5702 2016-01890 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 5715 2016-01983 National Park National Park Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Special Park Use Applications, 5781-5782 2016-02056 National Science National Science Foundation NOTICES Meetings: Advisory Committee for Environmental Research and Education, 5792 2016-01869 Nuclear Regulatory Nuclear Regulatory Commission NOTICES License Renewals: Exelon Generation Company, LLC, Braidwood Station, Units 1 and 2, 5792-5793 2016-02070 Postal Regulatory Postal Regulatory Commission RULES Product Lists; Update, 5596-5600 2016-01947 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: American Heart Month (Proc. 9391), 5873-5876 2016-02218 National African American History Month (Proc. 9392), 5877-5878 2016-02219 National Teen Dating Violence Awareness and Prevention Month (Proc. 9393), 5879-5880 2016-02220 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 5809 2016-01960 Self-Regulatory Organizations; Proposed Rule Changes: C2 Options Exchange, Inc., 5795-5796 2016-01931 Chicago Board Options Exchange, Inc., 5800-5802 2016-01929 International Securities Exchange, LLC, 5806-5807 2016-01927 NASDAQ OMX PHLX, LLC, 5796-5798, 5811 2016-01925 2016-01926 New York Stock Exchange, LLC, 5807-5809 2016-01924 NYSE Arca, Inc., 5798-5800, 5809-5810 2016-01922 2016-01930 NYSE MKT, LLC, 5793-5795, 5802-5806 2016-01923 2016-01928 2016-01932 Small Business Small Business Administration PROPOSED RULES Small Business Investment Company Program—Impact SBICs, 5666-5676 2016-01986 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 5812 2016-01996 Meetings: Advisory Committee on International Economic Policy, 5812 2016-01997 Memberships: Defense Trade Advisory Group, 5811-5812 2016-01998 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Railroad Administration

See

Federal Transit Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Census of Ferry Operators, 5819-5820 2016-01831
Treasury Treasury Department See

United States Mint

NOTICES Meetings: Advisory Committee on Risk-Sharing Mechanisms, 5820-5821 2016-01990
U.S. Mint United States Mint NOTICES Meetings: Citizens Coinage Advisory Committee, 5821 2016-02042 Western Western Area Power Administration NOTICES Desert Southwest Customer Service Region Network Integration Transmission Service and Ancillary Services-Rate, 5741-5744 2016-01977 Records of Decision: Windy Gap Firming Project, 5740-5741 2016-02031 Rocky Mountain Region Transmission, Ancillary Services, and Sale of Surplus Products, 5744-5748 2016-02035 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 5824-5872 2016-01748 Part III Presidential Documents, 5873-5880 2016-02218 2016-02219 2016-02220 Reader Aids

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81 22 Wednesday, February 3, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 920 [Doc. No. AMS-FV-15-0056; FV15-920-1 FR] Kiwifruit Grown in California; Increased Assessment Rate AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This rule implements a recommendation from the Kiwifruit Administrative Committee (Committee) for an increase of the assessment rate established for the 2015-16 and subsequent fiscal periods from $0.025 to $0.040 per 9-kilo volume-fill container or equivalent of kiwifruit handled under the marketing order (order). The Committee locally administers the order, and is comprised of growers of kiwifruit operating within the area of production. Assessments upon kiwifruit handlers are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal period begins on August 1 and ends July 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.

DATES:

Effective February 4, 2016.

FOR FURTHER INFORMATION CONTACT:

Kathie Notoro, Marketing Specialist, or Martin Engeler, Regional Director, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email: [email protected], or [email protected] Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

SUPPLEMENTARY INFORMATION:

This rule is issued under Marketing Order No. 920, as amended (7 CFR part 920), regulating the handling of kiwifruit grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California kiwifruit handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein would be applicable to all assessable kiwifruit beginning on August 1, 2015, and continue until amended, suspended, or terminated.

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

This rule increases the assessment rate for the 2015-16 and subsequent fiscal periods from $0.025 to $0.040 per 9-kilo volume-fill container or equivalent of kiwifruit.

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

For the 2013-14 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on July 17 and September 16, 2015, and unanimously recommended 2015-16 fiscal year expenditures of $132,725 and an assessment rate of $0.040 per 9-kilo volume-fill container or equivalent of kiwifruit handled to fund Committee expenses. In comparison, last year's budgeted expenditures were $120,925. The assessment rate of $0.040 is $0.015 more than the rate currently in effect. The Committee's recommended 2015-16 expenditures are $11,800 higher than last year's budgeted expenditures. The primary reason for the increase is to provide funding for research. When applied to the Committee's crop estimate for the 2015-16 fiscal year of 2,297,000 9-kilo volume-fill containers or equivalent, the current assessment rate of $0.025 would not generate sufficient assessment income to anticipated expenses. The assessment rate of $0.040 per 9-kilo volume-fill container or its equivalent should generate assessment income of $91,880. Anticipated assessment income combined with financial reserve and interest income, should provide sufficient funds for the Committee to meet its budgeted expenses while maintaining its financial reserve within the limit authorized under the order. (§ 920.42)

The major expenditures recommended by the Committee for the 2015-16 fiscal period include $80,000 for management expenses; $14,000 for two financial audits, $14,330 for research; $7,500 for International Kiwifruit Organization (IKO) travel; $2,500 for a membership fee to Buy California; and $2,500 for a membership fee to the IKO. Major budgeted expenses for the 2014-15 fiscal period were $80,000 for management expenses; $7,500 for a financial audit, $5,000 for handler audits; $2,500 for a membership fee to Buy California; $2,500 for IKO membership; and $12,500 for IKO travel.

The assessment rate recommended by the Committee was derived by considering the amount of revenue needed to meet anticipated expenses divided by expected shipments of California kiwifruit. As previously mentioned, kiwifruit shipments for the 2015-16 fiscal period are estimated at 2,297,000 9-kilo volume-fill containers, which should provide $91,880 in assessment income. Anticipated assessment income derived from handler assessments, along with interest income and $40,756 from the Committee's authorized financial reserve, should provide sufficient funds for the Committee to meet its budgeted expenses. It is anticipated that $29,119 would remain in the financial reserve at the end of July 2016, which would be within the maximum amount permitted by the order of approximately one fiscal year's expenses (§ 920.42).

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

Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2015-16 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.

Final Regulatory Flexibility Analysis

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

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

There are approximately 178 kiwifruit growers in the production area and approximately 28 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000 (13 CFR 121.201).

The National Agricultural Statistical Service (NASS) reported total California kiwifruit production for the 2014 season at 27,400 tons, with an average price of $1,190 per ton. Based on the average price and shipment information provided by NASS and the Committee, it could be concluded that the majority of kiwifruit handlers would be considered small businesses under the SBA definition. Based on kiwifruit production and price information, as well as the total number of California kiwifruit growers, average annual grower revenue is less than $750,000. Thus, the majority of California kiwifruit growers may also be classified as small entities.

This rule increases the assessment rate collected from handlers for the 2015-16 and subsequent fiscal periods from $0.025 to $0.040 per 9-kilo volume-fill container or equivalent of kiwifruit. The Committee unanimously recommended 2015-16 expenditures of $132,725 and an assessment rate of $0.040 per 9-kilo volume-fill container. The assessment rate of $0.040 is $0.015 higher than the 2014-15 rate. The quantity of assessable kiwifruit for the 2015-16 fiscal period is estimated at 2,297,000 9-kilo volume-fill containers. Thus, the $0.040 rate should provide $91,880 in assessment income. Anticipated assessment income derived from handler assessments, along with financial reserve funds and interest income, should provide sufficient revenue for the Committee to meet its budgeted expenses, while maintaining its financial reserve within the maximum amount permitted by the order of approximately one fiscal year's expenses (§ 920.42).

The major expenditures recommended by the Committee for the 2015-16 fiscal period include: $80,000 for management expenses; $14,000 for two financial audits; $14,330 for research; $7,500 for IKO travel; $2,500 for a membership fee to Buy California; and $2,500 for IKO membership. Major budgeted expenses for the 2014-15 fiscal period were: $80,000 for management expenses; $7,500 for a financial audit; $5,000 for handler audits; $2,500 for a membership fee to Buy California; $2,500 for IKO membership; and $12,500 for IKO travel.

Prior to arriving at this budget and assessment rate, the Committee considered alternative expenditure levels, to include maintaining the current assessment rate, but ultimately determined that the current assessment rate would generate insufficient revenue to meet its expenses.

According to data from NASS, the seasonal average producer price was $11.09 per 9-kilo volume-fill container in 2013 and $11.78 per 9-kilo volume-fill container in 2014. A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the grower price for 2015-16 could range between $11.09 and $11.78 per 9-kilo volume-fill container of assessable kiwifruit. Therefore, estimated assessment revenue for the 2015-16 fiscal year as a percentage of total producer revenue could be between 0.34 percent and 0.36 percent.

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. However, these costs would be offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meetings were widely publicized throughout the California kiwifruit industry and all interested persons were invited to attend the meetings and participate in Committee deliberations on all issues. The July 17 and September 16, 2015, meetings were public meetings. All entities, both large and small, were able to express views on this issue.

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

This rule imposes no additional reporting or recordkeeping requirements on either small or large California kiwifruit handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

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

A proposed rule concerning this action was published in the Federal Register on November 5, 2015 (80 FR 68473). Copies of the proposed rule were also mailed or sent via facsimile to all California kiwifruit handlers. Finally, the proposal was made available through the internet by USDA and the Office of the Federal Register. A 15-day comment period ending November 20, 2015, was provided for interested persons to respond to the proposal. One comment in support of the rule was received, with the commenter requesting more information on the type of research the committee was conducting. The research the Committee recommended involves two field trials during the first year of a research proposal to study the beneficial effects of Nimitz nematicide on the Root-knot nematode. This type of production research is authorized under § 920.47 of the marketing order and will benefit growers. Accordingly, no changes will be made to the rule as proposed, based on the comment received.

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

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

Pursuant to 5 U.S.C. 553, it also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2015-16 fiscal year began on August 1, 2015. Handlers began shipping kiwifruit in September and the marketing order requires that the rate of assessment apply to all assessable kiwifruit handled during the fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; and (3) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years. Also, a 15-day comment period was provided for in the proposed rule, and one supportive comment was received.

List of Subjects in 7 CFR Part 920

Kiwifruit, Marketing agreements, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, 7 CFR part 920 is amended as follows:

PART 920—KIWIFRUIT GROWN IN CALIFORNIA 1. The authority citation for 7 CFR part 920 continues to read as follows: Authority:

7 U.S.C. 601-674.

2. Section 920.213 is revised to read as follows:
§ 920.213 Assessment rate.

On and after August 1, 2015, an assessment rate of $0.040 per 9-kilo volume-fill container or equivalent of kiwifruit is established for kiwifruit grown in California.

Dated: January 29, 2016. Erin Morris, Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2016-02067 Filed 2-2-16; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF AGRICULTURE National Institute of Food and Agriculture 7 CFR Part 3434 RIN 0524-AA39 Hispanic-Serving Agricultural Colleges and Universities (HSACU) AGENCY:

National Institute of Food and Agriculture (NIFA), USDA.

ACTION:

Final rule.

SUMMARY:

This rule updates the list of institutions that are granted HSACU certification by the Secretary and are eligible for HSACU programs for the period starting October 1, 2015, and ending September 30, 2016.

DATES:

This rule is effective February 3, 2016 and applicable October 1, 2015.

FOR FURTHER INFORMATION CONTACT:

Lisa DePaolo; Policy Analyst; National Institute of Food and Agriculture; U.S. Department of Agriculture; STOP 2272; 1400 Independence Avenue SW.; Washington, DC 20250-2272; Voice: 202-401-5061; Fax: 202-401-7752; Email: [email protected]

SUPPLEMENTARY INFORMATION: HSACU Institutions for Fiscal Year 2016

This rule makes changes to the existing list of institutions in Appendix B of 7 CFR part 3434. The list of institutions is amended to reflect the institutions that are granted HSACU certification by the Secretary and are eligible for HSACU programs for the period starting October 1, 2015, and ending September 30, 2016.

Certification Process

As stated in 7 CFR 3434.4, an institution must meet the following criteria to receive HSACU certification: (1) Be a Hispanic-Serving Institution (HSI), (2) offer agriculture-related degrees, (3) not appear on the Excluded Parties List System (EPLS), (4) be accredited, and (5) award at least 15% of agriculture-related degrees to Hispanic students over the two most recent academic years.

NIFA obtained the latest report from the U.S. Department of Education's National Center for Education Statistics that lists all HSIs and the degrees conferred by these institutions (completion data) during the 2013-14 academic year. NIFA used this report to identify HSIs that conferred a degree in an instructional program that appears in Appendix A of 7 CFR part 3434 and to confirm that over the 2012-13 and 2013-14 academic years at least 15% of the degrees in agriculture-related fields were awarded to Hispanic students. NIFA further confirmed that these institutions were nationally accredited and were not listed in the System for Award Management (https://www.sam.gov) with exclusions.

The updated list of HSACUs is based on (1) completions data from 2012-13 and 2013-14, and (2) enrollment data from Fall 2014. NIFA identified 101 institutions that met the eligibility criteria to receive HSACU certification for FY 2016 (October 1, 2015 to September 30, 2016).

Declaration of Intent To Apply for NLGCA Designation

As set forth in Section 7101 of the Agricultural Act of 2014 (Pub. L. 113-79), which amends 7 U.S.C. 3103, an institution that is eligible to be designated as an HSACU may notify the Secretary of its intent not to be considered an HSACU. To opt out of designation as an HSACU, an authorized official at the institution must submit a declaration of intent not to be considered an HSACU to NIFA by email at [email protected] In accordance with Section 7101, a declaration by an institution not to be considered an HSACU shall remain in effect until September 30, 2018. Institutions that opt out of HSACU designation will have the option to apply for designation as a Non-Land Grant College of Agriculture (NLGCA) institution. To be eligible for NLGCA designation, institutions must be public colleges or universities offering baccalaureate or higher degrees in the study of food and agricultural sciences, as defined in 7 U.S.C. 3103. An online form to request NLGCA designation is available at http://nifa.usda.gov/webform/request-non-land-grant-college-agriculture-designation.

In FY 2014 and FY 2015, six institutions opted out of their HSACU designation and received NLGCA designation, hence they are excluded from the FY 2016 HSACU list.

Appeal Process

As set forth in 7 CFR 3434.8, NIFA will permit HSIs that are not granted HSACU certification to submit an appeal within 30 days of the publication of this notice.

Classification

This rule relates to internal agency management. Accordingly, pursuant to 5 U.S.C. 553, notice of proposed rulemaking and opportunity for comment are not required, and this rule may be made effective less than 30 days after publication in the Federal Register. This rule also is exempt from the provisions of Executive Order 12866. This action is not a rule as defined by the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq., or the Congressional Review Act, 5 U.S.C. 801 et seq., and thus is exempt from the provisions of those Acts. This rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 3434

Administrative practice and procedure; Agricultural research, education, extension; Hispanic-Serving Institutions; Federal assistance.

Title 7, part 3434, of the Code of Federal Regulations is amended accordingly as set forth below:

PART 3434—HISPANIC-SERVING AGRICULTURAL COLLEGES AND UNIVERSITIES CERTIFICATION PROCESS 1. The authority citation for Part 3434 continues to read as follows: Authority:

7 U.S.C. 3103.

2. Revise part 3434 Appendix B to read as follows: Appendix B to Part 3434—List of HSACU Institutions, 2015-2016

The institutions listed in this appendix are granted HSACU certification by the Secretary and are eligible for HSACU programs for the period starting October 1, 2015, and ending September 30, 2016. Institutions are listed alphabetically under the state of the school's location, with the campus indicated where applicable.

Arizona (3) Arizona Western College Cochise College Phoenix College California (39) Allan Hancock College Antelope Valley College Antioch University—Los Angeles Bakersfield College California Baptist University California Lutheran University California State University—Dominquez Hills California State University—East Bay California State University—Long Beach California State University—San Bernardino College of San Mateo College of the Desert College of the Sequoias El Camino Community College District Fullerton College Golden West College Hartnell College Imperial Valley College Long Beach City College Los Angeles City College Los Angeles Pierce College Mendocino College Merced College MiraCosta College Modesto Junior College Monterey Peninsula College Mt. San Antonio College Mt. San Jacinto Community College District National University Pacific Union College Porterville College Reedley College Saddleback College Saint Mary's College of California San Diego City College San Diego Mesa College San Diego State University San Francisco State University San Jose State University Santa Ana College University of California-Riverside University of La Verne West Hills College Coalinga Whittier College Colorado (1) Trinidad State Junior College Florida (5) Broward College Florida International University Miami Dade College Nova Southeastern University Valencia College Nevada (2) College of Southern Nevada Truckee Meadows Community College New Jersey (2) Saint Peter's University William Paterson University of New Jersey New Mexico (9) Central New Mexico Community College Eastern New Mexico University—Main Campus Eastern New Mexico University—Ruidoso Campus Mesalands Community College New Mexico Highlands University New Mexico Institute of Mining and Technology Northern New Mexico College University of New Mexico—Main Campus Western New Mexico University New York (2) CUNY Bronx Community College CUNY LaGuardia Community College Puerto Rico (15) Bayamon Central University Instituto Tecnologico de Puerto Rico—Manati Inter American University of Puerto Rico—Aguadilla Inter American University of Puerto Rico—Bayamon Inter American University of Puerto Rico—Metro Inter American University of Puerto Rico—Ponce Inter American University of Puerto Rico—San German Pontifical Catholic University of Puerto Rico—Ponce Universidad Del Turabo Universidad Metropolitana University of Puerto Rico—Arecibo University of Puerto Rico—Humacao University of Puerto Rico—Medical Sciences Campus University of Puerto Rico—Rio Piedras Campus University of Puerto Rico—Utuado Texas (22) Houston Community College Lee College Palo Alto College Richland College San Antonio College Saint Edward's University St. Mary's University Southwest Texas Junior College Texas A&M International University Texas A&M University—Corpus Christi Texas A&M University—Kingsville Texas State Technical College—Harlingen Texas State University University of Houston University of Houston—Clear Lake University of St. Thomas University of Texas at Arlington University of Texas at Brownsville University of Texas at El Paso University of Texas at San Antonio University of Texas Rio Grande Valley University of the Incarnate Word Washington (3) Columbia Basin College Wenatchee Valley College Yakima Valley Community College
Done in Washington, DC, this 21st day of January, 2016. Sonny Ramaswamy, Director, National Institute of Food and Agriculture.
[FR Doc. 2016-01893 Filed 2-2-16; 8:45 am] BILLING CODE 3410-22-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31055; Amdt. No. 3677] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

DATES:

This rule is effective February 3, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 3, 2016.

ADDRESSES:

Availability of matters incorporated by reference in the amendment is as follows:

For Examination

1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001;

2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

Availability

All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

FOR FURTHER INFORMATION CONTACT:

Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125), Telephone: 405-954-4164.

SUPPLEMENTARY INFORMATION:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPs, Takeoff Minimums and/or ODPs. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

Availability and Summary of Material Incorporated by Reference

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

The Rule

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR part 97:

Air traffic control, airports, Incorporation by reference, Navigation (air).

Issued in Washington, DC on December 31, 2015. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

Part 97—Standard Instrument Approach Procedures 1. The authority citation for part 97 continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

2. Part 97 is amended to read as follows: Effective 4 FEBRUARY 2016 Gulkana, AK, Gulkana, VOR/DME RWY 33, Orig, CANCELED Kotzebue, AK, Ralph Wien Memorial, VOR/DME RWY 9, Orig-B Kotzebue, AK, Ralph Wien Memorial, VOR/DME Y RWY 27, Orig, CANCELED Yakutat, AK, Yakutat, VOR/DME RWY 11, Amdt 3A, CANCELED Harrison, AR, Boone County, VOR-A, Amdt 13, CANCELED Rogers, AR, Rogers Executive—Carter Field, NDB RWY 20, Amdt 1A, CANCELED Sheridan, AR, Sheridan Muni, RNAV (GPS) RWY 1, Orig Los Angeles, CA, Los Angeles Intl, ILS OR LOC RWY 6, Amdt 17C, SUSPENDED Los Angeles, CA, Los Angeles Intl, RNAV (GPS) Y RWY 6R, Amdt 1B, SUSPENDED Los Angeles, CA, Los Angeles Intl, RNAV (RNP) Z RWY 6R, Orig-B, SUSPENDED Sacramento, CA, McClellan Airfield, VOR/DME RWY 16, Orig-C, CANCELED San Jose, CA, Norman Y Mineta San Jose Intl, VOR RWY 12R, Amdt 5, CANCELED San Jose, CA, Norman Y Mineta San Jose Intl, VOR/DME RWY 30L, Amdt 3, CANCELED San Jose, CA, Norman Y Mineta San Jose Intl, VOR/DME RWY 30R, Amdt 1, CANCELED New Haven, CT, Tweed-New Haven, VOR-A, Amdt 3, CANCELED Umatilla, FL, Umatilla Muni, RNAV (GPS) RWY 19, Orig-B Pohnpei Island, FM, Pohnpei Intl, RNAV (RNP) Y RWY 9, Orig Pohnpei Island, FM, Pohnpei Intl, RNAV (RNP) Z RWY 9, Orig Jefferson, GA, Jackson County, RNAV (GPS) RWY 17, Amdt 3 Jefferson, GA, Jackson County, RNAV (GPS) RWY 35, Amdt 3 Jefferson, GA, Jackson County, Takeoff Minimums and Obstacle DP, Amdt 3 Macon, GA, Macon Downtown, VOR/DME-B, Amdt 3, CANCELED Nashville, GA, Berrien CO, GPS RWY 10, Orig-B, CANCELED Nashville, GA, Berrien CO, RNAV (GPS) RWY 10, Orig Nashville, GA, Berrien CO, RNAV (GPS) RWY 28, Orig Tifton, GA, Henry Tift Myers, VOR RWY 33, Amdt 11C, CANCELED Waycross, GA Waycross-Ware County, ILS Y OR LOC Y RWY 19, Orig Waycross, GA Waycross-Ware County, ILS Z OR LOC Z RWY 19, Amdt 3 Waycross, GA Waycross-Ware County, RNAV (GPS) RWY 1, Amdt 2 Waycross, GA Waycross-Ware County, RNAV (GPS) RWY 19, Amdt 2 Waycross, GA Waycross-Ware County, Takeoff Minimums and Obstacle DP, Amdt 2 Sibley, IA, Sibley Muni, NDB OR GPS RWY 17, Amdt 1C, CANCELED Waterloo, IA, Waterloo Rgnl, VOR/DME RWY 30, Amdt 15, CANCELED Twin Falls, ID, Joslin Field—Magic Valley Rgnl, NDB RWY 26, Amdt 7, CANCELED Olney-Noble, IL, Olney-Noble, NDB RWY 3, Amdt 14 Olney-Noble, IL, Olney-Noble, RNAV (GPS) RWY 3, Orig-B Olney-Noble, IL, Olney-Noble, RNAV (GPS) RWY 11, Amdt 1B Rochelle, IL, Rochelle Muni Airport-Koritz Field, Takeoff Minimums and Obstacle DP, Amdt 4 Indianapolis, IN, Eagle Creek Airpark, NDB RWY 21, Amdt 4, CANCELED Nappanee, IN, Nappanee Muni, VOR/DME OR GPS-A, Amdt 3B, CANCELED Terra Haute, IN, Sky King, VOR-B, Orig-B, CANCELED Goodland, KS, Renner Fld/Goodland Muni/, VOR/DME RWY 30, Amdt 8B, CANCELED Richmond, KY, Madison, RNAV (GPS) RWY 18, Amdt 1C Richmond, KY, Madison, RNAV (GPS) RWY 36, Amdt 2A Abbeville, LA, Abbeville Chris Crusta Memorial, VOR/DME-A, Amdt 2B, CANCELED New Roads, LA, False River Rgnl, VOR/DME-A, Amdt 4A, CANCELED Fitchburg, MA, Fitchburg Muni, RNAV (GPS) RWY 20, Orig-C Lawrence, MA, Lawrence Muni, NDB RWY 5, Amdt 6, CANCELED Bangor, ME, Bangor Intl, VOR/DME RWY 15, Amdt 4A, CANCELED Bangor, ME, Bangor Intl, VOR/DME RWY 33, Amdt 7, CANCELED Hancock, MI, Houghton County Memorial, VOR RWY 31, Amdt 14A, CANCELED Ironwood, MI, Gogebic-Iron County, VOR/DME RWY 27, Amdt 9, CANCELED Marquette, MI, Sawyer Intl, NDB RWY 1, Orig-B, CANCELED Marquette, MI, Sawyer Intl, VOR RWY 1, Orig, CANCELED Pellston, MI, Pellston Rgnl Airport of Emmet County, VOR/DME RWY 5, Amdt 12A, CANCELED Sault Ste Marie, MI, Chippewa County Intl, VOR-A, Amdt 7, CANCELED Marshall, MN, Southwest Minnesota Rgnl Marshall/Ryan Fld, VOR/DME RWY 30, Amdt 2B, CANCELED Minneapolis, MN, Anoka County-Blaine Arpt (Janes Field), VOR/DME RWY 27, Amdt 5, CANCELED Owatonna, MN, Owatonna Degner Rgnl, VOR/DME RWY 30, Amdt 4, CANCELED Thief River Falls, MN, Thief River Falls Rgnl, VOR/DME RWY 31, Amdt 3C, CANCELED Kirksville, MO, Kirksville Rgnl, VOR/DME-B, Amdt 7, CANCELED Sikeston, MO, Sikeston Memorial Muni, VOR/DME RWY 2, Amdt 3A, CANCELED Greensboro, NC, Piedmont Triad Intl, VOR RWY 5R, Amdt 13B, CANCELED Beatrice, NE., Beatrice Muni, VOR RWY 14, Amdt 18B, CANCELED Manchester, NH, Manchester, VOR/DME RWY 17, Orig-E, CANCELED Trenton, NJ, Trenton Mercer, RNAV (GPS) RWY 16, Orig-B Trenton, NJ, Trenton Mercer, RNAV (GPS) RWY 34, Orig-B Silver City, NM, Grant County, VOR/DME-B, Amdt 3B, CANCELED Ely, NV, Ely Arpt/Yelland Fld/, VOR-A, Amdt 7A, CANCELED Binghamton, NY, Greater Binghamton/Edwin A Link Field, VOR/DME RWY 28, Amdt 11A, CANCELED Plattsburgh, NY, Plattsburgh Intl, ILS OR LOC RWY 35, Amdt 1 Plattsburgh, NY, Plattsburgh Intl, RNAV (GPS) RWY 35, Amdt 2 Plattsburgh, NY, Plattsburgh Intl, VOR/DME RWY 35, Orig-B, CANCELED Poughkeepsie, NY, Dutchess County, VOR/DME RWY 6, Amdt 7B, CANCELED Batavia, OH, Clermont County, NDB RWY 22, Amdt 1C, CANCELED Dayton, OH, James M Cox Dayton Intl, NDB RWY 6R, Amdt 9, CANCELED Bartlesville, OK, Bartlesville Muni, LOC RWY 17, Amdt 3B Bartlesville, OK, Bartlesville Muni, RNAV (GPS) RWY 17, Amdt 1 Bartlesville, OK, Bartlesville Muni, RNAV (GPS) RWY 35, Amdt 1 Chickasha, OK, Chickasha Muni, RNAV (GPS) RWY 18, Amdt 1A Chickasha, OK, Chickasha Muni, RNAV (GPS) RWY 36, Amdt 1A Claremore, OK, Claremore Regional, VOR/DME-A, Amdt 2A, CANCELED Durant, OK, Durant Rgnl—Eaker Field, VOR/DME RWY 17, Orig, CANCELED Eagle Butte, SD, Cheyenne Eagle Butte, Takeoff Minimums and Obstacle DP, Orig-A Watertown, SD, Watertown Rgnl, VOR/DME OR TACAN RWY 35, Amdt 11B, CANCELED Castroville, TX, Castroville Muni, RNAV (GPS) RWY 16, Amdt 1A Corsicana, TX, C David Campbell Field-Corsicana Muni, VOR/DME-B, Amdt 1B, CANCELED Dallas-Fort Worth, TX, Dallas/Fort Worth Intl, VOR RWY 31L, Orig-C, CANCELED Del Rio, TX, Del Rio Intl, NDB RWY 13, Amdt 1, CANCELED Granbury, TX, Granbury Rgnl, VOR/DME-A, Orig-C, CANCELED Houston, TX, William P Hobby, VOR/DME RWY 4, Amdt 18A, CANCELED Houston, TX, William P Hobby, VOR/DME RWY 30L, Amdt 18A, CANCELED Houston, TX, William P Hobby, VOR/DME-E, Orig, CANCELED Longview, TX, East Texas Rgnl, NDB RWY 13, Amdt 15, CANCELED Sulphur Springs, TX, Sulphur Springs Muni, VOR-A, Amdt 4, CANCELED Wichita Falls, TX, Wichita Valley, VOR/DME-C, Amdt 2, CANCELED Salt Lake City, UT, Salt Lake City Intl, VOR/DME RWY 34R, Amdt 9A, CANCELED Salt Lake City, UT, Salt Lake City Intl, VOR/DME OR TACAN RWY 16L, Amdt 2, CANCELED Salt Lake City, UT, Salt Lake City Intl, VOR/DME OR TACAN RWY 17, Amdt 2A, CANCELED Newport News, VA, Newport News/Williamsburg Intl, NDB RWY 20, Amdt 5A, CANCELED Norfolk, VA, Norfolk Intl, VOR RWY 23, Amdt 8D, CANCELED Norfolk, VA, Norfolk Intl, VOR/DME RWY 5, Amdt 4D, CANCELED Rutland, VT, Rutland—Southern Vermont Rgnl, VOR/DME RWY 19, Amdt 1, CANCELED Bremerton, WA, Bremerton National, RNAV (GPS) RWY 2, Amdt 2 Burlington/Mount Vernon, WA, Skagit Rgnl, NDB RWY 11, Amdt 5A Burlington/Mount Vernon, WA, Skagit Rgnl, RNAV (GPS) RWY 11, Amdt 2A Burlington/Mount Vernon, WA, Skagit Rgnl, RNAV (GPS) RWY 29, Amdt 2 Burlington/Mount Vernon, WA, Skagit Rgnl, Takeoff Minimums and Obstacle DP, Amdt 2A Hoquiam, WA, Bowerman, VOR/DME RWY 24, Amdt 6B, CANCELED Walla Walla, WA, Walla Walla Rgnl, NDB RWY 20, Amdt 6A, CANCELED Green Bay, WI, Austin Straubel Intl, VOR/DME OR TACAN RWY 36, Amdt 10, CANCELED La Crosse, WI, La Crosse Rgnl, NDB RWY 18, Amdt 19B, CANCELED Madison, WI, Dane County Rgnl-Truax Field, ILS OR LOC RWY 21, Orig-C Madison, WI, Dane County Rgnl-Truax Field, ILS OR LOC/DME RWY 18, ILS RWY 18 (SA CAT I), ILS RWY 18 (SA CAT II), Amdt 2 Madison, WI, Dane County Rgnl-Truax Field, ILS OR LOC/DME RWY 36, ILS RWY 36 (SA CAT I), ILS RWY 36 (CAT II), ILS RWY 36 (CAT III), Amdt 2 Madison, WI, Dane County Rgnl-Truax Field, RADAR-1, Amdt 18 Madison, WI, Dane County Rgnl-Truax Field, RNAV (GPS) RWY 3, Orig-C Madison, WI, Dane County Rgnl-Truax Field, RNAV (GPS) RWY 14, Amdt 2E Madison, WI, Dane County Rgnl-Truax Field, RNAV (GPS) RWY 18, Amdt 2E Madison, WI, Dane County Rgnl-Truax Field, RNAV (GPS) RWY 21, Amdt 2C Madison, WI, Dane County Rgnl-Truax Field, RNAV (GPS) RWY 32, Amdt 2E Madison, WI, Dane County Rgnl-Truax Field, RNAV (GPS) RWY 36, Amdt 2D Madison, WI, Dane County Rgnl-Truax Field, Takeoff Minimums and Obstacle DP, Amdt 8A Mosinee, WI, Central Wisconsin, VOR OR GPS-A, Amdt 8A, CANCELED
[FR Doc. 2016-01857 Filed 2-2-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31053; Amdt. No. 3675] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

DATES:

This rule is effective February 3, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 3, 2016.

ADDRESSES:

Availability of matters incorporated by reference in the amendment is as follows:

For Examination

1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001;

2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

Availability

All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

FOR FURTHER INFORMATION CONTACT:

Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.

SUPPLEMENTARY INFORMATION:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

Availability and Summary of Material Incorporated by Reference

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

The Rule

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97

Air traffic control, Airports, Incorporation by reference, Navigation (air).

Issued in Washington, DC, on December 18, 2015. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

2. Part 97 is amended to read as follows: Effective 4 FEBRUARY 2016 Fort Yukon, AK, Fort Yukon, VOR/DME OR TACAN-A, Amdt 1, CANCELED Decatur, AL, Pryor Field Rgnl, ILS Y OR LOC Y RWY 18, Orig Decatur, AL, Pryor Field Rgnl, ILS Z OR LOC Z RWY 18, Amdt 1 Decatur, AL, Pryor Field Rgnl, RNAV (GPS) RWY 18, Amdt 2 Decatur, AL, Pryor Field Rgnl, RNAV (GPS) RWY 36, Amdt 2 Bentonville, AR, Bentonville Muni/Louise M Thaden Field, VOR/DME-B, AMDT 6, CANCELED Rogers, AR, Rogers Executive-Carter Field, VOR/DME RWY 20, Amdt 10B, CANCELED Los Angeles, CA, Los Angeles Intl, ILS OR LOC RWY 6L, Amdt 12D Los Angeles, CA, Los Angeles Intl, ILS OR LOC RWY 7L, Amdt 7D Los Angeles, CA, Los Angeles Intl, ILS OR LOC RWY 7R, Amdt 6E Los Angeles, CA, Los Angeles Intl, ILS OR LOC RWY 25R, Amdt 17D Los Angeles, CA, Los Angeles Intl, RNAV (GPS) RWY 25R, Amdt 2C Los Angeles, CA, Los Angeles Intl, RNAV (GPS) Y RWY 6L, Amdt 1C Los Angeles, CA, Los Angeles Intl, RNAV (GPS) Y RWY 7L, Amdt 2E Los Angeles, CA, Los Angeles Intl, RNAV (GPS) Y RWY 7R, Amdt 2C Los Angeles, CA, Los Angeles Intl, RNAV (GPS) Y RWY 24R, Amdt 1B Los Angeles, CA, Los Angeles Intl, RNAV (GPS) Y RWY 25L, Amdt 3C Los Angeles, CA, Los Angeles Intl, RNAV (RNP) Z RWY 6L, Orig-C Los Angeles, CA, Los Angeles Intl, RNAV (RNP) Z RWY 7L, Orig-D Los Angeles, CA, Los Angeles Intl, RNAV (RNP) Z RWY 7R, Orig-C Los Angeles, CA, Los Angeles Intl, RNAV (RNP) Z RWY 24R, Orig-C Los Angeles, CA, Los Angeles Intl, RNAV (RNP) Z RWY 25L, Amdt 1C Los Angeles, CA, Los Angeles Intl, Takeoff Minimums and Obstacle DP, Amdt 12A San Bernardino, CA, San Bernardino Intl, NDB RWY 6, Amdt 1A, CANCELED Georgetown, DE, Delaware Coastal, RNAV (GPS) RWY 4, Amdt 3 Deland, FL, Deland Muni-Sidney H Taylor Field, RADAR-1, Amdt 3, CANCELED Jacksonville, FL, Jacksonville Executive at Craig, VOR/DME RWY 32, Amdt 3A, CANCELED Marianna, FL, Marianna Muni, RNAV (GPS) RWY 18, Amdt 1 St Augustine, FL, Northeast Florida Rgnl, VOR RWY 31, Orig-A, CANCELED Atlanta, GA, Hartsfield-Jackson Atlanta Intl, Takeoff Minimums and Obstacle DP, Amdt 7 Augusta, GA, Daniel Field, NDB/DME-C, Amdt 4A, CANCELED Cordele, GA, Crisp County-Cordele, NDB RWY 10, Amdt 5, CANCELED Pine Mountain, GA, Harris County, NDB RWY 9, Amdt 9A, CANCELED Thomson, GA, Thomson-McDuffie County, NDB RWY 10, Amdt 1A, CANCELED Sioux City, IA, Sioux Gateway/Col Bud Day Field, NDB RWY 13, Amdt 15G, CANCELED Sioux City, IA, Sioux Gateway/Col Bud Day Field, NDB RWY 31, Amdt 23E, CANCELED Salmon, ID, Lemhi County, Takeoff Minimums and Obstacle DP, Amdt 3 Quincy, IL, Quincy Rgnl-Baldwin Field, VOR/DME RWY 22, Amdt 8, CANCELED Bloomington, IN, Monroe County, VOR/DME RWY 24, Amdt 12A, CANCELED Bloomington, IN, Monroe County, VOR/DME RWY 35, Amdt 15B, CANCELED New Castle, IN, New Castle-Henry Co Muni, NDB RWY 27, Amdt 6, CANCELED Augusta, KS, Augusta Muni, RNAV (GPS) RWY 36, Amdt 1 Augusta, KS, Augusta Muni, VOR/DME-A, Amdt 2 Ottawa, KS, Ottawa Muni, Takeoff Minimums and Obstacle DP, Amdt 2 Glasgow, KY, Glasgow Muni, RNAV (GPS) RWY 26, Amdt 2A Baton Rouge, LA, Baton Rouge Metropolitan, Ryan Field, ILS OR LOC/DME RWY 22R, ILS RWY 22R (SA CAT I), ILS RWY 22R (SA CAT II), Amdt 12A Baton Rouge, LA, Baton Rouge Metropolitan, Ryan Field, VOR/DME RWY 22R, Amdt 9A Houma, LA, Houma-Terrebonne, VOR RWY 12, Amdt 5D, CANCELED Patterson, LA, Harry P Williams Memorial, VOR/DME-A, Amdt 10B, CANCELED Shreveport, LA, Shreveport Downtown, LOC RWY 14, Amdt 5 Shreveport, LA, Shreveport Downtown, RNAV (GPS) RWY 14, Amdt 1 Shreveport, LA, Shreveport Downtown, Takeoff Minimums and Obstacle DP, Amdt 3B Shreveport, LA, Shreveport Downtown, VOR RWY 14, Amdt 15A, CANCELED Shreveport, LA, Shreveport Rgnl, ILS OR LOC RWY 14, ILS RWY 14 (CAT II), Amdt 26 Shreveport, LA, Shreveport Rgnl, ILS OR LOC RWY 32, Amdt 6 Shreveport, LA, Shreveport Rgnl, LOC RWY 6, Amdt 3 Shreveport, LA, Shreveport Rgnl, RNAV (GPS) RWY 6, Amdt 3 Shreveport, LA, Shreveport Rgnl, RNAV (GPS) RWY 14, Amdt 2 Shreveport, LA, Shreveport Rgnl, RNAV (GPS) RWY 24, Amdt 2 Shreveport, LA, Shreveport Rgnl, RNAV (GPS) RWY 32, Amdt 2 Fitchburg, MA, Fitchburg Muni, NDB RWY 20, Amdt 6B, CANCELED Fitchburg MA, Fitchburg Muni, RNAV (GPS) RWY 14, Orig-C Fitchburg MA, Fitchburg Muni, RNAV (GPS) RWY 32, Orig-D Marshfield, MA, Marshfield Muni—George Harlow Field, NDB RWY 6, Amdt 5, CANCELED Stow, MA, Minute Man Air Field, NDB-A, Amdt 8, CANCELED Baltimore, MD, Baltimore/Washington Intl Thurgood Marshall, RNAV (GPS) RWY 15L, Amdt 4 Alpena, MI, Alpena County Rgnl, NDB RWY 1, Amdt 7A, CANCELED Howell, MI, Livingston County Spencer J Hardy, NDB RWY 13, Amdt 3A, CANCELED Kalamazoo, MI, Kalamazoo/Battle Creek Intl, NDB RWY 35, Amdt 19B, CANCELED Kalamazoo, MI, Kalamazoo/Battle Creek Intl, VOR RWY 5, Orig-C, CANCELED Kalamazoo, MI, Kalamazoo/Battle Creek Intl, VOR RWY 17, Amdt 18B, CANCELED Kalamazoo, MI, Kalamazoo/Battle Creek Intl, VOR RWY 23, Amdt 17B, CANCELED Menominee, MI, Menominee-Marinette Twin County, NDB RWY 3, Amdt 3, CANCELED Austin, MN, Austin Muni, VOR RWY 35, Amdt 2A, CANCELED Austin, MN, Austin Muni, VOR/DME-A, Amdt 3, CANCELED Bemidji, MN, Bemidji Rgnl, VOR/DME RWY 31, Amdt 1, CANCELED Fairmont, MN, Fairmont Muni, VOR/DME RWY 31, Amdt 1B, CANCELED Fergus Falls, MN, Fergus Falls Muni-Einar Mickelson Fld, NDB RWY 31, Amdt 2, CANCELED Fergus Falls, MN, Fergus Falls Muni-Einar Mickelson Fld, VOR RWY 35, Amdt 10, CANCELED Park Rapids, MN, Park Rapids Muni-Konshok Field, NDB RWY 31, Amdt 2A, CANCELED St Cloud, MN, St Cloud Rgnl, VOR/DME RWY13, Orig-A, CANCELED Winona, MN, Winona Muni-Max Conrad Fld, ILS Y OR LOC/DME Y RWY 30, Orig Winona, MN, Winona Muni-Max Conrad Fld, ILS Z OR LOC/DME Z RWY 30, Orig Winona, MN, Winona Muni-Max Conrad Fld, LOC RWY 30, Orig, CANCELED Winona, MN, Winona Muni-Max Conrad Fld, NDB RWY 30, Orig, CANCELED Winona, MN, Winona Muni-Max Conrad Fld, RNAV (GPS) RWY 30, Amdt 2 Winona, MN, Winona Muni-Max Conrad Fld, Takeoff Minimums and Obstacle DP, Amdt 5 Winona, MN, Winona Muni-Max Conrad Fld, VOR RWY 30, Amdt 16A, CANCELED Winona, MN, Winona Muni-Max Conrad Fld, VOR-A, Amdt 13, CANCELED Worthington, MN, Worthington Muni, NDB RWY 29, Amdt 1A, CANCELED Drew, MS, Ruleville-Drew, RNAV (GPS) RWY 18, Orig Drew, MS, Ruleville-Drew, RNAV (GPS) RWY 36, Orig Drew, MS, Ruleville-Drew, VOR-A, Amdt 5 Louisville, MS, Louisville Winston County, RNAV (GPS) RWY 17, Amdt 2 Louisville, MS, Louisville Winston County, RNAV (GPS) RWY 35, Amdt 2 West Point, MS, McCharen Field, VOR-A, Amdt 4A, CANCELED Greenville, NC, Pitt-Greenville, ILS Y OR LOC Y RWY 20, Orig Greenville, NC, Pitt-Greenville, ILS Z OR LOC Z RWY 20, Amdt 5 Greenville, NC, Pitt-Greenville, RNAV (GPS) RWY 2, Amdt 1 Greenville, NC, Pitt-Greenville, RNAV (GPS) RWY 20, Amdt 3 Greenville, NC, Pitt-Greenville, Takeoff Minimums and Obstacle DP, Amdt 5 Fargo, ND, Hector Intl, VOR/DME OR TACAN RWY18, Amdt 1C, CANCELED Williston, ND, Sloulin Fld Intl, NDB RWY 29, Amdt 3, CANCELED Cambridge, NE., Cambridge Muni, NDB RWY 32, Amdt 4A, CANCELED Chadron, NE., Chadron Muni, ILS OR LOC RWY 3, Amdt 2C Chadron, NE., Chadron Muni, NDB RWY21, Amdt 12C Chadron, NE., Chadron Muni, RNAV (GPS) RWY 3, Amdt 1B Chadron, NE., Chadron Muni, RNAV (GPS) RWY 12, Orig-B Chadron, NE., Chadron Muni, RNAV (GPS) RWY 21, Amdt 2B Chadron, NE., Chadron Muni, RNAV (GPS) RWY 30, Orig-B Chadron, NE., Chadron Muni, Takeoff Minimums and Obstacle DP, Amdt 1 Omaha, NE., Eppley Airfield, VOR/DME RWY 32L, Amdt 12, CANCELED Atlantic City, NJ, Atlantic City Intl, RADAR-1, Amdt 16 Hammonton, NJ, Hammonton Muni, VOR-A, Amdt 7A, CANCELED Millville, NJ, Millville Muni, NDB RWY 14, Amdt 6A, CANCELED Pittstown, NJ, Alexandria, RNAV (GPS)-A, Orig-A Alamogordo, NM, Alamogordo-White Sands Rgnl, VOR/DME RWY 3, Orig-B, CANCELED Battle Mountain, NV, Battle Mountain, VOR-A, Amdt 5, CANCELED New York, NY, John F Kennedy Intl, RNAV (GPS) Y RWY 4L, Amdt 2A New York, NY, John F Kennedy Intl, RNAV (RNP) Z RWY 4L, Amdt 1A Springfield, OH, Springfield-Beckley Muni, VOR RWY 24, Amdt 11, CANCELED Easton, PA, Braden Airpark, GPS RWY 36, Orig, CANCELED Easton, PA, Braden Airpark, RNAV (GPS)-A, Orig Easton, PA, Braden Airpark, VOR/DME OR GPS-D, Orig-C, CANCELED Dyersburg, TN, Dyersburg Rgnl, RNAV (GPS) RWY 4, Amdt 2B Dyersburg, TN, Dyersburg Rgnl, RNAV (GPS) RWY 22, Amdt 1B Bellingham, WA, Bellingham Intl, RNAV (GPS) Y RWY 34, Amdt 2 Eastsound, WA, Orcas Island, RNAV (GPS) RWY 16, Amdt 1 Eastsound, WA, Orcas Island, RNAV (GPS)-A, Amdt 1 Eastsound, WA, Orcas Island, Takeoff Minimums and Obstacle DP, Amdt 4 Point Pleasant, WV, Mason County, Takeoff Minimums and Obstacle DP, Amdt 4A

RESCINDED: On December 7, 2015 (80 FR 75926), the FAA published an Amendment in Docket No. 31046, Amdt No. 3669, to Part 97 of the Federal Aviation Regulations under section 97.33. The following entry for Richmond, KY, effective December 10, 2015 is hereby rescinded in its entirety:

Richmond, KY, Central Kentucky Rgnl, RNAV (GPS) RWY 18, Amdt 1B Richmond, KY, Central Kentucky Rgnl, RNAV (GPS) RWY 36, Amdt 2
[FR Doc. 2016-01864 Filed 2-2-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31054; Amdt. No. 3676] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

DATES:

This rule is effective February 3, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 3, 2016.

ADDRESSES:

Availability of matter incorporated by reference in the amendment is as follows:

For Examination

1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001;

2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

Availability

All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

FOR FURTHER INFORMATION CONTACT:

Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.

SUPPLEMENTARY INFORMATION:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

Availability and Summary of Material Incorporated by Reference

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

The Rule

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97

Air traffic control, Airports, Incorporation by reference, Navigation (air).

Issued in Washington, DC, on December 18, 2015. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

2. Part 97 is amended to read as follows:

By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:

* * * Effective Upon Publication AIRAC date State City Airport FDC No. FDC date Subject 4-Feb-16 TX Sherman Sherman Muni 5/0016 12/07/15 VOR/DME-A, Orig-C 4-Feb-16 IN Greencastle Putnam County Rgnl 5/0056 12/07/15 Takeoff Minimums and (Obstacle) DP, Orig 4-Feb-16 NE Hartington Hartington Muni/Bud Becker Fld 5/0057 12/02/15 Takeoff Minimums and (Obstacle) DP, Orig 4-Feb-16 OH Kent Kent State Univ 5/0685 12/07/15 NDB RWY 1, Amdt 13A 4-Feb-16 WI Marshfield Marshfield Muni 5/0702 12/07/15 SDF RWY 34, Amdt 6B 4-Feb-16 WI Marshfield Marshfield Muni 5/0703 12/07/15 RNAV (GPS) RWY 5, Orig-A 4-Feb-16 WI Marshfield Marshfield Muni 5/0706 12/07/15 RNAV (GPS) RWY 34, Orig 4-Feb-16 WI Marshfield Marshfield Muni 5/0712 12/07/15 NDB RWY 5, Amdt 14A 4-Feb-16 WI Marshfield Marshfield Muni 5/0717 12/07/15 RNAV (GPS) RWY 23, Orig-A 4-Feb-16 WI Marshfield Marshfield Muni 5/0718 12/07/15 RNAV (GPS) RWY 16, Orig-C 4-Feb-16 WI Marshfield Marshfield Muni 5/0721 12/07/15 NDB RWY 16, Amdt 10A 4-Feb-16 NC Statesville Statesville Rgnl 5/0906 12/07/15 RNAV (GPS) RWY 28, Amdt 3 4-Feb-16 GA Montezuma Dr C P Savage Sr. 5/0907 12/07/15 RNAV (GPS) RWY 36, Orig-A 4-Feb-16 GA Montezuma Dr C P Savage Sr. 5/0911 12/07/15 RNAV (GPS) RWY 18, Orig-A 4-Feb-16 TN Smyrna Smyrna 5/1268 12/07/15 RNAV (GPS) RWY 19, Orig-A 4-Feb-16 IL Chicago/West Chicago Dupage 5/1623 12/07/15 ILS OR LOC RWY 10, Amdt 8B 4-Feb-16 IL Chicago/West Chicago Dupage 5/1624 12/07/15 RNAV (GPS) RWY 20L, Orig-B 4-Feb-16 IL Chicago/West Chicago Dupage 5/1625 12/07/15 RNAV (GPS) RWY 20R, Amdt 1C 4-Feb-16 IL Chicago/West Chicago Dupage 5/1627 12/07/15 RNAV (GPS) RWY 10, Orig-C 4-Feb-16 FL St Augustine Northeast Florida Rgnl 5/1647 12/07/15 VOR RWY 13, Orig-C 4-Feb-16 GA Butler Butler Muni 5/1709 12/01/15 RNAV (GPS) RWY 36, Amdt 1B 4-Feb-16 NY Buffalo Buffalo Niagara Intl 5/1739 12/08/15 ILS OR LOC/DME RWY 32, Amdt 1A 4-Feb-16 IL Chicago/West Chicago Dupage 5/2153 12/07/15 VOR RWY 2L, Amdt 1B 4-Feb-16 IL Chicago/West Chicago Dupage 5/2154 12/07/15 ILS OR LOC RWY 2L, Amdt 2C 4-Feb-16 IL Chicago/West Chicago Dupage 5/2157 12/07/15 RNAV (GPS) RWY 2R, Orig-B 4-Feb-16 IL Chicago/West Chicago Dupage 5/2175 12/07/15 RNAV (GPS) RWY 2L, Orig-C 4-Feb-16 TN Dyersburg Dyersburg Rgnl 5/2799 12/11/15 VOR-A, Amdt 18 4-Feb-16 KS Newton Newton-City-County 5/2866 12/02/15 RNAV (GPS) RWY 35, Orig 4-Feb-16 KS Newton Newton-City-County 5/2867 12/02/15 RNAV (GPS) RWY 17, Orig 4-Feb-16 GA Cochran Cochran 5/4119 12/11/15 RNAV (GPS) RWY 29, Amdt 1 4-Feb-16 GA Cochran Cochran 5/4123 12/11/15 VOR/DME RWY 5, Amdt 6 4-Feb-16 MS Batesville Panola County 5/4149 12/11/15 RNAV (GPS) RWY 1, Amdt 1 4-Feb-16 WA Everett Snohomish County (Paine Fld) 5/4281 12/07/15 ILS OR LOC/DME Z RWY 16R, ILS Z RWY 16R (SA CAT II), Orig-A 4-Feb-16 WV Petersburg Grant County 5/4432 12/11/15 LDA/DME-B, Amdt 3A 4-Feb-16 WV Petersburg Grant County 5/4434 12/11/15 VOR/DME-A, Amdt 2A 4-Feb-16 WV Petersburg Grant County 5/4436 12/11/15 RNAV (GPS) Z RWY 31, Orig 4-Feb-16 CA Lompoc Lompoc 5/5766 12/01/15 Takeoff Minimums and (Obstacle) DP, Amdt 2 4-Feb-16 TX Austin Austin-Bergstrom Intl 5/5822 12/02/15 RNAV (RNP) Z RWY 17L, Orig 4-Feb-16 TX Austin Austin-Bergstrom Intl 5/5823 12/02/15 RNAV (RNP) Z RWY 17R, Orig 4-Feb-16 AK Point Lay Point Lay LRRS 5/5848 12/01/15 RNAV (GPS) RWY 23, Amdt 1 4-Feb-16 AK Point Lay Point Lay LRRS 5/5895 12/01/15 RNAV (GPS) RWY 5, Amdt 1 4-Feb-16 AK Point Lay Point Lay LRRS 5/5896 12/01/15 NDB RWY 5, Amdt 1 4-Feb-16 CA Van Nuys Van Nuys 5/6699 12/01/15 ILS RWY 16R, Amdt 5H 4-Feb-16 ID Blackfoot McCarley Fld 5/7026 12/07/15 RNAV (GPS)-A, Orig 4-Feb-16 ID Blackfoot McCarley Fld 5/7027 12/07/15 RNAV (GPS)-B, Orig 4-Feb-16 ID Blackfoot McCarley Fld 5/7028 12/07/15 VOR/DME-C, Orig 4-Feb-16 WA Spokane Felts Field 5/7030 12/07/15 VOR RWY 4L, Amdt 5A 4-Feb-16 WA Spokane Felts Field 5/7032 12/07/15 ILS OR LOC/DME RWY 22R, Amdt 1B 4-Feb-16 NY New York John F Kennedy Intl 5/7063 12/07/15 ILS OR LOC RWY 4L, Amdt 11 4-Feb-16 KY Louisville Louisville Intl-Standiford Field 5/7088 12/01/15 ILS OR LOC RWY 17L, Amdt 4D 4-Feb-16 KY Louisville Louisville Intl-Standiford Field 5/7089 12/01/15 ILS OR LOC RWY 35L, ILS RWY 35L (SA CAT I), ILS RWY 35L (CAT II And CAT III), Amdt 3D 4-Feb-16 PA Ebensburg Ebensburg 5/7284 12/07/15 VOR-A, Amdt 7A 4-Feb-16 AL Birmingham Birmingham-Shuttlesworth Intl 5/7328 12/07/15 RNAV (GPS) RWY 36, Amdt 1A 4-Feb-16 KY Louisville Louisville Intl-Standiford Field 5/8104 12/01/15 ILS OR LOC RWY 17R, Amdt 3E 4-Feb-16 CA Santa Ynez Santa Ynez 5/8137 12/01/15 GPS RWY 8, Orig-A 4-Feb-16 TX Brenham Brenham Muni 5/8264 12/02/15 RNAV (GPS) RWY 16, Amdt 2A
[FR Doc. 2016-01856 Filed 2-2-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31056; Amdt. No. 3678] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

DATES:

This rule is effective February 3, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 3, 2016.

ADDRESSES:

Availability of matter incorporated by reference in the amendment is as follows:

For Examination

1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001;

2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

Availability

All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

FOR FURTHER INFORMATION CONTACT:

Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.

SUPPLEMENTARY INFORMATION:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

Availability and Summary of Material Incorporated by Reference

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

The Rule

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97

Air Traffic Control, Airports, Incorporation by reference, Navigation (air).

Issued in Washington, DC, on December 31, 2015. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

2. Part 97 is amended to read as follows:
§§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35 [Amended]

By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:

* * * Effective Upon Publication AIRAC date State City Airport FDC No. FDC date Subject 4-Feb-16 ID Blackfoot McCarley Fld 5/7026 12/7/15 This NOTAM, published in TL 16-03, is hereby rescinded in its entirety. 4-Feb-16 TN Oneida Scott Muni 5/0865 12/18/15 RNAV (GPS) RWY 5, Amdt 1A. 4-Feb-16 TN Oneida Scott Muni 5/0866 12/18/15 RNAV (GPS) RWY 23, Amdt 1A. 4-Feb-16 TN Oneida Scott Muni 5/0867 12/18/15 VOR/DME-A, Amdt 5B. 4-Feb-16 ID Blackfoot McCarley Fld 5/0898 12/23/15 RNAV (GPS)-A, Orig. 4-Feb-16 KY Mount Sterling Mount Sterling-Montgomery County 5/2877 12/18/15 RNAV (GPS) RWY 21, Orig-A. 4-Feb-16 KY Springfield Lebanon Springfield-George Hoerter Field 5/4582 12/18/15 VOR/DME RWY 11, Amdt 4B. 4-Feb-16 GA Atlanta Cobb County-MC Collum Field 5/5998 12/18/15 Takeoff Minimums and (Obstacle) DP, Amdt 2. 4-Feb-16 GA Atlanta Cobb County-MC Collum Field 5/5999 12/18/15 ILS OR LOC RWY 27, Amdt 4C. 4-Feb-16 GA Atlanta Cobb County-MC Collum Field 5/6001 12/18/15 RNAV (GPS) RWY 27, Amdt 4A. 4-Feb-16 GA Atlanta Cobb County-MC Collum Field 5/6003 12/18/15 VOR/DME RWY 9, Amdt 2. 4-Feb-16 NY New York Laguardia 5/6013 12/18/15 ILS OR LOC RWY 4, Amdt 36C. 4-Feb-16 GA Atlanta Cobb County-MC Collum Field 5/6855 12/18/15 RNAV (GPS) RWY 9, Amdt 3. 4-Feb-16 AL Brewton Brewton Muni 5/7450 12/18/15 RNAV (GPS) RWY 6, Orig. 4-Feb-16 AL Brewton Brewton Muni 5/7451 12/18/15 RNAV (GPS) RWY 24, Orig. 4-Feb-16 WV Moundsville Marshall County 5/8483 12/18/15 VOR/DME-A, Amdt 2A. 4-Feb-16 NJ Trenton Trenton Mercer 5/9988 12/22/15 ILS OR LOC RWY 6, Amdt 10A. 4-Feb-16 NJ Trenton Trenton Mercer 5/9989 12/22/15 VOR OR GPS-A, Amdt 11. 4-Feb-16 NJ Trenton Trenton Mercer 5/9990 12/22/15 RNAV (GPS) Z RWY 6, Orig-A. 4-Feb-16 NJ Trenton Trenton Mercer 5/9997 12/22/15 RNAV (GPS) Z RWY 24, Amdt 1A.
[FR Doc. 2016-01858 Filed 2-2-16; 8:45 am] BILLING CODE 4910-13-P
DELAWARE RIVER BASIN COMMISSION 18 CFR Part 401 Amendments to the Rules of Practice and Procedure To Allow Each Signatory Party and the Commission To Administer a Single Process for the Review and Adjudication of Projects AGENCY:

Delaware River Basin Commission.

ACTION:

Final rule.

SUMMARY:

The Delaware River Basin Commission is amending its regulations to provide for the One Process/One Permit Program. The Program is intended to promote interagency cooperation and collaboration on shared mission objectives, achieve regulatory program efficiencies, avoid unnecessary duplication of effort, and reduce the potential for confusion on the part of regulated entities and the public regarding regulatory requirements applicable to projects.

DATES:

This final rule will be effective March 4, 2016.

FOR FURTHER INFORMATION CONTACT:

Technical information: David Kovach, 609-477-7264. Legal information: Pamela Bush, 609-477-7203.

SUPPLEMENTARY INFORMATION: Background

The Delaware River Basin Commission (“DRBC” or “Commission”) is a federal-interstate compact agency charged with managing the water resources of the Delaware River Basin on a regional basis without regard to political boundaries. Its members are the governors of the four basin states—Delaware, New Jersey, New York and Pennsylvania—and the North Atlantic Division Commander of the U.S. Army Corps of Engineers, representing the federal government.

Specifically, this final rule amends subchapter A—Administrative Manual, part 401—Rules of Practice and Procedure, subpart C—Project Review Under Section 3.8 of the Compact by the addition of a new section 401.42, providing for DRBC and each of the parties to the Delaware River Basin Compact (United States Pub. L. 87-328, Approved September 27, 1961, 75 U.S. Statutes at Large 688; 53 Delaware Laws, Chapter 71, Approved May 26, 1961; New Jersey Laws of 1961, Chapter 13, Approved May 1, 1961; New York Laws of 1961, Chapter 148, Approved March 17, 1961; and Pennsylvania Acts of 1961, Act No. 268, Approved July 7, 1961 (“the Compact”))—Delaware, New Jersey, New York, Pennsylvania and the federal government (“Signatory Parties”)—to coordinate and collaborate in the administration of a single process for the review and adjudication of certain projects, including, where appropriate, issuance of a single permit or other approval instrument.

Currently, the sponsors of many water resource-related projects in the Delaware River Basin are required to apply to both the DRBC and a state agency, among others, for approvals. New section 401.42 provides for the DRBC and the administrative agencies of the Signatory Parties to identify regulatory programs that by mutual agreement will be managed through a single process that may result in one decision or approval. The program, known as One Process/One Permit (hereinafter, “the Program or “One Permit”) is intended to promote interagency cooperation and collaboration on shared mission objectives, achieve regulatory program efficiencies, avoid unnecessary duplication of effort, and reduce the potential for confusion on the part of regulated entities and the public regarding regulatory requirements applicable to projects. Importantly, the rule expressly preserves the authorities of the DRBC and each of its Signatory Parties and effects no change to federal, state or DRBC substantive standards and requirements.

In accordance with this final rule, administrative agreements between DRBC and Signatory Party agencies to implement the Program may be approved by the Commission after each such agreement undergoes a duly noticed public hearing. In accordance with Resolution No. 2015-4 of the Commission, which was adopted on March 11, 2015 following a public hearing on March 10, 2015, an administrative agreement between the DRBC and the New Jersey Department of Environmental Protection (NJDEP) was executed, in part to demonstrate how the Program would operate in New Jersey. With adoption of the final rule, DRBC and NJDEP will fully implement their March 2015 agreement.

Notably, each Signatory Party may choose whether and when to initiate an agreement or agreements with DRBC under the Program. No draft agreements with Signatory Party agencies other than the NJDEP to implement the Program have yet been published for comment.

Procedural Background

The Commission introduced One Permit to the basin community during meetings with regulated entities, environmental organizations and other stakeholders on February 12 and March 3, 2015 and through publication on the DRBC Web site of a press release and a set of FAQs on February 27, 2015. During the Commission's quarterly public meeting on March 10-11, 2015, the Commission approved Resolution No. 2015-4, in part authorizing and directing the Executive Director to initiate rulemaking to amend DRBC's Rules of Practice and Procedure to provide specific authorization for and define the scope of the Program. Notice of the proposed amendments was published on the Commission's Web site on May 17, 2015.

Notice of the proposed amendments also appeared in the Federal Register at 80 FR 28567, May 19, 2015; in the Delaware Register of Regulations, 18 DE Reg. 1002, June 1, 2015; New Jersey Register, 47 N.J.R. 1256, June 1, 2015; New York State Register, May 27, 2015 (page 4); and Pennsylvania Bulletin, 45 Pa. B. 2611, May 30, 2015. The Commission held a public hearing on the proposal on June 9, 2015 and accepted written comments on the rule through July 1, 2015.

Rule Highlights

Notable aspects of the final rule include the following:

• Section 401.42(b) provides that applications for approvals required by the Compact and Commission regulations, but not within the scope of the Program, must continue to be submitted to the Commission.

• To ensure continued public access to information on the status of all projects under review pursuant to the Delaware River Basin Compact, including those administered under One Permit, § 401.42(d)(2) establishes that participating Signatory Party agencies will notify DRBC at least once monthly of applications received under the Program; and § 401.42(d)(5) establishes that the list that the Commission will maintain of projects being administered under One Permit will be posted on the Commission's Web site.

• Section 401.42(h) provides that DRBC's current Project Review Fee Schedule as set forth in Resolution No. 2009-2 will be the operative fee schedule for projects reviewed under the Program.

• Section 401.42(i) provides mechanisms for the efficient disposition of Commission dockets during the transition to One Permit. Section 401.42(i)(1) provides that for projects covered by the Program, the most recent docket will be deemed administratively continued when a renewal application is timely submitted to the Signatory Party Agency. Section 401.42(i)(2) provides that unless the Executive Director or the Commission otherwise directs, upon the Signatory Party Agency's final action on an application for a project subject to the Program, (a) any existing or administratively continued docket will terminate as to all of its provisions and conditions within the scope of the Signatory Party Agency approval; and (b) such docket will continue in effect as to any provisions and conditions outside the scope of the Signatory Party Agency approval, including for example, addition of a project to the Comprehensive Plan.

• The rule authorizes Signatory Party agencies, in accordance with an applicable administrative agreement, to issue in their approvals for projects to be administered under the Program the finding and determination required by section 3.8 of the Compact that a project subject to section 3.8 review does not substantially impair or conflict with the Commission's Comprehensive Plan (“the finding”). Section 401.42(d)(4) makes clear that where in accordance with an applicable administrative agreement implementing One Permit the finding continues to be made by the Commission, the Signatory Party agency may include the Commission's finding in the agency's approval, together with any conditions identified by the Commission as necessary to support it, thereby achieving a unified permit.

• The final rule also makes clear (1) that participation in the program by Signatory Party agencies is voluntary; and (2) that the scope of a Signatory Party Agency's participation is defined by an administrative agreement between DRBC and the agency that has been duly adopted in accordance with § 401.42(d).

Additional Materials

Additional materials can be found on the Commission's Web site at www.drbc.net. These include DRBC Resolution No. 2015-9 approving the final rule, at http://www.nj.gov/drbc/library/documents/Res2015-09_OPOPwith-final-rule-text.pdf; and the Commission's detailed comment and response document, which identifies commenters, summarizes comments received on the proposal, and sets forth the Commission's responses, at http://www.nj.gov/drbc/library/documents/OPOP/comment-and-response_OPOP.pdf. The version of the Rules of Practice and Procedure that is currently posted on DRBC's Web site at http://www.nj.gov/drbc/library/documents/admin_manual.pdf uses DRBC's original numbering system, which is different from that of the CFR. In the original system, the One Permit Program rules are set forth at new section 2.3.11. A list of the CFR units and corresponding DRBC units follows. A complete stand-alone version of the Rules of Practice and Procedure using the CFR system will be available on the DRBC Web site shortly.

CFR Unit DRBC Unit Title or Caption Title 18 Conservation of Power and Water Resources Chapter III—Delaware River Basin Commission Subchapter A—Administrative Manual Administrative Manual [Part II] Part 401—Rules of Practice and Procedure Rules of Practice and Procedure Subpart C—Project Review Under Section 3.8 of the Compact Article 3—Project Review Under Section 3.8 of the Compact 401.42 2.3.11 One Permit Program. 401.42(a) 2.3.11 A Purpose. 401.42(b) 2.3.11 B Scope. 401.42(c) 2.3.11 C Regulatory programs. 401.42(d) 2.3.11 D Procedure. 401.42(e) 2.3.11 E Comprehensive Plan projects. 401.42(f) 2.3.11 F Retention of Commission review and enforcement authorities. 401.42(g) 2.3.11 G Exhaustion of Signatory Party administrative remedies prerequisite to appeal. 401.42(h) 2.3.11 H Fees. 401.42(i) 2.3.11 I Effect of One Permit Program on Commission dockets. 401.42(j) 2.3.11 J Modification of Rules of Practice and Procedure to conform to this section. 401.42(k) 2.3.11 K No interference with Supreme Court decree. List of Subjects in 18 CFR Part 401

Administrative practice and procedure, Project review, Water pollution control, Water resources.

For the reasons set forth in the preamble, the Delaware River Basin Commission amends part 401 of title 18 of the Code of Federal Regulations as follows:

PART 401—RULES OF PRACTICE AND PROCEDURE 1. The authority citation for part 401 continues to read as follows: Authority:

Delaware River Basin Compact (75 Stat. 688), unless otherwise noted.

Subpart C—Project Review Under Section 3.8 of the Compact 2. Add § 401.42 to read as follows:
§ 401.42 One Permit Program.

(a) Purpose. The purpose of the One Permit Program set forth in this section is to provide the opportunity for the environmental agency and/or other administrative agency of a Signatory Party (“Signatory Party Agency”) and the Commission to coordinate and collaborate in the administration of a single process for the review and adjudication of projects. The One Permit Program allows the Signatory Party Agency and Commission to incorporate requirements and determinations of both entities in a single permit or other approval instrument, pursuant to a duly adopted Administrative Agreement under paragraph (d) of this section.

(b) Scope. This section applies to all projects that:

(1) Are reviewable under the Compact;

(2) Meet the thresholds for review set forth in § 401.35 of these Rules of Practice and Procedure;

(3) Are subject to review by a Signatory Party Agency under its own statutory authorities; and

(4) Are within regulatory programs that have been identified in a duly adopted Administrative Agreement between the Commission and a Signatory Party Agency under this section. For any project that requires an approval under the Compact that is outside the scope of the Signatory Party Agency's approval issued in accordance with an Administrative Agreement under this section, the project sponsor shall apply to the Commission in accordance with procedures established by the Commission.

(c) Regulatory programs. Regulatory programs eligible for administration under the One Permit Program may include but are not limited to those concerning: Basin discharges, Basin water withdrawals, and Basin flood plain requirements.

(d) Procedure. The categories of projects covered and the procedures for processing applications under the One Permit Program shall be set forth in one or more Administrative Agreements between the Commission and the Signatory Party Agency that have been adopted by the Commission following a duly noticed public hearing and are in form and substance acceptable to the Commission and the Signatory Party Agency, consistent with the following:

(1) Except as provided in paragraphs (b) and (e) of this section or in an Administrative Agreement that has been duly executed by the Commission and the Signatory Party Agency under this section, an application for initial approval, renewal or revision of any project subject to the One Permit Program shall be filed only with the Signatory Party Agency.

(2) To enable the Commission to compile and make available to the public a current list of pending applications for projects within the Basin subject to Commission jurisdiction, the Signatory Party Agency shall notify the Commission at least monthly of applications the Signatory Party has received during the preceding month that may be eligible for review under the One Permit Program.

(3) For those categories of projects identified in the Administrative Agreement as requiring Commission input, the Commission staff shall provide the Signatory Party Agency with such input, including where specified by the Administrative Agreement, a recommendation as to any conditions of approval that may be necessary or appropriate to include in the project review determination under Section 3.8 of the Compact as to those regulatory programs identified in an Administrative Agreement in accordance with paragraph (b) of this section.

(4) Unless the Signatory Party Agency disapproves the project or the Administrative Agreement provides for separate Commission action under Section 3.8 of the Compact, the Signatory Party Agency shall make the project review determination under Section 3.8 of the Compact, as specified in the Administrative Agreement, as to the regulatory program covered by the Signatory Party Agency's approval and include the determination and any associated conditions of approval within the permit or other approval instrument that it issues to the project sponsor. If in accordance with the applicable Administrative Agreement the determination under Section 3.8 of the Compact is made by the Commission, the Signatory Party Agency may include the determination together with any associated conditions of approval in its permit or other approval instrument covering the project.

(5) The Commission will maintain on its Web site a list of all projects being administered pursuant to the Program.

(e) Comprehensive Plan projects. Articles 11 and 13 of the Compact require certain projects to be included in the Comprehensive Plan. To add a project not yet included in the Comprehensive Plan, the project sponsor shall submit a separate application to the Commission. If following its review and public hearing the Commission approves the addition of the project to the Comprehensive Plan, the Commission's approval will include such project requirements as are necessary under the Compact and Commission regulations. All other project approvals that may be required from the Signatory Party Agency or the Commission under regulatory programs administered pursuant to this section may be issued through the One Permit Program. An application for renewal or modification of a project in the Comprehensive Plan that does not change the project so substantially as to render it a new and different project may be submitted only to the Signatory Party Agency unless otherwise specified in the Administrative Agreement.

(f) Retention of Commission review and enforcement authorities. Notwithstanding any other provision of this section, any Commissioner or the Executive Director may designate for Commission review any project that is reviewable under the Compact. Nothing in this section shall limit the authority of the Commission to exercise its review authority under the Compact and applicable Commission regulations. Similarly, although Administrative Agreements executed pursuant to this section may include collaborative and cooperative compliance and enforcement procedures, nothing in this section shall limit the authority of the Commission to exercise its enforcement authority under the Compact and applicable regulations.

(g) Exhaustion of Signatory Party administrative remedies prerequisite to appeal. Before commencing an action in a court of appropriate jurisdiction challenging any final action taken by a Signatory Party Agency under this section, the appellant must first exhaust its administrative remedies under the law of the Signatory Party whose agency issued the decision at issue.

(h) Fees. The Commission shall establish and maintain a schedule of fees for any or all of the services it renders pursuant to this section. The applicable fee(s) for Commission services rendered pursuant to this section shall be those set forth in DRBC Resolution No. 2009-2 (available at http://www.nj.gov/drbc/library/documents/Res2009-2.pdf) for the review and renewal of project approvals. Project sponsors shall pay such fees, if any, directly to the Commission in accordance with the current schedule and applicable rules.

(i) Effect of One Permit Program on Commission dockets.

(1) Unless the Executive Director or Commission otherwise directs, if a docket holder submits, or has submitted, a timely application to a Signatory Party Agency for a project subject to review under an Administrative Agreement duly adopted under paragraph (d) of this section, the most recent docket for the project shall, upon expiration, be deemed administratively continued until final action is taken in accordance with paragraph (i)(2) of this section.

(2) Unless the Executive Director or Commission otherwise directs, upon a Signatory Party Agency's final action on an application for a project subject to the One Permit Program:

(i) Any existing or administratively continued docket for such project shall terminate as to all of its provisions and conditions that pertain to regulatory programs administered by the Signatory Party Agency under the Administrative Agreement (“the Covered Programs”); and

(ii) The docket shall continue in effect as to any provisions and conditions not pertaining only to Covered Programs, including, as applicable, the incorporation of the project in the Commission's Comprehensive Plan.

(j) Modification of rules of practice and procedure to conform to this section. Any project subject to review under an Administrative Agreement duly adopted under paragraph (d) of this section, shall be governed by this section and not §§ 401.4, 401.5, 401.6, 401.8, 401.34(a), (c) and (e), 401.37, 401.38 and 18 CFR part 401, subpart F, where they are inconsistent with the procedures provided in this section.

(k) No interference with Supreme Court decree. In accordance with Sections 3.3(a) and 3.5 of the Compact, nothing in this section shall grant the authority to any Signatory Party Agency to impair, diminish or otherwise adversely affect the diversions, compensating releases, rights, conditions, obligations and provisions for administration thereof provided in the United States Supreme Court decree in New Jersey v. New York, 347 U.S. 995 (1954) (“Decree”). Any such action shall be taken only by the Commission with the unanimous consent of the parties to the Decree or upon unanimous consent of the members of the Commission following a declaration of a state of emergency in accordance with Section 3.3(a) of the Compact.

Dated: January 15, 2016. Pamela M. Bush, Commission Secretary and Assistant General Counsel.
[FR Doc. 2016-02048 Filed 2-2-16; 8:45 am] BILLING CODE 6360-01-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 73, 101, 118, 165, 172, 173, 177, 178, 184, 189, 589, and 700 [Docket No. FDA-2015-N-0011] Center for Food Safety and Applied Nutrition Library Address; Technical Amendments AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final rule; technical amendments.

SUMMARY:

The Food and Drug Administration (FDA or we) is amending certain regulations to update the location of references cited in our food regulations. We are taking this action to reflect the transfer of those references from our facility in College Park, MD, to our library at our main campus in Silver Spring, MD. We also are updating certain regulations to reflect the current names for specific FDA offices.

DATES:

This rule is effective February 3, 2016.

FOR FURTHER INFORMATION CONTACT:

Philip L. Chao, Center for Food Safety and Applied Nutrition (HFS-024), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740-3835, 240-402-2112.

SUPPLEMENTARY INFORMATION:

Various regulations pertaining to human food have incorporated materials by reference. In general, the regulations have identified a library at the Center for Food Safety and Applied Nutrition (CFSAN), which was (at the time the regulations were published) located in Washington, DC, or in College Park, MD. We recently consolidated our library holdings at our main campus in Silver Spring, MD. Consequently, we are making technical amendments to our regulations at parts 73, 101, 118, 165, 172, 173, 177, 178, 184, 189, 589, and 700 (21 CFR parts 73, 101, 118, 165, 172, 173, 177, 178, 184, 189, 589, and 700) to state that the materials can be found at the FDA Library in Silver Spring, MD. We also are updating certain regulations to reflect the current names for specific FDA offices. The amendments are as follows:

• We are revising §§ 73.165, 73.585, 165.110, and 173.300 to update the library address from “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising §§ 101.4, 101.81(c)(2)(ii)(A) introductory text and (B)(1) and (2), 101.83, 165.110, 172.155, 172.785, 172.833, 173.25, 173.45, 173.340, 173.357, 173.370, 177.1350, 177.1360, 177.1390, 177.1520, 177.2600, 178.3297, 184.1063, 184.1148, 184.1150, 184.1250, 184.1387, 184.1420, 184.1444, 184.1866, 189.5, 589.2001, and 700.27 to update the library address from “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 101.80 to update the library address from “Center for Food Safety and Applied Nutrition's Library, Harvey W. Wiley Federal Building, 5100 Paint Branch Pkwy., College Park, MD” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 101.81(c)(2)(ii)(A)(5) to update the library address from “Center for Food Safety and Applied Nutrition Library, 5100 Paint Branch Pkwy., College Park, MD 20740” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising §§ 118.8 and 165.110 to update the library address from “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD, 301-436-2163” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 165.110 to update the library address from “Center for Food Safety and Applied Nutrition's Library, 200 C St. NW., Washington DC” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising §§ 165.110, 172.723, 172.736, 172.804, 172.809, 172.864, 172.886, 173.375, 177.1345, 177.1585, 177.1637, 178.1010, 184.1007, 184.1257, 184.1259, 184.1282, 184.1293, 184.1472, 184.1530, 184.1699, 184.1979, 184.1979a, 184.1979b, and 184.1979c to update the library address from “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising §§ 172.167 and 173.356 to update the library address from “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-2163” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 172.736 to update the library address from “in the library at the Center for Food Safety and Applied Nutrition, 5100 Paint Branch Pkwy., College Park, MD 20740” to “at the Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 172.829 to update the library address from “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., rm. 1C-100, College Park, MD 20740” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 173.325 to update the library address from “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740 20204-0001” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 184.1311 to update the library address from “Center for Food Safety and Applied Nutrition's library, 5100 Paint Branch Pkwy., College Park, MD 20740” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 101.83(c)(2)(ii)(A)(2) and (c)(2)(ii)(B)(2), to remove the words “Office of Nutritional Products, Labeling, and Dietary Supplements, Division of Nutrition Science and Policy,” and in their place add “Office of Nutrition, Labeling and Dietary Supplements, Nutrition Programs Staff”.

• We are revising § 118.8 to replace “The FDA” with “FDA”.

• We are revising § 173.300 to add the words “Office of Food Additive Safety”.

• We are revising § 173.340 to remove the words “Division of Petition Control” and “(HFS-215)” and in their place adding “Office of Food Additive Safety (HFS-200)”.

• We are revising § 173.357 to remove the words “Division of Petition Control” and “(HFS-215)” and in their place adding “Office of Food Additive Safety (HFS-200)”.

• We are updating §§ 177.1520 and 177.1585 to remove the words “Office of Premarket Approval” and in their place adding the “Office of Food Additive Safety”.

Publication of this document constitutes final action of these changes under the Administrative Procedure Act (5 U.S.C. 553). These amendments are merely updating the address of CFSAN references and the names of CFSAN offices. FDA, therefore, for good cause, finds under 5 U.S.C. 553(b)(3)(B) and (d)(3) that notice and public comment are unnecessary.

List of Subjects 21 CFR Part 73

Color additives, Cosmetics, Drugs, Medical devices.

21 CFR Part 101

Food labeling, Nutrition, Reporting and recordkeeping requirements.

21 CFR Part 118

Egg and egg products, Incorporation by reference, Recordkeeping requirements, Safety.

21 CFR Part 165

Beverages, Bottled water, Food grades and standards, Incorporation by reference.

21 CFR Part 172

Food additives, Reporting and recordkeeping requirements.

21 CFR Part 173

Food additives.

21 CFR Part 177

Food additives, Food packaging.

21 CFR Part 178

Food additives, Food packaging.

21 CFR Part 184

Food additives.

21 CFR Part 189

Food additives, Food packaging.

21 CFR Part 589

Animal feeds, Animal foods, Food additives.

21 CFR Part 700

Cosmetics, Packaging and containers.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR parts 73, 101, 118, 165, 172, 173, 177, 178, 184, 189, 589, and 700 are amended as follows:

PART 73—LISTING OF COLOR ADDITIVES EXEMPT FROM CERTIFICATION 1. The authority citation for 21 CFR part 73 continues to read as follows: Authority:

21 U.S.C. 321, 341, 342, 343, 348, 351, 352, 355, 361, 362, 371, 379e.

§ 73.165 [Amended]
2. Amend § 73.165 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 73.585 [Amended]
3. Amend § 73.585 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. PART 101—FOOD LABELING 4. The authority citation for 21 CFR part 101 continues to read as follows: Authority:

15 U.S.C. 1453, 1454, 1455; 21 U.S.C. 321, 331, 342, 343, 348, 371; 42 U.S.C. 243, 264, 271.

§ 101.4 [Amended]
5. Amend § 101.4 in paragraphs (h) introductory text and (h)(2) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” wherever it appears and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 101.80 [Amended]
6. Amend § 101.80 in paragraph (c)(2)(iii)(C) by removing “Center for Food Safety and Applied Nutrition's Library, Harvey W. Wiley Federal Building, 5100 Paint Branch Pkwy., College Park, MD” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 101.81 [Amended]
7. Amend § 101.81 as follows: a. In paragraphs (c)(2)(ii)(A) introductory text and (c)(2)(ii)(B)(1) and (2) remove “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” wherever it appears and add in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. b. In paragraph (c)(2)(ii)(A)(5) remove “Center for Food Safety and Applied Nutrition Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and add in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 101.83 [Amended]
8. Amend § 101.83 in paragraphs (c)(2)(ii)(A)(2) and (c)(2)(ii)(B)(2) as follows: a. Remove “Office of Nutritional Products, Labeling, and Dietary Supplements, Division of Nutrition Science and Policy” and add in its place “Office of Nutrition, Labeling and Dietary Supplements, Nutrition Programs Staff”. b. Remove “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” wherever it appears and add in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. PART 118—PRODUCTION, STORAGE, AND TRANSPORTATION OF SHELL EGGS 9. The authority citation for 21 CFR part 118 continues to read as follows: Authority:

21 U.S.C. 321, 331-334, 342, 371, 381, 393; 42 U.S.C. 243, 264, 271.

§ 118.8 [Amended]
10. Amend § 118.8 in paragraphs (a) and (b) as follows: a. Remove “The FDA” wherever it appears and add in its place “FDA”. b. Remove “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD, 301-436-2163” wherever it appears and add in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. PART 165—BEVERAGES 11. The authority citation for 21 CFR part 165 continues to read as follows: Authority:

21 U.S.C. 321, 341, 343, 343-1, 348, 349, 371, 379e.

§ 165.110 [Amended]
12. Amend § 165.110 as follows: a. In paragraphs (a)(2)(iv) and (vii), (b)(4)(iii)(E)(7)(iv), and (b)(4)(iii)(I), remove “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” wherever it appears and add in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. b. In paragraphs (b)(2)(ii) and (b)(3) introductory text, remove “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-2163” wherever it appears and add in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. c. In paragraph (b)(4)(i)(C) introductory text, remove “Center for Food Safety and Applied Nutrition's Library, 200 C St. NW., Washington DC” and add in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039.” d. In paragraphs (b)(4)(iii)(E) introductory text, (b)(4)(iii)(E)(1)(ii) and (iv), (b)(4)(iii)(E)(11)(i), (b)(4)(iii)(E)(14)(i), and (b)(4)(iii)(F)(20), remove “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” wherever it appears and add in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. e. In paragraph (b)(5)(ii) introductory text, remove “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD” and add in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. PART 172—FOOD ADDITIVES PERMITTED FOR DIRECT ADDITION TO FOOD FOR HUMAN CONSUMPTION 13. The authority citation for 21 CFR part 172 continues to read as follows: Authority:

21 U.S.C. 321, 341, 342, 348, 371, 379e.

§ 172.155 [Amended]
14. Amend § 172.155 in paragraph (c) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 172.167 [Amended]
15. Amend § 172.167 in paragraph (d)(2) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-2163” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 172.723 [Amended]
16. Amend § 172.723 in paragraph (b)(3) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 172.736 [Amended]
17. Amend § 172.736 as follows: a. In paragraph (b)(1), remove “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and add in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. b. In paragraph (b)(3), remove “in the library at the Center for Food Safety and Applied Nutrition, 5100 Paint Branch Pkwy., College Park, MD 20740” and add in its place “at the Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 172.785 [Amended]
18. Amend § 172.785 in paragraph (b)(1) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 172.804 [Amended]
19. Amend § 172.804 in paragraph (c)(2) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 172.809 [Amended]
20. Amend § 172.809 in paragraph (b) introductory text by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 172.829 [Amended]
21. Amend § 172.829 in paragraph (b) introductory text by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., Rm. 1C-100, College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 172.833 [Amended]
22. Amend § 172.833 in paragraphs (b)(2) and (4) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” wherever it appears and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 172.864 [Amended]
23. Amend § 172.864 in paragraph (a)(3) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 172.886 [Amended]
24. Amend § 172.886 in paragraph (c)(2)(iii) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. PART 173—SECONDARY DIRECT FOOD ADDITIVES PERMITTED IN FOOD FOR HUMAN CONSUMPTION 25. The authority citation for 21 CFR part 173 continues to read as follows: Authority:

21 U.S.C. 321, 342, 348.

§ 173.25 [Amended]
26. Amend § 173.25 in paragraph (b)(2)(ii)(B) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 173.45 [Amended]
27. Amend § 173.45 in paragraph (a) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 173.300 [Amended]
28. Amend § 173.300 in paragraph (a)(2) as follows: a. Remove “Center for Food Safety and Applied Nutrition (HFS-200)” and add in its place “Office of Food Additive Safety (HFS-200), Center for Food Safety and Applied Nutrition”. b. Remove “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD” and add in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
§ 173.325 [Amended]
29. Amend § 173.325 in paragraph (h) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740 20204-0001” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. 30. Amend § 173.340 in the table in paragraph (a)(4) by revising the entry “n-Butoxypoly(oxyethylene)-poly(oxypropylene)glycol” to read as follows:
§ 173.340 Defoaming agents.

(a) * * *

(4) * * *

Substances Limitations n-Butoxypoly(oxyethylene)-poly(oxypropylene)glycol Viscosity range, 4,850-5,350 Saybolt Universal Seconds (SUS) at 37.8 °C (100 °F). The viscosity range is determined by the method “Viscosity Determination of n-butoxypoly(oxyethylene)-poly(oxypropylene) glycol” dated April 26, 1995, developed by Union Carbide Corp., P.O. Box 670, Bound Brook, NJ 08805, which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the material incorporated by reference are available from the Office of Food Additive Safety (HFS-200), Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, and may be examined at the Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. *         *         *         *         *         *         *
§ 173.356 [Amended]
31. Amend § 173.356 in paragraph (a) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-2163” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. 32. Amend § 173.357 in the table in paragraph (a)(2) by revising the entry “Polyethylenimine reaction product with 1,2-dichloroethane (CAS Reg. No. 68130-97-2)” to read as follows:
§ 173.357 Materials used as fixing agents in the immobilization of enzyme preparations.

(a) * * *

(2) * * *

Substances Limitations *         *         *         *         *         *         * Polyethylenimine reaction product with 1,2-dichloroethane (CAS Reg. No. 68130-97-2) is the reaction product of homopolymerization of ethylenimine in aqueous hydrochloric acid at 100 °C and of cross-linking with 1,2-dichloroethane. The finished polymer has an average molecular weight of 50,000 to 70,000 as determined by gel permeation chromatography. The analytical method is entitled “Methodology for Molecular Weight Detection of Polyethylenimine,” which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the Office of Food Additive Safety (HFS-200), Center for Food Safety and Applied Nutrition, 5100 Paint Branch Pkwy., College Park, MD 20740, and may be examined at the Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html May be used as a fixing material in the immobilization of glucoamylase enzyme preparations from Aspergillus niger for use in the manufacture of beer.
  • May be used as a fixing material in the immobilization of:
  • 1. Glucose isomerase enzyme preparations for use in the manufacture of high fructose corn syrup, in accordance with § 184.1372 of this chapter.
  • 2. Glucoamylase enzyme preparations from Aspergillus niger for use in the manufacture of beer. Residual ethylenimine in the finished polyethylenimine polymer will be less than 1 part per million as determined by gas chromatography-mass spectrometry. The residual ethylenimine is determined by an analytical method entitled “Methodology for Ethylenimine Detection in Polyethylenimine,” which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Residual 1,2-dichloroethane in the finished polyethylenimine polymer will be less than 1 part per million as determined by gas chromatography. The residual 1,2-dichloroethane is determined by an analytical method entitled, “Methodology for Ethylenedichloride Detection in Polyethylenimine,” which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the Office of Food Additive Safety (HFS-200), Center for Food Safety and Applied Nutrition, 5100 Paint Branch Pkwy., College Park, MD 20740, or may be examined at the Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
  • § 173.370 [Amended]
    33. Amend § 173.370 in paragraph (c) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 173.375 [Amended]
    34. Amend § 173.375 in paragraph (a) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. PART 177—INDIRECT FOOD ADDITIVES: POLYMERS 35. The authority citation for 21 CFR part 177 continues to read as follows: Authority:

    21 U.S.C. 321, 342, 348, 379e.

    § 177.1345 [Amended]
    36. Amend § 177.1345 in paragraph (b)(1) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 177.1350 [Amended]
    37. Amend § 177.1350 in paragraph (b)(2) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 177.1360 [Amended]
    38. Amend § 177.1360 in paragraph (d) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 177.1390 [Amended]
    39. Amend § 177.1390 in paragraph (c)(3)(i)(a)(1) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. 40. Amend § 177.1520 in the table in paragraph (b) by revising the entry “Methyl methacrylate/butyl acrylate-grafted polypropylene copolymer containing methyl methacrylate/butyl acrylate-grafted polypropylene (CAS Reg. No. 121510-09-6)” to read as follows:
    § 177.1520 Olefin polymers.

    (b) * * *

    Substance Limitations *         *         *         *         *         *         * Methyl methacrylate/butyl acrylate-grafted polypropylene copolymer containing methyl methacrylate/butyl acrylate-grafted polypropylene (CAS Reg. No. 121510-09-6), methyl methacrylate/butyl acrylate copolymer (CAS Reg. No. 25852-37-3), methyl methacrylate homopolymer (CAS Reg. No. 9011-14-7), and polypropylene (CAS Reg. No. 9003-07-0), resulting from the reaction of a mixture of methyl methacrylate and butyl acrylate with polypropylene. The finished product contains no more than 55 percent by weight of polymer units derived from methyl methacrylate and butyl acrylate as determined by a method entitled, “Determination of the Total Acrylic in PP-MMA/BA Polymers,” which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies are available from the Office of Food Additive Safety, Center for Food Safety and Applied Nutrition (HFS-200), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, or may be examined at the Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html For use only at levels not to exceed 6 percent by weight of olefin polymers complying with paragraph (c) of this section, items 1.1, 3.1a, 3.2a, and 3.2b, where the copolymers complying with items 3.1a, 3.2a, and 3.2b contain not less than 85 weight-percent of polymer units derived from propylene. *         *         *         *         *         *         *
    § 177.1585 [Amended]
    41. Amend § 177.1585 in paragraph (c)(1)(i) as follows: a. Remove “Office of Premarket Approval” and add in its place “Office of Food Additive Safety”. b. Remove “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and add in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 177.1637 [Amended]
    42. Amend § 177.1637 in paragraph (b)(2) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 177.2600 [Amended]
    43. Amend § 177.2600 in paragraph (c)(4)(i) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. PART 178—INDIRECT FOOD ADDITIVES: ADJUVANTS, PRODUCTION AIDS, AND SANITIZERS 44. The authority citation for 21 CFR part 178 continues to read as follows: Authority:

    21 U.S.C. 321, 342, 348, 379e.

    § 178.1010 [Amended]
    45. Amend § 178.1010 in paragraph (c)(40) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 178.3297 [Amended]
    46. Amend § 178.3297 in the table in paragraph (e) by revising the entry “High-purity furnace black (CAS Reg. No. 1333-86-4)” to read as follows:
    § 178.3297 Colorants for polymers.

    (e) * * *

    Substances Limitations *         *         *         *         *         *         * High-purity furnace black (CAS Reg. No. 1333-86-4) containing total polynuclear aromatic hydrocarbons not to exceed 0.5 parts per million, and benzo[a]pyrene not to exceed 5.0 parts per billion, as determined by a method entitled “Determination of PAH Content of Carbon Black,” dated July 8, 1994, as developed by the Cabot Corp., which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the Office of Food Additive Safety (HFS-200), Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-1200, or may be examined at the Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html For use at levels not to exceed 2.5 percent by weight of the polymer. *         *         *         *         *         *         *
    PART 184—DIRECT FOOD SUBSTANCES AFFIRMED AS GENERALLY RECOGNIZED AS SAFE 47. The authority citation for 21 CFR part 184 continues to read as follows: Authority:

    21 U.S.C. 321, 342, 348, 371.

    § 184.1007 [Amended]
    48. Amend § 184.1007 in paragraph (b)(1) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1063 [Amended]
    49. Amend § 184.1063 in paragraphs (b) introductory text and (b)(8) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” wherever it appears and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1148 [Amended]
    50. Amend § 184.1148 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1150 [Amended]
    51. Amend § 184.1150 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1250 [Amended]
    52. Amend § 184.1250 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1257 [Amended]
    53. Amend § 184.1257 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1259 [Amended]
    54. Amend § 184.1259 in paragraph (b)(3) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1282 [Amended]
    55. Amend § 184.1282 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1293 [Amended]
    56. Amend § 184.1293 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039.”
    § 184.1311 [Amended]
    57. Amend § 184.1311 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039.”
    § 184.1387 [Amended]
    58. Amend § 184.1387 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1420 [Amended]
    59. Amend § 184.1420 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1444 [Amended]
    60. Amend § 184.1444 in paragraph (b)(3) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1472 [Amended]
    61. Amend § 184.1472 in paragraph (a)(2)(iii) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1530 [Amended]
    62. Amend § 184.1530 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1699 [Amended]
    63. Amend § 184.1699 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1866 [Amended]
    64. Amend § 184.1866 in paragraph (b) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1979 [Amended]
    65. Amend § 184.1979 in paragraphs (b)(1) and (2) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” wherever it appears and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1979a [Amended]
    66. Amend § 184.1979a in paragraphs (b)(1) introductory text and (b)(2) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” wherever it appears and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1979b [Amended]
    67. Amend § 184.1979b in paragraphs (b)(1) introductory text and (b)(2) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” wherever it appears and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.
    § 184.1979c [Amended]
    68. Amend § 184.1979c in paragraphs (b)(1) introductory text and (b)(2) by removing “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” wherever it appears and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. PART 189—SUBSTANCES PROHIBITED FROM USE IN HUMAN FOOD 69. The authority citation for 21 CFR part 189 continues to read as follows: Authority:

    21 U.S.C. 321, 342, 348, 371, 381.

    § 189.5 [Amended]
    70. Amend § 189.5 in paragraph (a)(6) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. PART 589—SUBSTANCES PROHIBITED FROM USE IN ANIMAL FOOD OR FEED 71. The authority citation for 21 CFR part 589 continues to read as follows: Authority:

    21 U.S.C. 321, 342, 343, 348, 371.

    § 589.2001 [Amended]
    72. Amend § 589.2001 in paragraph (b)(1)(vi)(B) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. PART 700—GENERAL 73. The authority citation for 21 CFR part 700 continues to read as follows: Authority:

    21 U.S.C. 321, 331, 352, 355, 361, 362, 371, 374.

    § 700.27 [Amended]
    74. Amend § 700.27 in paragraph (a)(6) by removing “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” and adding in its place “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”. Dated: January 27, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-01787 Filed 2-2-16; 8:45 am] BILLING CODE 4164-01-P
    POSTAL REGULATORY COMMISSION 39 CFR Part 3020 [Docket Nos. MC2010-21 and CP2010-36] Update to Product Lists AGENCY:

    Postal Regulatory Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Commission is updating the product lists. This action reflects a publication policy adopted by Commission order. The referenced policy assumes periodic updates. The updates are identified in the body of this document. The product lists, which is republished in its entirety, includes these updates.

    DATES:

    Effective Date: February 3, 2016.

    Applicability Dates: August 4, 2015, Competitive International Merchandise Return Service Agreements with Foreign Postal Operators (MC2015-68 and CP2015-99); September 29, 2015, Priority Mail Contract 144 (MC2015-84 and CP2015-140); September 29, 2015, Parcel Select Contract 10 (MC2015-85 and CP2015-141); September 29, 2015, Priority Mail Contract 143 (MC2015-83 and CP2015-139); September 29, 2015, Priority Mail Contract 142 (MC2015-82 and CP2015-138); October 16, 2015, Priority Mail Express Contract 28 (MC2016-2 and CP2016-2); October 16, 2015, Priority Mail Contract 145 (MC2016-1 and CP2016-1); October 16, 2015, Priority Mail Contract 146 (MC2016-3 and CP2016-3); October 16, 2015, Priority Mail Contract 147 (MC2016-4 and CP2016-4); October 23, 2015, Global Expedited Package Services Contracts—Non-Published Rates 8 (MC2016-5 and CP2016-5); October 23, 2015, Priority Mail Contract 148 (MC2016-6 and CP2016-6); November 2, 2015, Priority Mail Contract 149 (MC2016-8 and CP2016-10); November 2, 2015, Priority Mail Express, Priority Mail & First-Class Package Service Contract 5 (MC2016-9 and CP2016-11); November 3, 2015, Priority Mail Contract 150 (MC2016-11 and CP2016-12); November 5, 2015, Priority Mail Contract 151 (MC2016-12 and CP2016-14); November 5, 2015, Priority Mail Contract 152 (MC2016-13 and CP2016-15); November 17, 2015, Priority Mail Express & Priority Mail Contract 21 (MC2016-14 and CP2016-17); December 2, 2015, Priority Mail Contract 153 (MC2016-17 and CP2016-23); December 2, 2015, Priority Mail Express Contract 29 (MC2016-16 and CP2016-22); December 4, 2015, Priority Mail Express, Priority Mail & First-Class Package Service Contract 6 (MC2016-21 and CP2016-27); December 4, 2015, Priority Mail Contract 154 (MC2016-18 and CP2016-24); December 4, 2015, Priority Mail Contract 155 (MC2016-19 and CP2016-25); December 7, 2015, Priority Mail Express & Priority Mail Contract 22 (MC2016-20 and CP2016-26); December 15, 2015, Priority Mail Express & Priority Mail Contract 23 (MC2016-26 and CP2016-32); December 15, 2015, Priority Mail Contract 156 (MC2016-22 and CP2016-28); December 15, 2015, Priority Mail Contract 158 (MC2016-24 and CP2016-30); December 15, 2015, Priority Mail Contract 157 (MC2016-23 and CP2016-29); December 15, 2005, Priority Mail Contract 159 (MC2016-25 and CP2016-31); December 17, 2015, Parcel Select Contract 11 (MC2016-28 and CP2016-34); December 17, 2015, Priority Mail Express & Priority Mail Contract 24 (MC2016-27 and CP2016-33); December 17, 2015, Priority Mail Contract 160 (MC2016-29 and CP2016-35); December 21, 2015, Priority Mail Contract 161 (MC2016-30 and CP2016-36); December 21, 2015, Priority Mail Express Contract 30 (MC2016-32 and CP2016-38); December 21, 2015, Priority Mail Contract 162 (MC2016-31 and CP2016-37); December 22, 2015, First-Class Package Service Contract 38 (MC2016-33 and CP2016-39); December 22, 2015, Priority Mail & First-Class Package Service Contract 8 (MC2016-34 and CP2016-40); December 22, 2015, Priority Mail Contract 163 (MC2016-35 and CP2016-41); December 22, 2015, Priority Mail Contract 164 (MC2016-36 and CP2016-42); December 24, 2015, First-Class Package Service Contract 39 (MC2016-38 and CP2016-47); December 24, 2015, Parcel Select Contract 12 (MC2016-37 and CP2016-46); December 30, 2015, Priority Mail & First-Class Package Service Contract 9 (MC2016-44 and CP2016-59); December 30, 2015, Priority Mail Express & Priority Mail Contract 25 (MC2016-45 and CP2016-60); December 30, 2015, Global Expedited Package Services Contracts—Non-Published Rates 9 (MC2016-46 and CP2016-61); November 13, 2015, Competitive Products Price Changes Rates of General Applicability (CP2016-9).

    FOR FURTHER INFORMATION CONTACT:

    David A. Trissell, General Counsel, at 202-789-6800.

    SUPPLEMENTARY INFORMATION:

    This document identifies updates to the product lists, which appear as 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule. Publication of the updated product lists in the Federal Register is addressed in the Postal Accountability and Enhancement Act (PAEA) of 2006.

    Authorization. The Commission process for periodic publication of updates was established in Docket Nos. MC2010-21 and CP2010-36, Order No. 445, April 22, 2010, at 8.

    Changes. The product lists are being updated by publishing a replacement in its entirety of 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule. The following products are being added, removed, revised, or moved within the product lists:

    1. Competitive International Merchandise Return Service Agreements with Foreign Postal Operators (MC2015-68 and CP2015-99) (Order No. 2639), added August 4, 2015.

    2. Priority Mail Contract 144 (MC2015-84 and CP2015-140) (Order No. 2734), added September 29, 2015.

    3. Parcel Select Contract 10 (MC2015-85 and CP2015-141) (Order No. 2735), added September 29, 2015.

    4. Priority Mail Contract 143 (MC2015-83 and CP2015-139) (Order No. 2737), added September 29, 2015.

    5. Priority Mail Contract 142 (MC2015-82 and CP2015-138) (Order No. 2738), added September 29, 2015.

    6. Priority Mail Express Contract 28 (MC2016-2 and CP2016-2) (Order No. 2761), added October 16, 2015.

    7. Priority Mail Contract 145 (MC2016-1 and CP2016-1) (Order No. 2762), added October 16, 2015.

    8. Priority Mail Contract 146 (MC2016-3 and CP2016-3) (Order No. 2763), added October 16, 2015.

    9. Priority Mail Contract 147 (MC2016-4 and CP2016-4) (Order No. 2764), added October 16, 2015.

    10. Global Expedited Package Services Contracts—Non-Published Rates 8 (MC2016-5 and CP2016-5) (Order No. 2774), added October 23, 2015.

    11. Priority Mail Contract 148 (MC2016-6 and CP2016-6) (Order No. 2777), added October 23, 2015.

    12. Priority Mail Contract 149 (MC2016-8 and CP2016-10) (Order No. 2794), added November 2, 2015.

    13. Priority Mail Express, Priority Mail & First-Class Package Service Contract 5 (MC2016-9 and CP2016-11) (Order No. 2796), added November 2, 2015.

    14. Priority Mail Contract 150 (MC2016-11 and CP2016-12) (Order No. 2799), added November 3, 2015.

    15. Priority Mail Contract 151 (MC2016-12 and CP2016-14) (Order No. 2802), added November 5, 2015.

    16. Priority Mail Contract 152 (MC2016-13 and CP2016-15) (Order No. 2803), added November 5, 2015.

    17. Priority Mail Express & Priority Mail Contract 21 (MC2016-14 and CP2016-17) (Order No. 2822), added November 17, 2015.

    18. Priority Mail Contract 153 (MC2016-17 and CP2016-23) (Order No. 2846), added December 2, 2015.

    19. Priority Mail Express Contract 29 (MC2016-16 and CP2016-22) (Order No. 2847), added December 2, 2015.

    20. Priority Mail Express, Priority Mail & First-Class Package Service Contract 6 (MC2016-21 and CP2016-27) (Order No. 2848), added December 4, 2015.

    21. Priority Mail Contract 154 (MC2016-18 and CP2016-24) (Order No. 2849), added December 4, 2015.

    22. Priority Mail Contract 155 (MC2016-19 and CP2016-25) (Order No. 2851), added December 4, 2015.

    23. Priority Mail Express & Priority Mail Contract 22 (MC2016-20 and CP2016-26) (Order No. 2852), added December 7, 2015.

    24. Priority Mail Express & Priority Mail Contract 23 (MC2016-26 and CP2016-32) (Order No. 2873), added December 15, 2015.

    25. Priority Mail Contract 156 (MC2016-22 and CP2016-28) (Order No. 2875), added December 15, 2015.

    26. Priority Mail Contract 158 (MC2016-24 and CP2016-30) (Order No. 2876), added December 15, 2015.

    27. Priority Mail Contract 157 (MC2016-23 and CP2016-29) (Order No. 2878), added December 15, 2015.

    28. Priority Mail Contract 159 (MC2016-25 and CP2016-31) (Order No. 2879), added December 15, 2015.

    29. Parcel Select Contract 11 (MC2016-28 and CP2016-34) (Order No. 2883), added December 17, 2015.

    30. Priority Mail Express & Priority Mail Contract 24 (MC2016-27 and CP2016-33) (Order No. 2890), added December 17, 2015.

    31. Priority Mail Contract 160 (MC2016-29 and CP2016-35) (Order No. 2891), added December 17, 2015.

    32. Priority Mail Contract 161 (MC2016-30 and CP2016-36) (Order No. 2902), added December 21, 2015.

    33. Priority Mail Express Contract 30 (MC2016-32 and CP2016-38) (Order No. 2906), added December 21, 2015.

    34. Priority Mail Contract 162 (MC2016-31 and CP2016-37) (Order No. 2907), added December 21, 2015.

    35. First-Class Package Service Contract 38 (MC2016-33 and CP2016-39) (Order No. 2910), added December 22, 2015.

    36. Priority Mail & First-Class Package Service Contract 8 (MC2016-34 and CP2016-40) (Order No. 2911), added December 22, 2015.

    37. Priority Mail Contract 163 (MC2016-35 and CP2016-41) (Order No. 2912), added December 22, 2015.

    38. Priority Mail Contract 164 (MC2016-36 and CP2016-42) (Order No. 2913), added December 22, 2015.

    39. First-Class Package Service Contract 39 (MC2016-38 and CP2016-47) (Order No. 2926), added December 24, 2015.

    40. Parcel Select Contract 12 (MC2016-37 and CP2016-46) (Order No. 2927), added December 24, 2015.

    41. Priority Mail & First-Class Package Service Contract 9 (MC2016-44 and CP2016-59) (Order No. 2965), added December 30, 2015.

    42. Priority Mail Express & Priority Mail Contract 25 (MC2016-45 and CP2016-60) (Order No. 2966), added December 30, 2015.

    43. Global Expedited Package Services Contracts—Non-Published Rates 9 (MC2016-46 and CP2016-61) (Order No. 2967), added December 30, 2015.

    44. Competitive Products Price Changes Rates of General Applicability (CP2016-9) (Order No. 2814), changed Standard Post to Retail Ground, November 13, 2015.

    The following negotiated service agreements have expired and are being deleted from the Mail Classification Schedule:

    1. Priority Mail Contract 40 (MC2012-38 and CP2012-46) (Order No. 1444).

    2. Priority Mail Contract 42 (MC2012-47 and CP2012-57) (Order No. 1475).

    3. Priority Mail Contract 43 (MC2012-48 and CP2012-58) (Order No. 1476).

    4. Priority Mail Contract 45 (MC2013-4 and CP2013-4) (Order No. 1518).

    5. Priority Mail Contract 46 (MC2013-6 and CP2013-6) (Order No. 1524).

    6. Priority Mail Contract 47 (MC2013-7 and CP2013-7) (Order No. 1525).

    7. Priority Mail Express & Priority Mail Contract 9 (MC2012-29 and CP2012-38) (Order No. 1397).

    8. Parcel Select Contract 3 (MC2012-32 and CP2012-40) (Order No. 1414).

    9. Parcel Select Contract 4 (MC2012-33 and CP2012-41) (Order No. 1415).

    10. Parcel Select Contract 6 (MC2013-13 and CP2013-13) (Order No. 1538).

    11. First-Class Package Service Contract 16 (MC2012-49 and CP2012-61) (Order No. 1494).

    12. First-Class Package Service Contract 17 (MC2012-50 and CP2012-62) (Order No. 1495).

    13. First-Class Package Service Contract 18 (MC2012-51 and CP2012-63) (Order No. 1496).

    14. First-Class Package Service Contract 19 (MC2012-52 and CP2012-64) (Order No. 1497).

    15. First-Class Package Service Contract 20 (MC2012-53 and CP2012-65) (Order No. 1498).

    16. First-Class Package Service Contract 21 (MC2013-8 and CP2013-8) (Order No. 1526).

    17. First-Class Package Service Contract 22 (MC2013-9 and CP2013-9) (Order No. 1527).

    18. First-Class Package Service Contract 23 (MC2013-10 and CP2013-10) (Order No. 1528).

    19. First-Class Package Service Contract 24 (MC2013-11 and CP2013-11) (Order No. 1529).

    20. First-Class Package Service Contract 25 (MC2013-12 and CP2013-12) (Order No. 1537).

    21. First-Class Package Service Contract 26 (MC2013-15 and CP2013-14) (Order No. 1547).

    22. First-Class Package Service Contract 27 (MC2013-17 and CP2013-16) (Order No. 1558).

    23. First-Class Package Service Contract 28 (MC2013-18 and CP2013-17) (Order No. 1559).

    24. First-Class Package Service Contract 29 (MC2013-19 and CP2013-18) (Order No. 1560).

    25. First-Class Package Service Contract 30 (MC2013-20 and CP2013-19) (Order No. 1561).

    26. First-Class Package Service Contract 31 (MC2013-21 and CP2013-29) (Order No. 1603).

    27. First-Class Package Service Contract 32 (MC2013-22 and CP2013-30) (Order No. 1604).

    28. First-Class Package Service Contract 33 (MC2013-23 and CP2013-31) (Order No. 1606).

    29. First-Class Package Service Contract 34 (MC2013-24 and CP2013-32) (Order No. 1605).

    30. Priority Mail Express, Priority Mail & First-Class Package Service Contract 1 (MC2012-46 and CP2012-55) (Order No. 1474).

    31. Priority Mail & First-Class Package Service Contract 1 (MC2013-5 and CP2013-5) (Order No. 1519).

    32. Global Direct Contracts 1 (MC2010-17 and CP2010-18) (Order No. 386).

    33. Valassis NSA (MC2012-14 and R2012-8) (Order No. 1448).

    34. Market Test of Experimental Product—Metro Post (MT2013-1) (Order No. 2243).

    Updated product lists. The referenced changes to the product lists are incorporated into 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule.

    List of Subjects in 39 CFR Part 3020

    Administrative practice and procedure, Postal Service.

    For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:

    PART 3020—PRODUCT LISTS 1. The authority citation for part 3020 continues to read as follows: Authority:

    39 U.S.C. 503; 3622; 3631; 3642; 3682.

    2. Revise Appendix A to Subpart A of Part 3020—Mail Classification Schedule to read as follows: Appendix A to Subpart A of Part 3020—Mail Classification Schedule (An asterisk (*) indicates an organizational class or group, not a Postal Service product.) Part A—Market Dominant Products 1000 Market Dominant Product List First-Class Mail* Single-Piece Letters/Postcards Presorted Letters/Postcards Flats Parcels Outbound Single-Piece First-Class Mail International Inbound Letter Post Standard Mail (Commercial and Nonprofit)* High Density and Saturation Letters High Density and Saturation Flats/Parcels Carrier Route Letters Flats Parcels Every Door Direct Mail—Retail Periodicals* In-County Periodicals Outside County Periodicals Package Services* Alaska Bypass Service Bound Printed Matter Flats Bound Printed Matter Parcels Media Mail/Library Mail Special Services* Ancillary Services International Ancillary Services Address Management Services Caller Service Credit Card Authentication International Reply Coupon Service International Business Reply Mail Service Money Orders Post Office Box Service Customized Postage Stamp Fulfillment Services Negotiated Service Agreements* Domestic* PHI Acquisitions, Inc. Negotiated Service Agreement International* Inbound Market Dominant Multi-Service Agreements with Foreign Postal Operators 1 Inbound Market Dominant Exprés Service Agreement 1 Nonpostal Services* Alliances with the Private Sector to Defray Cost of Key Postal Functions Philatelic Sales Market Tests* Part B—Competitive Products 2000 Competitive Product List Domestic Products* Priority Mail Express Priority Mail Parcel Select Parcel Return Service First-Class Package Service Retail Ground International Products* Outbound International Expedited Services Inbound Parcel Post (at UPU rates) Outbound Priority Mail International International Priority Airmail (IPA) International Surface Air List (ISAL) International Direct Sacks—M-Bags Outbound Single-Piece First-Class Package International Service Negotiated Service Agreements* Domestic* Priority Mail Express Contract 8 Priority Mail Express Contract 11 Priority Mail Express Contract 13 Priority Mail Express Contract 14 Priority Mail Express Contract 15 Priority Mail Express Contract 16 Priority Mail Express Contract 17 Priority Mail Express Contract 18 Priority Mail Express Contract 19 Priority Mail Express Contract 20 Priority Mail Express Contract 21 Priority Mail Express Contract 22 Priority Mail Express Contract 23 Priority Mail Express Contract 24 Priority Mail Express Contract 25 Priority Mail Express Contract 26 Priority Mail Express Contract 27 Priority Mail Express Contract 28 Priority Mail Express Contract 29 Priority Mail Express Contract 30 Parcel Return Service Contract 5 Parcel Return Service Contract 6 Parcel Return Service Contract 7 Parcel Return Service Contract 8 Parcel Return Service Contract 9 Parcel Return Service Contract 10 Priority Mail Contract 24 Priority Mail Contract 29 Priority Mail Contract 33 Priority Mail Contract 44 Priority Mail Contract 48 Priority Mail Contract 50 Priority Mail Contract 51 Priority Mail Contract 52 Priority Mail Contract 53 Priority Mail Contract 54 Priority Mail Contract 55 Priority Mail Contract 56 Priority Mail Contract 57 Priority Mail Contract 58 Priority Mail Contract 59 Priority Mail Contract 60 Priority Mail Contract 61 Priority Mail Contract 62 Priority Mail Contract 63 Priority Mail Contract 64 Priority Mail Contract 65 Priority Mail Contract 66 Priority Mail Contract 67 Priority Mail Contract 70 Priority Mail Contract 71 Priority Mail Contract 72 Priority Mail Contract 73 Priority Mail Contract 74 Priority Mail Contract 75 Priority Mail Contract 76 Priority Mail Contract 77 Priority Mail Contract 78 Priority Mail Contract 79 Priority Mail Contract 80 Priority Mail Contract 81 Priority Mail Contract 82 Priority Mail Contract 83 Priority Mail Contract 84 Priority Mail Contract 85 Priority Mail Contract 86 Priority Mail Contract 87 Priority Mail Contract 88 Priority Mail Contract 89 Priority Mail Contract 90 Priority Mail Contract 91 Priority Mail Contract 92 Priority Mail Contract 93 Priority Mail Contract 94 Priority Mail Contract 95 Priority Mail Contract 96 Priority Mail Contract 97 Priority Mail Contract 98 Priority Mail Contract 99 Priority Mail Contract 100 Priority Mail Contract 101 Priority Mail Contract 102 Priority Mail Contract 103 Priority Mail Contract 104 Priority Mail Contract 105 Priority Mail Contract 106 Priority Mail Contract 107 Priority Mail Contract 108 Priority Mail Contract 109 Priority Mail Contract 110 Priority Mail Contract 111 Priority Mail Contract 112 Priority Mail Contract 113 Priority Mail Contract 114 Priority Mail Contract 115 Priority Mail Contract 116 Priority Mail Contract 117 Priority Mail Contract 118 Priority Mail Contract 119 Priority Mail Contract 120 Priority Mail Contract 121 Priority Mail Contract 122 Priority Mail Contract 123 Priority Mail Contract 124 Priority Mail Contract 125 Priority Mail Contract 126 Priority Mail Contract 127 Priority Mail Contract 128 Priority Mail Contract 129 Priority Mail Contract 130 Priority Mail Contract 131 Priority Mail Contract 132 Priority Mail Contract 133 Priority Mail Contract 134 Priority Mail Contract 135 Priority Mail Contract 136 Priority Mail Contract 137 Priority Mail Contract 138 Priority Mail Contract 139 Priority Mail Contract 140 Priority Mail Contract 141 Priority Mail Contract 142 Priority Mail Contract 143 Priority Mail Contract 144 Priority Mail Contract 145 Priority Mail Contract 146 Priority Mail Contract 147 Priority Mail Contract 148 Priority Mail Contract 149 Priority Mail Contract 150 Priority Mail Contract 151 Priority Mail Contract 152 Priority Mail Contract 153 Priority Mail Contract 154 Priority Mail Contract 155 Priority Mail Contract 156 Priority Mail Contract 157 Priority Mail Contract 158 Priority Mail Contract 159 Priority Mail Contract 160 Priority Mail Contract 161 Priority Mail Contract 162 Priority Mail Contract 163 Priority Mail Contract 164 Priority Mail Express & Priority Mail Contract 10 Priority Mail Express & Priority Mail Contract 11 Priority Mail Express & Priority Mail Contract 12 Priority Mail Express & Priority Mail Contract 13 Priority Mail Express & Priority Mail Contract 14 Priority Mail Express & Priority Mail Contract 16 Priority Mail Express & Priority Mail Contract 17 Priority Mail Express & Priority Mail Contract 18 Priority Mail Express & Priority Mail Contract 19 Priority Mail Express & Priority Mail Contract 20 Priority Mail Express & Priority Mail Contract 21 Priority Mail Express & Priority Mail Contract 22 Priority Mail Express & Priority Mail Contract 23 Priority Mail Express & Priority Mail Contract 24 Priority Mail Express & Priority Mail Contract 25 Parcel Select & Parcel Return Service Contract 3 Parcel Select & Parcel Return Service Contract 5 Parcel Select Contract 2 Parcel Select Contract 5 Parcel Select Contract 7 Parcel Select Contract 8 Parcel Select Contract 9 Parcel Select Contract 10 Parcel Select Contract 11 Parcel Select Contract 12 Priority Mail—Non-Published Rates Priority Mail—Non-Published Rates 1 First-Class Package Service Contract 35 First-Class Package Service Contract 36 First-Class Package Service Contract 37 First-Class Package Service Contract 38 First-Class Package Service Contract 39 Priority Mail Express, Priority Mail & First-Class Package Service Contract 2 Priority Mail Express, Priority Mail & First-Class Package Service Contract 3 Priority Mail Express, Priority Mail & First-Class Package Service Contract 4 Priority Mail Express, Priority Mail & First-Class Package Service Contract 5 Priority Mail Express, Priority Mail & First-Class Package Service Contract 6 Priority Mail & First-Class Package Service Contract 2 Priority Mail & First-Class Package Service Contract 3 Priority Mail & First-Class Package Service Contract 4 Priority Mail & First-Class Package Service Contract 5 Priority Mail & First-Class Package Service Contract 6 Priority Mail & First-Class Package Service Contract 7 Priority Mail & First-Class Package Service Contract 8 Priority Mail & First-Class Package Service Contract 9 Outbound International* Global Expedited Package Services (GEPS) Contracts GEPS 3 Global Bulk Economy (GBE) Contracts Global Plus Contracts Global Plus 1C Global Plus 2C Global Reseller Expedited Package Contracts Global Reseller Expedited Package Services 1 Global Reseller Expedited Package Services 2 Global Reseller Expedited Package Services 3 Global Reseller Expedited Package Services 4 Global Expedited Package Services (GEPS)—Non-Published Rates Global Expedited Package Services (GEPS)—Non-Published Rates 2 Global Expedited Package Services (GEPS)—Non-Published Rates 3 Global Expedited Package Services (GEPS)—Non-Published Rates 4 Global Expedited Package Services (GEPS)—Non-Published Rates 5 Global Expedited Package Services (GEPS)—Non-Published Rates 6 Global Expedited Package Services (GEPS)—Non-Published Rates 7 Global Expedited Package Services (GEPS)—Non-Published Rates 8 Global Expedited Package Services (GEPS)—Non-Published Rates 9 Priority Mail International Regional Rate Boxes—Non-Published Rates Outbound Competitive International Merchandise Return Service Agreement with Royal Mail Group, Ltd. Priority Mail International Regional Rate Boxes Contracts Priority Mail International Regional Rate Boxes Contracts 1 Competitive International Merchandise Return Service Agreements with Foreign Postal Operators Inbound International* International Business Reply Service (IBRS) Competitive Contracts International Business Reply Service Competitive Contract 1 International Business Reply Service Competitive Contract 3 Inbound Direct Entry Contracts with Customers Inbound Direct Entry Contracts with Foreign Postal Administrations Inbound Direct Entry Contracts with Foreign Postal Administrations Inbound Direct Entry Contracts with Foreign Postal Administrations 1 Inbound EMS Inbound EMS 2 Inbound Air Parcel Post (at non-UPU rates) Royal Mail Group Inbound Air Parcel Post Agreement Inbound Competitive Multi-Service Agreements with Foreign Postal Operators 1 Special Services* Address Enhancement Services Greeting Cards, Gift Cards, and Stationery International Ancillary Services International Money Transfer Service—Outbound International Money Transfer Service—Inbound Premium Forwarding Service Shipping and Mailing Supplies Post Office Box Service Competitive Ancillary Services Nonpostal Services* Advertising Licensing of Intellectual Property other than Officially Licensed Retail Products (OLRP) Mail Service Promotion Officially Licensed Retail Products (OLRP) Passport Photo Service Photocopying Service Rental, Leasing, Licensing or other Non-Sale Disposition of Tangible Property Training Facilities and Related Services USPS Electronic Postmark (EPM) Program Market Tests* International Merchandise Return Service (IMRS)—Non-Published Rates Customized Delivery Stacy L. Ruble, Secretary.
    [FR Doc. 2016-01947 Filed 2-2-16; 8:45 am] BILLING CODE 7710-FW-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0263; FRL-9940-46] Cyazofamid; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of cyazofamid in or on the herb subgroup 19A and the bulb vegetable group 3-07. Interregional Research Project Number 4 (IR-4) requested the herb subgroup 19A tolerances, and ISK Biosciences requested the bulb vegetable group 3-07 tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective February 3, 2016. Objections and requests for hearings must be received on or before April 4, 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-2015-0263, 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:

    Susan Lewis, 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 EPA's tolerance regulations at 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. How 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-2015-0263 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 April 4, 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-2015-0263, 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. Summary of Petitioned-For Tolerance

    In the Federal Register of May 20, 2015 (80 FR 28925) (FRL-9927-39), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of two pesticide petitions: One by ISK Biosciences Corporation, 7470 Auburn Road, Suite A, Concord, Ohio 44077 (PP 5F8352) that requested to establish tolerances in 40 CFR 180.601 for residues of the fungicide cyazofamid and its metabolite (4-chloro-5-(4-methylphenyl)-1H-imidazole-2-carbonitrile) in or on bulb vegetables (crop group 3-07) at 2.0 parts per million (ppm); and one by IR-4, 500 College Road East, Suite 201W, Princeton, NJ 08540 (PP 5E8350) that requested to establish tolerances in 40 CFR 180.601 for residues of the fungicide cyazofamid in or on the herb subgroup 19A at 90 ppm and also to remove the existing tolerances for residues of cyazofamid and its metabolite in or on basil, dried leaves at 90 ppm and basil, fresh leaves at 30 ppm upon approval of the herb subgroup 19A tolerances. That document referenced summaries of the two petitions prepared by ISK Biosciences, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notices of filing.

    III. 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 FFDCA section 408(b)(2)(D), and 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 for cyazofamid including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with cyazofamid follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies 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.

    The target organ for cyazofamid in rats is the kidney, with an increased incidence of basophilic tubules, increased urinary volume, pH, and protein noted in male rats after subchronic exposure. Female rats were less sensitive, with only a marginal increase in urinary volume, and pH. These findings were noted in a 90-day oral toxicity study, and similar findings were noted in the 28-day oral toxicity range-finding study in rats. In the two-generation reproductive study in rats, there was an increased incidence of inflammation and nephropathy in the high-dose male rats as compared to the controls. Basophilic tubules are indicative of a regenerative process, but they can be more difficult to identify in older animals (i.e., tubular basophilia can be obscured by nephropathy or included as part of the nephropathy constellation). No kidney effects were observed in the chronic oral toxicity study in rats; however, this study did not test up to doses as high as those eliciting kidney effects in the subchronic and two-generation reproduction toxicity studies. The only relevant finding in the dog was an incidence of parathyroid cysts in males at the limit dose in the chronic study.

    The pre- and post-natal toxicology database for cyazofamid includes rat and rabbit developmental toxicity studies and a two-generation reproduction toxicity study in rats. The prenatal developmental study in rats showed evidence of increased quantitative susceptibility following in utero exposure as a marginally increased incidence of bent ribs was noted in fetuses at the limit dose, whereas no maternal toxicity was noted.

    No adverse effects were seen in a route-specific dermal toxicity study. Skin lesions were observed in males following oral exposure in the mouse carcinogenicity study, and are thought to be caused by an allergic reaction to systemic exposure because they did not occur following exposure via the dermal route. Cyazofamid is classified as “not likely to be carcinogenic to humans” based on the lack of evidence for carcinogenicity in mice and rats and a lack of mutagenic potential.

    Specific information on the studies received and the nature of the adverse effects caused by cyazofamid as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document titled, “Cyazofamid. Human Health Risk Assessment for Proposed New Uses on Use on Crop Subgroup 19A, Peppers and Tomatoes Grown in Greenhouses, and on Bulb Vegetables Crop Group 03-07” on pp. 32 in docket ID number EPA-HQ-OPP-2015-0263.

    B. 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 the NOAEL and the LOAEL are identified. 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://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

    A summary of the toxicological endpoints for cyazofamid used for human risk assessment is shown in Table 1 of this unit.

    Table 1—Summary of Toxicological Doses and Endpoints for Cyazofamid for Use in Human Health Risk Assessment Exposure/Scenario Point of departure and uncertainty/safety factors RfD, PAD, LOC for risk assessment Study and toxicological effects Acute dietary (All Populations) No appropriate toxicological effect attributable to a single dose was observed. Therefore, a dose and endpoint were not identified for this risk assessment. Chronic dietary (All populations) NOAEL= 94.8 mg/kg/day

  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Chronic RfD = 0.948 mg/kg/day
  • cPAD = 0.948 mg/kg/day
  • 18-Month Mouse Oral Carcinogenicity.
  • LOAEL = 985 mg/kg/day based on increased skin lesions.
  • Incidental oral short-term (1 to 30 days) NOAEL= 171 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • LOC for MOE = 100 Co-critical 90-Day and chronic oral toxicity studies in rats.
  • LOAEL= 295 mg/kg based on increased incidence of basophilic tubules in the kidneys, increased urinary volume, pH, & protein.
  • Inhalation short-term (1 to 30 days) Oral study NOAEL= 171 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • LOC for MOE = 100 Co-critical 90-Day and chronic oral toxicity studies in rats.
  • LOAEL= 295 mg/kg based on increased incidence of basophilic tubules in the kidneys, increased urinary volume, pH, & protein.
  • Cancer (Oral, dermal, inhalation) Classification: “Not likely to be Carcinogenic to Humans” based on the absence of treatment-related tumors in two adequate rodent carcinogenicity studies. FQPA SF = Food Quality Protection Act Safety Factor. LOAEL = lowest-observed-adverse-effect-level. LOC = level of concern. mg/kg/day = milligram/kilogram/day. MOE = margin of exposure. NOAEL = no-observed-adverse-effect-level. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies). C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to cyazofamid, EPA considered exposure under the petitioned-for tolerances as well as all existing cyazofamid tolerances in 40 CFR 180.601. EPA assessed dietary exposures from cyazofamid in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments 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. No such effects were identified in the toxicological studies for cyazofamid; therefore, a quantitative acute dietary exposure assessment is unnecessary.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA assumed tolerance-level residues and 100 percent crop treated (PCT) for all commodities.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that cyazofamid 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 PCT information. EPA did not use anticipated residue or PCT information in the dietary assessment for cyazofamid. Tolerance-level residues and 100 PCT were assumed for all food commodities.

    2. Dietary exposure from drinking water. Available environmental fate studies suggest cyazofamid is not very mobile and quickly degrades into a number of degradation products under different environmental conditions. The highest estimated chronic drinking water concentrations resulted from modeling which assumed application of 100% molar conversion of the parent into the terminal degradate CTCA. EPA used these estimates of CTCA (4-chloro-5-p-tolylimidazole-2-carboxylic acid) in its dietary exposure assessments, a conservative approach that likely overestimates the exposure contribution from drinking water.

    The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for cyazofamid and its degradates in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of cyazofamid and its degradates. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

    Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of the degradate CTCA for chronic exposures are estimated to be 133.5 parts per billion (ppb) for surface water and 211 ppb for ground water.

    Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 211 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, termiticide, and flea and tick control on pets).

    Cyazofamid is currently registered for use on turf at golf courses, sod farms, seed farms, college and professional sports fields, residential and commercial lawns, and on ornamental plants in landscapes and those grown in commercial greenhouses and nurseries. EPA assessed residential exposure using the following scenarios:

    • Adult handlers. The worst-case scenario was determined to be short-term inhalation exposures from mixing, loading, and applying cyazofamid to turf; and

    • Children. The worst-case scenario was determined to be short-term post-application incidental oral exposure from hand-to-mouth activities on turf.

    Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

    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 cyazofamid to share a common mechanism of toxicity with any other substances, and cyazofamid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that cyazofamid 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://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

    D. 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 Food Quality Protection Act Safety Factor (FQPA SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. The developmental rabbit and two-generation reproduction toxicity study in rats did not show any evidence of increased susceptibility developmental or offspring, respectively. However, there was increased quantitative susceptibility in the rat developmental study; concentrations up to the limit dose did not cause maternal systemic toxicity, but there was an increased incidence of bent ribs. Concern is low based on the following: (1) The increase was marginal, (2) bent ribs are considered a variation rather than a malformation, (3) the effect was only seen at the limit dose, (4) there is a clear NOAEL for the effect, and (5) the selected endpoints address any concerns for this effect.

    3. Conclusion. EPA has determined that reliable data show 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 cyazofamid is complete.

    ii. There is no indication that cyazofamid is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors (UFs) to account for neurotoxicity.

    iii. As noted in Section D.2., there was increased quantitative susceptibility in the rat developmental study, however, concern is low due to the reasons cited.

    iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to cyazofamid and its degradates 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 cyazofamid.

    E. 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. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, cyazofamid is not expected to pose an acute risk.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to cyazofamid from food and water will utilize 2% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of cyazofamid is not expected.

    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 exposure level). Cyazofamid is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to cyazofamid.

    Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 14,000 for adults and 6,100 for children 1-2 years old. Because EPA's level of concern for cyazofamid is a MOE of 100 or below, these MOEs are not of concern.

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

    An intermediate-term adverse effect was identified; however, cyazofamid 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 cyazofamid.

    5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, cyazofamid 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 cyazofamid residues.

    IV. Other Considerations A. Analytical Enforcement Methodology

    An enforcement method for non-fatty commodities is available, FDA's Multi-residue Protocol D (without cleanup). The method completely recovers (>80% recovery) cyazofamid and its metabolite (4-chloro-5-(4-methylphenyl)-1H-imidazole-2-carbonitrile). In addition, the high-performance liquid chromatography method with ultraviolent light detection (HPLC/UV) method is acceptable for use as a single analyte enforcement method provided a confirmatory method such as the liquid chromatography method with tandem mass-spectrometric detection (LC/MS/MS) method is used.

    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 Aliment-arius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Aliment-arius 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.

    There are no Codex MRLs established for cyazofamid in/on the commodities included in this action.

    V. Conclusion

    Therefore, tolerances are established for residues of cyazofamid (4-chloro-2-cyano-N,N-dimethyl-5-(4-methylphenyl)-1H-imidazole-1-sulfonamide) and is metabolite (4-chloro-5-(4-methylphenyl)-1H-imidazole-2-carbonitrile) in or on the herb subgroup 19A at 90 ppm; and bulb vegetables, group 3-07 at 2.0 ppm. In addition, the existing tolerances for residues of cyazofamid and its metabolite (4-chloro-5-(4-methylphenyl)-1H-imidazole-2-carbonitrile) in or on basil, dried leaves and basil, fresh leaves are removed as unnecessary.

    VI. Statutory and Executive Order Reviews

    This action establishes tolerances 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 tolerances 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).

    VII. 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: January 21, 2016. Susan Lewis, 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 § 180.601, in the table in paragraph (a): a. Remove the entries for “Basil, dried leaves” and “Basil, fresh leaves”. b. Add alphabetically entries for “Bulb vegetables, group 3-07” and “Herb subgroup 19A”.

    The additions read as follows:

    § 180.601 Cyazofamid; tolerances for residues.

    (a) General. * * *

    Commodity Parts per million *    *    *    *    * Bulb vegetables, group 3-07 2.0 *    *    *    *    * Herb subgroup 19A 90 *    *    *    *    *
    [FR Doc. 2016-01993 Filed 2-2-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [GN Docket No. 09-51, WC Docket No. 07-25; FCC 15-151] Pole Attachment Rates AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Commission builds on its prior efforts to harmonize pole attachment rates that cable and telecom service providers pay utility pole owners. The Communications Act of 1934, as amended (Act), contains two formulas for calculating pole attachment rates, a formula adopted in 1978 applicable to cable television systems solely providing cable service, and a formula adopted in 1996 applicable to telecommunications carriers providing telecommunications service.

    DATES:

    Effective April 1, 2016.

    ADDRESSES:

    You may submit comments, identified by WC Docket No. 07-245, GN Docket No. 09-51 and FCC 15-151, by any of the following methods:

    Federal Communications Commission's Web site: http://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.

    People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: [email protected] or phone: 202-418-0530 or TTY: 202-418-0432.

    FOR FURTHER INFORMATION CONTACT:

    Jonathan Reel, Wireline Competition Bureau, Competition Policy Division, (202) 418-0637, or send an email to [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Order on Reconsideration in GN Docket No. 09-51, WC Docket No. 07-245, and FCC 15-151, adopted November 17, 2015 and released November 24, 2015. The full text of this document is available for public inspection during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It is available on the Commission's Web site at http://www.fcc.gov.

    I. Introduction

    1. In this Order on Reconsideration (Order), the Commission builds on its prior efforts to harmonize pole attachment rates that cable and telecom service providers pay utility pole owners. The Communications Act of 1934, as amended (Act), contains two formulas for calculating pole attachment rates, a formula adopted in 1978 applicable to cable television systems solely providing cable service, and a formula adopted in 1996 applicable to telecommunications carriers providing telecommunications service. Following the implementation of the 1996 Act through 2011, rates calculated using the telecom rate formula have typically been higher than rates calculated using the cable formula in similar circumstances. In 2011, the Commission revised the formulas as described in greater detail below to improve efficiency, reduce potentially excessive costs of network deployment and accelerate broadband buildout, and eliminate the wide disparity between the telecom and cable rate formulas. The 2011 revisions sought to bring the telecom and cable rates into parity. In the intervening time, the Commission has seen that its revisions did not fully achieve that objective. Today, the Commission takes the next logical step in achieving the goals set forth in 2011.

    2. As detailed below, the Commission takes these actions in response to a Petition for Reconsideration or Clarification in this proceeding. The rule revisions that the Commission adopts amend the Commission's rules by defining “cost,” for the purpose of calculating the rates that telecommunications carriers pay for pole attachments, as a percentage of fully allocated costs that will depend on whether the average number of attaching entities in a service area is 2, 3, 4, or 5. The rates that attachers pay to attach to poles are currently determined, among other things, by whether the attacher is a “cable television system solely . . . provid[ing] cable service” or a “telecommunications carrier providing telecommunications services.” The Commission, in its 2011 Report and Order and Order on Reconsideration in this proceeding (2011 Pole Attachment Order) 80 FR 27626-01, May 14, 2015, sought to bring parity to pole attachment rates calculated using the telecom or cable rate formula so that all attachments rates would be at or near the cable rate formula level. The 2011 Pole Attachment Order adopted cost allocators in the telecom rate formula that closely approximate the treatment of cost in the cable rate formula. However, these allocators applied only in situations where poles have 5 attaching entities (0.66 percent of cost) or 3 attaching entities (0.44 percent of cost). On June 8, 2011, the National Cable and Telecommunications Association (NCTA), COMPTEL, and tw telecom inc. (Petitioners) filed a petition for reconsideration or clarification of the rules adopted in the 2011 Pole Attachment Order, asking the Commission either to clarify that 66 percent and 44 percent are “illustrations” of the new rule, or to revise the rules to “provide corresponding cost adjustments to other entity counts.”

    3. In response to NCTA's petition, and to the record developed in this proceeding, Commission now introduces new cost allocators for poles with 2 attaching entities (0.31 percent of costs) and 4 attaching entities (0.56 percent of cost). When the average number of attaching entities is a fraction, the percentage cost allocator will be located between the whole numbers at the point where it most closely approximates the cost used in the cable rate formula. This flexible series of cost allocators should more fully realize the intent of the Commission in its 2011 Pole Attachment Order to bring parity to pole attachment rates at the cable rate formula level. The Commission also adopts this definition of cost to prevent pole owners from charging cable operators that also provide telecommunications service (including broadband Internet access service) pole attachment rental rates that can be approximately 70 percent higher than the cable rate under its existing rules.

    4. The Commission additionally acts to support incentives for deployment of broadband facilities, particularly in rural areas, and to harmonize regulatory treatment between states where the Commission regulates the rates, terms, and conditions for pole attachments and states where such matters are regulated by the state. Subjecting cable operators to higher pole attachment rates merely because they also provide telecommunications services, such as broadband Internet access, could deter investment in states subject to Commission pole regulation, which would undermine the Commission's broadband deployment policy. By keeping pole attachment rates unified and low, the Commission furthers its overarching goal to accelerate deployment of broadband by removing barriers to infrastructure investment and promoting competition.

    II. Background

    5. On April 7, 2011, in its 2011 Pole Attachment Order, the Commission comprehensively revised its rules governing the attachment of cable and telecommunications facilities to utility poles. The 2011 Pole Attachment Order contains a comprehensive background section outlining pole attachment policy developments through 2011. Commission does not repeat that material herein. Instead, Commission incorporates that history by reference here, and preserves a brief background section outlining and describing the provisions, orders, and cases germane to this Order on Reconsideration.

    6. In 1978, Congress added section 224 to the Act. As established in 1978, section 224 directed the Commission to ensure that the rates, terms, and conditions of attaching cable television systems' facilities to utility-owned poles were just and reasonable. Section 224 also identified the maximum rate for pole attachments as a percentage of fully-allocated costs. In 1987, the U.S. Supreme Court found that the cable rate formula adopted by the Commission provides pole owners with adequate compensation, and thus does not result in an unconstitutional taking.

    7. The 1996 Act expanded the definition of pole attachments to include attachments by providers of telecommunications service, and granted both cable operators and telecommunications carriers an affirmative right of access to utility poles. The 1996 Act also included a separate provision for calculating a cost-based rate paid by telecommunications carriers—the telecom rate formula—which incorporates “the cost of providing space on a pole.” As implemented by the Commission, the telecom rate formula generally resulted in significantly higher pole rental rates than rates derived from the cable rate formula. The Commission concluded that cable systems that provided Internet access in addition to video services should continue to pay the cable rate; that conclusion was reversed on appeal but later upheld by the Supreme Court.

    8. In the intervening years, the Commission considered a variety of possible reforms to its pole attachment regulations in light of their importance to the deployment of communications networks. The Commission issued a Notice of Proposed Rulemaking in 2007, to respond to petitions for rulemaking regarding pole access and incumbent LEC pole attachment issues, and to seek comment on pole rate issues. In 2010, in response to a directive in the American Recovery and Reinvestment Act of 2009, the Commission released the National Broadband Plan (NBP), identifying access to rights-of-way—including access to poles—as having a significant impact on the deployment of broadband networks. Accordingly, the NBP included several recommendations regarding pole attachment access, enforcement, and pricing policies to further advance broadband deployment. Following on the recommendations in the NBP, in its 2010 Further Notice the Commission sought comment on a variety of measures to speed access to poles and make pole rental rates as low and close to uniform as possible consistent with section 224 of the Act.

    9. In the 2011 Pole Attachment Order, the Commission sought, in pertinent part, to significantly reform its telecom rate regulations by reinterpreting the ambiguous term “cost” in the telecom rate formula in section 224(e) of the Act to yield telecom attachment rates “lowered to more effectively achieve Congress' goals under the 1996 Act to promote competition and `advanced telecommunications capability' by both wired and wireless providers by `remov[ing] barriers to infrastructure investment.' ” In particular, the Commission sought to “balance the goals of promoting broadband [deployment] . . . with the historical role that pole rental rates have played in supporting the investment in pole infrastructure.”

    10. In order to promote broadband while ensuring that attaching entities continue to support the poles on which they depend, the 2011 Pole Attachment Order adopted alternative methods for measuring cost, and provided that the method producing the higher rate is the one the parties use. Utilities thus receive the benefit of any difference between the methods. In this way, the Commission recognizes that telecommunications attachers have historically contributed to the capital costs of the pole network, and that the new telecom rate should not “unduly burden [utility] ratepayers.” Balancing the Commission decided under the first of two acceptable methodologies to “allow the pole owner to charge a monthly pole rental rate that reflects some contribution to capital costs” while also reducing the telecom rate. The Commission settled on an approach that defines costs “in terms of a percentage of the fully-allocated costs” of the pole—specifically, 66 percent of fully-allocated costs in urban areas and 44 percent in non-urban areas. This measure of cost produces a rate that the Commission expected, based on the premise that the Commission's presumptive number of attachers would not be rebutted, “[would], in general, approximate the cable rate” and thereby promote network investment and broadband deployment.

    11. The Commission also established a second, alternative measure of cost that utilities may use. This alternative approach is based on the principle of “cost causation,” under which the “customer—the cost causer—pays a rate that covers” the costs for which it is “causally responsible.” Under this approach, a pole owner may recover its administrative and maintenance costs through the telecom rate, but not capital costs other than those associated with make-ready expenses. The Commission also noted that capital costs caused by a telecommunications attacher have long been recovered through make-ready charges, which “the utility itself sets” without regard to “any mandatory rate formula set by the Commission.” Other capital costs (i.e., rate of return, taxes, and depreciation) are properly excluded under a cost-causation approach because the pole owner would have incurred those costs “regardless of the demand for attachments.” Although the “percentage of fully-allocated costs” measure of cost discussed above will produce a higher telecom rate “in most cases,” if the cost causation-based approach yields a higher rate, utilities are allowed to charge up to that rate.

    12. On February 26, 2013, the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) rejected utilities' challenge to the Commission's action to bring the traditionally higher telecom rate more in line with the cable rate, concluding that “[b]ecause the Commission's methodology is consistent with the unspecified cost terms contained in section 224(e), and the Commission's justifications are reasonable, the revision [to the telecom rate formula] warrants judicial deference.” In particular, the court observed that section 224(e) is “less specific” than section 224(d) in prescribing how the statutory rate formula should be implemented. The court agreed with the Commission that “the term `cost' in section 224(e)(2) and (3) is necessarily ambiguous, and could thus `yield a range of rates from the existing fully-allocated cost approach at the high end to a rate closer to incremental cost at the low end.'” The D.C. Circuit thus affirmed the Commission's interpretation and implementation of section 224(e).

    13. On June 8, 2011, Petitioners filed the NCTA Petition, seeking reconsideration or clarification of the newly adopted cost allocation rule. The NCTA Petition points out that, when paired with the Commission's presumptive numbers of attachers (5 in urbanized and 3 in non-urbanized areas), the 66 percent and 44 percent cost allocators almost exactly reproduce the 7.4 percent of costs used as an input in the cable rate formula. The Petitioners report, however, that pole owners in fact often rebut the Commission's presumptions with much lower average numbers. For example, if the owner rebuts the urban presumption (5 attaching entities) with an actual count average of 2.6 attaching entities, the telecom rate can be as much as 70 percent higher than the cable rate. To “achieve the Commission's goal of providing pole attachment rates that are close to uniform as possible, and to ensure that all attachers contribute similar costs to pole owners,” the Petitioners ask the Commission to address this gap between the intended effect of the cost allocators and their function as applied by ceasing to distinguish between urbanized and non-urbanized areas.

    14. Specifically, the Petitioners ask the Commission either to clarify that 66 percent and 44 percent are mere illustrations of the new rule, or to revise the rule to “provide corresponding cost adjustments to other entity counts.” The NCTA Petition presents a model rule with additional cost allocators for 4 and 2 attachments, each of which aligns costs with the Commission's cable rate formula as effectively as the current rule does for the Commission's presumptive averages of 5 urbanized and 3 non-urbanized attachments. In service areas where the number of attaching entities is not a whole number, petitioners' proposed cost allocator would be interpolated from the allocators of the nearest whole numbers of attaching entities. On June 20, 2011, the Commission sought comment on the NCTA Petition.

    15. On February 26, 2015, the Commission adopted the Open Internet Order, which, among other things, concluded that “retail broadband Internet access service is best understood today as an offering of a `telecommunications service.' ” The Open Internet Order made clear that it did “not itself require any party to increase the pole attachment rates it charges to attachers providing broadband Internet access service.” A possible interpretation of the Order, however, could be that cable systems that also provide broadband Internet access service and previously were subject to the cable rate formula are now subject to the telecom rate formula. In the Open Internet Order, the Commission noted that Petitioners had already expressed concern that revisions to the telecom formula only fulfilled the Commission's expressed intent in the limited circumstances when there are either 5 or 3 attaching entities on a pole. The Commission stated in the Open Internet Order that, “[t]o the extent that there is a potential for an increase in pole attachment rates for cable operators that also provide broadband Internet access service, we are highly concerned about its effect on the positive investment incentives that arise from new providers' access to pole infrastructure.” In short, the Commission made plain that it took seriously parties' concerns that reclassification could have unintended consequences for pole attachment rates, and that this Petition might present an effective vehicle for giving the issue a closer look. In light of this development, parties were asked to refresh the record with regard to the NCTA Petition.

    III. Discussion

    16. The Commission adopts the Petitioners' proposal to broaden the use of cost allocators in the telecom rate formula. Specifically, the Commission adds cost allocators for poles with 2 and 4 attaching entities to augment the current cost allocators that target poles with 3 and 5 attaching entities. The Commission also provides that, for fractional attaching-entity averages, cost allocators are to be interpolated from the whole-number cost allocators. The Commission takes this step to further its goal of promoting consistent, cross-industry attachment rates that encourage deployment and adoption of broadband Internet access services by fulfilling the Commission's intent, expressed clearly in 2011 and upheld in court in 2013, to bring cable and telecom rates for pole attachments into parity at the cable-rate level.

    A. The Petitioner's Proposal Solves the Problem of Rate Disparity

    17. The Petitioners maintain, and the Commission agrees, that the cost allocators adopted in the 2011 Pole Attachment Order perform as intended, but only if the actual average numbers of attaching entities coincide with the Commission's presumptive average numbers of attaching entities. As NCTA recognizes, the cost allocators in the 2011 Pole Attachment Order reflect and embody these presumptive averages. When 0.66 percent and .044 percent of fully-allocated costs are applied in tandem with the Commission's presumptions of 5 and 3 attaching entities in urban and non-urban areas, respectively, the results approximate cable rate formula outcomes, as intended.

    18. There is widespread agreement that the real average number of attaching entities is regularly far lower than the Commission's presumptions, and that this disparity causes rates calculated with the telecom rate formula to be around 70 percent higher than rates calculated with the cable rate formula. NCTA also reports that, in reality, pole owners routinely rebut the Commission's presumptions with averages such as 2.6 attaching entities. No commenter disputes NCTA's claim or alleges that the number “2.6” is an outlier. Verizon reports several similarly frequent rebuttals to attacher numbers below three. Averages of 2.6 attaching entities rebut both the urban and non-urbanized presumptions, which casts doubt not only on the credibility of the presumptions, but on the validity of the underlying urbanized/non-urbanized distinction as well. Rebuttals that consistently show lower average numbers based on tracking actual attachments may reflect the fact that, under its rules, service territories count as “urban” if any part of them is urban. This approach dilutes the density of these nominally urban areas, and undercuts the Commission's original assumption that such areas would likely have a higher average of attaching entities.

    19. Recognizing that the rate reforms of 2011 have failed to align the results of the two pole attachment rate formulas as fully as intended, the Commission adopts the Petitioners' proposal as a template for corrective measures. By introducing new cost allocators of 0.31 percent and 0.56 percent for poles with 2 and 4 attaching entities respectively, with interpolated allocators between the closest whole numbers for fractional averages, the Commission brings parity to pole attachment rates at the cable rate formula level. The Petitioners' proposed solution does not require us to revisit the presumptions themselves; these continue to perform as intended with the 66% and 44% cost allocators that the Commission adopted in 2011. The Commission therefore retains the presumptions for the same reasons the Commission adopted them in 2011: to “expedite the process” and to help utilities “avert the expense” of applying demographic categories. Broadening the effect of the cost allocation system as the NCTA Petition proposes will greatly reduce the effect of, and the need for, the rebuttals. This approach to defining “cost” for purposes of the telecom rate formula achieves results that are consistently close to the cable rate. The new system also satisfies the fundamental purposes for using presumptions: To reduce reporting and recordkeeping requirements, to minimize administrative burdens, and to provide a level of predictability and efficiency in calculating the appropriate rate.

    B. The Reasons To Revise the Cost Allocation System

    20. The Commission adopts this multiple cost-allocator approach for the same reasons that motivated the initial (but ultimately incomplete) reforms in 2011: To advance the deployment and adoption of broadband Internet access, which remains a fundamental policy goal that guides its implementation of the telecom rate formula. The Commission recognizes that pole rental rates are but one of many considerations underlying marketplace deployment decisions. That said, the Commission promotes broadband deployment on numerous fronts, and has sought public comment and advice on other measures to advance this overarching policy. When discussing pole attachments policy, the Commission refers consistently to incentives for investment. By the same token, it remains the Commission's policy to minimize disincentives to investment, including artificially high pole attachment rates. Lower pole rental rates serve to encourage broadband investment, and Commission continues to use its section 224 authority as one of the tools it brings to bear to on its broadband goals. The Commission also continues to support and subsidize deployment of broadband Internet access in high-cost areas. In contrast, increased pole attachment rates would ultimately be recovered from consumers, and could lead some consumers to cut back or even discontinue their service. Thus, the Commission views pole attachment rate reform as part of the Commission's fundamental mission to advance the availability and adoption of broadband in America.

    21. The Commission also intends this action to avoid the unintended consequence of higher pole attachment rates for cable providers that also offer broadband Internet access service, in those cases where the utility rebuts the Commission's attaching party presumptions. Comcast, for example, asserts that “[a]bsent grant of the NCTA/COMPTEL Petition, a costly and time consuming process will ensue whereby utilities will seek to rebut the Commission's attaching entity presumptions, and cable operator attachers will then seek to refute the utilities' attachment studies.” And NCTA observes that, because most cable operators may become subject to the telecom rate, and large numbers of associated attachments are implicated, utilities would have increased incentives to rebut the Commission's presumed number of attachers in areas where they had not done so previously. As a result, this could lead to pole rate increases for both cable operators and pre-existing telecommunications carriers in those areas. In the Open Internet Order, the Commission acknowledged that reclassification could lead to attempted increases in pole attachment rates, and stated its intention to avoid such an increase. Aligning rates produced by the two rate formulas forestalls this potential increase.

    22. The Commission also is concerned that unless it closes what one commenter refers to as the “telecom formula loophole,” the resulting rate disparity would, more broadly, frustrate the Commission's policy goals by artificially and incrementally deterring investment in states subject to Commission pole regulation in favor of investment in areas with more favorable state-regulated pole attachment regimes. As the Commission previously has observed, “[c]ommenters report that many [states that have elected to exercise jurisdiction over pole attachments in lieu of the Commission] apply a uniform rate for all attachments used to provide cable and telecommunications services, and have done so by establishing a rate identical or similar to the Commission's cable rate formula.” Thus, if the Commission's telecom rate frequently yielded rates materially above the cable rate, telecommunications service providers that operate in multiple states or are deciding where to enter the marketplace, would have an artificial disincentive to invest in states governed by the Commission's 2011 telecom rate rule relative to states that established a uniform rate identical or similar to the Commission's cable rate formula. Although the Commission's action in this Order will not guarantee complete state-to-state uniformity, seeking to address artificial marketplace distortions in the manner that it does here, rather than via a higher telecom rate, accords with the Commission's broadband mandate and its overall policy balancing in this context.

    23. Moreover, the record developed here demonstrates that pole owners routinely rebut the Commission presumptions with averages close to 2.6 attachers. This means that the Commission's standard examples of telecom rates, which presuppose fully-allocated costs and use the Commission's presumptions, have seriously underestimated the pre-reform disparity between cable- and telecom-rate outcomes. In this proceeding, the Commission has compared estimated telecom costs of 11.2 percent in urban areas and 16.9 percent in non-urban areas with fixed cable costs of 7.4 percent. Applying the 2.6 cost allocator that the record supports shows that the telecom rate formula cost estimate would have been 19.1 percent for both urban and rural areas. The discrepancy between the presumed numbers of attachers (5 in urban areas and 3 in rural areas) and actual numbers of attachers used in pole owner rebuttals and reported in the record (often at or close to 2.6) illustrates the substantial problem attachers face when applying the rate reform of the Commission's 2011 Pole Attachment Order.

    24. Along with the forgoing policy considerations, the Commission continues to seek to balance the “legitimate concerns of pole owners and other parties” by preserving incentives to invest in poles and avoiding the imposition of an undue burden on utility ratepayers. In 2011, the Commission ultimately concluded that the level of recovery provided by the cable rate best balanced its broadband deployment mandates and the concerns of pole owners and utility ratepayers. Consistent with that analysis, the Commission explains above that the cable rate frequently is lower than the telecom rate as it previously had been implemented by the Commission, and reducing the telecom rate to cable rate level would further numerous policy goals. The Commission further observed that the cable rate had not produced a “shortage of pole capacity,” and, therefore, approximating that rate in the telecom formula likely would not diminish pole owners' “incentives to invest in poles.” The Commission also found “persuasive the views of consumer advocates . . . recommend[ing] that the cable rate `should be used for all pole attachments.' ”

    25. The Commission thus remains persuaded that utility cost recovery at the level of the cable rate best balances the relevant policy considerations. Consequently, the Commission rejects arguments that the rule revision, which will more consistently and accurately ensure that the Commission's policy goals are achieved, will somehow upset the Commission's intended balance, unfairly burden utility ratepayers, or undermine the sharing of infrastructure costs. Likewise, while some commenters observe that other aspects of the 2011 Pole Attachment Order put downward pressure on the revenues electric utilities receive from incumbent LEC attachers, the Commission already accounted for that likelihood in its weighing of policies and conclusion that it was appropriate to permit capital cost recovery at the same level as under the cable rate.

    26. Utilities dismiss this policy balancing on several grounds, none of which persuade the Commission. The Utilities Telecom Council (UTC) argues that pole attachment rental is insignificant compared to other operating costs of large cable companies. Electric Utilities state that capital expenditure, and not pole attachment rental, drives deployment, and that pole attachment rental accounts for less than 2 percent of the cost of deploying fiber optic cable. UTC argues that there has been only a slow rate of broadband deployment since the telecom rate was adjusted in 2011, which proves the futility of lowering pole attachment rates, and that any cost savings from lower pole attachment rates have not been passed on to consumers, but rather, as a result of industry consolidation, have been pocketed by providers instead.

    27. The Commission is skeptical that sums alleged to “unfairly and negatively impact utilities and their ratepayers” are “insignificant” in the context of broadband deployment. While the record does not include quantifiable information regarding the exact effect on deployment of pole attachment rates, insofar as keeping attachment rates reasonable for cable companies prevents them from shelving even a small number of projects, the Commission would not consider that result “insignificant.” There remains room for improvement in the rate of broadband expansion, and the Commission cannot afford to dismiss the importance of even potentially small increments. Commenters state that cable companies continue to deploy facilities, and Commission intend to avert any destabilization of those plans that might arise from a large and sudden pole attachment rate increase. The Commission is particularly mindful of the potential for harm to rural areas, which are the least served areas in the nation, and where the most additional pole attachments are needed to reach additional customers.

    28. Utilities further argue that granting the NCTA Petition would unfairly reduce their revenue from pole attachments. They argue that the 2011 Pole Attachments Order has already reduced their recovery from the telecommunications rate, and expect that their revenue from broadband-only Internet service providers will also decline. The Commission finds these arguments unpersuasive. Telecommunications carriers account for only a little more that 10 percent of attaching entities. Leveling their rate down to the cable rate disrupts settled expectations far less than leveling up the rental rate for the much greater number of cable attachments. Although it is true that the new system will tend to lower rates negotiated under the telecom rate formula, they will settle at the level the Commission aimed for in 2011, when its stated goal was to “minimize the difference in rental rates paid for attachments that are used to provide voice, data, and video services.”

    29. Utilities argue that increasing demand for pole space should lead to increased prices, and that any downward rate adjustment runs counter to economic principles. The Commission attaches no significance to this assertion. The express reason for the statutory imposition of cost-based, regulated rates is to bypass the economic principle that “ `public utilities by virtue of their size and exclusive control over access to pole lines, are unquestionably in a position to extract monopoly rents . . . in the form of unreasonably high pole attachment rates.' ” By enacting cost-based rate formulas, Congress has already accounted for the economics of scarcity that so favor pole owners. Attachment rates agreed to by broadband-only providers before reclassification may indeed be called into question, but that is because these entities are now within the ambit of Section 224, and not because the Commission revises the method of cost allocation used in the telecom rate formula.

    30. Utilities claim that “downward pressure” on rates “weakens the predictability and timeliness of the access process” but this argument makes little sense. Attachers pay (and owners recover) the entire cost of access through make-ready fees paid before the attacher's facilities are mounted on poles. Because access costs have already been recovered through make-ready fees, pole attachment rental rates are concerned solely with the pole owner's recovery of operating costs; they should have nothing to do with the “predictability and timeliness” of access. In any case, a “downward pressure” on rates to a parity with the cable rate formula level is precisely the outcome that the 2011 Pole Attachment Order sought to achieve and that the Commission intends this new cost allocation system to implement.

    C. The Commission Has Authority To Adopt the Revised Telecom Rate Rule

    31. The modified telecom rate rule adopted in this Order is consistent with section 224(e) of the Act. The fundamental purpose of section 224(e) is to “ensure that a utility charges just, reasonable, and nondiscriminatory rates for pole attachments” by telecommunications carriers used to provide telecommunications services. As described above, in regulating cost-based telecom attachment rates under section 224(e), Congress granted the Commission substantial discretion to implement section 224(e) based on the agency's policy expertise by leaving the definition of the relevant costs ambiguous. Employing that policy expertise, the Commission builds upon the underpinnings of the statutory interpretation relied upon by the Commission in 2011 in the telecom rate rule adopted here.

    32. The 2011 Pole Attachment Order began by identifying a range of reasonable rates that could result from different definitions of “cost” for purposes of section 224(e). Within that range of permissible outcomes, the telecom rate rule ultimately adopted in 2011 involved the comparison of the rate yielded by two calculations, with utilities permitted to charge the higher of the two. Section 1.1409(e)(2)(i) specifies the first calculation, which the Commission anticipated would approximate the cable rate. Section 1.1409(e)(2)(ii) specifies the second calculation, based on a cost-causation approach.

    33. As a threshold matter, this Order leaves unaltered the section 1.1409(e)(2)(ii) `cost-causation'-based calculation. That calculation still will be performed whenever the Commission's telecom rate rule is used, and even utility commenters concede that it does “not do away with apportioning the costs among all attaching entities” in accordance with section 224(e). The definition of cost for purposes of that provision excludes capital costs and was designed to yield a rate that approached the incremental cost of attachment.

    34. The question of whether, and to what extent, to allow utilities to go beyond the recovery permitted by the section 1.1409(e)(2)(ii) telecom rate calculation and recover some capital costs ultimately depends on a further policy evaluation. As the Commission explained in 2011, and as the Commission reiterates above, its implementation of section 224 is guided in significant part by its mandate to encourage the deployment of broadband. That policy, if overriding other considerations, might counsel in favor of relying solely on the rate yielded by the `cost-causation' calculation in section 1.1409(e)(2)(ii), rather than permitting higher rates as just and reasonable under section 224(e). But the Commission also sought—and continues to seek—to balance the “legitimate concerns of pole owners and other parties” by preserving incentives to invest in poles and avoiding the imposition of an undue burden on utility ratepayers.

    35. As described above, in 2011 the Commission adopted rules that it anticipated would result in a telecom rate that generally approximated the cable rate. In practice, however, the rule the Commission adopted has only poorly reflected the balancing of policy interests that the Commission anticipated attaining in 2011 because the facts on the ground differed significantly from the Commission presumptions upon which the 2011 rule was predicated. As a result, telecom rates calculated based on the Commission's rules frequently were higher than the levels the Commission generally sought to achieve as just and reasonable under section 224(e)—i.e., materially in excess of the cable rate. The reclassification of broadband Internet access service as a telecommunications service brings this shortcoming into greater focus. Adopting the changes to section 1.1409(e)(2)(i) proposed by Petitioners will bring the balance that the Commission anticipated achieving in 2011, which the Commission is likewise persuaded is the appropriate outcome today.

    36. Thus, the Commission adopts the Petitioners' proposal and modifies section 1.1409(e)(2)(i) of the rules by redefining the ambiguous term “cost” as a percentage of fully allocated costs that depends on whether the average number of attaching entities in an area is 2, 3, 4, or 5. The specific percentage of fully allocated costs that Commission adopts in each of those instances will yield a rate under section 1.1409(e)(2)(i) that more closely and consistently approximates the cable rate.

    37. Although this definition of cost is based on an integer average number of attachers in an area, consistent with the Commission's efforts to ensure that it implements section 224(e) in a “readily administrable” manner, the proposal the Commission adopts incorporates a mechanism to allow parties, should they so choose, to continue to rely on non-integer average numbers of attachers in a service area by interpolating from the specified cost allocators in section 1.1409(e)(2)(i) of the rules in a manner that does not undermine the definition of cost adopted above. In pertinent part, section 224(e)(2) is focused on allocating the “cost”—however defined—of providing space on a pole other than useable space. Although a given pole only will have an integer number of attaching entities, for administrability the Commission has long permitted pole attachment rates to be calculated based on surveys or averages of the number of attaching entities in the relevant service area, which has the potential to yield an average number of attachers that is not an integer number. The use of a non-integer number of attaching entities in conjunction with the new definition of cost adopted for areas with 2, 3, 4, or 5 average attaching entities in revised section 1.1409(e)(2)(i) of the rules would result in similar, even if not always as extensive, deviations from the cable rate as the Commission found to result under the version of the rule adopted in 2011. The Commission concludes that such deviation is at odds with the balancing of policy interests it seeks to achieve through its revisions to section 1.1409(e)(2)(i) and also anticipates that it would increase the likelihood of disputes. The Commission thus adopts the interpolation mechanism in Petitioners' proposal, which will leave parties free to continue using non-integer average number of attachers should they choose to do so, without undermining its ability to ensure just and reasonable rates under section 224(e) in an administrable manner.

    38. Insofar as the reclassification of broadband Internet access service results in most Commission-regulated attachments becoming subject to the telecom rate, that counsels in favor of its redefinition of cost, contrary to the claims of some commenters. The Commission recognizes that the 2011 Pole Attachment Order cited the marketplace distortions resulting from disparate telecom and cable rates as part of the policy rationale for the telecom rate change adopted there. As identified there, these distortions led to competitive disparities arising from telecommunications carriers paying higher pole attachment rates than their cable operator competitors. The distortions also created disincentives for cable operators to begin offering advanced services that could newly subject them to the telecom rate. Some commenters argue that reclassification of broadband Internet access service, insofar as it results in most cable operators now being subject to the telecom rate, resolves concerns about marketplace distortions and leaves the Commission with little or no policy basis for revisiting the definition of “cost” to better ensure that the telecom rate is as low and close to uniform with the cable rate as possible. The Commission rejects such claims for the reasons already explained above. In particular, the current telecom rate could lead to a windfall for utilities by increasing rates for many attachments without any offsetting benefits to cable attachers. This not only would harm cable operators and their customers, but more broadly would undermine the Commission's broadband policies by creating artificial marketplace distortions and disincentives for investment. Indeed, the Commission made this point clear in the Open Internet Order when it stated, “[t]o the extent that there is a potential for an increase in pole attachment rates for cable operators that also provide broadband Internet access service, the Commission is highly concerned about its effect on the positive investment incentives that [otherwise] arise from new providers' access to pole infrastructure.”

    39. The Commission also disagrees with the suggestions of some commenters that only certain types of policy considerations can form the basis for its interpretation and implementation of the ambiguous term “cost” in section 224(e). As the D.C. Circuit recognized in AEP, the Commission reasonably can rely on policy rationales in giving meaning to the term “cost.” The Commission explains above the specific policy rationales for the approach the Commission adopts here, and finds no basis to conclude that those considerations cannot form a sufficient justification for the interpretation of the term cost in its implementation of section 224(e). For example, certain commenters assert that there is no “economic reason” for the adopted approach to defining cost, but do not explain what they mean by an “economic reason,” or why the policy considerations discussed above, including the economic effects of alternative approaches to defining cost, would not fall within that scope. Some commenters also criticize the Petitioners' proposal for failing to provide a more favorable outcome for attachers in rural areas, but fail to explain why that is a necessary basis for interpreting the term “cost.” To the extent that those comments are premised on certain policy arguments relied upon by the Commission in 2011 as part of its explanation of the specific definitions of cost adopted there, the Commission finds them unpersuasive. The Commission finds for the reasons explained above that the version of section 1.1409(e)(2)(i) adopted in 2011 only poorly advanced the Commission's more fundamental policy objectives, and to better advance those fundamental policy objectives, and for the other policy reasons relied on in this Order, the Commission departs from its prior approach that relied on historical rules tied to urban/rural distinctions. Moreover, the Commission is not revisiting how cost is defined under section 1.1409(e)(2)(i) to more consistently and accurately yield a rate the same or very similar to the cable rate as an end unto itself, but because that reflects the Commission's intended policy balancing, and the Commission rejects suggestions that that is not a valid justification. More broadly, because the Commissions explain in detail the legal and policy basis for its adoption of Petitioners' proposed revision to section 1.1409(e)(2)(i) of the rules, it rejects general claims that adopting that proposal would be arbitrary and capricious.

    40. Nor does modification of the telecom rate rule render section 224(e)(2) of the Act a nullity, as some allege. For one, the Commission's telecom rate rule requires a comparison of the output of two calculations, and as explained above, even utilities appear to concede that the cost-causation-based calculation in section 1.1409(e)(2)(ii) gives meaning to section 224(e)(2). Moreover, under revised section 1.1409(e)(2)(i) the apportionment specified in section 224(e)(2) is given meaning because it is only by applying that apportionment to the definition of “cost” adopted above that the resulting rate will closely approximate the cable rate, and thus be just and reasonable under the analysis above.

    41. The Commission also rejects claims that its approach to interpreting “cost” otherwise is at odds with Congressional intent and the text and structure of section 224. The 2011 Pole Attachment Order explained why the statute does not require the telecom rate necessarily to be higher than, or otherwise different from, the cable rate and the Commission finds nothing in the record here to undercut that analysis. The Commission acknowledges some commenters' arguments that section 224(e)(2) could be read to suggest that Congress envisioned the telecom rate varying with the number of attachers, in contrast to its revised approach to defining cost in section 1.1409(e)(2)(i) of the rules, under which the resulting rate will be the same or very similar regardless of the number of attaching entities. At the same time, although section 224(e)(2) provides for costs to be apportioned in a manner that depends on the number of attachers, it left undefined what costs should be so apportioned. This is in contrast to section 224(d)(1), which specifies both a cost-based rate methodology and the defined scope of costs to be used for purposes of the cable rate. In particular, although, as some commenters observe, Congress did not simply mandate the cable rate for all attachments, neither did it specify a definition of cost that would require an outcome under section 224(e)(2) that would, in practice, always vary with the number of attaching entities. Congress thus permitted the Commission to implement section 224(e) in a manner that yielded rates that vary with the number of attachers—an outcome that would depart from the cable rate, notwithstanding the requirement in section 224(e)(1) that the rate be not only just and reasonable but also “nondiscriminatory.” But while permitting such an outcome, the Commission also concludes that Congress did not require such an outcome as mandatory given its use of the ambiguous term “cost.”

    42. In implementing section 224(e), the Commission considers the broader purposes of section 224, as also informed by other statutory goals and mandates. As in the 2011 Pole Attachment Order, the Commission finds that its interpretation and implementation of section 224(e) here advances those objectives. The Commission has concluded that “[t]he purpose of Section 224 of the Communications Act is to ensure that the deployment of communications networks and the development of competition are not impeded by private ownership and control of the scarce infrastructure and rights-of-way that many communications providers must use in order to reach customers.” This also is borne out by the text of section 224, which emphasizes that the Commission's fundamental role is to ensure just and reasonable rates, terms, and conditions of access. Other statutory provisions likewise counsel in favor of such an understanding of section 224, as discussed in greater detail in the 2011 Pole Attachment Order and above. For the reasons explained in the preceding discussion, the Commission concludes that the revised telecom rate rule it adopts is necessary to ensure just and reasonable rates for pole access as a backstop for when private negotiations fail. Because the Commission can achieve that outcome by how it defines “cost” under section 224(e), while still formally giving meaning to all the language of that provision, the Commission concludes that its adopted approach reasonably implements that provision as understood in the context of section 224 as a whole.

    43. The Commission also is not persuaded by arguments that section 224(e)(2) limits the costs to be borne by pole owners. As described above, the Commission's fundamental responsibility under section 224(e) is to ensure that regulated rates “for pole attachments used by telecommunications carriers to provide telecommunications services” are just, reasonable, and nondiscriminatory. Read in that context, the Commission interprets section 224(e)(2) only to govern the apportionment of the “cost”—however defined—of unusable space in the rates pole owners charge to telecom attachers. It is true that the methodology used to calculate the apportionment of “cost” to a telecom attacher under section 224(e)(2) involves a calculation of what “all attaching entities” would bear assuming hypothetically that they all bore an equal apportionment of such cost. But it does not actually govern the cost to be borne by entities other than telecom attachers—whether the pole owner or other attachers.

    D. The Revisions to the Telecom Rate Rule Are Procedurally Proper

    44. Adopting this change to section 1.1409(e)(2)(i) of the rules is procedurally proper. Following the Commission's 2010 Further Notice seeking comment on “establish[ing] rental rates for pole attachments that are as low and close to uniform as possible, consistent with section 224 of the Act,” the 2011 Pole Attachment Order revised the telecom rate rule in a manner that the Commission anticipated would reflect its balancing of policy concerns. The timely filed Petition for Reconsideration identified flaws in the Commission's factual assumptions underlying section 1.1409(e)(2)(i) of the rules as adopted in the 2011 Pole Attachment Order that would cause that rule, in practice, to only poorly reflect the Commission's intended balancing of policy objectives. The Petitioners thus proposed that the Commission, on reconsideration, revise that rule in a manner that “increases the certainty that pole rates will be as close as possible to the cable rate, meets the Commission's intended purposes, and makes the calculation more readily administrable by eliminating the need to distinguish urbanized and non-urbanized areas.” Given that clear nexus to the 2011 Pole Attachment Order, the Commission finds the request in the Petition for Reconsideration to be squarely within the scope of the order from which reconsideration is sought, and the Commission rejects arguments to the contrary. Furthermore, for the reasons discussed in the preceding section, the Commission finds merit in the Petitioners' arguments, and thus concludes that it is in the public interest not only to consider their Petition but also to grant their requested reconsideration.

    45. The Commission also rejects claims that additional notice and comment is needed before it can proceed under the theory that the action in this Order effectively would modify sections 1.1417(c) and (d) of the rules. Section 1.1417(c) specifies the Commission's rebuttable presumptions of 5 attaching entities in urbanized areas and 3 attaching entities in non-urbanized areas. Section 1.1417(d) describes how a utility can instead establish its own presumptive average number of attaching entities, subject to rebuttal. As a threshold matter, the Commission is not persuaded by commenters' claims that the Petitioners' proposed revision to section 1.1409(e)(2)(i) would render those rules “moot.” Under the utilities' own theory, the Commission-specified presumptions in section 1.1417(c) would have increased, rather than diminished, significance when performing the section 1.1409(e)(2)(i) calculation because it would obviate the need for utilities to expend the effort to develop their own presumptive average numbers of attachers if they believe that variation in the number of attachers would not matter. Further, although the result of the calculation in section 1.1409(e)(2)(i) frequently will be higher than that yielded by the cost-causation-based calculation in section 1.1409(e)(2)(ii), its rules provide for both to be performed, with the possibility that there will be cases where the section 1.1409(e)(2)(ii) calculation is controlling. The outcome under section 1.1409(e)(2)(ii) unquestionably does vary with the number of attaching entities, and thus the utilities' ability to develop their own presumptive number of attaching entities under section 1.1417(d) remains important where the cost-causation-based calculation would be, or could be, controlling.

    46. Although the Commission is not persuaded that any implications of its change to section 1.1409(e)(2)(i) of the rules for sections 1.1417(c) and (d) constitute substantive rule changes, even assuming arguendo that they were viewed in that manner, the Commission finds there was adequate notice and opportunity to comment. As noted above, the Commission's 2010 Further Notice sought comment on “establish[ing] rental rates for pole attachments that are as low and close to uniform as possible, consistent with section 224 of the Act,” seeking comment on particular alternative approaches and variations that might be adopted consistent with the Commission's statutory responsibilities. For example, the Further Notice included requests for comment on a proposal to revise the telecom rate rule so that it was the higher of a rate equal to the cable rate or a cost-causation-based rate, including regarding the administrability of such an approach and how it would relate to other Commission policies. Flowing from that Further Notice, the 2011 Pole Attachment Order adopted revisions to the telecom rate rule, and the Petition for Reconsideration requested reconsideration of the resulting rule in various respects, all within the scope of the underlying Order. The Commission sought comment on the Petition for Reconsideration at the time it was filed, and provided a further opportunity to comment on the requested rule changes subsequent to the Open Internet Order. The Commission concludes that any implications for the continuing significance of section 1.1417(c) and (d) resulting from its adoption of the Petitioners' proposal should have been understood to be within the scope of issues subject to comment—indeed, commenters themselves appear to suggest that the implications for section 1.1417(c) and (d) are a necessary and unavoidable consequence of the adoption of that proposal. As a result, the Commission concluded that even assuming arguendo that notice and comment were required regarding the effects of a change in section 1.1409(e)(2)(i) on the presumption rules in section 1.1417(c) and (d), that was satisfied here.

    IV. Procedural Matters A. Paperwork Reduction Act Analysis

    47. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

    B. Regulatory Flexibility Analysis

    48. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission includes in Appendix B a Supplemental Final Regulatory Flexibility Analysis (FRFA) relating to this Order on Reconsideration.

    C. Congressional Review Act

    49. The Commission will send a copy of the Order on Reconsideration, including the FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1).

    D. Final Regulatory Flexibility Analysis

    50. As required by the Regulatory Flexibility Act of 1980, as amended (RFA).

    51. An Initial Regulatory Flexibility Analysis (IRFA) was included in the Order and Further Notice in WC Docket No. 07-245 and GN Docket No. 09-51. The Commission sought written public comment on the proposals in these dockets, including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

    E. Need for, and Objectives of, the Proposed Rules

    52. In this Order on Reconsideration, the Commission further implements its policy of bringing parity to pole attachment rates at or near the 47 CFR 1.1409(e)(1) cable rate formula level, including rates that are calculated using the 47 CFR 1.1409(d)(2) telecom rate formula. The 2011 Pole Attachment Order adopted cost allocators in the telecom rate formula that were intended to closely approximate the treatment of cost in the cable rate formula. However, these allocators perform successfully only where poles have 5 attaching entities (0.66 percent of cost) or 3 attaching entities (0.44 percent of cost). To build on that limited success, the Commission now adds cost allocators for poles with 2 attaching entities (0.31 percent of costs) and 4 attaching entities (0.56 percent of cost). When the average number of attaching entities is a fraction, the applicable cost allocator will be interpolated from the two closest whole numbers. In this way, this Order on Reconsideration spares cable operators that also provide a telecommunications service (e.g., broadband Internet access service) from having to pay attachment rates that would be approximately 70 percent higher than the rate they pay under the existing rules. Pole attachment rate parity at the cable rate level also harmonizes regulatory treatment between Commission-regulated states and states that set their own pole attachment rates, which prevents any deterrence to investment in Commission-regulated states. By keeping pole attachment rates unified and low, the Commission furthers its overarching goal to accelerate deployment of broadband by removing barriers to infrastructure investment.

    F. Summary of the Significant Issues Raised by the Public Comments in Response to the IRFA and Summary of the Assessment of the Agency of Such Issues

    53. No comments relating to any of the IRFAs have been filed since the 2011 Pole Attachment Order. In making the determinations reflected in the Order on Reconsideration, the Commission has considered the impact of its actions on small entities.

    G. Description and Estimate of the Number of Small Entities to Which the Proposed Rules May Apply

    54. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

    55. Small Businesses. As of 2011, there are a total of approximately 28.2 million small businesses, according to the SBA.

    56. Small Organizations. As of 2007, there are approximately 1.6 million small organizations. A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.”

    57. Small Governmental Jurisdictions. The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2011 indicate that there were 90,056 local governmental jurisdictions in the United States. The Commission estimates that, of this total, 89,327 entities were “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.

    58. The Commission has included small incumbent local exchange carriers in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission has therefore included small incumbent local exchange carriers in this RFA analysis, although it emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

    59. Incumbent Local Exchange Carriers (“ILECs”). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,311 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,311 carriers, an estimated 1,024 have 1,500 or fewer employees and 287 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by its proposed action.

    60. Competitive Local Exchange Carriers (“CLECs”), Competitive Access Providers (“CAPs”), “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1005 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 1005 carriers, an estimated 918 have 1,500 or fewer employees and 87 have more than 1,500 employees. In addition, 16 carriers have reported that they are “Shared-Tenant Service Providers,” and all 16 are estimated to have 1,500 or fewer employees. In addition, 89 carriers have reported that they are “Other Local Service Providers.” Of the 89, all have 1,500 or fewer employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by its proposed action.

    61. Interexchange Carriers (“IXCs”). Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 300 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 268 have 1,500 or fewer employees and 32 have more than 1,500 employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by its proposed action.

    62. Wireless Telecommunications Carriers (except satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services. The appropriate size standard under SBA rules is for the category Wireless Telecommunications Carriers (except satellite). For that category, a business is small if it has 1,500 or fewer employees. For this category, census data for 2007 show that there were 1,383 firms that operated for the entire year. Of this total, 1368 firms had employment of fewer than 1000 employees. The Census data about firms employing more than 1000 employees does not identify the number of firms that employed 1500 employees or less. Thus under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities that may be affected by rules proposed in the Notice.

    63. Wireless Telecommunications Carriers (except Satellite). Since 2007, the Census Bureau has placed wireless firms within this new, broad, economic census category. Prior to that time, such firms were within the now-superseded categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under the present and prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees. Because Census Bureau data are not yet available for the new category, the Commission will estimate small business prevalence using the prior categories and associated data. For the category of Paging, data for 2002 show that there were 807 firms that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. For the category of Cellular and Other Wireless Telecommunications, data for 2002 show that there were 1,397 firms that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, the Commission estimates that the majority of wireless firms are small.

    64. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. As noted, the SBA has developed a small business size standard for Wireless Telecommunications Carriers (except Satellite). Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to Trends in telephone Service data, 413 carriers reported that they were engaged in wireless telephony. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Therefore, more than half of these entities can be considered small.

    65. Broadband Personal Communications Service. The broadband personal communications services (“PCS”) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission has created a small business size standard for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years. For Block F, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 “small” and “very small” business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. In 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders.

    66. In 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events, concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. In 2005, the Commission completed an auction of 188 C block licenses and 21 F block licenses in Auction 58. There were 24 winning bidders for 217 licenses. Of the 24 winning bidders, 16 claimed small business status and won 156 licenses. In 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction 71. Of the 14 winning bidders, six were designated entities. In 2008, the Commission completed an auction of 20 Broadband PCS licenses in the C, D, E and F block licenses in Auction 78.

    67. Advanced Wireless Services. In 2008, the Commission conducted the auction of Advanced Wireless Services (“AWS”) licenses. This auction, which as designated as Auction 78, offered 35 licenses in the AWS 1710-1755 MHz and 2110-2155 MHz bands (“AWS-1”). The AWS-1 licenses were licenses for which there were no winning bids in Auction 66. That same year, the Commission completed Auction 78. A bidder with attributed average annual gross revenues that exceeded $15 million and did not exceed $40 million for the preceding three years (“small business”) received a 15 percent discount on its winning bid. A bidder with attributed average annual gross revenues that did not exceed $15 million for the preceding three years (“very small business”) received a 25 percent discount on its winning bid. A bidder that had combined total assets of less than $500 million and combined gross revenues of less than $125 million in each of the last two years qualified for entrepreneur status. Four winning bidders that identified themselves as very small businesses won 17 licenses. Three of the winning bidders that identified themselves as a small business won five licenses. Additionally, one other winning bidder that qualified for entrepreneur status won 2 licenses.

    68. Narrowband Personal Communications Services. In 1994, the Commission conducted an auction for Narrowband PCS licenses. A second auction was also conducted later in 1994. For purposes of the first two Narrowband PCS auctions, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission awarded a total of 41 licenses, 11 of which were obtained by four small businesses. To ensure meaningful participation by small business entities in future auctions, the Commission adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order. A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. The SBA has approved these small business size standards. A third auction was conducted in 2001. Here, five bidders won 317 (Metropolitan Trading Areas and nationwide) licenses. Three of these claimed status as a small or very small entity and won 311 licenses.

    69. Cellular Radiotelephone Service. Auction 77 was held to resolve one group of mutually exclusive applications for Cellular Radiotelephone Service licenses for unserved areas in New Mexico. Bidding credits for designated entities were not available in Auction 77. In 2008, the Commission completed the closed auction of one unserved service area in the Cellular Radiotelephone Service, designated as Auction 77. Auction 77 concluded with one provisionally winning bid for the unserved area totaling $25,002.

    70. Fixed Microwave Services. Fixed microwave services include common carrier, private operational-fixed, and broadcast auxiliary radio services. At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not created a size standard for a small business specifically with respect to fixed microwave services. For purposes of this analysis, the Commission uses the SBA small business size standard for the category Wireless Telecommunications Carriers (except Satellite), which is 1,500 or fewer employees. The Commission does not have data specifying the number of these licensees that have no more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are 22,015 or fewer common carrier fixed licensees and 61,670 or fewer private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies proposed herein. The Commission notes, however, that the common carrier microwave fixed licensee category includes some large entities.

    71. Local Multipoint Distribution Service. Local Multipoint Distribution Service (“LMDS”) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. The auction of the 986 LMDS licenses began and closed in 1998. The Commission established a small business size standard for LMDS licenses as an entity that has average gross revenues of less than $40 million in the three previous calendar years. An additional small business size standard for “very small business” was added as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. The SBA has approved these small business size standards in the context of LMDS auctions. There were 93 winning bidders that qualified as small entities in the LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses. In 1999, the Commission re-auctioned 161 licenses; there were 32 small and very small businesses winning that won 119 licenses.

    72. Rural Radiotelephone Service. The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (“BETRS”). In the present context, the Commission will use the SBA's small business size standard applicable to Wireless Telecommunications Carriers (except Satellite), i.e., an entity employing no more than 1,500 persons. There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies proposed herein.

    73. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (“MDS”) and Multichannel Multipoint Distribution Service (“MMDS”) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (“BRS”) and Educational Broadband Service (“EBS”) (previously referred to as the Instructional Television Fixed Service (“ITFS”)). In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years. The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (“BTAs”). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, the Commission estimates that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities. After adding the number of small business auction licensees to the number of incumbent licensees not already counted, the Commission finds that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) will receive a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) will receive a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) will receive a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.

    74. In addition, the SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,032 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, the Commission estimates that at least 1,932 licensees are small businesses. Since 2007, Cable Television Distribution Services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. To gauge small business prevalence for these cable services the Commission must, however, use current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small.

    75. Cable Television Distribution Services. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees. To gauge small business prevalence for these cable services the Commission must, however, use current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small.

    76. Cable Companies and Systems. The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that, of 6,635 systems nationwide, 5,802 systems have fewer than 10,000 subscribers, and an additional 302 systems have 10,000-19,999 subscribers. Thus, under this second size standard, most cable systems are small.

    77. Cable System Operators. The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. The Commission notes that it neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore the Commission is unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard.

    78. Open Video Systems. The open video system (OVS) framework was established in 1996, and is one of four statutorily recognized options for the provision of video programming services by local exchange carriers. The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services, OVS falls within the SBA small business size standard covering cable services, which is “Wired Telecommunications Carriers.” The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees. To gauge small business prevalence for such services the Commission must, however, use current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of cable firms can be considered small. In addition, the Commission notes that the Commission has certified some OVS operators, with some now providing service. Broadband service providers (“BSPs”) are currently the only significant holders of OVS certifications or local OVS franchises. The Commission does not have financial or employment information regarding the entities authorized to provide OVS, some of which may not yet be operational. Thus, again, at least some of the OVS operators may qualify as small entities.

    79. Cable Television Relay Service. This service includes transmitters generally used to relay cable programming within cable television system distribution systems. This cable service is defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees. To gauge small business prevalence for cable services the Commission must, however, use current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small.

    80. Multichannel Video Distribution and Data Service. MVDDS is a terrestrial fixed microwave service operating in the 12.2-12.7 GHz band. The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. It defined a very small business as an entity with average annual gross revenues not exceeding $3 million for the preceding three years; a small business as an entity with average annual gross revenues not exceeding $15 million for the preceding three years; and an entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding three years. These definitions were approved by the SBA. On January 27, 2004, the Commission completed an auction of 214 MVDDS licenses (Auction No. 53). In this auction, ten winning bidders won a total of 192 MVDDS licenses. Eight of the ten winning bidders claimed small business status and won 144 of the licenses. The Commission also held an auction of MVDDS licenses on December 7, 2005 (Auction 63). Of the three winning bidders who won 22 licenses, two winning bidders, winning 21 of the licenses, claimed small business status.

    81. Internet Service Providers. The 2007 Economic Census places these firms, whose services might include voice over Internet protocol (VoIP), in either of two categories, depending on whether the service is provided over the provider's own telecommunications connections (e.g. cable and DSL, ISPs), or over client-supplied telecommunications connections (e.g. dial-up ISPs). The former are within the category of Wired Telecommunications Carriers, which has an SBA small business size standard of 1,500 or fewer employees. The latter are within the category of All Other Telecommunications, which has a size standard of annual receipts of $25 million or less. The most current Census Bureau data for all such firms, however, are the 2002 data for the previous census category called Internet Service Providers. That category had a small business size standard of $21 million or less in annual receipts, which was revised in late 2005 to $23 million. The 2002 data show that there were 2,529 such firms that operated for the entire year. Of those, 2,437 firms had annual receipts of under $10 million, and an additional 47 firms had receipts of between $10 million and $24,999,999. Consequently, the Commission estimates that the majority of ISP firms are small entities.

    82. Electric Power Generation, Transmission and Distribution. The Census Bureau defines this category as follows: “This industry group comprises establishments primarily engaged in generating, transmitting, and/or distributing electric power. Establishments in this industry group may perform one or more of the following activities: (1) operate generation facilities that produce electric energy; (2) operate transmission systems that convey the electricity from the generation facility to the distribution system; and (3) operate distribution systems that convey electric power received from the generation facility or the transmission system to the final consumer.” This category includes Electric Power Distribution, Hydroelectric Power Generation, Fossil Fuel Power Generation, Nuclear Electric Power Generation, and Other Electric Power Generation. The SBA has developed a small business size standard for firms in this category: “A firm is small if, including its affiliates, it is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours.” According to Census Bureau data for 2002, there were 1,644 firms in this category that operated for the entire year. Census data do not track electric output and the Commission has not determined how many of these firms fit the SBA size standard for small, with no more than 4 million megawatt hours of electric output. Consequently, the Commission estimates that 1,644 or fewer firms may be considered small under the SBA small business size standard.

    83. Natural Gas Distribution. This economic census category comprises: “(1) establishments primarily engaged in operating gas distribution systems (e.g., mains, meters); (2) establishments known as gas marketers that buy gas from the well and sell it to a distribution system; (3) establishments known as gas brokers or agents that arrange the sale of gas over gas distribution systems operated by others; and (4) establishments primarily engaged in transmitting and distributing gas to final consumers.” The SBA has developed a small business size standard for this industry, which is: all such firms having 500 or fewer employees. According to Census Bureau data for 2002, there were 468 firms in this category that operated for the entire year. Of this total, 424 firms had employment of fewer than 500 employees, and 18 firms had employment of 500 to 999 employees. Thus, the majority of firms in this category can be considered small.

    84. Water Supply and Irrigation Systems. This economic census category “comprises establishments primarily engaged in operating water treatment plants and/or operating water supply systems.” The SBA has developed a small business size standard for this industry, which is: all such firms having $6.5 million or less in Annual receipts. According to Census Bureau data for 2002, there were 3,830 firms in this category that operated for the entire year. Of this total, 3,757 firms had annual sales of less than $5 million, and 37 firms had sales of $5 million or more but less than $10 million. Thus, the majority of firms in this category can be considered small.

    H. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements

    85. The new rule concerns a cost allocation method that parties use in a formula when negotiating just and reasonable pole attachment rental rates. Application of the cost allocation rule is expanded but not altered from the cost allocation rule that parties currently use. The Commission expects the cost of complying with the revised cost allocation rule to be minimal, and compliance costs do not significantly differ from requirements in place before the adoption of this Order on Reconsideration.

    I. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

    86. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. Cost allocation methodologies used in pole attachment rate formulas are by nature the same for all entities that use them, regardless of size. No party suggested that the Commission develop alternative approaches to cost allocation based on entity size.

    J. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

    87. None.

    V. Ordering Clauses

    88. Accordingly, it is ordered that pursuant to sections 1, 4(i), 4(j), 201(b), 224, 251(b)(4), and 303(r), of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 201(b), 224, 251(b)(4), 303(r), this Order on Reconsideration IS ADOPTED.

    89. It is further ordered, pursuant to sections 1, 4(i), 4(j), 201(b), 224, and 303(r), of the Communications Act, as amended, as amended, 47 U.S.C. 151, 154(i), 154(j), 201(b), 224, 303(r), that the Petition for Reconsideration or Clarification filed by the National Cable and Telecommunications Association, COMPTEL, and tw telecom inc., is GRANTED to the extent indicated herein, and otherwise is DISMISSED.

    90. It is further ordered that Part 1 of the Commission's rules IS AMENDED as set forth in Appendix A.

    91. it is further ordered that, pursuant to sections 1.4(b)(1) and 1.103(a) of the Commission's rules, 47 CFR 1.4(b)(1), 1.103(a), this Order on Reconsideration shall be effective 30 days after publication of a summary in the Federal Register.

    92. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order on Reconsideration, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    Federal Communications Commission. Marlene H. Dortch, Secretary, Office of the Secretary. Final Rule

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 Subpart J as follows:

    PART 1—PRACTICE AND PROCEDURE 1. The authority citation for part 1 continues to read as follows: Authority:

    15 U.S.C. 79, et seq.; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 160, 201, 225, 227, 303, 309, 332, 1403, 1404, 1451, 1452, and 1455.

    Subpart J—Pole Attachment Complaint Procedures 2. Section 1.1409 is amended by revising paragraph (e)(2)(i) to read as follows:
    § 1.1409 Commission consideration of the complaint.

    (e) * * *

    (2) * * *

    (i) The following formula applies to the extent that it yields a rate higher than that yielded by the applicable formula in paragraph 1.1409(e)(2)(ii) of this section:

    Rate = Space Factor × Cost Where Cost in Service Areas where the number of Attaching Entities is 5 = 0.66 × (Net Cost of a Bare Pole x Carrying Charge Rate) in Service Areas where the number of Attaching Entities is 4 = 0.56 × (Net Cost of a Bare Pole x Carrying Charge Rate) in Service Areas where the number of Attaching Entities is 3 = 0.44 × (Net Cost of a Bare Pole x Carrying Charge Rate) in Service Areas where the number of Attaching Entities is 2 = 0.31 × (Net Cost of a Bare Pole x Carrying Charge Rate) in Service Areas where the number of Attaching Entities is not a whole number = N × (Net Cost of a Bare Pole × Carrying Charge Rate), where N is interpolated from the cost allocator associated with the nearest whole numbers above and below the number of Attaching Entities. ER03FE16.000
    [FR Doc. 2016-01182 Filed 2-2-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 150625552-6043-02] RIN 0648-BF22 Pacific Island Pelagic Fisheries; Exemption for Large U.S. Longline Vessels To Fish in Portions of the American Samoa Large Vessel Prohibited Area AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    In this final rule, NMFS allows large federally permitted U.S. longline vessels to fish in certain areas of the Large Vessel Prohibited Area (LVPA). NMFS will continue to prohibit fishing in the LVPA by large purse seine vessels. The fishing requirements for the Rose Atoll Marine National Monument remain unchanged. The intent of the rule is to improve the viability of the American Samoa longline fishery and achieve optimum yield from the fishery while preventing overfishing, in accordance with National Standard 1.

    DATES:

    Effective January 29, 2016.

    ADDRESSES:

    The Western Pacific Fishery Management Council (Council) prepared a regulatory amendment that provides background information on this final rule. The regulatory amendment, identified as NOAA-NMFS-2015-0080, includes an environmental assessment and regulatory impact review, and is available from www.regulations.gov or the Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-522-8226, www.wpcouncil.org.

    FOR FURTHER INFORMATION CONTACT:

    Jarad Makaiau, NMFS PIRO Sustainable Fisheries, 808-725-5176.

    SUPPLEMENTARY INFORMATION:

    The American Samoa large vessel prohibited area (LVPA) extends seaward approximately 30-50 nm around the various islands of American Samoa (see 50 CFR 665.806(b)). Federal regulations restrict vessels 50 ft and longer from fishing for pelagic management unit species within the LVPA. The Council and NMFS established the LVPA in 2002 to prevent the potential for gear conflicts and catch competition between large and small fishing vessels. You may read more about the LVPA in the 2001 proposed rule (66 FR 39475, July 31, 2001) and 2002 final rule (67 FR 4369, January 30, 2002).

    Since 2002, the American Samoa pelagic fisheries have changed such that the conditions that led the Council and NMFS to establish the LVPA are no longer present. The LVPA may be unnecessarily reducing the efficiency of the larger American Samoa longline vessels by displacing the fleet from a part of their historical fishing grounds.

    To address the current fishery conditions, the Council recommended that NMFS allow federally permitted U.S. longline vessels 50 ft and longer to fish in portions of the LVPA. Specifically, this action allows large U.S. vessels that hold a Federal American Samoa longline limited entry permit to fish within the LVPA seaward of 12 nm around Swains Island, Tutuila, and the Manua Islands. NMFS will continue to prohibit fishing in the LVPA by large purse seine vessels. The fishing requirements for the Rose Atoll Marine National Monument also remain unchanged.

    This action allows fishing in an additional 16,817 nm2 of Federal waters, allowing large longline vessels to distribute fishing effort over a larger area. This may reduce catch competition among the larger vessels and promote economic efficiency by reducing transit costs. This action is intended to improve the efficiency and economic viability of the American Samoa longline fleet, while ensuring that fishing by the longline and small vessel fleets remains sustainable on an ongoing basis. NMFS will continue to prohibit fishing by large longline vessels within the U.S. Exclusive Economic Zone (EEZ) from 3-12 nm around the islands, thus maintaining non-competitive fishing opportunities for the small-vessel longline fleet. You may find additional background information on this action in the preamble to the proposed rule published on August 25, 2015 (80 FR 51527).

    The Council and NMFS will annually review the effects of this final rule on catch rates, small vessel participation, and sustainable fisheries development initiatives. Any future changes would be subject to additional environmental review and opportunity for public review and comment.

    Comments and Responses

    On August 25, 2015, NMFS published the proposed rule and draft environmental assessment (EA) for public comment (80 FR 51527). The comment period ended September 24, 2015. NMFS received comments from over 270 individuals, commercial and recreational fishermen, businesses, Territorial government offices (including the Governor of American Samoa and the American Samoa Department of Marine and Wildlife Resources), Federal agencies, and non-governmental organizations. NMFS responds to these comments below.

    Comments on the Proposed Rule

    Comment 1: One commenter requested that NMFS extend the public comment period until after the Western Pacific Fishery Management Council's October 20-22, 2015, meeting in American Samoa.

    Response: Under Section 304(b) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS is required to make regulations proposed through the Council process available for public review and comment for a period of 15 to 60 days. NMFS is satisfied that the public comment period of 30 days for this action provided the public with adequate notice and opportunity to be heard. In addition to this public comment period, NMFS and the Council also provided several other opportunities for public input prior to publication of the proposed rule through the Council process. Specifically, the Council provided public input opportunities at its 159th Council meeting held in Guam in March 2014, and at a public hearing in American Samoa in May 2014 (79 FR 22100, April 21, 2014). The Council also provided an opportunity for public input at its 160th Council meeting held in Honolulu in June 2014. At that meeting, the Council deferred action on the issue to hold additional public meetings, in January 2015, with representatives of the American Samoa government, Swains Island, Tutuila, Manua Islands, and American Samoa fishermen. At its 162nd Council meeting held in Honolulu in March 2015, the Council considered prior public input, provided another opportunity for public input, and made its final recommendation to NMFS as described in the proposed rule and implemented by this final rule. Thus, NMFS is satisfied that three full Council meetings, the January 15, 2015, public meetings, and the 30-day public comment period on the proposed rule provided the public with adequate notice and opportunity to be heard, and that granting an extension to the public comment period until after the Council's October 2015 meeting would yield no new comment or information not previously received.

    Comment 2: Several commenters said that the American Samoa longline fishery provides food, jobs and supports local businesses and is important to the American Samoan economy.

    Response: NMFS agrees that the American Samoa longline fishery is important to the American Samoa economy. According to information presented in the EA, the fishery contributed between $7.2 million and $13.7 million to the American Samoa economy between 2003 and 2013. The primary source of the fishery's economic contributions to the territory was from sales of fish to the two canneries in Pago Pago. Although estimates are not currently available, the fishing activity also supports the American Samoa economy by providing wages for captains, crew members and income for the vessel owners. Moreover, the preparations for each trip include the purchase of supplies, including fuel, food for crew, and other items, which are bought locally. Additionally, each vessel requires a variety of local services including but not limited to, electrical engineering, hydraulics, engine maintenance, and vessel repair, all of which contribute to the local economy.

    Comment 3: Several commenters said that the large longline vessels are all vessels of the United States and should have the same right to fish in American Samoa waters as the small alia vessels.

    Response: NMFS agrees that all federally permitted American Samoa longline vessels are vessels of the United States. Furthermore, NMFS believes that all fishing sectors should be treated equally, unless there is a legitimate conservation and management need to treat them differently. Here, NMFS is approving an action that exempts large longline vessels from an area that is currently restricted to them, but open to other fishing vessels, because the conditions that originally led to the restriction for the large longline vessels no longer exists. Specifically, NMFS and the Council established the LPVA in 2002 to separate small longline vessels from large longline and purse seine vessels, and reduce the potential for gear conflict and catch competition between small and large vessels. At that time, the American Samoa longline fishery consisted of about 40 small alia (small fishing catamarans less than 50 ft long) and 25 large conventional mono-hull longline vessels. However, since 2006, fewer than three alia have been operating on a regular basis; and of these, only one was active in 2013 and 2014.

    As described in the EA, fewer than 50 other small commercial and recreational vessels fish for yellowfin and skipjack tunas and billfishes in nearshore waters and on offshore banks around American Samoa. Therefore, even accounting for the potential for competition with pelagic troll and recreational vessels, the conditions that led to the establishment of the LVPA in 2002 no longer support the full extent (30-50 nm) of the original prohibited area for longlining.

    While the LVPA may benefit a few small alia vessels and these other fishing sectors, the LVPA may be further reducing the fishing efficiency of large longline vessels in combination with reduced catch per unit of effort (CPUE), lower sale price of fish, and increasing operational costs.

    This action would allow large longline vessels in American Samoa to fish within the LVPA to as close as 12 nm of shore around Tutuila, Aunuu, the Manua Islands, and Swains. Waters from the shoreline to 12 nm around these islands, and within the Rose Atoll Marine National Monument, will remain closed to large longline vessels. This would continue to afford all other vessels and fishing sectors adequate spatial separation from the large vessel longline fleet and minimize the potential for catch competition and potential for gear interactions. This exemption applies only to large longline vessels of the United States that hold an American Samoa limited entry longline permit under 50 CFR 665.801.

    Comment 4: Several commenters said they work and earn wages on longline vessels to support their families.

    Response: Comment noted. See response to Comment 2.

    Comment 5: Several commenters said the LVPA closure areas have been under-utilized by the alia longline fleet for more than 10 years.

    Response: See response to Comment 3.

    Comment 6: Several commenters noted that because fuel prices are now at an all-time low, reducing the cost of trips, including fuel cost is no longer a justification for this action.

    Response: NMFS is approving an action to exempt large longline vessels from a portion of the existing LVPA because the conditions that led to the establishment of the closure are no longer present or necessary to prevent gear conflict and catch competition. Additionally, this action could improve efficiency in fishing activities by large longline vessels. While fuel price may currently be lower than in the past, it is subject to fluctuation due to multiple global and economic factors. Further, the success of longline fishing depends on being able to follow the fish, especially if they are abundant within the LVPA or pass into the LVPA. Because cost of fuel continues to be the principal expense for longline fishing, this action could improve trip profits by lowering fuel costs as large longline vessels could fish closer to port than currently allowed.

    Comment 7: Several commenters noted that fuel prices fluctuate and allowing the large longline vessels to fish closer to home would result in a small cost savings in fuel.

    Response: See response to Comment 6.

    Comment 8: Several commenters said that the action would improve safety at sea for small fishing vessels because large vessels would now be in the vicinity to assist small vessels that get into trouble.

    Response: Comment noted.

    Comment 9: Several commenters said that there are higher catches and better catch rates of pelagic fish by recreational sectors in American Samoa compared to neighboring countries that do not have a LVPA and, therefore, opposed the action.

    Response: Within the national waters of neighboring South Pacific countries, NMFS has no available information on the catch rates of pelagic species other than by longline and purse seine vessels. The available information for these fisheries indicates that catch rates for albacore have declined across most of the South Pacific, and the poor economic conditions faced by the American Samoa fleet were also experienced by most of the other longline fishing nations in the South Pacific. Through this action, NMFS expects that longline vessels will have the opportunity to improve catch rates that have been steadily declining, and to achieve optimum yield, while still maintaining a reduced area closure to protect the needs of other fishery participants, including recreational fishers.

    Comment 10: Several commenters said that under the action, longline vessels would destroy coral reef ecosystem resources and breeding grounds for other fish species.

    Response: While the commenter did not specify how longline vessels would destroy such marine resources, NMFS assumes that the commenter was referring to the potential for entanglement on coral reefs. NMFS notes that longline fishing in American Samoa does not occur over coral reefs, but rather much farther offshore and at depths (100-400 m) well below the photic zone where most coral reefs occur. Waters from the shoreline to 12 nm from shore will remain closed to large longline vessels, and there is little, if any, coral reef habitat beyond 12 nm. In addition, longliners actively avoid shallow coral reef habitat, including fish breeding grounds, in order to prevent gear loss through entanglement with the bottom substrate. The American Samoa longline fishery does not target nor incidentally catch coral reef fish species.

    Comment 11: Several commenters said that longline fishing has dramatically reduced fish populations around American Samoa and that this action would result in overfishing and deplete fish stocks.

    Response: NMFS disagrees. While the commenters did not identify the fish populations that have been reduced or would become subject to overfishing because of the action, the American Samoa longline fishery primarily targets albacore. The most recent stock assessment summarized in the EA indicates that this population is not subject to overfishing and is not overfished. Additionally, stock assessments for most species incidentally harvested in the fishery, including yellowfin, skipjack, and billfish indicate that these species are also not subject to overfishing or overfished. Bigeye tuna is incidentally harvested, and is subject to overfishing. Nevertheless, because tunas, billfish, and other species caught by the American Samoa longline fishery are comprised of larger highly migratory populations, NMFS does not expect this action to contribute to overfishing or localized depletion of these stocks. See also response to Comment 12.

    Comment 12: Several commenters said that there are no data to support claims that the action would result in overfishing or have a detrimental effect on alia longline vessels or recreational sport fishing vessels.

    Response: NMFS does not expect this action to result in overfishing of any pelagic species nor have a detrimental effect on alia longliners or sport fishing vessels. Skipjack and yellowfin together comprise about 95 percent of the troll catch, the primary fishing method of sport fishing vessels. Furthermore, catch rates of these two species show no signs of decline over a 30-yr period, which encompasses the period of expansion of the American Samoa longline fleet. South Pacific albacore, the primary target of both alia and large longline vessels, is not subject to overfishing and is not overfished. Similarly, skipjack and yellowfin are not subject to overfishing nor overfished, and NMFS does not expect this action to result in a change in the status of these species. Bigeye tuna in the western and central Pacific Ocean, which is incidentally harvested in the American Samoa fishery, is currently subject to overfishing, but is not overfished, and is managed under conservation and management measures adopted by the Western and Central Pacific Fisheries Commission, and implemented by NMFS. The American Samoa longline fishery annually landed fewer than 200 mt of bigeye tuna since 2005 with 85 mt landed in 2013.

    Comment 13: Several commenters said that the action would result in a higher risk for oil spills and marine debris, but did not explain why.

    Response: Based on available information presented in the EA, NMFS does not expect a change in the level of risk for oil spills or marine debris through this action. Allowing large longline vessels to fish within a portion of the LVPA will not lead to an increase in the number of vessels participating in the fishery or change vessel operations in a manner that would lead to greater discharge of oil or fuel into ocean waters. Further, the action does not present any greater danger of longline vessels grounding, or habitat damage compared to the status quo because there are no areas in the EEZ seaward of 12 nm shallow enough for a vessel to run aground.

    Comment 14: One commenter felt that the action would endanger the survival of newly born humpback whale calves through entanglement and drowning.

    Response: NMFS disagrees. Humpback whale calving and mother and calf pairs occur in shallow coastal waters within 12 nm, which would remain closed to large longline vessels. Beyond 12 nm, the movement of longline vessels will not change the amount of fishing effort or vessel operations and would not elevate the risk of entanglement. There have been no recorded or observed interactions with humpback whales in the American Samoa longline fishery.

    Comment 15: Several commenters expressed the concern that public submissions on the action provided incorrect and/or misleading information regarding the regulatory protections for sea turtles and marine mammals in the action area, as well as impacts to these species by the American Samoa longline fishery. The commenters noted that NMFS has implemented regulations to protect marine resources, and they supported the action.

    Response: Comment noted.

    Comment 16: One commenter said that the action could affect the composition and character of the marine environment around American Samoa, including marine populations protected by the National Marine Sanctuary of America Samoa.

    Response: While the commenter did not specify how the action would affect the composition and character of the marine environment, longline fishing by large longline vessels has been occurring since the mid-1990s within the area where the LVPA now exists. NMFS has no observed or reported information indicating that longline fishing from large longline vessels has resulted in negative impacts to the composition and character of the marine environment around American Samoa, either before or after the establishment of the LVPA in 2002. Because the action would continue to prohibit longline fishing by large vessels from occurring within 12 nm of American Samoa, NMFS does not expect the action would result in such changes.

    The American Samoa longline fishery does not operate within the boundaries of the National Marine Sanctuary of America Samoa, which extends from the shoreline out to a distance of approximately 3 nm. The American Samoa longline fleet targets highly migratory pelagic species such as albacore at considerable distances from the shoreline seaward of the outer-boundary of the American Samoa sanctuary. Because the action continues to prohibit longline fishing by large vessels from occurring within 12 nm of American Samoa and within the Sanctuary, NMFS does not expect the action would affect marine populations protected by the sanctuary.

    Comment 17: Several commenters said that although there are only a few active alia longline vessels, the action would make it even more difficult for small alia vessels to re-enter the fishery because they would not be able to compete economically with the large longline vessels.

    Response: Alia fishing vessels operated for years before and after the arrival of large longline vessels in American Samoa in the 1990s. Based on information available, NMFS believes the reduced participation of the small alia vessels in the fishery was driven primarily by low catch rates of albacore experienced across the South Pacific region combined with high economic and other operating costs. See EA section 3.1.4.1.

    The Council has been working with the American Samoa government on several fishery development initiatives, including the design of a new multi-purpose alia fishing vessel and training in fresh fish handling for local and export markets. Smaller, alia-type vessels are likely better suited to conduct fresh fish operations targeting yellowfin and bigeye tunas and, as such, would minimize the potential economic competition with larger longline vessels targeting albacore. Data indicates that gear competition between large longline and alia vessels has not been a contributing factor to the decline of alia vessels. Accordingly, NMFS has no reason to believe that the action will adversely affect reentry of fishery participants into the alia fishery. See also response to Comments 3 and 24.

    Comment 18: Several commenters expressed concern that the action would be detrimental to the recreational fishery and the growing sportfish tourism industry in American Samoa.

    Response: NMFS has no information to suggest that the action would adversely affect other fishery participants. NMFS and the Council established the LPVA in 2002 to separate small longline vessels from large longline and purse seine vessels, and reduce the potential for gear conflict and catch competition. At that time, the American Samoa longline fishery consisted of about 40 small alia and 25 large conventional mono-hull longline vessels. Since then, there has been an increase in participation by the recreational and sport fishing fisheries, which target species such as skipjack tuna, yellowfin tuna, mahimahi, wahoo and billfish. These species are only a minor component of the catch by American Samoa longline vessels. Information in the EA does not indicate longline fisheries are negatively affecting troll CPUE. Specifically the data showed that increased longline catches of skipjack and yellowfin are coincident with higher CPUEs of the same two species in the troll fishery. This suggests that the CPUEs for both fisheries are dependent on regional availability of skipjack and yellowfin tuna. Similar studies from other parts of the region and referenced in the EA showed no evidence of interactions and catch competition between troll and longline vessels. See also response to Comment 9.

    Sport fishing vessels generally operate within 12 nm from shore and in offshore areas around banks and seamounts, which longline vessels actively avoid to reduce the potential for longline gear tangling on bottom substrates. Furthermore, sport fishing and subsistence fishing beyond 12 nm from shore does not occur at sufficient frequency or concentration to justify the continued restriction of large longline vessels out to the full 50 nm to control the potential for gear conflict or catch competition. Although NMFS allows recreational and non-commercial fishing within the Rose Atoll Marine National Monument beyond 12 nm with a federal permit, all commercial fishing, including longline fishing is prohibited throughout the monument out to a distance of approximately 50 nm around the atoll.

    Comment 19: Several commenters thought that the action would affect the ability of recreational and subsistence fishermen to catch fish and feed their families.

    Response: The commenters did not explain how the proposed action would affect their ability to catch fish. There is a wide variety of reef fish, deep bottomfish, and various pelagic species that will remain accessible exclusively for all fishermen with vessels smaller than 50 ft. NMFS does not expect the action would negatively impact the ability of these fishing sectors to catch fish for recreation or subsistence, as large longline vessels would continue to be prohibited from fishing within 12 nm around American Samoa.

    Comment 20: Several commenters thought that allowing large longline vessels to fish on the banks and seamounts within the LVPA including South Bank, East Bank, Two Percent Bank, South East Bank, and North East Bank would deplete fish stocks and result in damage to bottom habitat.

    Response: NMFS disagrees. See responses to Comments 10 and 11.

    Comment 21: Several commenters said that existing federal regulations require American Samoa longline vessels to deploy all hooks below 100 m in depth to minimize interaction with sea turtles. Because of this existing gear regulation, longliners will avoid shallow banks and seamounts used by small vessels to minimize potential for gear loss.

    Response: NMFS agrees. Federal regulations governing the American Samoa longline fishery at 50 CFR part 665 Subpart F require all longline hooks to be set at least 100 m deep. This is accomplished by requiring a minimum float line length of 30 m, together with a minimum of 70 m of blank mainline (no hooks) between each float line and the first branch line in either direction along the mainline. Both small and large longline vessels actively avoid bottom substrates to prevent gear entanglement and loss. See also response to Comment 10.

    Comment 22: Several commenters said that albacore and other tuna species caught by the American Samoa longline fleet are highly migratory species and do not remain within the confines of the existing LVPA or the proposed exempted area and, therefore, there are no data to support public comments saying the longline fishery is detrimental to alia and sport fishing fleet.

    Response: NMFS agrees. Not only do these pelagic species have an extensive migratory range, there are seasonal abundance trends that influence the catchability of these species throughout the year. This affects both large and small longliners. See also responses to Comments 11 and 18.

    Comment 23: Several commenters felt that the action would result in gear conflicts between large longline vessels and small longline, troll, and recreational fishing vessels because NMFS and the Council underestimated the number of small vessels currently operating within the LVPA.

    Response: A purpose in establishing the LVPA in 2002 was to separate small longline vessels from large longline and purse seine vessels to reduce the potential for gear conflict and catch competition. NMFS believes that the information presented by the Council and in the EA indicates that the conditions for the conservation and management need in establishing the LVPA no longer exist to the degree that requires its continuation. NMFS, moreover, believes that the 12 nm prohibition applied to large longline vessels provides adequate separation between small fishing vessels from the large longline and purse seine vessels, while still allowing for optimum yield for all fishing sectors.

    Furthermore, the frequency and concentration of small alia longline vessels and small non-longline vessels fishing seaward of 12 nm is lower than that of the large longline vessels. Many of these small vessels are recreational and do not operate on a daily basis. The EA discusses the potential impacts of fishery participants, including impacts to the small vessel fleets and indicates this action will continue to provide for sufficient spatial separation between small and large vessels. The Council and NMFS used the best available information provided by the American Samoa Department of Marine and Wildlife Resources (DMWR) creel survey to estimate the number of vessels operating in the LVPA. See also response to Comment 18.

    Comment 24: One commenter noted that two large local U.S. longliners already have permission to fish in the LVPA, and so there is nothing new about larger longline vessels fishing in the area.

    Response: Comment noted. As part of the establishment of the LVPA regulations, NMFS exempted two individuals and their vessels from the LVPA restrictions on the basis that these individuals had made at least one landing of pelagic management unit species (MUS) with those vessels in the LVPA area on or prior to November 13, 1997. See 50 CFR 665.818. NMFS has no information that the activity of these two vessels has created gear conflicts or affected the catches of smaller vessels within the LVPA.

    Comment 25: Several commenters thought that the action would negatively affect the American Samoan Government's plan to build a fleet of 40 ft super alia intended to increase local indigenous Samoan participation in fishing in the LVPA.

    Response: Based on information provided in comments submitted by the Government of American Samoa, the government has received a technical assistance grant from the U.S. Department of the Interior for the development of a prototype-fishing vessel called a super alia. Because the vessel has yet to be designed, constructed, or tested, and because additional capital would be required to build a fleet of these super alia envisioned under the Government's plan, NMFS cannot predict what changes, if any, may occur in the commercial fisheries because of this grant. However, the Council and NMFS are prepared to work with the Government of American Samoa to address potential regulatory and other impediments to sustainable fisheries development initiatives, once a super alia fleet is fully developed and the Government of American Samoa's alia program is implemented.

    Comment 26: Several commenters said that a super alia fishing fleet is not realistic because fishermen will run into the same problems the previous alia fleet experienced, including high operation costs for longline gear, fuel, and bait.

    Response: Comment noted. See responses to Comments 17 and 25.

    Comment 27: Several commenters noted that in the Deed of Cession with the chiefs of the islands of Tutuila, Aunuu, and Manua Islands, the United States promised to protect the lands, preserve the traditions, customs, language and culture, Samoan way of life, and the waters surrounding the islands, and that all the science and environmental analysis should not supersede the rights of the people of these islands.

    Response: NMFS' decision to approve the Council's recommendation to modify the LVPA is consistent with its authority under the Magnuson-Stevens Act to manage fishery resources in the U.S. EEZ. This action relieves an area restriction that applied to certain large commercial fishing operators within a portion of the US EEZ (generally 12 to 50 nm from shore), based on NMFS' determination that the restriction no longer serves the conservation and management purposes for which it was developed. Importantly, this action preserves full access to these waters by smaller vessels, including alias, sport fishers, and artisanal fishing vessels, throughout the EEZ, as authorized under the existing American Samoa Archipelagic Fishery Ecosystem Plan and implementing regulations. Further, this action does not alter the authority of American Samoa to manage its coastal fisheries to the extent authorized under the Magnuson-Stevens Act, 16 U.S.C. 1856.

    NMFS took particular care to ensure that the views of American Samoa stakeholders, including fishermen, fishing communities, and the American Samoa government, were solicited and taken into account throughout the development of this action. Consistent with the Magnuson-Stevens Act, the Council and NMFS provided a number of opportunities for American Samoa's participation during all material phases of the development of this measure, including Council meetings to discuss the amendment, the Coastal Zone Management Act (CZMA) process, and public meetings held in American Samoa (see response to Comment 1).

    Comment 28: One commenter expressed support for the purse seine fleet.

    Response: Comment noted. This action does not change the existing prohibitions against purse seine fishing in the LVPA.

    Comment 29: One commenter felt that the action is based on incomplete data because the Council based its decision solely on the decrease of the alia longline fishing activities, and did not consider fishing activities by troll and bottomfish vessels.

    Response: NMFS disagrees that the Council did not consider troll and bottomfish vessels. The EA contains detailed description of fishing sectors of American Samoa, including catch and effort by the troll and bottomfish fisheries, and other small boat fisheries. See response to Comment 23.

    Comment 30: One commenter said the Council did not adequately consult with stakeholders prior to recommending the proposed action at its 162nd meeting in March 2015.

    Response: See response to Comment 1.

    Comment 31: One commenter thought that the proposed action ignores the fact that there are significant fishing activities in the exemption areas, especially in the vicinity near the banks.

    Response: NMFS disagrees. The EA identifies the types of fisheries that occur within the LVPA around American Samoa, including the alia longline fishery, troll and bottomfish fishery, and recreational fisheries. The EA also describes the number of vessels in each fishery, and provides catch and effort information and fishing location, where data is available. Moreover, the EA also provides an estimate of troll catch from the offshore banks as a percentage of total troll catch of American Samoa and analyzes the effects of the action on those fishing sectors.

    Comment 32: One commenter felt that NOAA should increase the collection of information about seabirds and other protected species, by expanding current observer coverage as this fishery expands in size and area.

    Response: NMFS strives to maintain an annual observer coverage rate of at least 20 percent in the American Samoa longline fishery, and has steadily increased observer coverage from approximately 6 percent in 2006 to nearly 20 percent in 2014. In some years, NMFS has been able to cover over 33 percent of all longline trips in the American Samoa longline fishery. However, NMFS' ability to increase and maintain observer coverage greater than 20 percent will be subject to available funding. NMFS also notes that the fishery may not increase in the total number of vessels because the number of available fishing permits is limited.

    Comment 33: One commenter thought that, although the action would not alter fishing activities within the Rose Atoll Marine National Monument, the change may result in greater likelihood and frequency of derelict fishing gear washing ashore and recommends NMFS include measures to minimize derelict fishing gear.

    Response: NMFS is unaware of any instances where such an event has occurred. Based on information provided in the USFWS Rose Atoll National Wildlife Refuge Comprehensive Conservation Plan (May 2014), the most significant derelict fishing gear is from the grounding of a Taiwanese vessel, which occurred in 1993, over 20 years ago. The plan also notes that observations of other forms of marine debris at Rose Atoll are rare, and do not constitute a significant visual presence in the atoll. NMFS does not expect this action to change the amount of fishing effort or other vessel operations, and is unlikely to increase frequency of derelict gear. For these reasons, NMFS is satisfied that additional measures to minimize derelict fishing gear from American Samoa longline fisheries are unnecessary at this time.

    Comments on the Draft Environmental Assessment

    Comment 34: One commenter said that NMFS should not open a currently closed area without a full environmental impact statement and additional sea turtle mitigation measures, including increased observer coverage and hard interaction limits.

    Response: Based on the analysis presented in the EA, NMFS has determined that the proposed action would not result in significant impacts affecting the quality of the human environment and, therefore, does not warrant the preparation of an environmental impact statement. The analysis presented in the EA incorporates the best available scientific and commercial information on the fishery and its impacts on the environment, including sea turtles. Specifically, along with other relevant information, the EA considers the analysis from an October 30, 2015, biological opinion (2015 BiOp) that NMFS developed as part of a formal consultation under the Endangered Species Act. (See also responses to Comments 35-37).

    Although participation and effort in the American Samoa longline fishery has varied and declined in recent years, NMFS expects that the level of participation, in terms of fleet-wide sets and hooks deployed, likely will return to historic levels. For this reason, the analysis in the 2015 BiOp anticipated the American Samoa longline fishery operating up to the level seen in 2007 when 29 vessels deployed 5,920 sets and approximately 17,554,000 hooks, and evaluated the potential environmental effects of the fishery operating at these levels. Additionally, NMFS anticipates the continued placement of observers on approximately 20 percent of all longline trips.

    In the 2015 BiOp, NMFS concluded that the continued operation of the American Samoa longline fishery under existing federal regulations, and effort levels expected under the proposed action, is not likely to jeopardize the continued existence of any ESA-listed species, including sea turtles. NMFS based this conclusion on a thorough assessment of the effects of the action, together with the environmental baseline and the cumulative effects. The EA analysis considered the information presented in the 2015 BiOp and found that the expected level of fishery interactions under the proposed action would not result in significant population level effects for any ESA-listed species or their habitats, including sea turtles.

    Comment 35: One commenter said that, based on its calculations from information contained in the draft EA, the American Samoa longline fishery has killed approximately three adult female leatherback sea turtles each year for four years.

    Response: NMFS disagrees with the commenter's conclusion about leatherback mortality in the action. At the time that NMFS published the proposed rule, the agency was undergoing consultation pursuant to Section 7 of the ESA for the American Samoa pelagic longline fishery. As part of the consultation process, NMFS prepared a memorandum dated May 8, 2015, (amended July 21, 2015) under the authority of sections 7(a)(2) and 7(d) of the ESA for the proposed continued operation of the fishery while consultation was ongoing. The draft EA incorporated information on the estimated leatherback take from this memorandum, and projected that, by the completion of consultation in October 2015, the longline fishery could be expected to interact with 27 leatherbacks, the equivalent of one adult nesting female mortality every 1.566 years. Since publication of the proposed rule, NMFS completed the 2015 BiOp, which considered all relevant commercial and scientific information available on sea turtles, and which supersedes the information in the May 8, 2015 memorandum as amended on July 21, 2015. NMFS' final EA considers the information found in the 2015 BiOp.

    In the 2015 BiOp, NMFS estimated anticipated future interactions between the fishery and leatherbacks sea turtles. NMFS used previous, observed interactions and anticipated effort in the fishery to predict the future level of take. NMFS then used a discounting methodology to analyze the impact of this level of take on the leatherback population.

    NMFS based the interaction estimates in the BiOp on a random sample of longline trips on which scientific observers are deployed. Relying on Table 7 of the 2015 BiOp, NMFS estimates 36 total leatherback interactions between 2011 and mid-2015 (based on eight observed interactions). NMFS used these interactions to calculate an average rate of interaction. That was then multiplied by the anticipated annual effort in the fishery to determine that 23 leatherback interactions are anticipated annually. NMFS then applied a leatherback mortality rate of 70.6, based on observed mortalities, injuries, and applying the NMFS post-hooking mortality criteria (Ryder et al. 2006).

    Accordingly, NMFS anticipates 23 interactions to result in 16.28 (23 × 0.76 = 16.28) leatherback sea turtle mortalities. However, many of these interactions occur with juvenile sea turtles that already experience low survival rates even in the absence of fishing. Therefore, NMFS must apply a discount to the expected rate of annual interactions in order to estimate the risk that the proposed action would pose to the western Pacific leatherback sea turtle population.

    NMFS first estimated the number of adult females or adult nester equivalents (ANE) harmed through injury or death related to the fishery. The American Samoa longline fishery interacts with male and female leatherback sea turtles, and they are predominantly juveniles (Van Houtan 2015). To estimate the number of adult females that could potentially be killed by 23 interactions, two adjustments were applied to the calculation above: (1) The proportion of females in the adult population (using a ratio of 65 percent females to 35 percent males); and (2) the adult equivalent represented by each juvenile interaction. The adult equivalent was determined using the discounting method (Van Houtan 2013, 2015). This discounting method summarized in the 2015 BiOp incorporates an exact demographic match to the observed interactions, and relies on length measurements by fishery observers of bycaught turtles, and conversion of these recorded lengths to ages. Therefore, of the estimated 16.28 leatherback sea turtle mortalities, NMFS estimates 10.58 would be females (16.28 × 0.65 = 10.58). Applying the adult equivalent discounting method (Van Houtan 2013, 2015), NMFS estimates 23 leatherback interactions would result in the mortality of 0.55 adult females annually, or one adult female mortality every 1.8 years from a nesting population of 2,739 females (Van Houtan 2015). This represents less than 0.0002, or 0.02 percent of the nesting population in the region. NMFS considers this level of impact to the population to be negligible, and it will not adversely affect the species' ability to survive, successfully reproduce, and recover.

    NMFS believes that the commenter made several assumptions in the calculations that led to a flawed conclusion on sea turtle mortality. The commenter assumed, for instance, an observer coverage rate of 20 percent over the four-year period, and then apparently multiplied the observed number of injured and killed since 2010 by a factor of five. The commenter incorrectly applied the NMFS post-hooking mortality criteria of 70.6 percent (Ryder et al. 2006) to the expanded number of injured turtles.

    The mortality rate is an average rate where mortality is 100 percent and injuries are assessed at a rate between 0 and 100 percent, based on the observed hooking or entanglement injuries and using the NMFS post-hooking mortality criteria (Ryder et al. 2006). Therefore, the mortality rate of 70.6 percent already accounts for all observed mortalities. Thus, applying this rate to the expanded, injured turtle count is an incorrect use of the mortality rate. Furthermore, the mortality rate of 70.6 percent is a conservative mortality rate because NMFS did not separate out the larger turtles from the younger, smaller turtles that have a much higher mortality rate. The five smaller turtles were boarded dead (a mortality rate of 100 percent) and the three larger turtles that were not boarded had a mortality rate of 21.7 percent. When using these individual mortality rates in the ANE calculation, the ANE is 0.33 rather than 0.55. While NMFS provided exact measurements for two turtles, it is incorrect to assume the other turtles were adults. In fact, the fishery predominantly interacts with juvenile turtles; of the eight observed interactions with leatherbacks in this fishery, five were juveniles and three were adults.

    NMFS, therefore, believes that the data and analysis contained in the 2015 BiOp and EA are the best available science on which to base determinations of the impact by the fishery to protected marine species.

    Comment 36: One commenter said that the draft EA does not adequately discuss the impacts to endangered leatherback sea turtles from the fishery and its expansion into the LVPA.

    Response: The analysis presented in the final EA incorporates the best available scientific and commercial information on the fishery and considers the 2015 BiOp, which NMFS developed as part of a formal consultation under the Endangered Species Act. The analysis in the 2015 BiOp indicates that under the proposed action the fishery could potentially interact with 23 leatherback sea turtles each year. Genetic analysis of three leatherback turtles caught incidentally in the American Samoa longline fishery indicate that they are from the Western Pacific genetic stock, which is comprised of nesting populations in Papua-Barat, Indonesia, Papua New Guinea and Solomon Islands.

    Based on the analysis in the 2015 BiOp, NMFS estimates the longline fishery would cause 0.55 adult female mortalities annually. This is the equivalent of one adult female mortality every 1.8 years from a nesting population of 2,739 females in the Western Pacific population. (Van Houtan 2015). This represents less than 0.0002 (0.02 percent) of the nesting population in the region. In the 2015 BiOp, NMFS concluded that this anticipated level of interactions and associated adult female mortalities under the proposed action is not likely to jeopardize the continued existence of leatherback sea turtle populations. The analysis in the EA further indicates that 0.55 adult female mortalities annually or 1.65 adult female mortalities over a 3-yr period is not likely to pose an appreciable risk or result in significant impacts to leatherback sea turtle populations in the Western Pacific region.

    Comment 37: One commenter said that the draft EA failed to assess adequately the proposed action and several upcoming actions all of which will increase risk of interactions with sea turtles. First, the proposed action will allow large longline vessels into pelagic habitat around American Samoa most likely occupied by leatherback sea turtles. Second, the proposed rule will increase fishing effort as measured by area of the activity and by hooks deployed. Finally, the proposed action's risk of increasing interactions must be considered with the Council approved amendments that create a shallow-set longline fishery by eliminating the depth requirement for hooks and increasing the swordfish retention trip limit.

    Response: As discussed in response to comment 34, the final EA considers analysis presented in the 2015 BiOp, which estimates population level impacts to sea turtle populations resulting from the proposed action and in anticipation of increased fishing effort in coastal areas. After analyzing the proposed action, including the environmental baselines and cumulative effects, and its impact on protected species, NMFS concluded in the 2015 BiOp that the action is not expected to cause an appreciable reduction in the likelihood of both the survival and recovery of leatherback sea turtles in the wild, or other protected species in the action area. The final EA includes this information. In addition to impacts on protected resources, the final EA also analyzed whether the action would significantly affect the human and natural environment. Based on the analysis, NMFS determined that the impacts of the action were not significant (see Section 4 of the final EA). NMFS has no information to believe that the partial reopening of an area currently closed to longlining will result in unacceptable impacts to sea turtles or other protected species.

    The targeting of swordfish generally requires deployment of hooks shallower than 100 meters. However, as described in the draft EA, current federal regulations require all hooks set by the fishery to be set deeper than 100 meters in order to minimize the risk of sea turtle interaction. Thus, current federal regulations prohibit American Samoa longline vessels from targeting swordfish with hooks set shallower than 100 meters in the American Samoa EEZ.

    NMFS notes that the Council has taken action to recommend creating a shallow-set longline fishery in American Samoa. The Council, however, has not yet developed an amendment or associated environmental impact analyses describing such a fishery. Should the Council propose that action as an amendment, NMFS would conduct all necessary analyses to determine whether the action complies with the Magnuson-Stevens Act and all applicable laws. At this time, however, NMFS is satisfied that the final EA adequately assesses the cumulative impact of the Council action and all reasonably foreseeable actions.

    Changes From the Proposed Rule

    In this final rule, NMFS made minor housekeeping changes in the tables of boundary coordinates in § 665.818(b). In the proposed rule, NMFS had labeled the points for each coordinate with simple numbers. Using the same numbers for each table could lead to confusion among fishermen and enforcement officials, so in this final rule, NMFS added prefixes for boundary point labels that are different for each island or island group. Specifically, the Tutuila coordinates carry the prefix “TU-,” the Manua coordinates carry the prefix “MA-,” and the Swains coordinates carry the prefix “SW-.”

    Also in the proposed rule, in the table of boundary coordinates for Swain's Island at § 665.818(b)(3), NMFS only listed degrees and minutes in defining the latitude and longitude for each coordinate, and inadvertently omitted the seconds. In this final rule, NMFS corrects that omission by including degrees, minutes, and seconds for each boundary coordinate.

    The final rule also corrects the first instance of the coordinate for MA point 1. The proposed rule listed the W. long. coordinate as 169°53′7″. The final rule corrects the seconds so that the W. long. coordinate is now 169°53′37″.

    This final rule also clarifies that the datum used to define the boundary coordinates in § 665.818(b) is the World Geodetic System 1984 (WGS84).

    Classification

    The Regional Administrator, Pacific Islands Region, NMFS, has determined that this final rule is necessary for the conservation and management of the pelagic fisheries of American Samoa, and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. NMFS published the factual basis for the certification in the proposed rule and does not repeat it here. NMFS received no comments on this certification; as a result, a regulatory flexibility analysis is not required, and none has been prepared.

    Because this rule relieves a restriction by increasing the geographical area where fishing is allowed, it is not subject to the 30-day delayed effectiveness provision of the APA pursuant to 5 U.S.C. 553(d)(1). Since 2002, NMFS has prohibited pelagic longline fishing by large U.S. vessels in the LVPA, which extended seaward approximately 30-50 nm around the various islands of American Samoa. At that time, the Council and NMFS intended the LVPA to prevent gear conflicts and catch competition between large and small fishing vessels. Since 2002, however, the conditions that led to the establishment of the LVPA in 2002 no longer support the full extent (30-50 nm) of the original prohibited area for longlining. The LVPA may be unnecessarily reducing the efficiency of the larger vessels by displacing them from a part of their historical fishing grounds. This action will allow large vessels to fish within the LVPA to as close as 12 nm around the islands. The action adds about 16,817 nm2 of Federal waters that are accessible to these vessels. By allowing access to some of the previously restricted area, the action will improve the efficiency and economic viability of the American Samoa longline fleet.

    This final rule has been determined to be not significant for purposes of Executive Order 12866.

    List of Subjects in 50 CFR Part 665

    Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian natives, Northern Mariana Islands, Reporting and recordkeeping requirements.

    Dated: January 28, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR part 665 as follows:

    PART 665—FISHERIES IN THE WESTERN PACIFIC 1. The authority citation for 50 CFR part 665 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. Revise § 665.818 to read as follows:
    § 665.818 Exemptions for American Samoa large vessel prohibited areas.

    (a) Exemption for historical participation. (1) An exemption will be issued to a person who currently owns a large vessel to use that vessel to fish for western Pacific pelagic MUS in the American Samoa large vessel prohibited areas, if the person seeking the exemption had been the owner of that vessel when it was registered for use with a Western Pacific general longline permit, and has made at least one landing of western Pacific pelagic MUS in American Samoa on or prior to November 13, 1997.

    (2) A landing of western Pacific pelagic MUS for the purpose of this paragraph must have been properly recorded on a NMFS Western Pacific Federal daily longline form that was submitted to NMFS, as required in § 665.14.

    (3) An exemption is valid only for a vessel that was registered for use with a Western Pacific general longline permit and landed western Pacific pelagic MUS in American Samoa on or prior to November 13, 1997, or for a replacement vessel of equal or smaller LOA than the vessel that was initially registered for use with a Western Pacific general longline permit on or prior to November 13, 1997.

    (4) An exemption is valid only for the vessel for which it is registered. An exemption not registered for use with a particular vessel may not be used.

    (5) An exemption may not be transferred to another person.

    (6) If more than one person, e.g., a partnership or corporation, owned a large vessel when it was registered for use with a Western Pacific general longline permit and made at least one landing of western Pacific pelagic MUS in American Samoa on or prior to November 13, 1997, an exemption issued under this section will be issued to only one person.

    (b) Exemption for vessel size. Except as otherwise prohibited in subpart I of this part, a vessel of any size that is registered for use with a valid American Samoa longline limited access permit is authorized to fish for western Pacific pelagic MUS within the American Samoa large vessel prohibited areas as defined in § 665.806(b), except that no large vessel as defined in § 665.12 may be used to fish for western Pacific pelagic MUS in the portions of the American Samoa large vessel prohibited areas, as follows:

    (1) EEZ waters around Tutuila Island enclosed by straight lines connecting the following coordinates (the datum for these coordinates is World Geodetic System 1984 (WGS84)):

    Point S. lat. W. long. TU-1 14°01′42″ 171°02′36″ TU-2 14°01′42″ 170°20′22″ TU-3 14°34′31″ 170°20′22″ TU-4 14°34′31″ 171°03′10″ TU-5 14°02′47″ 171°03′10″ TU-1 14°01′42″ 171°02′36″

    (2) EEZ waters around the Manua Islands enclosed by straight lines connecting the following coordinates (WGS84):

    Point S. lat. W. long. MA-1 13°57′16″ 169°53′37″ MA-2 13°57′16″ 169°12′45″ MA-3 14°28′28″ 169°12′45″ MA-4 14°28′28″ 169°53′37″ MA-1 13°57′16″ 169°53′37″

    (3) EEZ waters around Swains Island enclosed by straight lines connecting the following coordinates (WGS84):

    Point S. lat. W. long. SW-1 10°50′42″ 171°17′42″ SW-2 10°50′42″ 170°51′39″ SW-3 11°16′08″ 170°51′39″ SW-4 11°16′08″ 171°17′42″ SW-1 10°50′42″ 171°17′42″
    [FR Doc. 2016-01891 Filed 1-29-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 140918791-4999-02] RIN 0648-XE420 Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in Statistical Area 610 in the Gulf of Alaska AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting directed fishing for pollock in Statistical Area 610 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the A season allowance of the 2016 total allowable catch of pollock for Statistical Area 610 in the GOA.

    DATES:

    Effective 1200 hrs, Alaska local time (A.l.t.), January 29, 2016, through 1200 hrs, A.l.t., March 10, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

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

    The A season allowance of the 2016 total allowable catch (TAC) of pollock in Statistical Area 610 of the GOA is 3,827 metric tons (mt) as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015) and inseason adjustment (81 FR 188, January 5, 2016).

    In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2016 TAC of pollock in Statistical Area 610 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 3,727 mt and is setting aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.

    After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for pollock in Statistical Area 610 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 28, 2016.

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

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: January 29, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-01991 Filed 1-29-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 141021887-5172-02] RIN 0648-XE392 Fisheries of the Exclusive Economic Zone off Alaska; Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management Area AGENCY:

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

    ACTION:

    Temporary rule; reallocation.

    SUMMARY:

    NMFS is reallocating the projected unused amount of Pacific cod from vessels using jig gear to catcher vessels less than 60 feet (18.3 meters) length overall using hook-and-line or pot gear in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the A season apportionment of the 2016 total allowable catch of Pacific cod to be harvested.

    DATES:

    Effective February 1, 2016 through 2400 hours, Alaska local time (A.l.t.), December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

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

    The A season apportionment of the 2016 Pacific cod total allowable catch (TAC) specified for vessels using jig gear in the BSAI is 1,887 metric tons (mt) as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and inseason adjustment (81 FR 184, January 5, 2016).

    The 2016 Pacific cod TAC allocated to catcher vessels less than 60 feet (18.3 meters(m)) length overall (LOA) using hook-and-line or pot gear in the BSAI is 4,476 mt as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and inseason adjustment (81 FR 184, January 5, 2016).

    The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that jig vessels will not be able to harvest 1,750 mt of the A season apportionment of the 2016 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(1). Therefore, in accordance with § 679.20(a)(7)(iv)(C), NMFS apportions 1,750 mt of Pacific cod from the A season jig gear apportionment to the annual amount specified for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

    The harvest specifications for Pacific cod included in the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and inseason adjustment (81 FR 184, January 5, 2016) are revised as follows: 137 mt to the A season apportionment and 1,394 mt to the annual amount for vessels using jig gear, and 6,226 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Pacific cod specified from jig vessels to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 28, 2016.

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

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: January 29, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-01992 Filed 1-29-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 140918791-4999-02] RIN 0648-XE419 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Vessels Using Pot Gear in the Central Regulatory Area of the Gulf of Alaska AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting directed fishing for Pacific cod by vessels using pot gear in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the A season allowance of the 2016 Pacific cod total allowable catch apportioned to vessels using pot gear in the Central Regulatory Area of the GOA.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), February 1, 2016, through 1200 hours, A.l.t., June 10, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Obren Davis, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

    The A season allowance of the 2016 Pacific cod total allowable catch (TAC) apportioned to vessels using pot gear in the Central Regulatory Area of the GOA is 6,528 metric tons (mt), as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015) and inseason adjustment (81 FR 188, January 5, 2016).

    In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the A season allowance of the 2016 Pacific cod TAC apportioned to vessels using pot gear in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 6,518 mt and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels using pot gear in the Central Regulatory Area of the GOA. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod for vessels using pot gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 28, 2016.

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

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: January 29, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-01989 Filed 1-29-16; 4:15 pm] BILLING CODE 3510-22-P
    81 22 Wednesday, February 3, 2016 Proposed Rules DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Parts 1 and 3 [Docket No. APHIS-2006-0085] RIN 0579-AB24 Animal Welfare; Marine Mammals AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    We are proposing to amend the Animal Welfare Act regulations concerning the humane handling, care, treatment, and transportation of marine mammals in captivity. These proposed changes would affect sections in the regulations relating to variances and implementation dates, indoor facilities, outdoor facilities, space requirements, and water quality. We are also proposing to revise the regulations that relate to swim-with-the-dolphin programs. We believe these actions are necessary to ensure that the minimum standards for the humane handling, care, treatment, and transportation of marine mammals in captivity are based on current industry and scientific knowledge and experience.

    DATES:

    We will consider all comments on this proposed rule that we receive on or before April 4, 2016. To be assured consideration, comments on the information collection requirements related to this proposal should be submitted on or before March 4, 2016.

    ADDRESSES:

    You may submit comments by either of the following methods:

    • Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2006-0085.

    • Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2006-0085, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238.

    Supporting documents and any comments we receive on this docket may be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2006-0085 or in our reading room, which is located in Room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Barbara Kohn, Senior Staff Veterinarian, Animal Care, APHIS, 4700 River Road, Unit 84, Riverdale, MD 20737-1234; (301) 851-3751.

    SUPPLEMENTARY INFORMATION: Executive Summary I. Purpose of Regulatory Action

    This proposed rule would affect sections in the regulations for the protection of all marine mammals in the United States relating to interactive programs (e.g., swim-with-the-dolphin), space requirements, water quality, indoor facilities, outdoor facilities, implementation dates, and variances. The U.S. Department of Agriculture's (USDA) Animal and Plant Health Inspection Service (APHIS) established regulations for these mammals in 1998, based on the outcome of meetings of the Marine Mammal Negotiated Rulemaking Advisory Committee. When the original regulations were published, the provisions we are now amending were written in a very general way because APHIS had few relevant scientific studies or data available to help design the most effective practical regulatory approach for these areas. Over time, more relevant studies and data involving these sections and interactive programs have become available and APHIS has gained substantial experience working with regulated parties.

    II. Legal Authority

    The Animal Welfare Act (the Act) (7 U.S.C. 2131 et seq.) authorizes the Secretary of Agriculture to promulgate standards and other requirements governing the humane handling, care, treatment, and transportation of certain animals by dealers, research facilities, exhibitors, carriers, and other regulated entities. Under the Act, APHIS established regulations in 1979 for the humane handling, care, treatment, and transportation of marine mammals used for research or exhibition purposes. The regulations contain standards for the humane handling, care, treatment, and transportation of marine mammals (part 3, subpart E, §§ 3.100 through 3.118).

    III. Summary of Major Provisions

    We propose to revise swim-with-the-dolphin program regulations, for which enforcement was suspended effective April 2, 1999. This proposal contains revised standards that we propose to enforce for these programs. The proposed standards address interactive program facility space requirements, layout, operations, staffing, recordkeeping, and related matters. We set forth the proposed standards as performance-based standards wherever we believe such an approach is feasible and supportable by current information and scientific documentation.

    The current subpart E regulations include minimum space requirements for the primary enclosure for species of marine mammals. We do not propose substantive changes to any of the minimum space requirements (§ 3.104), but we do propose clarifying how such areas are measured, updating and correcting discrepancies between formal calculations and current entries into space tables, and other enclosure matters.

    We also propose some changes to the regulations concerning water quality in facilities. These changes would implement the results of our review of recent studies of water quality and waterborne pathogens affecting marine mammals.

    The current regulations include conditions and deadlines for variance requests for space. These deadlines are out of date, but the ability for APHIS to grant temporary variances is an important tool when assuring the welfare of marine mammals. Therefore, we propose to update the conditions that can be addressed by a variance and identify the factors we use to approve or disapprove a variance request.

    The current regulations also provide standards for air and water temperatures, ventilation, and lighting at regulated indoor facilities that house marine mammals. We propose to revise these requirements to apply current best practices and recent scientific studies in order to ensure the welfare of the animals with respect to temperature, ventilation, and lighting for indoor facilities.

    We also propose to revise the regulations covering standards for outdoor facilities, to require that the air and water temperature ranges at outdoor facilities be in accordance with the currently accepted husbandry practices for the species housed.

    Background

    The Animal Welfare Act (the Act) (7 U.S.C. 2131 et seq.) authorizes the Secretary of Agriculture to promulgate standards and other requirements governing the humane handling, care, treatment, and transportation of certain animals by dealers, research facilities, exhibitors, carriers, and other regulated entities. The Secretary of Agriculture has delegated the responsibility for enforcing the Act to the Administrator of the Animal and Plant Health Inspection Service (APHIS). Regulations established under the Act are contained in 9 CFR parts 1, 2, and 3.

    Under the Act, APHIS established regulations in 1979 for the humane handling, care, treatment, and transportation of marine mammals used for research or exhibition purposes. The regulations contain standards for the humane handling, care, treatment, and transportation of marine mammals (part 3, subpart E, §§ 3.100 through 3.118). Some sections of these regulations have not been substantively amended since 1984.

    Marine Mammal Regulations

    In 1995, we established a Marine Mammal Negotiated Rulemaking Advisory Committee (the Committee) to advise the Department on revisions to the marine mammal regulations. The Committee met for three sessions between 1995 and 1996. Under the rules governing the negotiated rulemaking process, and in accordance with the organization protocols established by the Committee, APHIS agreed to publish as a proposed rule any consensus language developed during the meetings unless substantive changes were made as a result of authority exercised by another Federal Government entity. The Committee developed consensus language for changes to 13 of the 18 sections that comprise the 1979 regulations and for 1 paragraph in a 14th section.

    On February 23, 1999, we published a proposed rule in the Federal Register (64 FR 8735-8755, Docket No. 93-076-11) that contained the language developed by the Committee for those sections of the regulations for which consensus had been reached. The rule was made final, with changes, on January 3, 2001 (66 FR 239-257, Docket No. 93-076-15), and became effective on April 3, 2001 (66 FR 8744, Docket No. 93-076-16).

    Remaining Issues

    Although consensus language was developed by the Committee for 13 of the 18 sections of the regulations in their entirety, and for 1 paragraph of another section, the Committee conducted extensive discussions on all sections of the regulations. No consensus language was developed for four sections of the standards: § 3.100 on variances and implementation dates; § 3.102 on indoor facilities; § 3.103 on outdoor facilities; and § 3.106 on water quality. Consensus language was developed for general space requirements for the 14th section, but not on the specific space requirements for particular marine mammals. The Committee agreed that APHIS would develop and promulgate a proposed rule to address those parts of the regulations for which consensus language was not developed.

    Interactive Programs

    In addition to the 1979 regulation and the 2001 amendments, we published a proposed rule to establish standards for swim-with-the-dolphin programs in a new § 3.111 on January 23, 1995 (60 FR 4383-4389, Docket No. 93-076-2). The swim-with-the-dolphin rule was a new standard and not included in the goal of updating the existing standards in subpart E. After reviewing the comments for the swim-with-the-dolphin proposed rule and the results from a National Oceanic and Atmospheric Administration (NOAA)-sponsored study conducted between 1992-1994,1 we published a final rule in the Federal Register on September 4, 1998 (63 FR 47128-47151, Docket No. 93-076-10), that made final some of the proposed provisions, along with changes we made based on the comments received. The final rule became effective October 5, 1998.

    1 Samuels, A. and T.R. Spradlin. 1994. Quantitative behavioral study of bottlenose dolphins in Swim-With-The-Dolphin programs in the United States. Final Report to the National Marine Fisheries Service, Office of Protected Resources. 25 April 1994. 57 pp. Samuels, A. and T.R. Spradlin. 1995. Quantitative behavioral study of bottlenose dolphins in Swim-With-Dolphin programs in the United States. Marine Mammal Science, 11(4): 520-544.

    Following publication of the final rule, a number of parties affected by the rule contacted us and asserted that they did not fully understand the regulatory implications of the proposed and final rules for wading programs, encounter programs, and other interactive programs. Specifically, these regulated parties stated that it had not been clear to them that we intended the provisions of the rule to apply to shallow-water interactive programs. Shallow-water interactive programs are programs in which members of the public enter the primary enclosure of a cetacean to interact with the animal, and in which the participants remain primarily stationary and nonbuoyant. The regulated parties stated that, because of this misunderstanding, they had not been able to participate fully in the rulemaking process.

    In response to these concerns, on October 14, 1998 (63 FR 55012, Docket No. 9307612), we announced that, as of the effective date of the September 4, 1998, final rule, and until further notice, we would not enforce the standards relating to space for the interactive area and human participant/attendant ratio to shallow-water interactive programs. Subsequently, on April 2, 1999 (64 FR 15918-15920, Docket No. 93-076-13), we suspended enforcement of all of § 3.111. This meant that only the specific requirements of § 3.111 would be excluded from citation of noncompliant items. All interactive programs were and still are at AWA licensed facilities and thereby required to comply with all other regulations and standards appropriate for that facility. The facility and animals remained under AWA oversight by USDA.

    Advance Notice of Proposed Rulemaking

    On May 30, 2002 (67 FR 37731-37732, Docket No. 93-076-17), we published in the Federal Register an advance notice of proposed rulemaking (ANPR) in which we solicited comments regarding appropriate changes or additions to the marine mammal standards for which consensus language was not developed during the negotiated rulemaking, as well as the standards for interactive programs such as swim-with-the-dolphin programs. We solicited comments for 60 days ending on July 29, 2002. We received 365 comments by that date. They were from private citizens, exhibitors, and professional organizations. We have reviewed and considered all of the comments and any information submitted with the comments. The issues raised by the commenters are discussed below.

    A commenter recommended that § 3.100, “Special considerations regarding compliance and/or variance,” should be deleted, stating that there is no good reason to grant a variance from the space requirements. Another commenter suggested that temporary variances be granted for 6 months with only one extension and that lifetime variances be granted only when necessary. The commenter also stated that APHIS should confiscate animals at facilities that fail to comply with the regulations after the expiration of the variance.

    Several commenters asserted that rigid standards for air and water temperatures would be counterproductive and would not guarantee the health and well-being of the marine mammals. These commenters said that animals may be acclimated to temperatures outside of any ranges that APHIS may establish. On the other hand, another commenter said that water temperature requirements are necessary because water that is too warm is stressful to the animal and facilitates the spread of disease. Another commenter stated that APHIS should prohibit polar bear exhibits in tropical locales.

    One commenter recommended that APHIS establish standards for sound that address decibel levels as well as the type of sound. Another commenter suggested that pools be required to have sloping walls in order to lessen underwater echoes.

    A number of commenters stated that the regulations for ventilation and lighting were adequate; however, these commenters also stated that it wasn't unreasonable to require 6 hours of uninterrupted darkness per day.

    Several commenters stated that some portion of an outdoor pool must be shaded. Other commenters suggested that the regulations concerning shade be amended to require that shade be provided if deemed necessary by a veterinarian.

    One commenter recommended that seagull harassment of marine mammals be specifically addressed in the regulations. The commenter also recommended that pools be cleaned daily by a qualified diver.

    A commenter asked APHIS to explore alternatives to chlorine to improve water quality. Several commenters suggested that requirements for water quality be established for each species based on the conditions the animal may encounter in the wild. Similarly, a commenter stated that marine species should be housed in saltwater tanks and freshwater species housed in freshwater tanks.

    Some commenters recommended that enclosures resemble an animal's natural habitat. One commenter suggested that marine mammals should be moved from concrete enclosures to manmade lakes.

    A number of commenters supported an increase in the space requirements for marine mammals. Several commenters stated that pool depth and volume should be used to determine the space requirements. These commenters stated that the average adult length of a species should be used to determine the minimum depth requirements and that the tables setting out the average adult length for each species should be updated. Finally, these same commenters stated that the space requirements should not take into account minimum width or longest straight-line swimming distance.

    A commenter recommended that space requirements should be based on the maximum adult length of an animal instead of the average adult length. Several commenters suggested that APHIS match or exceed the minimum space requirements used in the United Kingdom, Brazil, and Italy. Some commenters recommended that pools be at least 300 feet wide and 60 feet deep. One commenter recommended that pools be at least 25 meters deep. One commenter suggested that the current space requirements be doubled within the next 5 years, while another commenter suggested a tenfold increase in the current space requirements.

    A number of commenters claimed that it would be unfair and costly to require facilities to retrofit their marine mammal enclosures to comply with new space requirements. Several commenters stated that it would be financially unfeasible to retrofit facilities.

    Some commenters stated that the regulations for interactive programs should be flexible enough to accommodate the wide variety of interactive programs in the United States. These commenters went on to state that the current regulations provide the necessary protection for marine mammals used in interactive programs.

    One commenter asserted that APHIS should require that dolphins and humans participating in an interactive program be free of disease. The commenter noted that certain human diseases pose a threat to dolphins (e.g., influenza, chicken pox). The commenter also stated that feeding a dolphin and grasping or holding a dolphin should be prohibited during interactive programs.

    Several commenters argued that petting pools and dolphin-assisted therapy should be regulated as interactive programs. Another commenter stated that feeding and petting pools should be eliminated.

    One commenter stated that interactive programs should be allowed only if the interactions are tightly controlled at all times by professional trainers and the animals are allowed to choose whether or not to participate.

    A commenter stated that any release of a marine mammal into the wild should be authorized by the U.S. Fish and Wildlife Service or the National Marine Fisheries Service prior to the release. Finally, a number of commenters asked APHIS to free or retire a killer whale named Lolita.

    Based on our review of the ANPR comments, information submitted by exhibitors and professional organizations, a review of published scientific studies and current standards for lighting, ventilation, water quality, etc., and our experience with the marine mammal standards, we are now proposing to amend the regulations concerning the humane handling, care, treatment, and transportation of marine mammals in captivity. These proposed changes would affect sections in the regulations relating to variances, indoor facilities, outdoor facilities, space requirements, and water quality. We are also proposing to revise the regulations that relate to swim-with-the-dolphin programs. Each of these changes is discussed in detail below.

    Definitions

    We are proposing to amend § 1.1 of the regulations, “Definitions,” by revising the terms interactive area, interactive session, primary enclosure, and sanctuary area. Section 1.1 defines an interactive area as “that area in a primary enclosure for a swim-with-the dolphin program where an interactive session takes place.” We are proposing to redefine interactive area to mean “that area of a marine mammal primary enclosure where an interactive program takes place.” Use of the term “marine mammal” is necessary because facilities may use marine mammals other than cetaceans in interactive programs. It is also consistent with our use of the term throughout proposed § 3.111, as well as elsewhere, unless reference to a specific species is necessary. The term “interactive program” replaces “swim-with-the-dolphin program” since we are proposing to no longer use the term “swim-with-the-dolphin program,” as discussed below.

    Section 1.1 defines an interactive session to mean a “swim-with-the-dolphin program session where members of the public enter a primary enclosure to interact with cetaceans.” For the reasons given above for our changes to the definition of interactive area, we are proposing to redefine interactive session to mean “the time during which a marine mammal and a member of the public are in the interactive area.”

    Section 1.1 defines a primary enclosure to mean “any structure or device used to restrict an animal or animals to a limited amount of space, such as a room, pen, run, cage, compartment, pool, or hutch.” We are proposing to add additional examples of structures and devices that qualify as primary enclosures. Specifically, we are proposing to add that primary enclosures, which may also be referred to as “enclosures” in the regulations and standards, include, but are not limited to, display enclosures, holding enclosures, night enclosures, off-exhibit enclosures, and medical enclosures. This proposed change is nonsubstantive because the listed examples already qualify as primary enclosures under the existing definition of that term, but it is necessary because there has been some confusion over the years about what constitutes a primary enclosure. This proposed clarification would ensure that regulated entities apply all appropriate requirements, such as space, safety, sanitation, and protection from the elements, to all areas where regulated animals are kept, unless otherwise provided in the regulations or standards.

    Section 1.1 defines a sanctuary area to mean “that area in a primary enclosure for a swim-with-the-dolphin program that is off-limits to the public and that directly abuts the buffer area.” We are proposing to redefine this term to mean “that area in a primary enclosure for marine mammals that abuts the interactive area and is off-limits to the public.” These changes are consistent with the reasons given above for our changes to the definition of interactive area and our intent to no longer use the term “buffer area,” as discussed below.

    Section 1.1 defines swim-with-the-dolphin (SWTD) program to mean “any human-cetacean interactive program in which a member of the public enters the primary enclosure in which an SWTD designated cetacean is housed to interact with the animal. This interaction includes, but such inclusions are not limited to, wading, swimming, snorkeling, or scuba diving in the enclosure.2 This interaction excludes, but such exclusions are not limited to, feeding and petting pools, and the participation of any member(s) of the public audience as a minor segment of an educational presentation or performance of a show.”

    2 We note that interactive programs have been operating for over 20 years without any indications of health problems or incidents of aggression in marine mammals, as evidenced by medical records maintained by licensed facilities and observations by experienced APHIS inspectors.

    We would remove the definition of swim-with-the-dolphin (SWTD) program and add in its place the term interactive program. We would define interactive program as “any human-marine mammal interactive program where a member of the public enters a primary enclosure for a marine mammal with the intent of interacting with the marine mammal(s), except for potentially dangerous marine mammals, such as, but not limited to, polar bears. Such programs include, but are not limited to, sessions in which the human participants swim, snorkel, scuba dive, or wade in the enclosure and sessions in which the human participants sit on a dock or ledge, including therapeutic sessions. Such programs exclude, but such exclusions are not limited to, feeding or petting pools where the members of the public are not allowed to enter the enclosure, and the participation of an audience member at what has been traditionally known as a performance or show involving the exhibition of marine mammals.” 3

    3 During such performances, 1 or 2 persons are typically brought from the audience to stand near and perhaps touch or signal the animal under the monitoring or control of a trainer. We do not consider animal performances that include brief participation by a few audience members to be interactive programs.

    The proposed definition of interactive program differs from the definition of swim-with-the-dolphin program in several ways. It uses the term “marine mammal” in place of “cetacean” and clarifies that interactive programs are inappropriate for potentially dangerous marine mammals, such as, but not limited to, polar bears. This new definition also provides additional examples of interaction including “sessions in which participants sit on a dock or ledge, including therapeutic sessions.” However, the term interactive program would continue to exclude programs such as feeding or petting pools, or any other programs “where members of the public are not allowed to enter the primary enclosure.” The proposed definition of interactive program would also exclude participation of an audience member at what is traditionally known as a performance or show involving the exhibition of marine mammals. This would simplify the current requirement which excludes from consideration the participation of the public “as a minor segment of an educational presentation or performance of a show.”

    Finally, we would remove from § 1.1 the definition of buffer area, which is defined as “that area in a primary enclosure for a swim-with-the-dolphin program that is off-limits to members of the public and that directly abuts the interactive area.” This definition would no longer be necessary based upon our intention to remove the requirement in proposed § 3.111 that interactive programs must contain a buffer area for animals. We have found that it is redundant and not necessary to require both a buffer area and a sanctuary area as long as the animal has unrestricted access to a sanctuary area.

    Variances

    Section 3.100 contains the conditions under which a regulated facility may request and qualify for a variance for a limited period of time from one or more of the space requirements in § 3.104. The provisions were put into place to allow regulated facilities time to come into compliance with the space requirements made in 1984. These provisions are no longer applicable because we are not increasing the space requirements.

    There were few recommendations on the implementation dates and variances in the comments on the ANPR. One commenter recommended that § 3.100, “Special considerations regarding compliance and/or variance,” be deleted because there is no good reason to grant a variance from the space requirements. Another commenter suggested that temporary variances be granted for 6 months with only one extension and that lifetime variances be granted only when necessary. The commenter also stated that APHIS should confiscate animals at facilities that fail to comply with the regulations after the expiration of the variance.

    We propose to revise § 3.100 to make it operative once again with respect to exhibition and research facilities covered by the regulations. This will provide regulated facilities greater flexibility in complying with the regulations and standards. Regarding the comment about animal confiscation, APHIS' confiscation authority under the AWA is outlined in § 2.129 of the AWA regulations and standards. The animal must be found to be suffering as a result of noncompliance with the regulations and standards and the licensee fails to provide the remedy required by APHIS.

    Indoor Facilities

    Section 3.102 provides the standards for air and water temperatures, ventilation, and lighting at regulated facilities that house marine mammals.

    Paragraph (a) of § 3.102 provides that the air and water temperatures in indoor facilities shall be sufficiently regulated by heating or cooling to protect the marine mammals from extremes of temperature, to provide for their good health and well-being and to prevent discomfort, in accordance with the currently accepted practices as cited in appropriate professional journals or reference guides. The section also states that rapid changes in air and water temperatures shall be avoided.

    Animals kept in a temperature range appropriate to their species benefit from improved health and welfare.4 While animals may be able to survive warmer or colder temperatures, animal metabolism has developed to function best within a particular temperature range for both air and water (thermoneutral zone). The animal may be able to survive outside this range, but the added stress can negatively affect the animal's metabolism as it tries to maintain internal temperatures and other metabolic processes 5 in non-ideal environmental conditions.

    4 “Marine Mammals Ashore,” Joseph R. Geraci and Valerie J. Lounsbury, Texas A&M Sea Grant Publication, 1993, outlines habitat ranges for many marine mammals.

    5 Akin, J. A. (2011) Homeostatic Processes for Thermoregulation. Nature Education Knowledge 3(10):7.

    We are proposing no substantive changes to § 3.102(a). The question of ambient and environmental temperatures was discussed in depth during the negotiated rulemaking process. While the members of the Committee acknowledged the importance of maintaining marine mammals within their optimum temperature range, there was not enough published scientific data available to develop a list of acceptable temperature ranges for each marine mammal species. We are unaware of any definitive publications that combine the habitat ranges of marine mammals with the environmental temperature ranges in that habitat. This information would be beneficial to USDA and our licensees and we request any and all such data appropriate to marine mammal species during the comment period. That may not be possible, though, as we think it would require using diverse sources from fisheries data, biological oceanography species distributions, and physical oceanography sources on temperatures and salinity. Habitat usage budgets would also be needed in order to determine the most appropriate temperature range for the marine mammal. Since this information is not readily tabulated, we will continue to use the health and behavior of the marine mammals in assessing the adequacy and appropriateness of the pools and enclosure temperatures.

    Several commenters on the ANPR asserted that rigid standards for air and water temperatures would be counterproductive and would not guarantee the health and well-being of the marine mammals. These commenters said that animals may be acclimated to temperatures outside of any ranges that APHIS may establish. On the other hand, another commenter said that water temperature requirements are necessary because water that is too warm is stressful to the animal and facilitates the spread of disease. As noted earlier, another commenter stated that APHIS should prohibit polar bear exhibits in tropical locales.

    Taking into account the discussions regarding air and water temperatures during the negotiated rulemaking process and in the ANPR comments, we are retaining the performance-based standards of the current regulations and, as needed, will develop guidelines for appropriate temperature ranges for marine mammal species based on scientific and published data when, and if, it becomes available. We request any and all such data appropriate to marine mammal species during the comment period.

    Paragraph (b) of § 3.102 contains the ventilation standards for indoor facilities housing marine mammals. It provides that facilities shall be ventilated by natural or artificial means to provide a flow of fresh air for the marine mammals and to minimize the accumulation of chlorine fumes, other gases, and objectionable odors.

    The benefit of providing adequate ventilation for indoor marine mammal enclosures is improved animal welfare. Improved ventilation can reduce the effects of skin and mucous membrane irritation in marine mammals. Improvements in ventilation can also result in less accumulation of moisture and potential trapping of bacteria and particles on walls. Excessive moisture may allow for bacterial and mold growth in the enclosure area, risking the health and well-being of the marine mammals. These same considerations apply to personnel working in enclosure and exhibit areas, and potentially to the general public.

    Few comments on the ANPR addressed the current ventilation requirements. Those commenters who did address the ventilation standards stated that the current performance-based standard was sufficient. However, based on our experience regulating marine mammal facilities and on commonly accepted human standards for ventilation followed by engineers and architects for buildings throughout the United States, we are proposing to modify the ventilation standards in several ways. The majority of the changes are performance-based in nature. Instead of stating that the ventilation shall minimize the accumulation of chlorine fumes, other gases, and objectionable odors, we are proposing that the ventilation would have to prevent the accumulation of chlorine/chloramine fumes, ammonia fumes, ozone, other gases, or odors at levels that would be objectionable or harmful to a person of average sensitivity. We would also add that the ventilation would have to maintain relative humidity at a level that prevents condensation in order to minimize the potential for bacterial, fungal, or viral contamination from condensation. Relative humidity can be controlled by a variety of methods, including increased ventilation with drier air or the use of dehumidifiers. Furthermore, we would provide that the average ventilation rate should exceed 0.2 cubic feet per minute per kilogram (cfm/kg) of animal. An average ventilation rate is the rate at which indoor air enters and leaves a building. We are proposing to require that the average ventilation rate should exceed 0.2 cfm/kg of animal in facilities with marine mammals because that is the rate necessary to dilute odors and limit the concentration of carbon dioxide and airborne pollutants harmful to marine mammals and humans.6 These proposed requirements are based on commonly accepted standards for ventilation used by engineers, architects, and government agencies for buildings with human occupants.7

    6 See ASHRAE recommendations cited in footnote 7.

    7 ASHRAE recommendations minimize the accumulation of noxious and potentially toxic gases, such as chlorine, chloramines, methyl bromide, and ammonia: 2013 ASHRAE Handbook—Fundamentals (SI). OSHA investigates reported incidents of potentially hazardous air quality conditions: https://www.osha.gov/SLTC/ventilation/index.html. NIH provides ventilation guidance for laboratory animals that can be used in general animal housing as well: http://www.orf.od.nih.gov/PoliciesAndGuidelines/BiomedicalandAnimalResearchFacilitiesDesignPoliciesandGuidelines/DRMHTMLver/Chapter2/Pages/Section2-4AnimalResearchFacilities.aspx.

    Lighting

    Paragraph (c) of § 3.102 contains performance-based standards for lighting in indoor housing facilities, providing that the lighting shall: (1) Be of a quality, distribution, and duration that is appropriate for the species involved; (2) allow for routine inspections, observations, and cleaning; and (3) prevent exposure of the marine mammals to excessive illumination.

    The ANPR commenters that addressed this issue stated that the current requirements for lighting were adequate; however, the commenters also stated that it was not unreasonable to require 6 hours of uninterrupted darkness per day for marine mammals.

    Ensuring the health and normal functioning of metabolic systems for animals used to a diurnal light pattern (day and night periods) can be impacted by the use of artificial lighting and changes to the normal pattern of diurnal fluctuations in the day and night light patterns. Natural light sources, such as large windows and skylights for indoor enclosures, provide marine mammals with both natural light variations and full-spectrum lighting. Full spectrum lighting approximates natural sunlight by providing all natural wavelengths of light from an artificial light source. Studies in animals suggest that natural and full spectrum lighting may be beneficial for animal welfare, behavior, physiology, and regulating diurnal cycles. When natural light sources are not available or light patterns do not closely mimic natural patterns of light and dark provided by the sun, there can be negative impacts on the health and metabolism of terrestrial and aquatic animals.8

    8 Gaston, Kevin J.; Duffy, James P.; Gaston, Sian; Bennie, Jonathan; Davies, Thomas W.; “Human alteration of natural light cycles: causes and ecological consequences,” Oecologia (2014) 176:917-931. Gaston, Kevin J.; Bennie, Jonathan; “Demographic effects of artificial lighting on animal populations,” Environ. Rev.(2014), 22:323-330. Edwards, L. and Torcellini, P., 2002, “A Literature Review of the Effects of Natural Light on Building Occupants,” (NREL/TP-550-30769), National Renewable Energy Laboratory, 58 pp. Rich, Catherine and Longcore, Travis (eds), 2006, “Ecological Consequences of Artificial Night Lighting,” Island Press. Covelo, CA. Pages 15-42. Kane, Lisa, Forthman, Debra, and Hancocks, David (eds.), 2005, “Best Practices by the Coalition for Captive Elephant Well-Being,” 33 pp., http://www.elephantcare.org/protodoc_files/2008/CCEWBCoreBestPractices.2.pdf. Gage, Laurie (author), and Whaley, Janet E. (ed.), 2006, “Interim Policies and Best Practices Marine Mammal Stranding Response, Rehabilitation, and Release Standards for Rehabilitation Facilities,” NOAA National Marine Fisheries Service Marine Mammal Health and Stranding Response Program, 50 pp., http://www.nmfs.noaa.gov/pr/pdfs/health/rehab_facilities.pdf. Anderson, Kevin, 2013, “Are the Lights On or Off?” 12 pp., http://www.alnmag.com/articles/2013/11/are-lights-or. Hotz, Vitaterna, Martha, Takahashi, Joseph S., and Turek, Fred W., “Overview of Circadian Rhythms,” http://pubs.niaaa.nih.gov/publications/arh25-2/85-93.htm. Penev, Toncho, Radev, Veselin, Slavov, Todor, Kirov, Veselin, Dimov, Dimo, Atanassov, Alexandar and Marinov, Ivaylo, (2014), “Effect of lighting on the growth, development, behaviour, production and reproduction traits in dairy cows,” Int. J. Curr. Microbiol. App. Sci 3(11) 798-810.

    In addition, sufficient light is needed to allow observation of the animals by the caretakers and the APHIS inspectors. This requirement is not changed in this docket, but the level of light recommended assures the ability to adequately observe the animals in the enclosure.

    To better provide for the well-being of marine mammals, we believe the lighting standards need to be more specific. Accordingly, we propose to amend § 3.102(c) to state that, in addition to the general standards already provided, artificial lighting must provide full spectrum lighting. We are proposing this change so that the environment these mammals are housed in more closely resembles the natural world. We would also require that artificial light levels measured 1 meter above pools or decks should not exceed 500 lux, which is the minimum unit of measure of light sufficient to provide proper illumination for marine mammal primary enclosures.9 This minimum level was developed to provide persons in the space sufficient light to see everything needed to operate safely within that area. In addition, the light levels that provide for the safety of the people in the space also allow for sufficient light to observe the animals. Employees must be able to observe the animals in order to assess their behavior and health, as well as to determine if the animals are interacting with portions of the enclosure, such as drains and pipes, that would present a potential health risk. The minimum light levels must be over all parts of the pool/enclosure. This requirement is compatible with the standards required by the Association of Zoos and Aquariums (AZA) in the reference material for accreditation.10

    9http://www.gsa.gov/portal/content/101308.

    10https://www.aza.org/uploadedFiles/Accreditation/AZA-Accreditation-Standards.pdf.

    Facilities would be required to provide at least 6 hours of uninterrupted darkness during each 24-hour period, which mimics the normal diurnal cycles of light and dark that marine mammals are adapted to. When possible, the lighting should approximate the lighting conditions encountered by the animal in its natural environment. For example, if a species of marine mammal is primarily tropical, the lighting conditions for that animal should be as close to 12 hours of light and 12 hours of dark as possible, whereas the lighting conditions for other species of marine mammals may be closer to 10 hours of light and 14 hours of dark. Whatever the facilities' hours are, a minimum of 6 hours of dark must be provided to give all animals some period of night. We request comment on information on this minimum period of darkness, and whether it should be shorter or longer. We chose 6 hours as a reasonable minimum, since we think it may correspond with typical work hours at a facility. The lighting must not cause overexposure, discomfort, or trauma.

    The standards for lighting that we are proposing are based on our review of findings and recommendations in scientific literature for lighting animal enclosures.11 We reviewed general published articles and books, as well as those specific to marine mammals. We believe the proposed changes to § 3.102(c) are necessary to ensure that the lighting provided is of a quality, quantity, and duration that approximates the lighting conditions found in the animal's natural environment, a practice recognized by experts in the field of animal husbandry and behavior to be beneficial in maintaining the overall health of all animals.

    11 See footnote 8.

    Outdoor Facilities

    Section 3.103 of the regulations provides the standards for air and water temperature, shelter, and perimeter fencing at outdoor facilities housing marine mammals. Paragraph (a) of § 3.103 provides that marine mammals shall not be housed in outdoor facilities unless the air and water temperature ranges they may encounter do not adversely affect their health and comfort. Paragraph (a) further provides that marine mammals shall not be introduced to an outdoor housing facility until they are acclimated to the air and water temperature ranges that they will encounter there.

    We are proposing to make several changes to § 3.103(a). We are proposing to require that the air and water temperature ranges at outdoor facilities be in accordance with the currently accepted husbandry practices for the species housed.

    Paragraph (a)(3) of § 3.103 provides that no sirenian or warm water dwelling species of pinnipeds or cetaceans shall be housed in outdoor pools where water temperature cannot be maintained within the temperature range to meet their needs. To clarify what we mean by the “needs” of marine mammals, we would revise this standard by specifying instead that the water temperature for these particular marine mammals be maintained within the temperature range needed to maintain their good health and to prevent discomfort in accordance with currently accepted practices as cited in appropriate professional journals or reference guides.12

    12 Industry groups that have developed such practices include, but are not limited to, the Association for Zoos and Aquariums (https://www.aza.org) and the Alliance of Marine Mammal Parks and Aquariums (http://www.ammpa.org).

    Paragraph (b) of § 3.103 contains the standards for providing shelter for marine mammals housed in outdoor facilities. It provides that natural or artificial shelter, as appropriate for the particular species when local climatic conditions are taken into consideration, shall be provided for all marine mammals kept outdoors to afford them protection from the weather or from direct sunlight.

    Several commenters on the ANPR stated that some portion of an outdoor pool must be shaded. Other commenters suggested that the regulations concerning shade be amended to require that shade be provided if deemed necessary by a veterinarian.

    Because marine mammals are susceptible to overheating and sunburn and/or eye damage from direct and/or reflected sunlight, and UV light reflections can cause or exacerbate damage to marine mammal eyes,13 we are proposing to amend § 3.103(b) by adding that the shade must be accessible and must cover sufficient area to afford all the animals within the enclosure protection from direct sunlight while not limiting their ability to move or not be too close to another animal. The shaded areas need not be contiguous. In addition, feeding and training of animals must be performed so that the animals are not required to look directly into the sun. Shade requirements are compatible with published AZA standards. Shade structures may be permanent or temporary (easily moved or deployed). We believe the performance-based standard we are proposing will allow facilities to provide the required amount of shade according to the unique conditions of each enclosure. This standard expands the requirement in current § 3.103(b) that natural and artificial shelter must be provided to afford protection from direct sunlight.

    13 Gage, Laurie, “Risk factors associated with cataracts and lens luxations in captive pinnipeds in the United States and the Bahamas,” Journal of the American Veterinary Medical Association, August 15, 2010, Vol. 237, No. 4 (429-436) http://www.ncbi.nlm.nih.gov/pubmed/20707754. Gage, Laurie, “Captive pinniped eye problems, we can do better,” Journal of Marine Animals and Their Ecology (2011): http://www.oers.ca/journal/volume4/issue2/Gage_Galley.pdf.

    Space Requirements

    Section 3.104 contains the minimum space requirements for primary enclosures, including pools of water, housing marine mammals. These space requirements are based on standards and scientific information available at the time the regulations were promulgated in 1979, and amended in 1984. The current space requirements are based on circular pools which, while prevalent 30 years ago, have been largely replaced by more intricately shaped pools.

    As discussed previously, some commenters on the ANPR recommended that enclosures resemble an animal's natural habitat. A number of commenters supported an increase in the space requirements for marine mammals, although the majority of commenters focused on the space requirements for cetaceans. A number of commenters claimed that it would be unfair and costly to require facilities to retrofit their marine mammal enclosures to comply with new space requirements. Several commenters stated that it would be financially unfeasible to retrofit facilities.

    We are proposing to make a number of changes to § 3.104, as discussed in detail below. However, we are not proposing changes to the minimum space requirements (i.e., minimum horizontal dimension (MHD), depth, volume, and surface area) at this time. In light of the disparate recommendations by the ANPR commenters (2002) and the limited scientific data available on this issue, we do not have sufficient scientific or other supporting data to propose space requirements changes at this time. We would appreciate any published literature, science-based data or other studies that would support changes in the space requirements for any marine mammals.

    Space Requirements—General

    Paragraph (a) of § 3.104 provides a general description of the space requirements for primary enclosures, including pools, that house marine mammals and sets out some of the requirements for temporary use of smaller enclosures. The general standards provided in § 3.104(a) reflect the consensus language that was developed by the Committee during the negotiated rulemaking sessions. We are proposing no substantive changes to the minimum space requirements (i.e., minimum horizontal dimension, depth, volume, and surface area) for marine mammals in § 3.104(a) at this time. However, we propose to redesignate § 3.104(a) as § 3.104(a)(1) and to add a new paragraph (a)(2), which is discussed below.

    In proposed § 3.104(a)(2), we would provide that only those areas that meet or exceed the minimum depth requirement could be used in determining whether the other parameters of MHD, volume, and surface area meet the space requirements. This requirement already appears elsewhere in § 3.104 when referring to the minimum depth requirements for primary enclosures housing particular species of marine mammals. We would include this standard in § 3.104(a) since it is a general requirement applicable to all enclosures housing marine mammals. Indeed, this standard is the basis for determining whether naturalistic or irregularly shaped pools meet the space requirements. In addition, we would provide that APHIS would be authorized to determine if partial obstructions of a horizontal dimension compromise the intent of the regulations and/or significantly restrict the freedom of movement of the animal(s) in the enclosure.

    Space Requirements—Cetaceans

    Paragraph (b) of § 3.104 provides that primary enclosures housing cetaceans shall contain a pool of water and may consist entirely of a pool of water. It further provides that, in determining the minimum space required in a pool holding cetaceans, requirements relating to MHD, depth, volume, and surface area must be satisfied.

    We propose to remove the statement in current § 3.104(b), “Primary enclosures housing cetaceans shall contain a pool of water and may consist entirely of a pool of water.” This statement is unnecessary because cetaceans only need a pool of water.

    In addition, we propose to amend § 3.104(b) by removing Tables I through IV and by adding a new Table 1 that sets out the average adult length and corresponding minimum space requirements for Group I and Group II cetaceans. We have also corrected a longstanding discrepancy between the figures in tables for volume required for additional animals and the actual calculated volume required. The proposed tables correct these entries, which have been included in the tables since 1984. In the last 30 years, however, this error has not presented any welfare issues, as the written formulas have been used only for calculations.

    We would also remove paragraph (b)(2) of § 3.104, which provides that those parts of the primary enclosure pool which do not meet the minimum depth requirements cannot be included when calculating space requirements. As discussed previously, we would make this provision applicable to all marine mammal primary enclosures (proposed § 3.104(a)(2)) so it is unnecessary to include it here.

    We have been requested to consider updating the average adult lengths of certain cetaceans ((the Beluga whale (Delphinapterus leucas), the killer whale (Orcinus orca), and the Atlantic bottlenose dolphin (Tursiops truncatus (Atlantic)) based on empirical information that was compiled by the Alliance of Marine Mammal Parks and Aquariums (AMMPA) and the AZA and provided to APHIS. This proposed update would reflect the average adult lengths based on the actual sizes of certain species of marine mammals in exhibition facilities. These are the only three species for which data was submitted by the commenter. If used, the empirical lengths would result in decreased calculated minimum space requirements for these animals. The data provided by AMMPA and AZA reflect measurements from all killer whales at U.S. facilities, most of the beluga whales, and about 25 percent of the bottlenose dolphin population in the United States in 2002. It has been brought to our attention by NOAA that these figures do not take into account animals potentially added from the wild (stranded or taken by AMMPA permit), nor does it provide information on morphometrics that may have been published more recently. Taking this into account, APHIS is open to submission of all scientific data that may clarify the size of marine mammals. In updating Table 1, we have chosen to not include hybrid animals here, such as offspring of Atlantic and Pacific bottlenose dolphins. Space requirements for hybrid cetaceans would be handled on a case-by-case basis, as they are rare and reliable information is not generally available.

    We welcome comments and data addressing this approach, including comments on the reliability and utility of the empirical average adult length data that is the basis for this proposed change.

    Space Requirements—Sirenians

    Paragraph (c) of § 3.104 provides that primary enclosures housing sirenians shall contain a pool of water and may consist entirely of a pool of water. Space requirements are based on meeting MHD and depth parameters.

    We propose to remove the statement in current § 3.104(c), “Primary enclosures housing sirenians shall contain a pool of water and may consist entirely of a pool of water.” This statement is unnecessary since sirenians only need a pool of water. We would also add a new Table 2 which would provide average adult lengths for different sirenian species that are currently held by exhibitors on public display. Finally, we propose to remove the statement that those parts of the primary enclosure pool which do not meet the minimum depth requirement cannot be included when calculating space requirements for sirenians. As discussed previously, we propose to include this requirement in proposed § 3.104(a)(2) since it is a general requirement applicable to all enclosures housing marine mammals.

    Space Requirements—Pinnipeds

    Paragraph (d) of § 3.104 provides that primary enclosures housing pinnipeds shall contain a pool of water and a dry resting or social activity area that must be close enough to the water to allow easy access for entering or leaving the pool. Despite this requirement, APHIS is aware of instances where animals have shown difficulties getting in and out of pools when the distance between the water and the dry resting area has been too much for them to easily negotiate, either due to the size and strength of the animal, such as young animals, or health, such as older animals or those animals with injuries or infirmities such as arthritis.14 Some facilities, due to the filtering systems on the pools, do not have the ability to easily raise the water level. As a result, other means of safe ingress and egress are needed to prevent further injury or death of such marine mammals. Many of the newer pinniped pools at a number of zoological facilities have a gradually sloping floor that is suitable for pinnipeds of all sizes and capacities to exit the pool. As more institutions commit to making improvements to their pinniped exhibits, the pools with an edge or “lip” that make exiting difficult for the very young or very old are becoming obsolete. However, many such pools remain in use.

    14 This information was derived from APHIS-Animal Care internal research based on several inquiries with professionals in the field.

    Therefore, we propose to require that pool exit and entry areas be of a depth and grade that allows for easy access and exit for pinnipeds of all ages and infirmities. These changes would ensure that young, elderly, and ill or infirm pinnipeds are able to get out of the water to access their dry resting or social activity area. As a ramp or platform may cut down on the swimming space in a smaller pool, designing of the ramps or platforms which factors in the minimum space requirements is essential.

    The list of Group I and Group II pinnipeds and their average adult length in feet and meters would be provided in a new Table 3. In proposed Table 3, we would reverse the order of displaying average adult length, with feet being shown first followed by meters. The average adult length information, which currently appears as part of Table 3 of the regulations, would not be changed except that we would add Arctocephalus townsendi (Guadalupe fur seal) to the Group I list, and the Neomonachus schauinslandi15 (Hawaiian monk seal) to the Group II list of pinnipeds. We are proposing to add the Guadalupe fur seal and the Hawaiian monk seal to the list of Group I and Group II pinnipeds, respectively, because both species are now being held in captivity. We would also add the California sea lion to the list of Group I pinnipeds that will be considered as Group II when two or more sexually mature males are maintained together. In our experience, sexually mature male California sea lions can become aggressive during the breeding season, and visual barriers (e.g., fences, rocks, or foliage) would provide relief from any aggressive animals.

    15http://www.pifsc.noaa.gov/library/pubs/Baker_etal_MMS_2014.pdf.

    We would also reference a proposed new Table 4, which would summarize the minimum space requirements for pinnipeds in captivity, including MHD, depth, and surface area, as well as the required dry resting and social activity area required for different pinniped species. This table would provide user-friendly calculations of space requirements that should spare licensees and other stakeholders from having to perform the calculations themselves.

    Finally, we propose to remove the statement that those parts of the primary enclosure pool which do not meet the minimum depth requirement cannot be included when calculating space requirements for pinnipeds. As discussed previously, we propose to make this requirement applicable to all marine mammals (proposed § 3.104(a)(2)) and it is unnecessary to include it here.

    Space Requirements—Polar Bears

    Paragraph (e) of § 3.104 sets out the space requirements for primary enclosures housing polar bears. It provides that primary enclosures housing polar bears shall consist of a pool of water, a dry resting and social activity area, and a den.

    We are proposing to amend § 3.104(e) to require that pool exit and entry areas be of a depth and grade that allows for easy access and exit for polar bears of all ages and infirmities. This change would ensure that young, elderly, and ill or infirm polar bears are able to get out of the water to access their dry resting or social activity area.

    Space Requirements—Sea Otters

    Paragraph (f) of § 3.104 covers the space requirements for primary enclosures housing sea otters. Currently, paragraph (f) of § 3.104 provides that primary enclosures for sea otters must consist of a pool of water and a dry resting area. The minimum dry resting area required for one or two sea otters is based on the sea otter's average adult length, and is provided in Table V.

    We propose to require that pool exit and entry areas be of a depth and grade that allows for easy access and exit for sea otters of all ages and infirmities. This change would ensure that young, elderly, and ill or infirm sea otters are able to get out of the water to access their dry resting or social activity area.

    The regulations currently do not provide a surface area requirement. We would not change the existing formula for calculating the minimum dry resting area per animal. However, since sea otters do not readily use shared resting areas, we propose to add a requirement that individual areas or visual barriers separating appropriately sized individual resting spaces must be used.

    Finally, we would redesignate Table V as Table 5. However, the information in the table would not be changed.

    Water Quality

    Currently, § 3.106 provides water quality standards for facilities housing marine mammals. Paragraph (a) provides a general introductory statement. Paragraphs (b), (c), and (d) contain requirements relating to bacterial standards, salinity, and filtration and water flow. We are proposing to make a number of changes throughout this section.

    While sterile water was once considered the ideal standard, recent scientific research supports the point that non-sterile water is better for marine mammals. Non-sterile water seems to support the development of a healthy immune system, providing improved ability for marine mammals to better handle routine and novel types of bacteria. The presence of water quality test results that consistently show no bacteria may be indicative of an overly disinfected system, which may negatively impact the animals by causing skin and eye irritations from overchlorination. Over-disinfection may also reduce the effectiveness of the filtration system, which usually depends on a healthy microbial population for proper operation.

    Paragraph (b) of § 3.106 contains the bacterial standards and related water quality testing requirements for facilities housing marine mammals. The bacterial standards provided in § 3.106(b) are based on accepted measures for monitoring water quality for human use at the time the regulations were promulgated in 1979. However, based on a review of the scientific literature 16 and the Environmental Protection Agency's (EPA's) 2012 Recreational Water Quality Criteria, we have determined that there are now additional tests that should be used to screen water quality. Accordingly, we are proposing to amend the bacterial standards in § 3.106(b) to reflect some of these current testing measures. We also propose to make other changes in the requirements for testing if high levels of bacteria are found. These changes are discussed below.

    16 Van Bonn, William, et al. (eds.), “Maintaining Healthy Marine Mammal Pools,” draft/correspondence (2015). Venn-Watson, S., et al, “Primary bacterial pathogens in bottlenose dolphins Tursiops truncatus: Needles in haystacks of commensal and environmental microbes,” Dis. Aquat Organ, (2008) 79(2): 87-93. IAAAM Water Quality Workshop 2015, notes. Health and Ecological Criteria Division, Office of Science and Technology, EPA, Office of Water 820-F-12-058 “Recreational Water Quality Criteria.” Donlan, R.M., “Biofilms: Microbial life on surfaces,” Emerg. Infect. Dis., (2002) 49(1): 1-5.

    Coliform Testing

    Most of the marine mammal standards were originally promulgated in 1979. The bacterial standards of § 3.106(b)(1) were based on the drinking water quality standards of that time and focused on coliform bacteria. Based on testing methods used during that time, the unit of measure was “most probable number” (MPN), a statistical measurement based on inoculation series (dilution series) using 1 mL aliquots of the sample. Usually 5-10 samples (diluted by powers of 10) were incubated and the actual number of bacteria present was estimated for a 100 ml sample.

    With the advent of filtration techniques, the MPN method was no longer used as the sole measure of bacterial contamination in water samples. With MPN, actual numbers of bacteria in a 100 mL sample could now be measured and counted.17

    17 An example of this method is the Millipore filter kits that use differential media to grow only coliforms. Individual colonies could be re-plated and grown for identification if specific coliform type was needed, although most media provided a characteristic sheen to the fecal coliform colonies.

    As with other areas of technology, test kits have been developed to test for coliforms. These kits focus on enzymes and characteristic chemical properties to simplify bacterial testing and identification. The EPA is responsible for setting Recreational Water Quality Criteria recommendations for primary contact recreational uses (i.e., swimming and similar water contact activities). The EPA has also produced documents explaining how alternative methods and indicators can be used in place of standard filtration methods.

    The bacterial standards requirements in this section are devised to not only protect the health and well-being of the marine mammals housed in the enclosures, but to conform with the EPA and related standards that address human activities, such as swimming (interactive programs). Accepted criteria recommendations in place at the time of implementation of the current standards (1984) have been in use since that time. APHIS has not found that marine mammal facilities routinely have compliance issues with these historic requirements. We do acknowledge that testing techniques and accepted criteria recommendations have changed since 1984, and we are proposing to update this section to reflect those changes. We are requesting data and references that would support or refute these criteria.

    The AWA does not require a specific methodology for coliform testing, but rather defines an upper limit for total coliforms. If the methodology selected provides an actual colony count, then that is interchangeable with MPN.

    Current paragraph (b)(1) of § 3.106 provides that the coliform bacteria count of the primary enclosure pool shall not exceed 1,000 MPN per 100 mL of water. Should the coliform bacterial count exceed 1,000 MPN, two subsequent samples may be taken at 48-hour intervals and averaged with the first sample. If the average count does not fall below 1,000 MPN, then the water in the pool is deemed unsatisfactory, and the condition must be corrected immediately.

    Paragraph (b)(3) of § 3.106 requires water samples to be taken and tested on a weekly basis for coliform count. We are proposing that the coliform count can be either a total coliform count or a fecal coliform count. In the case of a total coliform count, we propose that the coliform count shall not exceed 500 colonies per 100 mL. If a fecal coliform test is used, we propose that the fecal count shall not exceed 400 colonies per 100 mL.18 While total or fecal coliforms are one indicator of fecal contamination, they may not be the best sole criteria for determining true fecal contamination or the health of the water that marine mammals live in. Therefore, in addition to a total coliform or fecal coliform test, we propose to require that one 19 of the following tests also be conducted on a weekly basis:

    18 Van Bonn, William, et al. (eds.), “Maintaining Healthy Marine Mammal Pools,” draft/correspondence (2015). Venn-Watson, S., et al, “Primary bacterial pathogens in bottlenose dolphins Tursiops truncatus: Needles in haystacks of commensal and environmental microbes,” Dis. Aquat Organ, (2008) 79(2): 87-93. Health and Ecological Criteria Division, Office of Science and Technology, EPA, Office of Water 820-F-12-058 “Recreational Water Quality Criteria.”

    19 While we would not require a facility to conduct more than one of these tests on a weekly basis, we would encourage facilities to conduct several of these tests weekly.

    Enterococci count (count shall not exceed 35 colonies per 100 mL); or Pseudomonas count (count shall not exceed 10 colonies per 100 mL); or Staphylococcus count (count shall not exceed 10 colonies per 100 mL).

    These tests are used to indicate fecal contamination as well as pathogens in the water. Enterococci are bacteria that are primarily from the intestinal tract and can be a sensitive indicator of fecal contamination. If a facility only performs a total coliform test, this test would indicate the fecal portion of the coliform contamination. Pseudomonas is a bacterial pathogen very common to lung infections in marine mammals. Its presence in a water sample may indicate either an infection on an animal or the contamination of the environment of the animal with pathogenic bacteria. Staph bacteria can be pathogenic or non-pathogenic in all animals. It is a skin pathogen, and can also cause infections internally. Its presence can be an indicator of contamination and/or possible danger to the animals. We would require that one of these other bacterial tests be conducted, in addition to a total coliform or fecal coliform test, in order to obtain a more complete picture of the water quality of facilities housing marine mammals.

    We propose to redesignate current § 3.106(b)(2), which covers chemical treatment of water, and § 3.106(b)(3), which concerns water sampling procedures, as § 3.106(b)(4) and § 3.106(b)(5), respectively, to accommodate the addition of new paragraphs § 3.106(b)(2) and (b)(3).

    Proposed new paragraph § 3.106(b)(2) provides that if any of the above tests yield results that exceed the allowable bacterial count levels, then two followup samples must be taken to repeat the tests(s) for those bacterial contaminants identified as being present at levels exceeding the standards. The first followup sample would have to be taken immediately after the initial test result, while the second followup sample would have to be taken within 48 hours of the first followup sample. This timing requirement would differ from the existing standard in § 3.106(b), which provides that the two followup samples may be taken at 48-hour intervals.

    The rationale regarding retesting after 48 hours is based on the fact that the lab testing (inoculation or filtration and incubation) takes 48 hours.20 Regardless of testing methods and timing, § 3.106(a) should be the overriding consideration; the water must not be harmful to the animals. This means if high bacterial levels are found, they should be addressed immediately. Although we require averaging of test results when retesting, the goal is to get the coliform count below 500 (proposed standard) as soon as possible.

    20 In APHIS' view, the intent was to retest immediately if the results (48 hours after the initial sampling) exceed the 1000 MPN limit. Logic and bacteriology dictate that the first resample should be at 48 hours from the initial sample.

    This amendment is to clarify the timing of the follow-up test. At it currently reads, some entities interpret the testing to be after the first test results are known. The coliform test, if using traditional microbiological techniques (culture and incubation) takes 48 hours. If the first test is 500 (proposed) MPN, the retesting should be done immediately (relative to knowing the test results).

    In the last 3 years, approximately four citations issued to marine mammal facilities involved high coliform counts without the required retesting.

    Over the years there has been some confusion among regulated facilities and inspectors as to exactly when the followup samples should be taken. This change would address this problem by clarifying that the first followup sample has to be carried out immediately following the initial test result and the second followup sample has to be taken within 48 hours of the first followup sample. We would continue to require that the test results of the three samples be averaged and, if the averaged value of the three samples still exceeds the allowable bacterial counts referenced above, then the pool water would be considered unsatisfactory and its condition would have to be corrected immediately.

    Proposed new paragraph § 3.106(b)(3) would provide that additional testing for suspect pathogenic organisms must be conducted when there is evidence of health problems at the facility or a potential health hazard to the animals. In the past, we have suspected that water-borne pathogens contributed to the poor health of animals at certain facilities; however, the regulations did not require additional testing for pathogens. This change would address that issue in the regulations.

    As discussed above, we would redesignate current § 3.106(b)(2) as § 3.106(b)(4). That paragraph provides that whenever the water is chemically treated, the chemicals shall be added so as not to cause harm or discomfort to the marine mammals, such as eye and skin irritation. We propose to amend the standard to state that any chemicals added to a pool must not cause harm or discomfort to the marine mammals during the introduction of the chemical or during the chemical's presence in the enclosure (in the water, on the surfaces, or in the air). This change would clarify that the health, safety, and welfare of the marine mammals must be taken into consideration not only when chemicals are added to the water, but whenever chemicals are present in and around the water.

    As discussed previously, we would redesignate current paragraph § 3.106(b)(3) as § 3.106(b)(5). That paragraph contains the standards for water sampling and states that water samples shall be taken and tested at least weekly for coliform count and at least daily for pH and any chemicals (e.g., chlorine and copper) that are added to the water to maintain water quality. Facilities that use natural seawater must test for coliforms, but are exempt from pH and chemical testing unless chemicals are added to the seawater to maintain water quality. Records must be kept that document when samples are taken and the test results. Records of the test results must be maintained by management for a 1-year period and must be made available for inspection by APHIS upon request.

    We would remove the references to coliform testing in paragraphs (b)(1) and (b)(3) of § 3.106, since this subject would be covered in proposed § 3.106(b)(1). Under proposed § 3.106(b)(5), we would continue to provide that facilities must conduct daily testing for pH, as well as for any chemicals (e.g., chlorine, ozone, and copper) that are added to the water. We propose to add a new requirement that the water also be tested daily for salinity to ensure conformance with the salinity standards set out in proposed § 3.106(c). We would remove the reference to “facilities using natural seawater” and substitute in its place the term “natural lagoon and coastal enclosures.” Facilities consisting of natural lagoon or coastal enclosures would continue to be exempt from pH testing but would be subject to testing for salinity, as well as testing for any chemicals that have been added.21

    21 Enclosures that are not explicitly sea pens would need to be monitored and salinity adjusted as needed. There are approximately five facilities that pump sea water directly into on-land enclosures. These facilities would need to be monitored and salinity adjusted. The salinity adjustments would likely be for only 1-2 weeks a year to compensate for excessively rainy periods that would decrease salinity near the input pipes.

    Finally, we would move the discussion of water sampling recordkeeping from current § 3.106(b)(3) to a new paragraph, § 3.106(b)(6). This amendment would require that all water quality records be kept on site, not at a management office if that is located elsewhere. This will save APHIS time and effort in reviewing the records. APHIS needs to review the records at every inspection, as assessing the bacterial loads and the chemical make-up of the water is necessary to ensuring the health and welfare of the animals. For example, by reviewing such records, chlorine levels could be correlated with the eye issues of the animals in the enclosure. Identifying a probable cause not only will improve the welfare and health of the animal, but may speed the diagnosis of the underlying issue so that proper care can be provided.

    We would also require that, in addition to noting the time of testing, the facility must document the date and location of the testing, including the particular pool and the sampling site within the pool. We would continue to provide that the records be maintained for a 1-year period. However, instead of providing that the records be maintained “by management,” which could be at a location away from the facility, we propose to require that the records be maintained “at the facility.” This would ensure that the records would be readily available to APHIS inspectors during inspections. We would also clarify the current requirement that records “must be made available for inspection purposes on request” to instead state that the records “must be made readily available to APHIS inspectors.”

    Paragraph (c) of § 3.106 contains the salinity standards for primary enclosure pools, providing that such pools of water shall be salinized for marine cetaceans as well as for those other marine mammals which require salinized water for their good health and well-being. The current standards provide that water salinity shall be maintained within a range of 15-36 parts per thousand.

    We are proposing to amend the salinity standards in § 3.106(c) to reflect the current level of scientific knowledge and accepted industry practices. Specifically, instead of providing that the salinity standards shall apply “to marine cetaceans and other marine mammals that require salinized water for their good health and well-being,” we would be more specific in stating that “all primary enclosure pools must be salinized for cetaceans, pinnipeds, and sea otters.” However, we would specifically exempt from this requirement enclosures housing river dolphins and other species in fresh water, as well as enclosures housing pinnipeds that are provided salt supplements at appropriate levels, as determined by the attending veterinarian, and daily saltwater eye baths. We expect this will minimize additional costs and renovations at existing facilities.

    We are also proposing to amend the currently required salinity range of 15-36 parts per thousand to a range of 24-36 parts per thousand in order to more closely approximate the salinity levels marine mammals encounter in their natural environments beyond certain coastal areas.22 However, in the case of natural lagoon or coastal enclosures, where salinity can be lower due to mixing with freshwater sources entering into the oceans, we would require that the salinity level be no less than 15 parts per thousand, which is the lower limit of the currently allowed salinity range. If the salinity level falls below this level in such enclosures, the marine mammal facilities would have to temporarily house the animals in another enclosure where salinity can be controlled. We would further provide that the salinity requirements in § 3.106(c) would not preclude the use of other salinity levels when prescribed by the attending veterinarian to treat a specific medical condition or conditions. This proposed standard is not intended to limit treatment options prescribed by the attending veterinarian.

    22http://sam.ucsd.edu/sio210/lect_2/lecture_2.html; SIO 210 Talley Topic 2: Properties of seawater, Lynne Talley, 2000.

    The benefits of requiring salinity monitoring and increasing the lower limit that is acceptable will benefit the health and well-being of the animals by maintaining pools closer to the actual conditions the animals would find in nature. The combination of the requirements regarding salinity will allow our inspectors to better assess the welfare of the marine mammals and potentially prevent any ongoing eye 23 or skin problems that can be associated with salinity issues.

    23 See footnote 13.

    Paragraph (d) of § 3.106 currently covers filtration and water flow. We are proposing to redesignate § 3.106(d) as § 3.106(e). In addition, we propose to add that water quality may also be maintained through naturally occurring tidal flow. This change would address those facilities with natural lagoon or coastal enclosures.

    Finally, we propose to add a new § 3.106(d) covering the subject of water clarity. Although this subject is addressed generally in § 3.106(a), in recent years members of the public have contacted APHIS to express concern over the appearance of pool water at facilities. For our purposes, we believe pool water should be clear enough for caretakers to observe the animals. Therefore, under proposed § 3.106(d), we would require that pools be maintained in such a manner as to provide sufficient water clarity to view the animals in order to observe them and monitor their behavior and health. This performance-based requirement would provide flexibility while ensuring that the animals can be observed at any depth or placement in the pool in order to promote their health and well-being. If an animal cannot be observed clearly, it cannot be provided adequate animal welfare.

    Interactive Programs

    Section 3.111 contains additional regulatory requirements covering swim-with-the-dolphin (SWTD) programs. Specifically, § 3.111 includes provisions relating to space requirements, water clarity, employees and attendants, program animals, handling, recordkeeping, and veterinary care.

    As previously discussed, in 1999 we suspended enforcement of the SWTD requirements found in § 3.111 and related definitions found in § 1.1. At that time, we solicited public comment on all aspects of the suspended regulations and on all human/marine mammal interactive programs. We accepted comments until July 1, 1999, and received 20 comments by that date.

    The proposed changes to § 3.111 are based on the information contained in those comments; on our review of the comments received in response to the January 23, 1995, proposed rule; on information made available to us by the public following publication of the September 4, 1998, final rule; on our review of the ANPR comments; and on our experience enforcing the Act and the regulations. The proposed changes to § 3.111 are intended to address the need to monitor interactive programs, while giving consideration to program histories,24 enforcement history, information and scientific documentation on the effects of interactive programs on marine mammals, the general health and well-being requirements already in effect regarding marine mammals, and the need to avoid promulgation of redundant provisions. We set forth the proposed standards as performance-based standards wherever we believe such an approach is feasible and supportable by current information and scientific documentation.

    24 We note that interactive programs have been operating for over 20 years without any indications of health problems or significant and ongoing incidents of aggression in marine mammals, as evidenced by medical records maintained by licensed facilities and observations by experienced APHIS inspectors.

    Throughout proposed § 3.111, we would use the term “marine mammal(s)” in place of “cetaceans.” We would also use the term “interactive program(s)” in place of SWTD program(s). These changes are designed to clarify that programs may involve animals other than cetaceans (i.e., sea lions) and may involve activities other than swimming with the animal (i.e., programs where the participants sit on a dock or ledge, including therapeutic sessions).

    The current introductory paragraph to § 3.111 provides that SWTD programs shall comply with the requirements in this section, as well as with all other applicable requirements of the regulations pertaining to marine mammals. We propose to amend this introductory paragraph to more specifically provide that all marine mammal interactive programs must comply in all respects with the regulations set forth in 9 CFR parts 2 and 3, which address animal welfare.

    Paragraph (a) of § 3.111 provides the space requirements for the primary enclosure used by animals in an interactive program. This includes the interactive area, a buffer area, and the sanctuary area. The regulations provide that none of these areas shall be made uninviting to the animals, and that movement of cetaceans into the buffer or sanctuary area shall not be restricted in any way. The space requirements for each of the three areas are based upon the “horizontal dimension,” the minimum surface area, the average depth, and minimum volume.25 The horizontal dimension for each area must be at least three times the average adult body length of the species of cetacean used in the program. The minimum surface area required for each of the three areas is calculated as follows:

    25 The space requirements, as promulgated in 1984, were based on circular pools, as most if not all pools were circular at that time. Many pools today are neither circular nor rectangular, but rather more natural curved shapes. The AWA requirements mean that there will be at least the minimum area in the pool, which is sufficient space at the surface of the pool for all marine mammals in the enclosure to be able to breathe at the surface and have a degree of freedom of movement while at the surface.

    • Up to two cetaceans: Surface area = (3 × average adult body length/2)2 × 3.14;

    • Three cetaceans: Surface area = (3 × average adult body length/2)2 × 3.14 × 2; and

    • Additional surface area for each animal in excess of three: Surface area = (2 × average adult body length\2)2 × 3.14.

    Generally, the average depth for sea pens, lagoons, and similar natural enclosures at low tide shall be at least 9 feet. The average depth for manmade enclosures or other structures not subject to tidal action shall also be at least 9 feet. The minimum volume required for each animal must equal 9 times the minimum surface area.

    We are proposing that the sanctuary area for interactive programs meet the space requirements set forth in current and proposed § 3.104. The interactive area, however, would not have to meet the space requirements set forth in proposed § 3.104. Instead, we are proposing to require that the interactive area provide sufficient space for all marine mammals to freely swim or move about, consistent with the type of interaction. We believe that this performance-based standard would provide flexibility while promoting the health and well-being of the animals. We seek comment on this, and request any published scientific data or studies on this issue.

    We are also proposing to remove the requirement for a separate buffer area. We are removing this requirement because we have found that it is unnecessary to require both a buffer area and a sanctuary area as long as the animal has unrestricted access to a sanctuary area. The intent of the buffer area was to provide a place where the animals could leave the interactive area but still be eligible for recall to the interactive area. This requirement has not been shown to be necessary for the welfare of the animals during the 20 years that these programs have been under USDA jurisdiction, and the requirement of no recall from the sanctuary area is sufficient to safeguard the animals during the interactive sessions. The sanctuary area is sufficient to safeguard the animal during the interactive sessions.

    As proposed, § 3.111(a) would provide that each animal must have unrestricted access to the interactive area and the sanctuary area during an interactive session. Neither area shall be made uninviting to the animals. As previously discussed, the interactive area would not have to meet the minimum space requirements set forth in proposed § 3.104, but it must provide sufficient space for all marine mammals to freely swim or move about, consistent with the type of interaction, even with a full complement of public participants and employees in the area. We propose to require that the sanctuary area meet the minimum space requirements provided in § 3.104. Proposed paragraph (a) of § 3.111 would also provide that the sanctuary area may be within the enclosure containing the interactive area or it may be within a second enclosure to which free and unrestricted access is provided during the interactive session. The degree of free and unrestricted access would be assessed by the facility and the inspector through observation of whether the animals move freely between the areas during non-interactive periods.

    Under current § 3.111(b), interactive programs are subject to certain water clarity standards. Paragraph (b) provides that sufficient water clarity be maintained so that attendants are able to observe cetaceans and humans at all times while within the interactive area. If water clarity does not allow these observations, the interactive sessions shall be canceled until the required clarity is provided. We propose to make only one change to § 3.111(b). We would substitute the phrase “marine mammals and the human participants” in place of “cetaceans and humans” for the reasons discussed previously.

    Paragraph (c) of § 3.111 sets forth the minimum qualification requirements for personnel associated with a SWTD program. Each program must have a licensee or manager with at least 6 years of experience dealing with captive cetaceans; at least one head trainer/behaviorist with at least 6 years of experience in training cetaceans for SWTD behaviors, or an equivalent amount of experience involving in-water training of cetaceans; at least one full-time staff member with at least 3 years training and/or handling experience involving human/cetacean interaction programs; an adequate number of staff members who are adequately trained in the care, behavior, and training of the program animals; and at least one staff or consultant veterinarian who has at least the equivalent of 2 years full-time experience with cetacean medicine within the past 10 years, and who is licensed to practice veterinary medicine.

    We are proposing to amend § 3.111(c) so that personnel qualifications are not based entirely on job titles and absolute years of experience and training. We would instead provide standards that are based on the level of knowledge and skill needed to be a head trainer, or other trainers and attendants. This would provide the licensee or registrant greater flexibility to hire the most qualified individuals. We would also remove from § 3.111(c) the specific standards for the attending veterinarian. We believe that the current requirements in § 2.40 and § 3.110 provide sufficient oversight and guidance on this subject; interactive programs have not been shown to need additional restrictions.

    In proposed § 3.111(c), we would change the heading from “Employees and attendants” to “Employees.” We propose to require that each interactive program have a sufficient number of adequately trained personnel to meet the husbandry and care requirements for the animals and comply with all training, handling, and attendant requirements of the regulations. We propose to provide that, during interactive sessions, there must be a trainer, handler, and sufficient number of adequately trained attendants, as specified in § 3.111(d)(4), which is discussed below.

    In proposed § 3.111(c)(1), we would require that the head trainer/supervisor of the interactive program have demonstrable in-depth knowledge of the husbandry and care requirements of the family and species of marine mammals being exhibited, demonstrable knowledge of and skill in currently accepted professional standards and techniques in animal training and handling, and the ability to recognize normal and abnormal behavior and signs of behavioral stress in the animal families and species being exhibited. This proposed standard would differ from the current regulations, which focus on the person having a specific number of years of appropriate experience.

    In proposed § 3.111(c)(2), we would require that all interactive program trainers and attendants have the knowledge and skill level sufficient to safely conduct and monitor an interactive session.

    Current paragraph (d) of § 3.111 specifies what animals are eligible to participate in SWTD programs, providing only for cetaceans that meet certain requirements with respect to training and conditioning in human interaction, as well as being under the control of a trainer, handler, or attendant during sessions with the public as described and defined in the NOAA-sponsored study by Samuels and Spradlin (1994 and 1995) cited above. Such animals must also be in good health. We are proposing to remove this paragraph in its entirety, removing the provision that limits program animals to cetaceans. The standards relating to conditioning, the presence of trainers or attendants, and animal health are sufficiently covered in other paragraphs of § 3.111.

    The introductory text of current paragraph (e) of § 3.111 covers the handling of cetaceans used in interactive sessions. With the removal of § 3.111(d) on program animals, we would redesignate § 3.111(e) as § 3.111(d), as well as make a number of other changes to simplify and clarify the handling requirements.

    Paragraph (e)(1) of § 3.111 provides that the interaction time for “each cetacean” shall not exceed 2 hours per day and that each program cetacean shall have at least one period in each 24 hours of at least 10 continuous hours without public interactions. In newly designated § 3.111(d)(1), we propose to provide that the interactive time between marine mammals and the public (i.e., interactive session) not exceed 3 hours per day. We are making this change based on information provided by licensees with long-standing interactive programs involving, for example, bottlenose dolphins, beluga whales, spinner dolphins, California sea lions, and harbor seals, which suggested that the marine mammals would not be harmed by a modest increase in interactive time per day, and a study of Atlantic bottlenose dolphins showing that interactive programs can be an important part of an enrichment program.26 The requirement of at least 10 continuous hours without public interactions would remain in effect. We request data or evidence supporting or opposing this change.

    26 See also L.J. Miller, J. Mellen, T. Greer, S.A. Kuczaj II, “The effects of education programs on Atlantic bottlenose dolphin.” Animal Welfare (2011): 159-172, for a discussion on interactive time limits. We acknowledge that while a limited number of species other than bottlenose dolphins are used in interactive programs, there is scant published scientific information available on the effect of education programs on these species.

    Paragraph (e)(2) of § 3.111 provides that cetaceans used in interactive sessions shall be adequately trained and conditioned in human interaction, with the head trainer/behaviorist, trainer/supervising attendant, or attendant maintaining control of the nature and extent of the animal's interaction with the public at all times consistent with the findings and recommendations in the NOAA-sponsored study by Samuels and Spradlin (1994 and 1995) cited above. In newly designated § 3.111(d)(2), we propose to simplify this requirement to apply to the “trainer, handler, or attendant.”

    Newly designated § 3.111(d)(3) would parallel § 3.111(e)(3) of the current regulations by requiring that marine mammals be free of infectious disease and in good health. In addition, we would provide that marine mammals undergoing veterinary treatment may be used in interactive sessions only with the written approval of the attending veterinarian.

    Current paragraph (e)(4) of § 3.111 provides that the ratio of human participants to cetaceans shall not be greater than 3 to 1. Paragraph (e)(4) also provides that the ratio of human participants to attendants or other authorized SWTD personnel (i.e., head trainer/behaviorist or trainer/supervising attendant) shall also not exceed 3 to 1. In newly designated § 3.111(d)(4), instead of requiring the presence of a fixed number of certain personnel, we propose to require that there be a sufficient number of session attendants (which includes trainer, handler, or attendants) to effectively conduct the session in a safe manner. We propose this requirement based on the fact that the number of human participants and marine mammals swimming freely during such a session would determine the number of attendants needed to monitor and ensure the safety of all animal and human participants. This situation is different from a session in which fewer animals are used and participants are restricted to staying on a wharf or standing in shallow water.

    We also propose to require at least one attendant per marine mammal in the session, and at least one attendant positioned to monitor each session. We would also provide that the number of public participants per marine mammal must not exceed the number that the attendant can monitor safely, appropriate to the type of interactive session.27 These changes are intended to take into account the differences between shallow-water interactive programs (i.e., sessions during which the marine mammal remains relatively stationary) and other interactive programs. We believe these changes would provide greater flexibility to interactive programs while still ensuring proper supervision to ensure the health and safety of marine mammals and human participants. We seek comment on this, and on any data or studies that support or refute this requirement.

    27 The number of attendants required to monitor each session may vary by facility according to how many are needed to ensure the safety of the animals and human participants involved in the interactive session. The programs are observed routinely by the attending veterinarian and the APHIS inspector to ensure safe functioning of the program.

    Paragraph (e)(5) of § 3.111 provides that, prior to participating in an SWTD interactive session, public participants shall be provided with oral and written rules and instructions for the session, to include the telephone and fax numbers for APHIS, Animal Care, for reporting injuries or complaints. Public participants must agree in writing to abide by the rules and instructions before participating in an interactive session. Any public participant who fails to follow the rules or instructions will be removed from the interactive session by the facility.

    Under newly redesignated § 3.111(d)(5), we would continue to require that participants be provided with oral rules and instructions prior to participating in the session; however, we propose to remove the requirement that participants must agree in writing to abide by the rules and instructions before being allowed to participate in the session. This requirement is unnecessary since we can enforce the regulations whether or not a participant has signed such an agreement. We would add a requirement that a copy of the written rules be made available to APHIS during an inspection. Furthermore, instead of requiring that participants be provided telephone and FAX numbers for APHIS, Animal Care, for reporting injuries or complaints, we propose to require that participants be provided with contact information for the appropriate Animal Care Field Operations office. We propose that this could be provided either in the form of a written handout to attendees, or in a notice, posted in a highly visible location, that summarizes the rules and instructions for the session and includes contact information for the appropriate Animal Care Field Operations office for reporting injuries or complaints.

    We would also clarify the grounds for expelling session participants by providing that any participant who fails to follow the rules and instructions and jeopardizes human or animal safety or health must be immediately removed from the session by the facility management.

    Paragraph (e)(6) of § 3.111 provides that all interactive sessions shall have at least two attendants or other authorized personnel (i.e., head trainer/behaviorist or trainer/supervising attendant). At least one attendant shall be positioned out of the water, while one or more attendants or other authorized personnel may be positioned in the water. If a facility has more than two incidents (defined as when a participant or an animal has been harmed or the marine mammal exhibits aggression) during interactive sessions within a year's time span involving human or animal injury or aggression by the animal, APHIS, in consultation with the head trainer/behaviorist, will determine if changes in attendant positions are needed.

    We are proposing to remove paragraph (e)(6) in its entirety. The requirements regarding the presence of session attendants at an interactive session would be covered as part of newly designated § 3.111(d)(4). Proposed § 3.111(d)(4) would require that there be at least one attendant per marine mammal in the session, and at least one attendant positioned to monitor the session. However, the new standards in proposed § 3.111(d)(4) would not include specific language requiring APHIS consultations with the trainer to discuss personnel changes in cases where the facility has had more than two session incidents over a year's time that would be considered dangerous or harmful to the animal or the human participant. We do not believe this provision is necessary based on the available accident and injury data and taking into account our authority under the Act to respond to any incident.

    Current paragraph (e)(7) of § 3.111 provides that all SWTD programs shall limit interaction between cetaceans and humans so that the interaction does not harm the cetaceans, does not remove the element of choice from the cetaceans by actions such as, but not limited to, recalling the animal from the sanctuary area, and does not elicit unsatisfactory, undesirable, or unsafe behaviors from the cetaceans. All SWTD programs shall prohibit grasping or holding of the cetacean's body, unless under the direct and explicit instruction of an attendant eliciting a specific cetacean behavior, and shall prevent the chasing or other harassment of the cetaceans.

    We propose to amend these provisions to simplify and clarify them. The amended standards would be located in newly designated § 3.111(d)(6) and in a new § 3.111(d)(7). In newly designated § 3.111(d)(6), we would provide that all interactive programs would have to limit interactions between marine mammals and human participants so that the interaction does not present an undue risk of harm to the marine mammal or humans, and does not restrict by word, action, or enclosure design, the ability of the animal to leave the interactive area and session as it chooses. Recalling animals from the sanctuary area would still not be allowed. If an animal removes itself or is removed from a session, the facility must maintain the appropriate balance of public participants per marine mammal, as discussed previously under proposed § 3.111(d)(4), by either removing human participants from the interactive area or introducing another animal.

    In proposed § 3.111(d)(7), we would provide that all interactive programs must prohibit grasping or holding of the animal's body unless it is done under the direct and explicit instruction of the attendant. In addition, we would provide that all interactive programs must prohibit the chasing or other harassment of the animal(s). The proposed language in newly redesignated § 3.111(d)(7) would closely parallel requirements that appear in the current § 3.111(e)(7).

    Paragraph (e)(8) of § 3.111 provides that, in cases where cetaceans exhibit unsatisfactory, undesirable, or unsafe behaviors during an interactive session, including, but not limited to, charging, biting, mouthing, or sexual contact with humans, such cetaceans shall either be removed from the interactive area or the session shall be terminated. Written criteria shall be developed by each SWTD program, and shall be submitted to and approved by APHIS regarding conditions and procedures for maintaining compliance with the required ratios of human participants to cetaceans and human participants to attendants, procedures for the termination of a session when removal of a cetacean is not possible, as well as procedures for handling program animals exhibiting unsatisfactory, undesirable, or unsafe behaviors, including retraining time and techniques, and removal from the program and/or facility, if appropriate. Paragraph (e)(8) provides that the head trainer/behaviorist shall determine when operations will be terminated, and when they may resume. In the absence of the head trainer/behaviorist, the determination to terminate a session shall be made by the trainer/supervising attendant. Only the head trainer/behaviorist may determine when a session may be resumed.

    We would redesignate § 3.111(e)(8) as § 3.111(d)(8). In newly designated § 3.111(d)(8), we propose to provide that marine mammals that exhibit unsatisfactory, undesirable, or unsafe behaviors, including, but not limited to, charging, biting, mouthing, or sexual contact with humans, must be removed from the interactive session immediately, or, if the animal cannot be removed, that the session be terminated. We propose to remove the requirement that the facility's staff determine when operations or sessions at the facility shall be terminated and when they resume. The focus would instead switch to the marine mammal(s) in question. We would provide that such animals must not be used in an interactive session until the trainer determines that the unsatisfactory, undesirable, or unsafe behavior is no longer being exhibited by the marine mammal. We would also simplify the requirements regarding the facility having a written plan in place in the case of a disruption due to the behavior of one or more marine mammals. We propose to require that written criteria that addresses the termination of a session due to such behavior and the retraining of such an animal be developed and maintained at the facility, and also be made available to APHIS during inspection or upon request. The written criteria must also disclose how the facility would maintain session staffing requirements, as provided in proposed § 3.111(d)(4), in the event of a disruption caused by one or more marine mammals during a session.

    Paragraph (g) of § 3.111 requires that the attending veterinarian carry out certain duties with regard to animals used in interactive programs. This includes on-site evaluations of each cetacean at least once a month, as well as examination of related behavioral, feeding, and medical records, and discussion of each animal with the appropriate animal care personnel at the facility. The attending veterinarian must record the nutritional and reproductive status of each cetacean. The attending veterinarian must also observe an interactive session at the facility at least once a month. In addition, the attending veterinarian is required to conduct a complete physical examination of each cetacean at least once every 6 months, which must include a complete blood count and serum chemistry analysis, as well as the taking of smear tests for cytology and parasite evaluation. The attending veterinarian is responsible for examining water quality records. Paragraph (g) of § 3.111 also provides a timetable for conducting a necropsy in the event a cetacean dies. Complete necropsy results, including all appropriate histopathology, shall be recorded in the cetacean's individual file and shall be made available to APHIS officials during facility inspections, or as requested by APHIS.

    We would remove § 3.111(g) as written and provide a new paragraph, § 3.111(e), on veterinary care. In response to the large number of comments on the lack of supporting evidence for requiring veterinary care measures beyond those required for all other marine mammals, we would provide that the facility would have to comply with all provisions in §§ 2.33, 2.40, and 3.110. Section 2.33 contains provisions on attending veterinarians and adequate veterinary care at research facilities, while § 2.40 contains provisions on attending veterinarians and adequate veterinary care applicable to animals held by dealers or exhibitors of animals. Section 3.110 provides veterinary care standards for marine mammals generally, as well as necropsy requirements should a marine mammal die in captivity. In addition to meeting the requirements of §§ 2.33, 2.40, and 3.110, proposed § 3.111(e) would require the attending veterinarian to observe an interactive session at least once a month or observe each interactive session if they are offered less frequently than twice a month, and review the feeding records, behavior records, and water quality records at least biannually or as often as needed to assure the health and well-being of the marine mammals.

    Paragraph (f) of § 3.111 contains the recordkeeping requirements for facilities with interactive programs. We are proposing to amend § 3.111(f) by streamlining its content to reduce the burden on the regulated parties while continuing to require certain documentation for effective enforcement of the regulations and standards.

    Paragraph (f)(1) of § 3.111 provides that each facility shall provide APHIS with a description of its program at least 30 days prior to initiation of the program, or not later than October 5, 1998 in the case of any program in place before September 4, 1998. The description shall include at least the following information: Identification of each cetacean in the program; a description of the educational content and agenda of planned interactive sessions, and the anticipated average and maximum frequency and duration of encounters per cetacean per day; the content and method of pre-encounter orientation, rules, and instructions; a description of the SWTD facility, including the primary enclosure and other SWTD animal housing or holding enclosures at the facility; a description of the training, including actual or expected number of hours each cetacean has undergone or will undergo prior to participation in the program; the resume of the licensee and/or manager, the head trainer/behaviorist, the trainer/supervising attendant, any other attendants, and the attending veterinarian; the current behavior patterns and health of each cetacean, to be assessed and submitted by the attending veterinarian; for facilities that employ a part-time attending veterinarian or consultant arrangements, a written program of veterinary care (APHIS form 7002), including protocols and schedules of professional visits; and a detailed description of the monitoring program to be used to detect and identify changes in the behavior and health of the cetaceans.

    In proposed § 3.111(f)(1), we would continue to require that each facility provide APHIS with a description of its program at least 30 days prior to initiation of the program, or in the case of any program in place before the date a final rule is published, not later than 30 days after the effective date of the final rule. We also propose to provide that facilities that submitted the required documentation during the period of October through December 1998, and received approval letters, need only submit information that has changed. These letters were issued to approximately 16 facilities.

    In proposed § 3.111(f)(1)(ii), we would clarify that the session agenda would have to include, at a minimum, written information distributed, topics addressed prior to entry in the water, and the planned program, including behaviors and activities expected to be presented or performed. We propose to delete current § 3.111(f)(1)(iii), which requires that the program description cover pre-encounter orientation. A similar requirement would appear in proposed § 3.111(f)(1)(ii). With the deletion of § 3.111(f)(1)(iii), we would redesignate paragraphs (f)(1)(iv) through (f)(1)(vi) of § 3.111 as (f)(1)(iii) through (f)(1)(v).

    Current paragraph (f)(1)(iv) of § 3.111 requires that the program description include a description of the SWTD facility, including the primary enclosure and other SWTD animal housing or holding enclosures at the facility. In newly designated § 3.111(f)(1)(iii), we propose to clarify this requirement by providing that the program description must include a description of the interactive program enclosures, including identification of nonsession housing enclosures, sanctuary area, and interactive area. All enclosures housing or used by program animals would have to be covered in the description.

    Current paragraph (f)(1)(v) of § 3.111 provides that the program description cover the training each cetacean has undergone or will undergo prior to participation in the program. This includes the actual and expected number of hours of training. We propose making this requirement more performance-based. In newly designated § 3.111(f)(1)(iv), we would instead require that the program description include verification from the trainer that the program animals have received adequate and appropriate training for an interactive program. We would not require that the training description specifically include the number of hours of actual or expected training. Paragraph (f)(1)(vi) of § 3.111 currently provides that the program description include the resume of the licensee and/or manager, the head trainer/behaviorist, the trainer/supervising attendant, any other attendants, and the attending veterinarian. We propose to amend this requirement in newly designated § 3.111(f)(1)(v) to provide that the facility description include documentation of the experience and training of the trainer, handler, attendants, and attending veterinarian.

    We propose to eliminate the requirements, currently appearing in § 3.111(f)(1)(vii) through (ix), that the facility description include information regarding the current behavior patterns and health of each cetacean, a written program of veterinary care for facilities that utilize a part-time attending veterinarian or consultant, and a detailed description of the monitoring program to be used to detect and identify changes in the behavior and health of the cetaceans. These requirements are redundant to what would already be required elsewhere in the regulations for maintaining medical and behavioral records for marine mammals held in captivity.

    Current paragraph (f)(2) of § 3.111 provides that all SWTD programs shall comply in all respects with the regulations and standards set forth in 9 CFR parts 2 and 3. We would remove this language. A similar requirement would instead appear in the introductory paragraph at the beginning of § 3.111.

    Paragraph (f)(3) of § 3.111 requires that all individual animal veterinary records, including all examinations, laboratory reports, treatments, and necropsy reports, be kept at the facility site for at least 3 years, while § 3.111(f)(4) requires that the facility retain for at least 3 years individual feeding and behavioral records. These records must be made available to APHIS officials during inspection. We would combine the information provided in paragraphs (f)(3) and (f)(4) into one paragraph, newly designated § 3.111(f)(2), which would require that medical, feeding, water quality, and any behavioral records be kept at the facility for at least 1 year. This is consistent with other recordkeeping requirements in the subpart. We would, however, continue to require that necropsy records be maintained for 3 years (§ 3.110(g)(2)). We would also continue to require that the records be made available to APHIS officials during inspection.

    Paragraph (f)(5) of § 3.111 requires that the facility retain for at least 3 years certain statistical summaries involving the amount of time each day that animals participated in an interactive session, as well as the number of persons who participated in the interactive sessions per month. We propose to amend this requirement, to appear at newly designated § 3.111(f)(3), to instead provide that records of individual animal participation times (date, start time of interactive session, and duration) must be maintained by the facility for a period of at least 1 year and be made available to APHIS officials during inspection. It would no longer be necessary for facilities to maintain statistical summaries of the number of persons who participated in the interactive program each month.

    Paragraph (f)(6) of § 3.111 requires the facility to submit on a semi-annual basis a description of any changes made in the SWTD program. We propose to remove this paragraph. A new paragraph addressing these requirements on program changes would appear as proposed § 3.111(f)(5), discussed below.

    Current § 3.111(f)(7) provides that facilities must maintain records regarding all incidents resulting in injury to either cetaceans or humans participating in an interactive session. All such incidents shall be reported to APHIS within 24 hours of the incident and a written report of the incident that provides a detailed description of the incident and a plan of action for the prevention of further occurrences shall be submitted to the Administrator within 7 days. We would make certain changes to this provision, which would appear at newly designated § 3.111(f)(4). We propose to expand the applicability of this provision to apply not only in cases of injury to human participants or marine mammals, but also to other members of the public and facility staff. In addition, we propose to require that incidents that occur during training sessions also be reported. We would require this reporting so that we would have information about all incidents at a facility, not just those incidents involving members of the public, and we would be able to identify any patterns or problem areas that need to be addressed. We would continue to require that the incident be reported to APHIS within 24 hours of its occurrence, with a written report to be submitted to APHIS within 7 days. We would clarify that the 7-day deadline means 7 calendar days. We would add that, in addition to detailing the incident, the written report must also describe the facility's response to the incident. We would no longer require that the written report specifically include a plan of action for the prevention of further occurrences. We are proposing the latter change as we have determined from experience that working directly with the licensee after an incident is a more timely and flexible means to ensure that adequate measures are in place to prevent such an incident from occurring again.

    We propose to add a new paragraph, to appear at § 3.111(f)(5), which would provide that any changes to the interactive program, such as, but not limited to, personnel, animals, facilities (enclosures and interactive areas), and behaviors used, must be submitted to APHIS within 30 calendar days of the change. As long as the change is consistent with requirements, no additional approval from APHIS would be needed. If there is any question of the change being consistent with requirements, APHIS would relay the information to the inspector to discuss with the licensee. This requirement would replace an existing requirement found at § 3.111(f)(6) that provides that the facility must submit on a semi-annual basis a description of any changes made in the SWTD program.

    Miscellaneous

    We also propose to make a number of minor editorial changes in various sections for clarity and consistency.

    Executive Orders 12866 and 13563 and Regulatory Flexibility Act

    This proposed rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

    We have prepared an economic analysis for this rule. The economic analysis provides a cost-benefit analysis, as required by Executive Orders 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The economic analysis also provides an initial regulatory flexibility analysis that examines the potential economic effects of this rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. Copies of the full analysis are available by contacting the person listed under FOR FURTHER INFORMATION CONTACT or on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov).

    Based on the information we have, there is no reason to conclude that adoption of this proposed rule would result in any significant economic effect on a substantial number of small entities. However, we do not currently have all of the data necessary for a comprehensive analysis of the effects of this proposed rule on small entities. Therefore, we are inviting comments on potential effects. In particular, we are interested in determining the number and kind of small entities that may incur benefits or costs from the implementation of this proposed rule.

    We are proposing to amend six sections of 9 CFR part 3 subpart E: § 3.100 on variances and implementation dates; § 3.102 on indoor facilities; § 3.103 on outdoor facilities; § 3.104 on space requirements, § 3.106 on water quality; and § 3.111 on swim-with-the-dolphin programs. Objectives of this proposed rule are to provide regulated facilities with more flexibility in meeting the space requirements (§ 3.100); prevent the accumulation of chlorine/chloramine fumes, ammonia fumes, ozone, other gases, and odors; maintain relative humidity; and provide lighting that simulates natural lighting patterns for healthy animal metabolism (§ 3.102); ensure proper air and water temperature standards, and provide shelter to protect animals from overheating and sunburn due to direct sunlight (§ 3.103); provide easy access and exit for pinnipeds, polar bears, and sea otters of all ages and infirmities to ensure that young, elderly, and ill or infirm animals are able to get out of the water to access their dry resting or social activity area (§ 3.104); provide water quality standards including requirements relating to bacterial standards, salinity, filtration, and water flow (§ 3.106); and address the need to avoid promulgation of redundant provisions and enable APHIS to again enforce regulations covering marine mammal interactive programs which have been suspended since 1999 (§ 3.111).28

    28 Refer to the “Interactive Programs” section of the proposed rule for more information on the enforcement of interactive programs.

    The entities primarily affected by this proposed rule would be 115 facilities that handle or maintain marine mammals in captivity, such as aquariums, zoos, marine life parks, marine mammal rehabilitation and conservation facilities that are open to the public, and research facilities. Other stakeholders include, but are not limited to, organizations and individuals who are dedicated to improving the welfare of marine mammals in captivity, other Federal agencies that are responsible for the protection and conservation of marine mammals, as well as members of the general public who view and interact with marine mammals in captivity.

    A total of 1,544 marine mammals are listed in the latest APHIS inspection data: Dolphins (35 percent), sea lions (25 percent), and seals (21 percent) are the principal species housed at regulated facilities, followed by polar bears (5 percent), sirenians (4 percent), sea otters (3 percent), whales other than killer whales (3 percent), killer whales (2 percent) and walruses (1 percent). The number of marine mammals housed per facility varies from fewer than 4 animals (48 facilities or 42 percent of the 115 facilities) to over 50 animals (4 facilities or 3 percent of the total). Two-thirds of the 115 facilities currently house fewer than 9 marine mammals, and 13 facilities (11 percent) house more than 25 marine mammals. The average number of marine mammals housed is 13.

    This proposed rule would directly impact these regulated facilities. Categories of expected benefits and costs of the proposed rule are summarized in Table 1.29 As for the monetized costs, we estimate that one-time costs to the industry would total about $131,000 to $156,000 for providing easy access and exit ramps for pinnipeds, polar bears, and sea otters; individual visual barriers for sea otters; and portable refractometer for salinity testing. Annual recurring costs would total about $574,000 to $604,000 for shelters and bacterial testing for water quality. We estimate that the total additional annual revenue for the marine mammal interactive industry would be about $23 million to $24 million, but we lack data with which to estimate profits—which, rather than revenues, represent the benefits of this proposed rule's interactive program provision. We encourage the public to provide information that would help us to refine these estimates.

    29 The proposed changes are intended to benefit the welfare of marine mammals in captivity. These benefits are included in the table without monetizing as no studies or models to quantify these benefits are available. Impacts for the individual facilities would vary due to the degree to which they are already in compliance with the proposed amendments, and because various approaches and applications could be used when changes are needed. The proposed rule also includes certain changes that are for clarification purposes only, or for which the majority of affected entities are already in compliance. For these changes, we expect little or no associated economic impact, and they are therefore not included in the table.

    Table 1—Summary of Expected Benefits and Costs of the Proposed Rule Sections Expected benefits
  • (Benefits are primarily qualitative and are not monetized)
  • Expected costs One-time costs Annual recurring costs
    § 3.100 Variance Make this section operative again and provide more flexibility None None. § 3.102 Indoor facilities Ventilation: Reduce risks of skin and mucous membrane irritation and bacterial and mold growth Ventilation: None Ventilation: None. Lighting: Ensure normal functioning of metabolic systems for animals and provide facility personnel sufficient light to observe animals and to operate safely Lighting: Expected to be small, if any, as most facilities are under compliance Lighting: Expected to be minimal, if any, due to increased energy-efficiency and longer-life of bulbs. § 3.103 Outdoor facilities Environmental temperatures: Clarify the requirements and help animals maintain their desired internal temperatures without stressing their metabolisms Environmental temperatures: Expected to be small, if any. (No citation in the last 3 years.) Environmental temperatures: Expect little economic impact. Shelter: Minimize overheating and sunburn of animals from direct and reflective sunlight. For pinnipeds, limit the severity of lens-related disease Shelter: None Shelter:
  • $20,000~$50,000 (Annual or biennial costs, based on 50 pools.)
  • § 3.104 Space requirements Space requirements—general and species specific: Clarify the requirements and update tables for average adult lengths and corresponding minimum space requirements Space requirements—general and species specific: None Space requirements—general and species specific: None. Easy access and exit ramps and visual barriers: Provide elderly, and ill or infirm animals with easy access to their dry resting areas, and, for sea otters provide safe resting spaces Easy access ramps and visual barriers: $85,000-$110,000 (Based on 50 fiberglass ramps @$1,500-$2,000 and 50 barriers @$200) Easy access ramps and visual barriers: None. § 3.106 Water quality Bacterial standards and salinity testing: Clarify and update the bacterial count and salinity requirements to ensure animals' health and well-being and to conform to the EPA and related standards that protect the health and well-being of humans in the water, such as when taking part in interactive programs Bacterial standards: None
  • Salinity testing: $46,000 (Based on 460 pools and a cost of portable refractometer @$100)
  • Bacterial standards: $554,000 (Based on 460 pools, 20% lab-tests @$85 per week and 80% on-site tests with $7.70 test kit per week per pool).
  • Salinity testing: None.
  • On-site record keeping: Allow APHIS inspectors to better access the animal welfare information to assess the animal health On-site record keeping: A small cost to create a new on-site filing for those facilities which keep records at a centralized location On-site record keeping: A small: None. Water clarity, filtration and water flow: Through performance based standards, provide flexibility while ensuring animals' well-being Water clarity, filtration and water flow: None Water clarity, filtration and water flow: None. § 3.111 Marine mammal interactive programs The program name and marine mammal species: Provide consistency to the industry and bring other animals under the protection of interactive programs The program name and marine mammal species: None The program name and marine mammal species: None. The interactive area: Provide better use of resources while providing improved safety for animals and public participants The interactive area: None The interactive area: None. Minimum qualification requirements for program personnel: Provide more flexibility in staffing decisions by focusing on an individual's needed knowledge, skills, and abilities Minimum qualification requirements for program personnel: None Minimum qualification requirements for program personnel: None. Interactive time between animals and the public and the ratio of human participants to animal: Proposed increase of daily interactive time from 2 hours to 3 hours could generate additional annual revenue of about $23 million~$24 million for the industry. (Assumptions—87 interactive programs, 3 participants per session in the programs, 360 days/year operations) The benefit of this provision would be increased profit, not increased revenue, but we have no net profit estimates for the industry Interactive time between animals and the public and the ratio of human participants to animal: Decisions to increase interactive program time are discretion of the facilities, and no costs are expected which are directly caused by the proposed changes Interactive time between animals and the public and the ratio of human participants to animal: None. Written agreements by participants, a provision of APHIS consultations, recordkeeping, and veterinary care requirements: Streamline recordkeeping requirements to reduce administrative burdens without compromising the quality of animal welfare Written agreements by participants, a provision of APHIS consultations, recordkeeping, and veterinary care requirements: None Written agreements by participants, a provision of APHIS consultations, recordkeeping, and veterinary care requirements: None. Sum of monetized benefits and costs of the proposed rule Not available $131,000-$156,000 $574,000-$604,000. Source: Data compiled by APHIS based on publicly available costs and marine mammal interactive program fees. Note 1: Number of facilities not currently in compliance is not available but is thought to be small. Note 2: The total number of pools is not available. The number of pools at a given facility ranges widely from 1 pool at some small facilities to over 20 pools including back area holding pools in some large facilities. Note 3: The annual industry revenue under the assumption that, on average, each interactive session has 1 marine mammal which is participating in the interactive session. The annual revenue for the industry is calculated by multiplying the 87 interactive programs by the average annual revenue per marine mammal interactive program. For more detail, refer to the marine mammal interactive programs in the expected benefit section. Note 4: Revenues are estimated based on the information retrieved from Web sites of the 32 facilities.

    As shown in Table 1, we expect that the proposed rule would not result in significant costs for most of the regulated facilities.

    Facilities that house marine mammals for exhibition purposes are grouped under the following industries by the North American Industry Classification System: Zoos, Aquariums, and Botanical Gardens (NAICS 712130), Amusement and Theme Parks (NAICS 713110), and Nature Parks and other Similar Institutions (NAICS 712190). Establishments in these three industries are considered small according to the Small Business Administration's (SBA) size standards if annual receipts are, respectively, not more than $27.5 million (NAICS 712130), $38.5 million (NAICS 713110) and $7.5 million (NAICS 712190). Facilities that maintain marine mammals for research purposes (NAICS 541712) are considered small if they have 500 or fewer employees. In 2012, the average annual value of sales per entity for Zoos, Aquariums, and Botanical Gardens (NAICS 712130) was $5.2 million; for Amusement and Theme Parks (NAICS 713110), $27.6 million; and for Nature Parks and Other Similar Institutions (NAICS 712190), $1.1 million. Ninety-eight percent of the facilities that maintain marine mammals for research purposes (NAICS 541712) had fewer than 500 employees. Based on this information most if not all businesses in these industries are considered to be small.

    Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

    Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. The Act does not provide administrative procedures which must be exhausted prior to a judicial challenge to the provisions of this rule.

    Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2006-0085. Please send a copy of your comments to: (1) Docket No. APHIS-2006-0085, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, Room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250.

    We are proposing to amend the Animal Welfare Act regulations concerning the humane handling, care, treatment, and transportation of marine mammals in captivity. These proposed changes would affect sections in the regulations relating to variances, indoor facilities, outdoor facilities, space requirements, and water quality. We are also proposing to revise the regulations that relate to swim-with-the-dolphin programs. These proposed amendments may increase paperwork by requiring more records pertaining to water quality and by creating more frequent requests concerning variances and variance extensions from space requirements and other requirements for marine mammals. For interactive programs, the proposed amendments will decrease the amount of recordkeeping and reporting. However, because of an increase in these types of programs and a more inclusive definition of interactive programs under the proposed rule, a larger number of facilities may be required to maintain and report such records. In addition, the estimated annual number of respondents is the number of respondents that we estimate will respond to all of the information collections annually. We are soliciting comments from the public (as well as affected agencies) concerning our proposed reporting, third party disclosure, and recordkeeping requirements. These comments will help us:

    (1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

    (2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

    (3) Enhance the quality, utility, and clarity of the information to be collected; and

    (4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

    Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.31426 hours per response.

    Respondents: Dealers, exhibitors, research facilities, intermediate carriers, veterinarians, marine mammal experts, and handlers.

    Estimated annual number of respondents: 162.

    Estimated annual number of responses per respondent: 90.

    Estimated annual number of responses: 14,507.

    Estimated total annual burden on respondents: 4,559 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

    Copies of this information collection can be obtained from Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

    E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

    List of Subjects 9 CFR Part 1

    Animal welfare, Pets, Reporting and recordkeeping requirements, Research.

    9 CFR Part 3

    Animal welfare, Marine mammals, Pets, Reporting and recordkeeping requirements, Research, Transportation.

    Accordingly, we propose to amend 9 CFR parts 1 and 3 as follows:

    PART 1—DEFINITION OF TERMS 1. The authority citation for part 1 continues to read as follows: Authority:

    7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.

    2. Section 1.1 is amended as follows: a. By removing the definitions of buffer area and swim-with-the-dolphin (SWTD) program. b. By revising the definitions of interactive area, interactive session, primary enclosure, and sanctuary area. c. By adding, in alphabetical order, a definition of interactive program.

    The addition and revisions read as follows:

    § 1.1 Definitions.

    Interactive area means that area of a marine mammal primary enclosure where an interactive program takes place.

    Interactive program means any human-marine mammal interactive program where a member of the public enters a primary enclosure for a marine mammal with the intent of interacting with the marine mammal(s), except for potentially dangerous marine mammals, such as, but not limited to, polar bears. Such programs include, but are not limited to, sessions in which the human participants swim, snorkel, scuba dive, or wade in the enclosure and sessions in which the human participants sit on a dock or ledge, including therapeutic sessions. Such programs exclude, but such exclusions are not limited to, feeding or petting pools where the members of the public are not allowed to enter the enclosure, and the participation of an audience member at what has been traditionally known as a performance or show involving the exhibition of marine mammals.

    Interactive session means the time during which a marine mammal and a member of the public are in the interactive area.

    Primary enclosure means any structure or device used to restrict an animal or animals to a limited amount of space, such as a room, pen, run, cage, compartment, pool, or hutch. This term, which may also be referred to as enclosures, includes, but such inclusions are not limited to, display enclosures, holding enclosures, night enclosures, off-exhibit enclosures, and medical enclosures.

    Sanctuary area means that area in a primary enclosure for marine mammals that abuts the interactive area and is off-limits to the public.

    PART 3—STANDARDS 3. The authority citation for part 3 continues to read as follows: Authority:

    7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.

    4. Section 3.100 is revised to read as follows:
    § 3.100 Special considerations regarding compliance and/or variance.

    (a) All persons subject to the Animal Welfare Act who maintain or otherwise handle marine mammals in captivity must comply with the provisions of this subpart, except that they may request a variance 6 from the Deputy Administrator from one or more specified provisions of § 3.104.

    6 Written permission from the Deputy Administrator to operate as a licensee or registrant under the Act without being in full compliance with one or more specified provisions of § 3.104.

    (b) An application for a variance must be made to the Deputy Administrator in writing. The request must include:

    (1) The species, number, and gender of animals involved;

    (2) A statement from the attending veterinarian certifying the age and health status of the animals involved and how the granting of a variance would be beneficial or detrimental to the marine mammals involved;

    (3) Each provision of § 3.104 that is not being met;

    (4) The time period requested for a variance;

    (5) The specific reasons why a variance is requested; and

    (6) The estimated cost of coming into compliance, if construction is involved.

    (c) After receipt of an application for a variance, APHIS may require the submission in writing of a report by two recognized experts selected by the Deputy Administrator concerning potential adverse impacts on the animals involved or on other matters relating to the effects of the requested variance on the health and well-being of such marine mammals. Such a report will be required in those cases where the Deputy Administrator determines that such expertise is necessary to determine whether the granting of a variance would cause a situation detrimental to the health and well-being of the marine mammals involved. All costs associated with such a report will be borne by the applicant.

    (d) Variances may be granted for facilities because of ill or infirm marine mammals that cannot be moved without placing their well-being in jeopardy, or for facilities within 1 foot (0.3048 meters) of compliance with any linear space requirement. Such variances may be granted for up to the life of the marine mammals involved.

    (e) The Deputy Administrator will deny any application for a variance if it is determined that the requested variance is not justified under the circumstances or that allowing it will be detrimental to the health and well-being of the marine mammals involved.

    (f) A research facility may be granted a variance from specified requirements of this subpart when such variance is necessary for research purposes, is fully explained in the experimental design, and has the appropriate scientific research permit under the Marine Mammal Protection Act, Endangered Species Act, and Institutional Animal Care and Use Committee (IACUC) approval. Any time limitation stated in this section will not be applicable in such case. This provision cannot be used to avoid complying with § 3.104.

    (g) A facility may be granted a variance from specified requirements of this subpart when such variance is necessary due to an emergency or temporary special circumstance. Any time limitation stated in this section will not be applicable in such case. This provision cannot be used to avoid complying with § 3.104.

    5. Section 3.102 is revised to read as follows:
    § 3.102 Facilities, indoor.

    (a) Ambient temperature. The air and water temperatures in indoor facilities must be sufficiently regulated by heating or cooling to protect the marine mammals from extremes of temperature, to provide for their good health and well-being, and to prevent discomfort, in accordance with the currently accepted practices as cited in appropriate professional journals or reference guides, depending upon the species housed therein. Rapid changes in air and water temperatures must be avoided.

    (b) Ventilation. Indoor housing facilities must be ventilated by natural and/or mechanical means to provide a flow of fresh air for the marine mammals that will prevent the accumulation of chlorine/chloramine fumes, ammonia fumes, ozone, other gases, or odors at levels that would be objectionable or harmful to a reasonable person of average sensitivity, and maintain relative humidity at a level that prevents condensation in order to minimize the potential for bacterial, fungal, or viral contamination from condensation. The average ventilation rate should exceed 0.2 cubic feet per minute per kilogram (cfm/kg) of animal. A vertical air space averaging at least 6 feet (1.83 meters) must be maintained in all enclosures housing marine mammals, including over pools.

    (c) Lighting. Indoor housing facilities for marine mammals must have ample lighting, by natural or artificial means, or both, of a quality, distribution, and duration which is appropriate for the species involved. Artificial lighting must provide full spectrum lighting. Sufficient lighting must be available to provide uniformly distributed illumination which is adequate to permit routine inspection, observation, and cleaning of all parts of the enclosure including any den area(s). Artificial light levels measured 1 meter above pools or decks should not exceed 500 lux. Lighting intensity and duration must be consistent with the general well-being and comfort of the animals and provide at least 6 hours of uninterrupted darkness during each 24-hour period. Lighting must not cause overexposure, discomfort, or trauma to the marine mammals. To the extent possible, it should approximate the lighting conditions encountered by the animal in its natural environment.

    6. Section 3.103 is amended as follows: a. By revising paragraphs (a) introductory text and (a)(3). b. By revising paragraph (b).

    The revisions read as follows:

    § 3.103 Facilities, outdoor.

    (a) Environmental temperatures. Marine mammals must not be housed in outdoor facilities unless the air and water temperature ranges that they may encounter while they are so housed are in accordance with currently accepted practices for the species, as cited in appropriate professional journals or reference guides, and do not adversely affect their health and comfort. A marine mammal must not be introduced to an outdoor housing facility until it is acclimated to the air and water temperature ranges that it will encounter there. The following requirements will be applicable to all outdoor pools:

    (3) Sirenians and primarily warm water dwelling species of pinnipeds or cetaceans must not be housed in outdoor pools where water temperature cannot be maintained within the temperature range needed to maintain their good health and prevent discomfort in accordance with currently accepted practices as cited in appropriate professional journals or reference guides.

    (b) Shelter. Natural or artificial shelter that is appropriate for the species concerned, when the local climatic conditions are taken into consideration, must be provided for all marine mammals kept outdoors to afford them protection from the weather. Shade must be provided to protect marine mammals from direct sunlight, including during feeding and training sessions. Shade must be accessible and cover sufficient area to afford all animals within the enclosure protection. Shaded areas need not be contiguous and shade structures may be permanent or temporary for easy movement or deployment.

    7. Section 3.104 is amended as follows: a. In paragraph (a), by designating the text following the paragraph heading “General.” as paragraph (a)(1) and adding paragraph (a)(2). b. In paragraph (b) introductory text, by removing the first sentence after the paragraph heading “Cetaceans.” and by removing the words “Table III” and adding the words “Table 1” in their place. c. In paragraph (b)(1)(i), footnote 8 is redesignated as footnote 7. d. In paragraph (b)(1)(iv), in the last sentence, by removing the words “, and for Group II cetaceans in Table II” and by adding the words “and Group II” after the words “Group I”. e. Following paragraph (b)(1)(iv), by removing Tables I, II, and III, and adding Tables 1, 2, 3, and 4 in their place. f. In paragraph (b)(2), by removing the last sentence. g. In paragraph (b)(3) introductory text, by removing the words “Tables I, II, and IV” and adding the words “Table 1” in their place. h. In paragraph (b)(3)(ii), in the last sentence, by removing the words “Table II” and adding the words “Table 1” in their place. i. In paragraph (b)(4)(i), by redesignating footnote 9 as footnote 8. j. In paragraph (b)(4)(ii), by removing the last sentence and by redesignating footnote 10 as footnote 9. k. In paragraph (b)(4)(iii), by removing the words “Table IV” and adding the words “Table 1” in their place. l. Following paragraph (b)(4)(iii) introductory text, by removing Table IV. m. In paragraph (c), by removing the first sentence following the paragraph heading “Sirenians. n. In paragraph (c)(1), by adding a sentence after the last sentence. o. In paragraph (c)(2), by removing the last sentence. p. By revising paragraph (d)(1). q. In paragraph (d)(3)(iii), by removing the last sentence. r. In paragraph (e), by adding a sentence after the first sentence. s. In paragraph (f)(1), by adding a sentence after the first sentence and by removing the words “Table V” and adding the words “Table 5” in their place. t. In paragraph (f)(2), by removing the words “Table V” and adding the words “Table 5” in their place. u. In paragraph (f)(3), by removing the words “will result in the following figures:” and adding the words “are in Table 5. Since sea otters do not readily use shared resting areas, individual areas or visual barriers separating appropriately sized individual resting spaces must be used.” in their place. v. Following paragraph (f)(3) introductory text, in the table heading, by removing the words “Table V” and adding the words “Table 5” in their place.

    The additions and revision read as follows:

    § 3.104 Space requirements.

    (a) * * *

    (2) Only those areas that meet or exceed the minimum depth requirement may be used in determining compliance with minimum horizontal dimension (MHD), volume, and surface area. APHIS will determine if partial obstructions in a horizontal dimension compromise the intent of the regulations and/or significantly restrict freedom of movement of the animal(s) in the enclosure.

    (b) * * *

    (1) * * *

    (iv) * * *

    BILLING CODE 3410-34-P EP03FE16.001 EP03FE16.002 EP03FE16.003 Table 2—Average Adult Lengths of Sirenians and Mustelids in Captivity Species Common name Average adult length In feet In meters Sirenia: Dugong dugon Dugong 11.00 3.35 Trichechus inunguis Amazon manatee 8.00 2.44 Trichechus manatus West Indian manatee 11.50 3.51 Mustelids: Enhydra lutris Sea otter 4.10 1.25 Table 3—Average Adult Lengths for Pinnipeds in Captivity Species Common name Average adult length In feet Male Female In meters Male Female Group I: Arctocephalus australis * South American fur seal 6.20 4.70 1.88 1.42 Arctocephalus gazella * Antarctic (or Kerguelen) fur seal 5.90 3.90 1.80 1.20 Arctocephalus pusillis * South African/Australian (or Cape) fur seal 8.96 6.00 2.73 1.83 Arctocephalus townsendi * Guadalupe fur seal 6.27 4.29 1.90 1.30 Arctocephalus tropicalis * Subantarctic (or Amsterdam Island) fur seal 5.90 4.75 1.80 1.45 Callorhinus ursinus * Northern fur seal 7.20 4.75 2.20 1.45 Eumetopias jubatus * Steller sea lion 9.40 7.90 2.86 2.40 Halichoerus grypus * Gray seal 7.50 6.40 2.30 1.95 Hydrurga leptonyx Leopard seal 9.50 10.80 2.90 3.30 Leptonychotes weddellii * Weddell seal 9.50 10.30 2.90 3.15 Lobodon carcinophagus Crabeater seal 7.30 7.30 2.21 2.21 Mirounga angustirostris Northern elephant seal 13.00 8.20 3.96 2.49 Mirounga leonina * Southern elephant seal 15.30 8.20 4.67 2.50 Odobenus rosmarus * Walrus 10.30 8.50 3.15 2.60 Ommatophoca rossi * Ross seal 6.50 7.00 1.99 2.13 Otaria byronia * Southern (or Patagonian) sea lion 7.90 6.60 2.40 2.00 Phoca caspica Caspian seal 4.75 4.60 1.45 1.40 Phoca fasciata Ribbon seal 5.70 5.50 1.75 1.68 Phoca groenlandica Harp seal 6.10 6.10 1.85 1.85 Phoca largha Spotted seal 5.60 4.90 1.70 1.50 Phoca sibirica Baikal seal 5.60 6.10 1.70 1.85 Phoca vitulina Harbor seal 5.60 4.90 1.70 1.50 Zalophus californianus * California sea lion 7.30 5.70 2.24 1.75 Group II: Cystophora cristata Hooded seal 8.50 6.60 2.60 2.00 Erignathus barbatus Bearded seal 7.60 7.60 2.33 2.33 Neomonachus schauinslandi Hawaiian monk seal 7.40 7.40 2.25 2.25 Phoca hispida Ringed seal 4.40 4.30 1.35 1.30 * Any Group I animals maintained together will be considered as Group II when the animals maintained together include two or more sexually mature males from species marked with an asterisk, regardless of whether the sexually mature males are from the same species. EP03FE16.004 EP03FE16.005 BILLING CODE 3410-34-C

    (c) * * *

    (1) * * * See Table 2 for the average adult lengths of sirenians.

    (d) * * *

    (1) Primary enclosures housing pinnipeds shall contain a pool of water and a dry resting area or social activity area that must be close enough to the surface of the water to allow easy access for entering or leaving the pool for all animals regardless of age or infirmity. For the purposes of this subpart, pinnipeds have been divided into Group I pinnipeds and Group II pinnipeds as shown in Table 3 in this section. In certain instances some Group I pinnipeds shall be considered Group II pinnipeds. (See Table 3.) Minimum space requirements for pinnipeds are given in Table 4.

    (e) * * * Exit and entry area to the pool shall be of a depth and grade to allow easy access and exit for all animals regardless of age or infirmity. * * *

    (f) * * *

    (1) * * * Exit and entry area to the pool shall be of a depth and grade to allow easy access and exit for all animals regardless of age or infirmity.* * *

    8. Section 3.106 is revised to read as follows:
    § 3.106 Water quality.

    (a) General. The primary enclosure must not contain water which could be detrimental to the health of the marine mammal contained therein.

    (b) Bacterial standards. (1) All primary enclosure pools must be tested for fecal bacterial contamination on a weekly basis. The facility must conduct the following tests:

    (i) Total coliform count (count shall not exceed 500 colonies per 100 mL) or fecal coliform count (count shall not exceed 400 colonies per 100 mL); and

    (ii) Enterococci count (count shall not exceed 35 colonies per 100 mL); or

    (iii) Pseudomonas count (count shall not exceed 10 colonies per 100 mL); or

    (iv) Staphylococcus count (count shall not exceed 10 colonies per 100 mL).

    (2) Should any of the bacterial counts exceed these levels, two followup samples must be taken to repeat the test(s) for those bacterial contaminants identified as being present at levels exceeding the standards. The first followup must be taken immediately after the initial test result and the second followup must be taken within 48 hours of the first followup. The results of the initial test result, first followup test result, and second follow up test result must be averaged. If the averaged value exceeds the acceptable levels above, the pool water is unsatisfactory and conditions must be corrected immediately.

    (3) Additional testing for suspect pathogenic organism(s) should be conducted when there is sufficient evidence of health problems at the facility or of a potential health hazard to the animals.

    (4) The addition of any chemicals to a pool must be done in a manner that will not cause harm or discomfort to the marine mammals during the introduction of the chemical or during its presence in the enclosure (in the water, on the surfaces, or in the air).

    (5) Water samples must be taken at least daily for pH, salinity, and any chemicals (e.g., chlorine and copper) that are added to the water to maintain water quality standards. Natural lagoon and coastal enclosures will be exempt from pH testing, but must be tested for salinity and any chemical additives, if used.

    (6) Records must be kept documenting the date, time, location (pool and sampling site within the pool) of the sample collection and the results of the sampling. Records of all such test results must be maintained at the facility for a 1-year period and made readily available to APHIS inspectors.

    (c) Salinity. (1) All primary enclosure pools must be salinized for cetaceans, pinnipeds, and sea otters, except for pools housing:

    (i) River dolphins; or

    (ii) Pinnipeds where oral administration of sodium chloride (salt) supplements at appropriate levels for the species, as determined by the attending veterinarian, is provided and saltwater eye baths are used on a daily basis.

    (2) Salinity must be maintained within the range of 24-36 parts per thousand except in natural lagoon or coastal enclosures, where the salinity must be no less than 15 parts per thousand.

    (3) The requirements in paragraphs (c)(1) and (2) of this section do not preclude the use of other salinity levels when prescribed by the attending veterinarian to appropriately treat specific medical conditions.

    (d) Water clarity. Pools must be maintained in a manner that will provide sufficient water clarity to view the animals in order to observe them and monitor their behavior and health.

    (e) Filtration and water flow. Water quality must be maintained by filtration, chemical treatment, naturally occurring tidal flow, or other means that will comply with the water quality standards specified in this section.

    9. Section 3.111 is revised to read as follows:
    § 3.111 Interactive programs.

    All marine mammal interactive programs must comply with this section and all other appropriate provisions set forth in parts 2 and 3 of this subchapter.

    (a) Space requirements. During an interactive session, each animal must have unrestricted access to the interactive area and the sanctuary area. Neither area may be made uninviting to the animals. Each area must meet the requirements of paragraphs (a)(1) and (2) of this section.

    (1) The interactive area must provide sufficient space for all marine mammals to freely swim or move about, consistent with the type of interaction, even with a full complement of public participants and employees in the area.

    (2) The sanctuary area may be within the enclosure containing the interactive area or it may be within a second enclosure to which free and unrestricted access is provided during the interactive session. The sanctuary area must meet the minimum space requirements found in § 3.104.

    (b) Water clarity. Sufficient water clarity must be maintained so that attendants are able to observe the marine mammals and the human participants at all times while within the interactive area. If water clarity does not allow these observations, the interactive sessions must be canceled until the required clarity is provided.

    (c) Employees. Each interactive program must have a sufficient number of adequately trained personnel to meet the husbandry and care requirements for the animals and comply with all training, handling, and attendant requirements of the regulations. For interactive programs, there must be a trainer, handler, and sufficient number of adequately trained attendants to comply with § 3.111(d)(4).

    (1) The head trainer/supervisor of the interactive program must have demonstrable in-depth knowledge of the husbandry and care requirements of the family and species of marine mammals being exhibited, demonstrable knowledge of and skill in current accepted professional standards and techniques in animal training and handling, and the ability to recognize normal and abnormal behavior and signs of behavioral stress in the animal families and species being exhibited.

    (2) All interactive program trainers and attendants must have the knowledge and skill level sufficient to safely conduct and monitor an interactive session.

    (d) Handling. (1) Interactive time between marine mammals and the public (i.e., interactive session) must not exceed 3 hours per day per animal. Each animal must have at least one period in each 24 hours of at least 10 continuous hours without public interactions.

    (2) All marine mammals used in an interactive session must be adequately trained and conditioned in human interaction so that they respond in the session to the attendants with appropriate behavior for safe interaction. The trainer, handler, or attendant must, at all times, control the nature and extent of the marine mammal interaction with the public during a session using the trained responses of the program animal.

    (3) All marine mammals used in interactive sessions must be in good health, including, but not limited to, not being infectious. Marine mammals undergoing veterinary treatment may be used in interactive sessions only with the written approval of the attending veterinarian.

    (4) There must be a sufficient number of session attendants (includes trainer, handler, or attendants) to effectively conduct the session in a safe manner. There must be at least one attendant per marine mammal in the session, and at least one attendant positioned to monitor each session. The number of public participants per marine mammal must not exceed the number that the attendant can monitor safely, appropriate to the type of interactive session.

    (5) Prior to participating in an interactive session, members of the public must be provided with oral rules and instructions for the session. The program must also either provide to the attendees in a written handout, or post in a highly visible location, a notice that summarizes the rules and instructions for the session and includes contact information for the appropriate Animal Care Field Operations office for reporting injuries or complaints. A copy of the written rules must be made available to APHIS during an inspection. Any participant who fails to follow the rules and instructions and jeopardizes human or animal safety or health must be immediately removed from the session by the facility management.

    (6) All interactive programs must limit interactions between marine mammals and human participants so that the interaction does not harm the marine mammal or human participants, does not elicit unsatisfactory, undesirable, or unsafe behaviors from the marine mammal, and does not restrict by word or action (including recalling), from the sanctuary area, or enclosure design, the ability of the animal to leave the interactive area and session as it chooses. If an animal removes itself or is removed from a session, the facility must maintain the ratios of § 3.111(d)(4) by either removing human participants from the interactive area or introducing another animal.

    (7) All interactive programs must prohibit grasping or holding of the animal's body unless it is done under the direct and explicit instruction of the attendant, and must prohibit the chasing or other harassment of the animal(s).

    (8) Marine mammals that exhibit unsatisfactory, undesirable, or unsafe behaviors, including, but not limited to, charging, biting, mouthing, or sexual contact with humans, must be removed from the interactive session immediately, or, if the animal cannot be removed, the session must be terminated. Such an animal must not be used in an interactive session until the trainer determines that the animal is no longer exhibiting the unsatisfactory, undesirable, or unsafe behavior. Written criteria for the termination of a session due to such behavior and the retraining of such an animal must be developed and maintained at the facility and be made available to APHIS during inspection or upon request. This document must also address the procedures to be used to maintain compliance with § 3.111(d)(4) during such disruption of an interactive session.

    (e) Veterinary care. The facility must comply with all provisions of §§ 2.33, 2.40, and 3.110 of this subchapter. In addition, the attending veterinarian must observe an interactive session at least once a month or each interactive session if they are offered less frequently than twice a month, and review the feeding records, behavior records, and water quality records biannually or more often if needed to assure the health and well-being of the marine mammals. Necropsy requirements are found in § 3.110(g).

    (f) Recordkeeping. (1) Each facility must provide APHIS with a description of its program at least 30 days prior to initiation of the program, or in the case of any program in place before [Date of publication of final rule], not later than [Date 30 days after effective date of final rule]. Facilities that submitted the required documentation from October through December 1998 and received approval letters need only submit information about any regulated aspects of the program that have changed since that time. The description must, at least, include the following:

    (i) Identification of each marine mammal in the interactive program, by means of name and/or number, sex, age, and any other means the Administrator determines to be necessary to adequately identify the animal;

    (ii) An outline of the session agenda, including, but not limited to, written information distributed, topics addressed prior to entry in the water, an in-water program agenda, including behaviors and activities expected to be presented or performed;

    (iii) A description of the interactive program enclosures, including identification of non-session housing enclosures, sanctuary area, and interactive area. All enclosures housing or used by program animals must be included;

    (iv) Verification from the trainer that the program animals have received adequate and appropriate training for an interactive program; and

    (v) Documentation of the experience and training of the trainer, handler, attendants, and attending veterinarian.

    (2) Medical, feeding, water quality, and any behavioral records must be kept at the facility for at least 1 year or as otherwise required in this subchapter and be made available to APHIS during inspection or upon request.

    (3) Records of individual animal participation times (date, start time of interactive session, and duration) must be maintained by the facility for a period of at least 1 year and be made available to APHIS officials during inspection or upon request.

    (4) All incidents resulting in injury to either a marine mammal, members of the public, or facility staff during an interactive session or training session must be reported to APHIS within 24 business hours of the incident. A written report detailing the incident and the facility's response to the incident must be submitted to APHIS within 7 calendar days of the incident.

    (5) Any changes to the interactive program, such as, but not limited to, personnel, animals, facilities (enclosures and interactive areas), and behaviors used, must be submitted to APHIS within 30 calendar days of the change.

    (Approved by the Office of Management and Budget under control numbers 0579-0036 and 0579-0093)
    Done in Washington, DC, this 21st day of January 2016. Gary Woodward, Deputy Under Secretary for Marketing and Regulatory Programs.
    [FR Doc. 2016-01837 Filed 2-2-16; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF ENERGY 10 CFR Part 430 [Docket Number EERE-2016-BT-STD-0004] RIN 1904-AD61 Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Intent To Establish a Working Group for Circulator Pumps To Negotiate a Notice of Proposed Rulemaking for Energy Conservation Standards AGENCY:

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

    ACTION:

    Notice of intent and announcement of public meeting.

    SUMMARY:

    The U.S. Department of Energy (“DOE” or, in context, “the Department”) is giving notice of a public meeting and that DOE intends to establish a negotiated rulemaking working group under the Appliance Standards and Rulemaking Federal Advisory Committee (“ASRAC”) in accordance with the Federal Advisory Committee Act (“FACA”) and the Negotiated Rulemaking Act (“NRA”) to negotiate proposed amended energy conservation standards for circulator pumps. The purpose of the working group will be to discuss and, if possible, reach consensus on a proposed rule regarding definitions, test procedures, and energy conservation standards, as authorized by the Energy Policy and Conservation Act (EPCA) of 1975, as amended. The working group will consist of representatives of parties having a defined stake in the outcome of the proposed standards, and will consult as appropriate with a range of experts on technical issues. Per the ASRAC Charter, the working group is expected to make a concerted effort to negotiate a final term sheet by September 30, 2016.

    DATES:

    DOE will host the first Working Group meeting, which is open to the public, and will be broadcast via webinar on March 3, 2016 from 9 a.m. to 5 p.m. in Washington, DC.

    Written comments and applications (i.e., cover letter, resume, and answers to application questions) to be appointed as members of the working group are welcome and should be submitted by February 17, 2016.

    ADDRESSES:

    U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza SW., Washington, DC 20024, Room 6097. Individuals will also have the opportunity to participate by webinar. To register for the webinar and receive call-in information, please register https://attendee.gotowebinar.com/register/2255868378911535105.

    Interested person may submit comments and an application for membership (which must include a cover letter describing their experience on negotiating committees and their direct impact on the negotiations, if applicable, and listed qualifications for being selected to this working group and a resume,), identified by docket number EERE-2016-BT-STD-0004, via any of the following methods:

    1. Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

    2. Email: [email protected] Include docket number EERE-2016-BT-STD-0004 in the subject line of the message.

    3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. If possible, please submit all items on a compact disc (CD), in which case it is not necessary to include printed copies.

    4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L'Enfant Plaza SW., Suite 600, Washington, DC 20024. Telephone: (202) 586-2945. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

    No telefacsimilies (faxes) will be accepted.

    Docket: The docket is available for review at 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 EERE-2016-BT-STD-0004 index. However, not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure.

    FOR FURTHER INFORMATION CONTACT:

    John Cymbalsky, U.S. Department of Energy, Office of Building Technologies (EE-2J), 950 L'Enfant Plaza SW., Washington, DC 20024. Phone: 202-287-1692. Email: [email protected]

    SUPPLEMENTARY INFORMATION: I. Authority II. Background III. Proposed Negotiating Procedures IV. Comments Requested V. Public Participation VI. Approval of the Office of the Secretary I. Authority

    DOE is announcing its intent to negotiate proposed definitions, test procedures, and energy conservation standards for circulator pumps under the authority of sections 563 and 564 of the NRA (5 U.S.C. 561-570, Pub. L. 104-320). The regulation of circulator pump standards that DOE is proposing to develop under a negotiated rulemaking will be developed under the authority of EPCA, as amended, 42 U.S.C. 6311(1) and 42 U.S.C. 6291 et seq.

    II. Background

    As required by the NRA, DOE is giving notice that it is establishing a working group under ASRAC to discuss proposed energy conservation standards for circulator pumps.

    A. Negotiated Rulemaking

    DOE is supporting the use of the negotiated rulemaking process to discuss and develop proposed definitions, test procedures, and energy conservation standards for circulator pumps The primary reason for using the negotiated rulemaking process for this product is that stakeholders strongly support a consensual rulemaking effort. DOE believes such a regulatory negotiation process will be less adversarial and better suited to resolving complex technical issues. An important virtue of negotiated rulemaking is that it allows expert dialog that is much better than traditional techniques at getting the facts and issues right and will result in a proposed rule that will effectively reflect Congressional intent.

    A regulatory negotiation will enable DOE to engage in direct and sustained dialog with informed, interested, and affected parties when drafting the regulation, rather than obtaining input during a public comment period after developing and publishing a proposed rule. A rule drafted by negotiation with informed and affected parties is expected to be potentially more pragmatic and more easily implemented than a rule arising from the traditional process. Such rulemaking improvement is likely to provide the public with the full benefits of the rule while minimizing the potential negative impact of a proposed regulation conceived or drafted without the full prior input of outside knowledgeable parties. Because a negotiating working group includes representatives from the major stakeholder groups affected by or interested in the rule, the number of public comments on the proposed rule may be decreased. DOE anticipates that there will be a need for fewer substantive changes to a proposed rule developed under a regulatory negotiation process prior to the publication of a final rule.

    B. The Concept of Negotiated Rulemaking

    Usually, DOE develops a proposed rulemaking using Department staff and consultant resources. Congress noted in the NRA, however, that regulatory development may “discourage the affected parties from meeting and communicating with each other, and may cause parties with different interests to assume conflicting and antagonistic positions * * *.” 5 U.S.C. 561(2)(2). Congress also stated that “adversarial rulemaking deprives the affected parties and the public of the benefits of face-to-face negotiations and cooperation in developing and reaching agreement on a rule. It also deprives them of the benefits of shared information, knowledge, expertise, and technical abilities possessed by the affected parties.” 5 U.S.C. 561(2)(3).

    Using negotiated rulemaking to develop a proposed rule differs fundamentally from the Department-centered process. In negotiated rulemaking, a proposed rule is developed by an advisory committee or working group, chartered under FACA, 5 U.S.C. App. 2, composed of members chosen to represent the various interests that will be significantly affected by the rule. The goal of the advisory committee or working group is to reach consensus on the treatment of the major issues involved with the rule. The process starts with the Department's careful identification of all interests potentially affected by the rulemaking under consideration. To help with this identification, the Department publishes a notice of intent such as this one in the Federal Register, identifying a preliminary list of interested parties and requesting public comment on that list. Following receipt of comments, the Department establishes an advisory committee or working group representing the full range of stakeholders to negotiate a consensus on the terms of a proposed rule. Representation on the advisory committee or working group may be direct; that is, each member may represent a specific interest, or may be indirect, such as through trade associations and/or similarly-situated parties with common interests. The Department is a member of the advisory committee or working group and represents the Federal government's interests. The advisory committee or working group chair is assisted by a neutral mediator who facilitates the negotiation process. The role of the mediator, also called a facilitator, is to apply proven consensus-building techniques to the advisory committee or working group process.

    After an advisory committee or working group reaches consensus on the provisions of a proposed rule, the Department, consistent with its legal obligations, uses such consensus as the basis of its proposed rule, which then is published in the Federal Register. This publication provides the required public notice and provides for a public comment period. Other participants and other interested parties retain their rights to comment, participate in an informal hearing (if requested), and request judicial review. DOE anticipates, however, that the pre-proposal consensus agreed upon by the advisory committee or working group will narrow any issues in the subsequent rulemaking.

    C. Proposed Rulemaking for Test Procedures and Energy Conservation Standards Regarding Circulator Pumps

    The NRA enables DOE to establish an advisory committee or working group if it is determined that the use of the negotiated rulemaking process is in the public interest. DOE intends to develop Federal regulations that build on the depth of experience accrued in both the public and private sectors in implementing standards and programs.

    DOE is supporting the use of the regulatory negotiation process in order to provide for obtaining a diverse array of in-depth input, as well as an opportunity for increased collaborative discussion from both private-sector stakeholders and government officials who are familiar with the energy efficiency of circulator pumps.

    D. Department Commitment

    In initiating this regulatory negotiation process to develop definitions, test procedures, and energy conservation standards for circulator pumps, DOE is making a commitment to provide adequate resources to facilitate timely and successful completion of the process. This commitment includes making the process a priority activity for all representatives, components, officials, and personnel of the Department who need to be involved in the rulemaking, from the time of initiation until such time as a final rule is issued or the process is expressly terminated. DOE will provide administrative support for the process and will take steps to ensure that the advisory committee or working group has the dedicated resources it requires to complete its work in a timely fashion. Specifically, DOE will make available the following support services: properly equipped space adequate for public meetings and caucuses; logistical support; word processing and distribution of background information; the service of a facilitator; and such additional research and other technical assistance as may be necessary.

    To the maximum extent possible consistent with the legal obligations of the Department, DOE will use the consensus of the advisory committee or working group as the basis for the rule the Department proposes for public notice and comment.

    E. Negotiating Consensus

    As discussed above, the negotiated rulemaking process differs fundamentally from the usual process for developing a proposed rule. Negotiation enables interested and affected parties to discuss various approaches to issues rather than asking them only to respond to a proposal developed by the Department. The negotiation process involves a mutual education of the various parties on the practical concerns about the impact of standards. Each advisory committee or working group member participates in resolving the interests and concerns of other members, rather than leaving it up to DOE to evaluate and incorporate different points of view.

    A key principle of negotiated rulemaking is that agreement is by consensus of all the interests. Thus, no one interest or group of interests is able to control the process. The NRA defines consensus as the unanimous concurrence among interests represented on a negotiated rulemaking committee or working group, unless the committee or working group itself unanimously agrees to use a different definition. 5 U.S.C. 562. In addition, experience has demonstrated that using a trained mediator to facilitate this process will assist all parties, including DOE, in identifying their real interests in the rule, and thus will enable parties to focus on and resolve the important issues.

    III. Proposed Negotiating Procedures A. Key Issues for Negotiation

    The following issues and concerns will underlie the work of the Negotiated Rulemaking Committee for circulator pumps and be limited to the items specified below:

    • Definitions of circulator pumps,

    • Test procedures for circulator pumps, and

    • Energy conservation standards for circulator pumps.

    To examine the underlying issues outlined above, all parties in the negotiation will need DOE to provide data and an analytic framework complete and accurate enough to support their deliberations. DOE expects to start the Working Group's discussions with a list of analytical issues and data requests that should be considered for the negotiations and encourages interested parties to submit any data to be considered to the Working Group.

    B. Formation of Working Group

    A working group will be formed and operated in full compliance with the requirements of FACA and in a manner consistent with the requirements of the NRA. DOE has determined that the working group shall not exceed 25 members. The Department believes that more than 25 members would make it difficult to conduct effective negotiations. DOE is aware that there are many more potential participants than there are membership slots on the working group. The Department does not believe, nor does the NRA contemplate, that each potentially affected group must participate directly in the negotiations; nevertheless, each affected interest can be adequately represented. To have a successful negotiation, it is important for interested parties to identify and form coalitions that adequately represent significantly affected interests. To provide adequate representation, those coalitions must agree to support, both financially and technically, a member of the working group whom they choose to represent their interests.

    DOE recognizes that when it considers adding covered products and establishing energy efficiency standards for residential products and commercial equipment, various segments of society may be affected in different ways—in some cases, producing unique “interests” in a proposed rule based on income, gender, or other factors. The Department will pay attention to providing that any unique interests that have been identified, and that may be significantly affected by the proposed rule, are represented.

    FACA also requires that members of the public have the opportunity to attend meetings of the full committee and speak or otherwise address the committee during the public comment period. In addition, any member of the public is permitted to file a written statement with the advisory committee. DOE plans to follow these same procedures in conducting meetings of the working group.

    C. Interests Involved/Working Group Membership

    DOE anticipates that the working group will comprise no more than 25 members who represent affected and interested stakeholder groups, at least one of whom must be a member of the ASRAC. As required by FACA, the Department will conduct the negotiated rulemaking with particular attention to ensuring full and balanced representation of those interests that may be significantly affected by the proposed rule governing standards for circulator pumps. Section 562 of the NRA defines the term “interest” as “with respect to an issue or matter, multiple parties which have a similar point of view or which are likely to be affected in a similar manner.” Listed below are parties the Department to date has identified as being “significantly affected” by a proposed rule regarding the energy efficiency of circulator pumps.

    • The Department of Energy;

    • Trade Associations representing refrigeration system manufacturers of circulator pumps;

    • Manufacturers of circulator pumps system components and related suppliers;

    • Distributors or contractors selling or installers of circulator pumps;

    • Utilities;

    • Energy efficiency/environmental advocacy groups; and

    • Commercial customers.

    One purpose of this notice of intent is to determine whether Federal regulations for circulator pumps will significantly affect interests that are not listed above. DOE invites comment and suggestions on its initial list of significantly affected interests.

    Members may be individuals or organizations. If the effort is to be fruitful, participants in the working group should be able to fully and adequately represent the viewpoints of their respective interests. This document gives notice of DOE's process to other potential participants and affords them the opportunity to request representation in the negotiations. Those who wish to be appointed as members of the working group, should submit a request to DOE, in accordance with the public participation procedures outlined in the DATES and ADDRESSES sections of this notice of intent. Membership of the working group is likely to involve:

    • Attendance at approximately eight (8), one (1)- to two (2)-day meetings (with the potential for two (2) additional one (1)- or two (2)-day meetings);

    • Travel costs to those meetings; and

    • Preparation time for those meetings.

    Members serving on the working group will not receive compensation for their services. Interested parties who are not selected for membership on the working group may make valuable contributions to this negotiated rulemaking effort in any of the following ways:

    • The person may request to be placed on the working group mailing list and submit written comments as appropriate.

    • The person may attend working group meetings, which are open to the public; caucus with his or her interest's member on the working group; or even address the working group during the public comment portion of the working group meeting.

    • The person could assist the efforts of a workgroup that the working group might establish.

    A working group may establish informal workgroups, which usually are asked to facilitate committee deliberations by assisting with various technical matters (e.g., researching or preparing summaries of the technical literature or comments on specific matters such as economic issues). Workgroups also might assist in estimating costs or drafting regulatory text on issues associated with the analysis of the costs and benefits addressed, or formulating drafts of the various provisions and their justifications as previously developed by the working group. Given their support function, workgroups usually consist of participants who have expertise or particular interest in the technical matter(s) being studied. Because it recognizes the importance of this support work for the working group, DOE will provide appropriate technical expertise for such workgroups.

    D. Good Faith Negotiation

    Every working group member must be willing to negotiate in good faith and have the authority, granted by his or her constituency, to do so. The first step is to ensure that each member has good communications with his or her constituencies. An intra-interest network of communication should be established to bring information from the support organization to the member at the table, and to take information from the table back to the support organization. Second, each organization or coalition, therefore, should designate as its representative a person having the credibility and authority to ensure that needed information is provided and decisions are made in a timely fashion. Negotiated rulemaking can require the appointed members to give a significant sustained for as long as the duration of the negotiated rulemaking. Other qualities of members that can be helpful are negotiating experience and skills, and sufficient technical knowledge to participate in substantive negotiations.

    Certain concepts are central to negotiating in good faith. One is the willingness to bring all issues to the bargaining table in an attempt to reach a consensus, as opposed to keeping key issues in reserve. The second is a willingness to keep the issues at the table and not take them to other forums. Finally, good faith includes a willingness to move away from some of the positions often taken in a more traditional rulemaking process, and instead explore openly with other parties all ideas that may emerge from the working group's discussions.

    E. Facilitator

    The facilitator will act as a neutral in the substantive development of the proposed standard. Rather, the facilitator's role generally includes:

    • Impartially assisting the members of the working group in conducting discussions and negotiations; and

    • Impartially assisting in performing the duties of the Designated Federal Official under FACA.

    F. Department Representative

    The DOE representative will be a full and active participant in the consensus building negotiations. The Department's representative will meet regularly with senior Department officials, briefing them on the negotiations and receiving their suggestions and advice so that he or she can effectively represent the Department's views regarding the issues before the working group. DOE's representative also will ensure that the entire spectrum of governmental interests affected by the standards rulemaking, including the Office of Management and Budget, the Attorney General, and other Departmental offices, are kept informed of the negotiations and encouraged to make their concerns known in a timely fashion.

    G. Working Group and Schedule

    After evaluating the comments submitted in response to this notice of intent and the requests for nominations, DOE will either inform the members of the working group that they have been selected or determine that conducting a negotiated rulemaking is inappropriate.

    Per the ASRAC Charter, the working group is expected to make a concerted effort to negotiate a final term sheet by September 30, 2016.

    DOE will advise working group members of administrative matters related to the functions of the working group before beginning. While the negotiated rulemaking process is underway, DOE is committed to performing much of the same analysis as it would during a normal standards rulemaking process and to providing information and technical support to the working group.

    IV. Comments Requested

    DOE requests comments on which parties should be included in a negotiated rulemaking to develop draft language pertaining to the energy efficiency of circulator pumps and suggestions of additional interests and/or stakeholders that should be represented on the working group. All who wish to participate as members of the working group should submit a request for nomination to DOE.

    V. 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 regarding any of the items on the agenda, email [email protected] In the email, please indicate your name, organization (if appropriate), citizenship, and contact information. Please note that foreign nationals participating in the public meeting 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 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) recent changes regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and 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, Louisiana, New York, American Samoa, Maine, Oklahoma, Arizona, Massachusetts, Washington, and Minnesota.

    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.

    VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's notice of intent.

    Issued in Washington, DC, on January 27, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-01979 Filed 2-2-16; 8:45 am] BILLING CODE 6450-01-P
    FEDERAL RESERVE SYSTEM 12 CFR Part 217 [Docket No. R-1529] RIN 7100 AE-43 Regulatory Capital Rules: The Federal Reserve Board's Framework for Implementing the U.S. Basel III Countercyclical Capital Buffer AGENCY:

    Board of Governors of the Federal Reserve System.

    ACTION:

    Proposed policy statement with request for public comment.

    SUMMARY:

    The Board is inviting public comment on a policy statement on the framework that the Board will follow in setting the amount of the U.S. countercyclical capital buffer for advanced approaches bank holding companies, savings and loan holding companies, and state member banks under the Board's Regulation Q (12 CFR part 217).

    DATES:

    Comments must be received on or before March 21, 2016. Comments were originally due by February 19, 2016.

    ADDRESSES:

    You may submit comments, identified by Docket No. R-1529 and RIN 7100 AE-43 by any of the following methods:

    Agency Web site: http://www.federalreserve.gov. Follow the instructions for submitting comments at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.aspx.

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Email: [email protected] Include the docket number and RIN number in the subject line of the message.

    Fax: (202) 452-3819 or (202) 452-3102.

    Mail: Robert V. Frierson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW., Washington, DC 20551.

    All public comments will be made available on the Board's Web site at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.aspx as submitted, unless modified for technical reasons. Accordingly, your comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper form in Room MP-500 of the Board's Martin Building (20th and C Streets NW., Washington, DC 20551) between 9 a.m. and 5 p.m. on weekdays.

    FOR FURTHER INFORMATION CONTACT:

    William Bassett, Deputy Associate Director, (202) 736-5644, or Rochelle Edge, Deputy Associate Director, (202) 452-2339, Office of Financial Stability Policy and Research; Sean Campbell, Associate Director, (202) 452-3760, Division of Banking Supervision and Regulation; Benjamin W. McDonough, Special Counsel, (202) 452-2036, Mark Buresh, Senior Attorney, (202) 452-5270, or Mary Watkins, Attorney, (202) 452-3722, Legal Division.

    SUPPLEMENTARY INFORMATION: Table of Contents I. Background II. Proposed Policy Statement III. Administrative Law Matters A. Use of Plain Language B. Paperwork Reduction Act Analysis C. Regulatory Flexibility Act Analysis I. Background

    The Board of Governors of the Federal Reserve System (Board) issued in June 2013 a final regulatory capital rule (Regulation Q) in coordination with the Office of the Comptroller of the Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC) to strengthen risk-based and leverage capital requirements applicable to insured depository institutions and certain depository institution holding companies (banking organizations).1 Among the changes that Regulation Q introduced was the institution of a countercyclical capital buffer (CCyB) for large, internationally active banking organizations.2

    1See 78 FR 62018 (October 11, 2013) (Board and OCC); 79 FR 20754 (April 14, 2014) (FDIC). Regulation Q applies generally to bank holding companies with more than $1 billion in total consolidated assets and savings and loan holding companies with more than $1 billion in total consolidated assets that are not substantially engaged in commercial or insurance underwriting activities. See 12 CFR 217.1(c)(1).

    2 12 CFR 217.11(b).

    The CCyB is a macroprudential policy tool that the Board can increase during periods of rising vulnerabilities in the financial system and reduce when vulnerabilities recede.3 The CCyB supplements the minimum capital requirements and other capital buffers included in Regulation Q, which themselves are designed to provide substantial resilience to unexpected losses created by normal fluctuations in economic and financial conditions. The CCyB is designed to increase the resilience of large banking organizations when the Board sees an elevated risk of above-normal losses. Increasing the resilience of large banking organizations should, in turn, improve the resilience of the broader financial system. Above-normal losses often follow periods of rapid asset price appreciation or credit growth that are not well supported by underlying economic fundamentals. The circumstances in which the Board would most likely use the CCyB as a supplemental, macroprudential tool to augment minimum capital requirements and other capital buffers would be to address circumstances when potential systemic vulnerabilities are somewhat above normal. By requiring advanced approaches institutions to hold a larger capital buffer during periods of increased systemic risk and removing the buffer requirement when the vulnerabilities have diminished, the CCyB has the potential to moderate fluctuations in the supply of credit over time.

    3 Implementation of the CCyB also helps respond to the provision in the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) that the agencies “shall seek to make such [capital] requirements countercyclical, so that the amount of capital required to be maintained by a company increases in times of economic expansion and decreases in times of economic contraction, consistent with the safety and soundness of the company.” See 12 U.S.C. 1467a; 12 U.S.C. 1844; 12 U.S.C. 3907 (as amended by section 616 of the Dodd-Frank Act).

    The CCyB applies to banking organizations subject to the advanced approaches capital rules (advanced approaches institutions).4 The advanced approaches capital rules generally apply to banking organizations with greater than $250 billion in total assets or $10 billion in on-balance-sheet foreign exposure and to any depository institution subsidiary of such banking organizations.5

    4 An advanced approaches institution is subject to the CCyB regardless of whether it has completed the parallel run process and received notification from its primary Federal supervisor pursuant to § 217.121(d) of Regulation Q.

    5 12 CFR 217.100(b)(1).

    The CCyB functions as an expansion of the Capital Conservation Buffer (CCB). The CCB requires that a banking organization hold a buffer of common equity tier 1 capital in excess of the minimum risk-based capital ratios greater than 2.5 percent of risk-weighted assets to avoid limits on capital distributions and certain discretionary bonus payments.6 The CCB is divided into quartiles, each associated with increasingly stringent limitations on capital distributions and certain discretionary bonus payments as the firm's risk-based capital ratios approach regulatory minimums.7

    6 12 CFR 217.11(b)(1)(i).

    7 12 CFR 217.11(a).

    As described in Regulation Q, the CCyB applies based on the location of exposures by national jurisdiction.8 Specifically, the applicable CCyB amount for a banking organization is equal to the weighted average of CCyB amounts established by the Board for the national jurisdictions where the banking organization has private-sector credit exposures.9 The CCyB amount applicable to a banking organization is weighted by jurisdiction according to the firm's risk-weighted private-sector credit exposures for a specific jurisdiction as a percentage of the firm's overall risk-weighted private-sector credit exposures.10

    8 12 CFR 217.11(b)(1). The Board may adjust the CCyB amount to reflect decisions made by foreign jurisdictions. See 12 CFR 217.11(b)(3).

    9 12 CFR 217.11(b)(1).

    10Id.

    Regulation Q established the initial CCyB amount with respect to private-sector credit exposures located in the United States (U.S.-based credit exposures) at zero percent. Following a phase-in period, the amount of the CCyB will vary between 0 and 2.5 percent of risk-weighted assets. Under the phase-in schedule, the maximum potential amount of the CCyB for U.S.-based credit exposures is 0.625 percentage points in 2016, 1.25 percentage points in 2017, 1.875 percentage points in 2018, and 2.5 percentage points in 2019 and all subsequent years.11 To provide banking organizations with sufficient time to adjust to any change to the CCyB, an increase in the amount of the CCyB for U.S.-based credit exposures will have an effective date 12 months after the determination, unless the Board determines that a more immediate implementation is necessary based on economic conditions.12 In contrast, Regulation Q states that a decision by the Board to decrease the amount of the CCyB for U.S.-based credit exposures would become effective the day after the Board decides to decrease the CCyB or the earliest date permissible under applicable law or regulation, whichever is later.13 The amount of the CCyB for U.S.-based credit exposures will return to 0 percent 12 months after the effective date of any CCyB adjustment, unless the Board announces a decision to maintain the current amount or adjust it again before the expiration of the 12-month period.14

    11 12 CFR 217.300(a)(2).

    12 12 CFR 217.11(b)(2)(v)(A).

    13 12 CFR 217.11(b)(2)(v)(B).

    14 12 CFR 217.11(b)(2)(vi).

    The Board expects to make decisions about the appropriate level of the CCyB on U.S.-based credit exposures jointly with the OCC and FDIC. In addition, the Board expects that the CCyB amount for U.S.-based credit exposures would be the same for covered insured depository institutions as for covered depository institution holding companies. The CCyB is designed to take into account the broad macroeconomic and financial environment in which banking organizations function and the degree to which that environment impacts the resilience of the group of advanced approaches institutions. Therefore, the Board's determination of the appropriate level of the CCyB for U.S.-based credit exposures would be most directly linked to the condition of the overall financial environment rather than the condition of any individual banking organization. But, the overall CCyB requirement for a banking organization will vary based on the organization's particular composition of private sector credit exposures located across national jurisdictions.

    II. Proposed Policy Statement

    The proposed policy statement (Policy Statement) describes the framework that the Board would follow in setting the amount of the CCyB for U.S.-based credit exposures. The framework consists of a set of principles for translating assessments of financial-system vulnerabilities that are regularly undertaken at the Board into the appropriate level of the CCyB. Those assessments are informed by a broad array of quantitative indicators of financial and economic performance and a set of empirical models. In addition, the framework includes a discussion of how the Board would assess whether the CCyB is the most appropriate policy instrument (among available policy instruments) to address the highlighted financial-system vulnerabilities.

    The proposed Policy Statement is organized as follows. Section 1 provides background on the proposed Policy Statement. Section 2 is an outline of the proposed Policy Statement and describes its scope. Section 3 provides a broad description of the objectives of the CCyB, including a description of the ways in which the CCyB is expected to protect large banking organizations and the broader financial system. Section 4 provides a broad description of the factors that the Board considers in setting the CCyB, including specific financial-system vulnerabilities and types of quantitative indicators of financial and economic performance, and outlines of empirical models the Board may use as inputs to that decision. Further, section 4 describes a set of principles that the Board expects to use for combining judgmental assessments with quantitative indicators to determine the appropriate level of the CCyB. Section 5 discusses how the Board will communicate the level of the CCyB and any changes to the CCyB. Section 6 describes how the Board plans to monitor the effects of the CCyB, including what indicators and effects will be monitored.

    The Board seeks comment on all aspects of the proposed Policy Statement.

    Question 1. In what ways could the Board improve its proposed framework for making decisions on the CCyB?

    Question 2. The proposed Policy Statement describes a set of principles for translating judgmental assessments of financial-system vulnerabilities into specific levels of the CCyB, a set of empirical models used as inputs to the judgmental process that distill and translate quantitative indicators of financial and economic performance into potential settings for the CCyB, and an assessment of whether the CCyB is the most appropriate policy instrument to address highlighted financial-system vulnerabilities. Are there any other considerations that should form part of the CCyB decision-making framework?

    Question 3. To what extent does the Board's proposed framework for determining the appropriate level of the CCyB capture the appropriate set of financial-system vulnerabilities? Are there any vulnerabilities that should also be considered or are there vulnerabilities that should be given greater or less consideration? How should vulnerabilities developing outside of the banking sector be considered as compared to vulnerabilities developing inside of the banking sector?

    III. Administrative Law Matters A. Use of Plain Language

    Section 722 of the Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 Stat. 1338, 1471, 12 U.S.C. 4809) requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The Board has sought to present the proposed policy statement in a simple and straightforward manner, and invites comment on the use of plain language.

    B. Paperwork Reduction Act Analysis

    In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3506), the Board has reviewed the proposed policy statement to assess any information collections. There are no collections of information as defined by the Paperwork Reduction Act in the proposal.

    C. Regulatory Flexibility Act Analysis

    The Board is providing an initial regulatory flexibility analysis with respect to this proposed Policy Statement. As discussed above, the proposed Policy Statement is designed to provide additional information regarding the factors that the Board expects to consider in evaluating whether to change the CCyB applicable to private-sector credit exposures located in the United States. The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), generally requires that an agency prepare and make available an initial regulatory flexibility analysis in connection with a notice of proposed rulemaking. Under regulations issued by the Small Business Administration, a small entity includes a bank holding company with assets of $550 million or less (small bank holding company).15 As of December 31, 2014, there were approximately 3,441 small BHCs, 187 small SLHCs, and 644 small state member banks.

    15See 13 CFR 121.201. Effective July 14, 2014, the Small Business Administration revised the size standards for banking organizations to $550 million in assets from $500 million in assets. 79 FR 33647 (June 12, 2014).

    The proposed Policy Statement would relate only to advanced approaches institutions, which, generally, are banking organizations with total consolidated assets of $250 billion or more, that have total consolidated on-balance sheet foreign exposure of $10 billion or more, are a subsidiary of an advanced approaches depository institution, or that elect to use the advanced approaches framework.16 Banking organizations that would be covered by the proposed Policy Statement substantially exceed the $550 million asset threshold at which a banking entity would qualify as a small bank holding company, small savings and loan holding company, or small state member bank. Currently, no small top-tier bank holding company, small top-tier savings and loan holding company, or small state member bank is an advanced approaches institution, so there would be no additional projected compliance requirements imposed on small bank holding companies, small savings and loan holding companies, or small state member banks.

    16 12 CFR 217.100(b)(1).

    Therefore, there are no significant alternatives to the proposal that would have less economic impact on small banking organizations. There are no projected reporting, recordkeeping, or other compliance requirements of the proposal. The Board does not believe that the proposal duplicates, overlaps, or conflicts with any other Federal rules. In light of the foregoing, the Board does not believe that the proposal, if adopted in final form, would have a significant economic impact on a substantial number of small entities. Nonetheless, the Board seeks comment on whether the proposal would impose undue burdens on, or have unintended consequences for, small organizations, and whether there are ways such potential burdens or consequences could be minimized in a manner consistent with the purpose of the proposal. A final regulatory flexibility analysis will be conducted after consideration of comments received during the public comment period.

    List of Subjects in 12 CFR Part 217

    Administrative practice and procedure, Banks, banking. Holding companies, Reporting and recordkeeping requirements, Securities.

    Authority and Issuance

    For the reasons stated in the Supplementary Information, the Board of Governors of the Federal Reserve System proposes to add the Policy Statement as set forth at the end of the Supplementary Information as appendix A to part 217 of 12 CFR chapter II as follows:

    PART 217—CAPITAL ADEQUACY OF BANK HOLDING COMPANIES, SAVINGS AND LOAN HOLDING COMPANIES, AND STATE MEMBER BANKS 1. The authority citation for part 217 continues to read as follows: Authority:

    12 U.S.C. 248(a), 321-338a, 481-486, 1462a, 1467a, 1818, 1828, 1831n, 1831o, 1831p-l, 1831w, 1835, 1844(b), 1851, 3904, 3906-3909, 4808, 5365, 5368, 5371.

    PART 217—CAPITAL ADEQUACY OF BANK HOLDING COMPANIES, SAVINGS AND LOAN HOLDING COMPANIES, AND STATE MEMBER BANKS 2. Appendix A to part 217 is added to read as follows: Appendix A to Part 217—The Federal Reserve Board's Framework for Implementing the Countercyclical Capital Buffer 1. Background

    The Board of Governors of the Federal Reserve System (Board) issued a final regulatory capital rule (Regulation Q) in coordination with the Office of the Comptroller of the Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC) that strengthened risk-based and leverage capital requirements applicable to insured depository institutions and depository institution holding companies (banking organizations).1 Among those changes was the introduction of a countercyclical capital buffer (CCyB) for large, internationally active banking organizations.2

    1See 78 FR 62018 (October 11, 2013) (Board and OCC); 79 FR 20754 (April 14, 2014) (FDIC).

    2 12 CFR 217.11(b). The CCyB applies only to banking organizations subject to the advanced approaches capital rules, which generally apply to those banking organizations with greater than $250 billion in assets or more than $10 billion in on-balance-sheet foreign exposures. See 12 CFR 217.100(b). An advanced approaches institution is subject to the CCyB regardless of whether it has completed the parallel run process and received notification from its primary Federal supervisor. See 12 CFR 217.121(d).

    The CCyB is a macroprudential policy tool that the Board can increase during periods of rising vulnerabilities in the financial system and reduce when vulnerabilities recede. It is designed to increase the resilience of large banking organizations when policymakers see an elevated risk of above-normal losses. Increasing the resilience of large banking organizations should, in turn, improve the resilience of the broader financial system. Above-normal losses often follow periods of rapid asset price appreciation or credit growth that are not well supported by underlying economic fundamentals. The circumstances in which the Board would most likely use the CCyB as a supplemental, macroprudential tool to augment minimum capital requirements and other capital buffers would be to address circumstances when potential systemic vulnerabilities are somewhat above normal. By requiring large banking organizations to hold additional capital during those periods of excess and removing the requirement to hold additional capital when the vulnerabilities have diminished, the CCyB also is expected to moderate fluctuations in the supply of credit over time.3 Further, Regulation Q established the initial CCyB amount with respect to U.S.-based credit exposures at zero percent and provided that the maximum potential amount of the CCyB for credit exposures in the United States was 2.5 percent of risk-weighted assets.4

    3 Implementation of the CCyB also helps respond to the Dodd-Frank Act's requirement that the Board seek to make its capital requirements countercyclical 12 U.S.C. 1844(b), 1464a(g)(1), and 3907(a)(1) (codifying sections 616(a), (b), and (c) of the Dodd-Frank Act).

    4 The CCyB is subject to a phase-in arrangement between 2016 and 2019. See 12 CFR 217.300(a)(2).

    The Board expects to make decisions about the appropriate level of the CCyB on U.S.-based credit exposures jointly with the OCC and FDIC, and expects that the CCyB amount for U.S.-based credit exposures will be the same for covered depository institution holding companies and insured depository institutions. The CCyB is designed to take into account the macrofinancial environment in which banking organizations function and the degree to which that environment impacts the resilience of the group of advanced approaches institutions. Therefore, the appropriate setting of the CCyB for private sector credit exposures located in the United States (U.S.-based credit exposures) is not closely linked to the characteristics of an individual institution. However, the overall CCyB for each institution will differ because the CCyB is weighted based on a banking organization's particular composition of private-sector credit exposures across national jurisdictions.

    2. Overview and Scope of the Policy Statement

    This Policy Statement describes the framework that the Board will follow in setting the amount of the CCyB for U.S.-based credit exposures. The framework consists of a set of principles for translating assessments of financial-system vulnerabilities that are regularly undertaken by the Board into the appropriate level of the CCyB. Those assessments are informed by a broad array of quantitative indicators of financial and economic performance and a set of empirical models. In addition, the framework includes an assessment of whether the CCyB is the most appropriate policy instrument (among available policy instruments) to address the highlighted financial-system vulnerabilities.

    3. The Objectives of the CCyB

    The objectives of the CCyB are to strengthen banking organizations' resilience against the build-up of systemic vulnerabilities and reduce fluctuations in the supply of credit. The CCyB supplements the minimum capital requirements and the capital conservation buffer, which themselves are designed to provide substantial resilience to unexpected losses created by normal fluctuations in economic and financial conditions. The capital surcharge on global systemically important banking organizations adds an additional layer of defense for the largest and most systemically important institutions, whose financial distress can have outsized effects on the rest of the financial system and real economy.5 However, periods of financial excesses, as reflected in episodes of rapid asset price appreciation or credit growth not well supported by underlying economic fundamentals, are often followed by above-normal losses that leave banking organizations and other financial institutions undercapitalized. Therefore, the Board would most likely apply the CCyB in those circumstances when systemic vulnerabilities are somewhat above normal.

    5See 80 FR 49082 (August 14, 2015).

    The CCyB is expected to help provide additional resilience for advanced approaches institutions, and by extension the broader financial system, against elevated vulnerabilities primarily in two ways. First, advanced approaches institutions will likely hold more capital to avoid limitations on capital distributions and discretionary bonus payments resulting from implementation of the CCyB. Strengthening their capital positions when financial conditions are accommodative would increase the capacity of advanced approaches institutions to absorb outsized losses during a future significant economic downturn or period of financial instability, thus making them more resilient. The second and related goal of the CCyB is to promote a more sustainable supply of credit over the economic cycle.

    During a credit cycle downturn, better-capitalized institutions have been shown to be more likely to have continued access to funding and less likely to take actions that lead to broader financial-sector distress and its associated macroeconomic costs, such as large-scale sales of assets at prices below their fundamental value and sharp contractions in credit supply.6 Therefore, it is likely that as a result of the CCyB having been put into place during a period of rapid credit creation, advanced approaches institutions would be better positioned to continue their important intermediary functions during a subsequent economic contraction. A timely and credible reduction in the CCyB requirement during a period of high credit losses could reinforce those beneficial effects of a higher base level of capital, because it would permit advanced approaches institutions either to realize loan losses promptly and remove them from their balance sheets or to expand their balance sheets, for example by continuing to lend to creditworthy borrowers.

    6 For additional background on the relationship between financial distress and economic outcomes, see Carmen Reinhart and Kenneth Rogoff (2009), This Time is Different. Princeton University Press; Òscar Jordà & Moritz Schularick & Alan M. Taylor (2011), “Financial Crises, Credit Booms, and External Imbalances: 140 Years of Lessons,” IMF Economic Review, Palgrave Macmillan, vol. 59(2), pages 340-378; and Bank for International Settlements (2010), “Assessing the Long-Run Economic Impact of Higher Capital and Liquidity Requirements.”

    Likewise, during a period of cyclically increasing vulnerabilities, advanced approaches institutions might react to an increase in the CCyB by tightening lending standards, otherwise reducing their risk exposure, augmenting their capital, or some combination of those actions. They may choose to raise capital by taking actions that would increase net income, reducing capital distributions through share repurchases or dividends, or issuing new equity. In this regard, an increase in the CCyB would not prevent advanced approaches institutions from maintaining their important role as credit intermediaries, but would reduce the likelihood that banking organizations with insufficient capital would foster unsustainable credit growth or engage in imprudent risk taking. The specific combination of adjustments and the relative size of each adjustment will depend in part on the initial capital positions of advanced approaches institutions, the cost of debt and equity financing, and the earnings opportunities presented by the economic situation at the time.7

    7 For estimates of the size of certain adjustments, see Samuel G. Hanson, Anil K. Kashyap, and Jeremy C. Stein (2011), “A Macroprudential Approach to Financial Regulation,” Journal of Economic Perspectives 25(1), pp. 3-28; Skander J. Van den Heuvel (2008), “The Welfare Cost of Bank Capital Requirements.” Journal of Monetary Economics 55, pp. 298-320.

    4. The Framework for Setting the U.S. CCyB

    The Board regularly monitors and assesses threats to financial stability by synthesizing information from a comprehensive set of financial-sector and macroeconomic indicators, supervisory information, surveys, and other interactions with market participants.8 In forming its view about the appropriate size of the U.S. CCyB, the Board will consider a number of financial-system vulnerabilities, including but not limited to, asset valuation pressures and risk appetite, leverage in the nonfinancial sector, leverage in the financial sector, and maturity and liquidity transformation in the financial sector. The decision will reflect the implications of the assessment of overall financial-system vulnerabilities as well as any concerns related to one or more classes of vulnerabilities. The specific combination of vulnerabilities is important because an adverse shock to one class of vulnerabilities could be more likely than another to exacerbate existing pressures in other parts of the economy or financial system.

    8 Tobias Adrian, Daniel Covitz, and Nellie Liang (2014), “Financial Stability Monitoring.” Finance and Economics Discussion Series 2013-021. Washington: Board of Governors of the Federal Reserve System, http://www.federalreserve.gov/pubs/feds/2013/201321/201321pap.pdf.

    The Board intends to monitor a wide range of financial and macroeconomic quantitative indicators including, but not limited to, measures of relative credit and liquidity expansion or contraction, a variety of asset prices, funding spreads, credit condition surveys, indices based on credit default swap spreads, options implied volatility, and measures of systemic risk.9 In addition, empirical models that translate a manageable set of quantitative indicators of financial and economic performance into potential settings for the CCyB, when used as part of a comprehensive judgmental assessment of all available information, can be a useful input to the Board's deliberations. Such models may include those that rely on small sets of indicators—such as the credit-to-GDP ratio, its growth rate, and combinations of the credit-to-GDP ratio with trends in the prices of residential and commercial real estate—which some academic research has shown to be useful in identifying periods of financial excess followed by a period of crisis on a cross-country basis.10 Such models may also include those that consider larger sets of indicators, which have the advantage of representing conditions in all key sectors of the economy, especially those specific to risk-taking, performance, and the financial condition of large banks.11

    9See 12 CFR 217.11(b)(2)(iv).

    10See, e.g., Jorda, Oscar, Moritz Schularick and Alan Taylor, 2012. “When Credit Bites Back: Leverage, Business Cycles and Crises,” Working Papers 1224, University of California, Davis, Department of Economics, and Drehmann, Mathias, Claudio Borio, and Kostas Tsatsaronis, 2012. “Characterizing the financial cycle: don't lose sight of the medium term!” BIS Working Papers 380, Bank for International Settlements. Jorda, Oscar, Moritz Schularick and Alan Taylor, 2015. “Leveraged Bubbles,” Center for Economic Policy Research Discussion Paper No. DP10781. BCBS (2010), “Guidance for national authorities operating the countercyclical capital buffer,” BIS.

    11See, e.g., Aikman, David, Michael T. Kiley, Seung Jung Lee, Michael G. Palumbo, and Missaka N. Warusawitharana (2015), “Mapping Heat in the U.S. Financial System,” Finance and Economics Discussion Series 2015-059. Washington: Board of Governors of the Federal Reserve System, http://dx.doi.org/10.17016/FEDS.2015.059 (providing an example of the range of indicators used and type of analysis possible).

    However, no single indictor or fixed set of indicators can adequately capture all the key vulnerabilities in the U.S. economy and financial system. Moreover, adjustments in the CCyB that were tightly linked to a specific model or set of models would be imprecise due to the relatively short period that some indicators are available, the limited number of past crises against which the models can be calibrated, and limited experience with the CCyB as a macroprudential tool. As a result, the types of indicators and models considered in assessments of the appropriate level of the CCyB are likely to change over time based on advances in research and the experience of the Board with this new macroprudential tool.

    The Board will determine the appropriate level of the CCyB for U.S.-based credit exposures based on its analysis of the above factors. Generally, a zero percent U.S. CCyB amount would reflect an assessment that U.S. economic and financial conditions are broadly consistent with a financial system in which levels of system-wide vulnerabilities are not somewhat above normal. The Board could increase the CCyB as vulnerabilities build, and a 2.5 percent CCyB amount for U.S.-based credit exposures would reflect an assessment that the U.S. financial sector is experiencing a period of significantly elevated or rapidly increasing system-wide vulnerabilities. Importantly, as a macroprudential policy tool, the CCyB will be activated and deactivated based on broad developments and trends in the U.S. financial system, rather than the activities of any individual banking organization.

    Similarly, the Board would remove or reduce the CCyB when the conditions that led to its activation abate or lessen, rather than leaving the nonzero level of the buffer in place over periods when financial and economic developments suggest the absence of notable risks to financial stability. Indeed, for it to be most effective, the CCyB should be deactivated or reduced in a timely manner. This would reduce the likelihood that advanced approaches institutions would significantly pare their risk-weighted assets in order to maintain their capital ratios during a downturn.

    The pace and magnitude of changes in the CCyB will depend importantly on the underlying conditions in the financial sector and the economy as well as the desired effects of the proposed change in the CCyB. If vulnerabilities are rising gradually, then incremental increases in the level of the CCyB may be appropriate. Incremental increases would allow banks to augment their capital primarily through retained earnings and allow policymakers additional time to assess the effects of the policy change before making subsequent adjustments. However, if vulnerabilities in the financial system are building rapidly, then larger or more frequent adjustments may be necessary to increase loss-absorbing capacity sooner and potentially to mitigate the rise in vulnerabilities.

    The Board will also consider whether the CCyB is the most appropriate of its available policy instruments to address the financial-system vulnerabilities highlighted by the framework's judgmental assessments and empirical models. The CCyB primarily is intended to address cyclical vulnerabilities, rather than structural vulnerabilities that do not vary significantly over time. Structural vulnerabilities are better addressed though targeted reforms or permanent increases in financial system resilience. Two key factors for the Board to consider are whether advanced approaches institutions are exposed—either directly or indirectly—to the vulnerabilities identified in the comprehensive judgmental assessment or by the quantitative indicators that suggest activation of the CCyB and whether advanced approaches institutions are contributing—either directly or indirectly—to these highlighted vulnerabilities.

    The Board, in setting the CCyB for advanced approaches institutions that it supervises, plans to consult with the OCC and FDIC on their analyses of financial-system vulnerabilities and on the extent to which banking organizations are either exposed to or contributing to these vulnerabilities.

    5. Communication of the U.S. CCyB With the Public

    The Board expects to consider at least once per year the applicable level of the U.S. CCyB. The Board will review financial conditions regularly throughout the year and may adjust the CCyB more frequently as a result of those monitoring activities.

    Further, the Board will continue to communicate with the public in other formats regarding its assessment of U.S. financial stability, including financial-system vulnerabilities. For example, the Board's biannual Monetary Policy Report to Congress, usually published in February and July, will continue to contain a section that reports on developments pertaining to the stability of the U.S. financial system.12 That portion of the report will be an important vehicle for updating the public on how the Board's current assessment of financial-system vulnerabilities bears on the setting of the CCyB.

    12 For the most recent discussion in this format, see box titled “Developments Related to Financial Stability” in Board of Governors of the Federal Reserve System, Monetary Policy Report to Congress, July 2015, pp. 24-25.

    6. Monitoring of the Effects of the U.S. CCyB

    The effects of the U.S. CCyB ultimately will depend on the level at which it is set, the size and nature of any adjustments in the level, and the timeliness with which it is increased or decreased. The extent to which the CCyB may affect vulnerabilities in the broader financial system depends upon a complex set of interactions between required capital levels at the largest banking organizations and the economy and financial markets. In addition to the direct effects, the secondary economic effects could be amplified if financial markets extract a signal from the announcement of a change in the CCyB about subsequent actions that might be taken by the Board. Moreover, financial market participants might react by updating their expectations about future asset prices in specific markets or broader economic activity based on the concerns expressed by the regulators in communications announcing a policy change.

    The Board will monitor and analyze adjustments by banking organizations and other financial institutions to the CCyB. Factors that will be considered include (but are not limited to) the types of adjustments that affected banking organizations might undertake. For example, it will be useful to monitor whether a change in the CCyB leads to observed changes in risk-based capital ratios at advanced approaches institutions, as well as whether those adjustments are achieved passively through retained earnings, or actively through changes in capital distributions or in risk-weighted assets. Other factors to be monitored include the extent to which loan growth and spreads on loans issued by affected banking organizations change relative to loan growth and loan spreads at banking organizations that are not subject to the buffer. Another key consideration in setting the CCyB and other macroprudential tools is the extent to which the adjustments by advanced approaches institutions to higher capital buffers lead to migration of credit market activity outside of those banking organizations, especially to the nonbank financial sector. Depending on the amount of migration and which institutions are affected, those adjustments could cause the Board to favor either a higher or a lower value of the CCyB.

    The Board will also monitor information regarding the levels of and changes in the CCyB in other countries. The Basel Committee on Banking Supervision is expected to maintain this information for member countries in a publically available form on its Web site.13 Using that data in conjunction with supervisory and publicly available datasets, Board staff will be able to draw not only upon the experience of the United States but also that of other countries to refine estimates of the effects of changes in the CCyB.

    13 BIS, Countercyclical capital buffer (CCyB), www.bis.org/bcbs/ccyb/index.htm.

    By order of the Board of Governors of the Federal Reserve System, December 21, 2015. Robert deV. Frierson, Secretary of the Board.
    [FR Doc. 2016-01934 Filed 2-2-16; 8:45 am] BILLING CODE P
    SMALL BUSINESS ADMINISTRATION 13 CFR Part 107 RIN 3245-AG66 Small Business Investment Company Program—Impact SBICs AGENCY:

    U.S. Small Business Administration.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    In this proposed rule, the U.S. Small Business Administration (SBA) is defining a new class of small business investment companies (SBICs) that will seek to generate positive and measurable social impact in addition to financial return. With the creation of this class of “Impact SBICs,” SBA is seeking to expand the pool of investment capital available primarily to underserved communities and innovative sectors as well as support the development of America's growing impact investing industry. This proposed rule sets forth regulations applicable to Impact SBICs with respect to licensing, leverage eligibility, fees, reporting and compliance requirements.

    DATES:

    Comments on the proposed rule must be received on or before March 4, 2016.

    ADDRESSES:

    You may submit comments, identified by RIN 3245-AG66, by any of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Mail, Hand Delivery/Courier: Mark Walsh, Associate Administrator for the Office of Investment and Innovation, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416.

    SBA will post comments on http://www.regulations.gov. If you wish to submit confidential business information (CBI) as defined in the User Notice at http://www.regulations.gov, please submit the information to Nate T. Yohannes, Office of Investment and Innovation, 409 Third Street SW., Washington, DC 20416. Highlight the information that you consider to be CBI and explain why you believe this information should be held confidential. SBA will review the information and make the final determination of whether or not it will publish the information.

    FOR FURTHER INFORMATION CONTACT:

    Nate T. Yohannes, Office of Investment and Innovation, (202) 205-6714.

    SUPPLEMENTARY INFORMATION: I. Background Information

    “Impact investing” is a term used to describe an investment approach that combines the pursuit of financial return with the goal of generating measurable social, environmental or economic impact. The term “social impact investing” is often used synonymously with the term impact investing, and refers, collectively, to all types of impact investing, including social, environmental and economic. Impact investors are active throughout the capital markets, and though their strategies may vary, according to the Global Impact Investing Network, a non-profit organization dedicated to increasing the scale and effectiveness of impact investing, impact investors share three defining traits. First, impact investors invest with the explicit intention of generating a positive social impact. This is in contrast to other types of investors who attempt to avoid generating negative social impacts or who are entirely indifferent to the social outcomes resulting from their investments. Second, though their return requirements vary, impact investors are not grant providers and always expect a return on their invested capital. Finally, impact investors share a commitment to measure the effect of their investments on the employees, customers and communities of the companies in which they invest. See, The Global Impact Investing Network, About Impact Investing, http://www.thegiin.org/cgi-bin/iowa/resources/about/index.html.

    Impact investing currently constitutes a small segment of global investment activity. Each year, J.P. Morgan and the Global Impact Investing Network (“GIIN”) publish an annual survey of leading impact investors. In their May 2015 findings, available at http://www.thegiin.org/cgi-bin/iowa/resources/research/662.html, 146 survey respondents reported managing a collective total of $60 billion in impact investments. Compared with the $64 trillion in global assets under management, a figure drawn from PricewaterhouseCoopers' (“PwC”) 2014 report Asset Management 2020: A Brave New World, available at http://www.pwc.com/gx/en/asset-management/publications/asset-management-2020-a-brave-new-world.jhtml, impact investments comprise a small fraction of invested capital worldwide.

    However, the size of the impact industry belies both its growth potential and that of the broader sustainable finance sector. This is a sector focused on “creating economic and social value through financial models, products and markets that are sustainable over time.” See, Center for Responsible Business, Haas School of Business, University of California Berkeley, Sustainable Finance, http://responsiblebusiness.haas.berkeley.edu/programs/sustainablefinance.html. The Forum for Sustainable and Responsible Investment estimates that U.S.-domiciled assets managed using sustainable, responsible or impact investing strategies increased by a compound annual rate of 33% between 2012 and 2014. If that trend continues, sustainable finance will continue to outpace overall market growth. According to the 2014 PwC report, global AUM will grow at a compound annual growth rate of just nearly 6 percent in coming years.

    SBA's formal efforts in the impact investing space began on April 7, 2011, when it announced the launch of the SBIC program's Impact Investing Initiative (the “Initiative”), building upon SBA's belief that targeting capital investments into segments of the U.S. economy where capital formation gaps exist, such as small businesses located in low-to-moderate income (“LMI”) and other underserved areas, has the potential to effect meaningful and sustained economic development impact in those areas. The Initiative made available $1 billion in debenture leverage, over the course of 5 years, to SBICs that committed to deploy at least 50 percent of their total invested capital in “impact investments.” Under the Initiative, investments in small businesses located in LMI areas, economically-distressed areas and rural areas generally qualified as impact investments, as did investments in small businesses active in the education and clean energy sectors.

    Since 2011, SBA has made several changes to the Initiative in an effort to enhance its effectiveness. Most recently, in September 2014, SBA expanded the scope of the Initiative and renamed it the “Impact Investment Fund” to reflect SBA's commitment to extend its impact investing efforts beyond the Initiative's initial 5-year term.

    This rule follows from that commitment and seeks to recognize, within the SBIC program's regulations, the important role impact investors can play in helping the SBIC program achieve its goal of providing capital and long-term loan funds for the growth, expansion and modernization of small businesses.

    II. Section by Section Analysis

    § 107.50—Definitions. SBA proposes to add the defined terms “Fund-Identified Impact Investment,” “Impact Investment,” “Impact SBIC” and “SBA-Identified Impact Investment.”

    “Fund-Identified Impact Investment,” “Impact Investment,” and “SBA-Identified Impact Investment”

    The definition of “Impact Investment” included in this proposed rule consists of two categories, each of which is also a defined term in the proposed rule: (1) SBA-Identified Impact Investments, which are investments in geographic areas and sectors of national priority that SBA designates in notices published from time to time on SBA's SBIC program Web site (www.sba.gov/inv); and (2) Fund-Identified Impact Investments, which are investments that meet an SBIC's own definition of an “Impact Investment” and which an SBIC applicant must propose and SBA must approve during the licensing process, as described in proposed § 107.331—Evaluation and selection of Impact SBICs.

    “Impact SBIC”

    The regulatory definition of an Impact SBIC has several key points. First, an Impact SBIC must be organized as a limited partnership. Although the current regulations permit other forms of organization, the vast majority of existing SBICs are limited partnerships. SBA believes that having a degree of uniformity in organizational structure will facilitate a more timely and efficient licensing process for Impact SBICs.

    Second, the “Impact SBIC” designation would apply only to SBICs licensed under this rule as well as those licensees designated as Impact SBICs after the launch of the Initiative in 2011 and before the effective date of this rule.

    Third, an Impact SBIC must invest at least 50 percent of its financing dollars in small business concerns that meet the criteria set forth in the definition of Impact Investment in this rule (referred to hereafter as the “50 percent requirement”). SBA believes the 50 percent threshold indicates a significant focus, while still giving Impact SBICs flexibility in developing their portfolios. Per the proposed rule, follow-on investments in a portfolio company that qualified as an “Impact Investment” at the time of the SBIC's initial financing would count towards the 50 percent requirement.

    An Impact SBIC may satisfy the 50 percent requirement exclusively through SBA-Identified Impact Investments or Fund-Identified Impact Investments, but may also satisfy the 50 percent requirement through a combination of these investments. Per proposed § 107.331, SBA must approve all Fund-Identified Impact Investment definitions and strategies during the licensing process, regardless of whether such investments will be used to meet all or only a portion of the 50 percent requirement.

    § 107.301—Impact SBIC licensing fee discount. This section proposes a 60% reduction in the licensing fees Impact SBIC applicants must pay under § 107.300. The discount is intended to incentivize the formation of Impact SBICs. Despite the fee reduction, SBA will devote neither less time nor fewer resources to the assessment of Impact SBIC applications than it devotes to the assessment of standard SBIC applications.

    However, § 107.301 would provide that in the event an Impact SBIC applicant were to ultimately be approved for an SBIC license as anything other than an Impact SBIC, SBA would be entitled to recover the value of any discounts the applicant received prior to licensing. This provision was added to cover cases in which an applicant decides mid-process, with SBA permission, to seek a standard SBIC license instead of an Impact SBIC license. These types of changes sometimes occur during the fundraising process as fund managers adjust to the expectations of private capital providers. Although licensees designated as Impact SBICs under the Initiative would be eligible for fee discounts as of the effective date of this rule, SBA will not return any fees these licensees paid prior to that date.

    Finally, any Impact SBIC, whether licensed under the Initiative or under this rule, may submit a written request to SBA seeking to convert to a standard SBIC license. SBA would generally expect to grant such a request, provided that SBA recovers the value of any discounts the licensee received.

    § 107.310—When and how to apply for licensing as an Early Stage SBIC. America's impact investment industry includes fund managers focused on making equity investments in early stage companies. In order to accommodate these fund managers, proposed § 107.310 permits applicants to apply simultaneously for an Impact SBIC and Early Stage SBIC license. Further, such dual applicants will be permitted to submit their application at any time and will not be subject to the submission deadlines specified in Early Stage Notices SBA may publish in the Federal Register. However, those applicants licensed as both Early Stage and Impact SBICs will be subject to every regulation pertaining to either type of licensee.

    § 107.330—Evaluation and selection of Impact SBIC license applicants making SBA-Identified Impact Investments. Impact SBIC license applicants proposing to meet their impact investment requirements exclusively through SBA-Identified Impact Investments will be evaluated and selected based on the standards outlined in § 107.305, which are used to assess all SBIC applicants. In addition, SBA will evaluate the managers' skills and experience in building and managing a portfolio of impact investments. However, an applicant's potential to generate social, environmental or economic impact will be considered relevant only to its eligibility to participate in the SBIC program as an Impact SBIC and will not serve as a substitute for any of the factors cited in § 107.305.

    § 107.331—Evaluation and selection of Impact SBIC license applicants making Fund-Identified Impact Investments.

    Under proposed § 107.331, Impact SBIC license applicants seeking approval to make Fund-Identified Impact Investments will be subject first and foremost to the evaluation process and qualification standards outlined in § 107.305, which are used to assess all SBIC applicants. An applicant's potential to generate social, environmental or economic impact will be considered relevant only to its eligibility to participate in the SBIC program as an Impact SBIC and will not serve as a substitute for any of the factors cited in § 107.305.

    Using SBA Form 2181 (Applicant Narrative), applicants will be expected to provide definition(s) of the Fund-Identified Impact Investments they intend to make for the purposes of complying with the requirement that 50 percent of the total dollar amount of their financings be deployed in Impact Investments. Applicants will also be required to describe, using qualitative and quantitative analysis, the expected social, environmental or economic impact of their proposed Fund-Identified Impact Investments.

    SBA will review any Fund-Identified Impact Investment definition(s), along with an applicant's overall investment strategy, in order to determine whether the proposed definitions and strategy are consistent with SBA's mission, as well as the letter and spirit of the SBIC program's regulations. For instance, a Fund-Identified Impact Investment definition that targets financial intermediaries would not be approved if SBA determines it risks running afoul of the regulatory prohibition on financing “relenders” or “reinvestors.”

    SBA will next determine whether the applicant's proposed Fund-Identified Impact Investments are likely to yield a positive impact when all the potential social, environmental and economic effects of the investments are considered. SBA's evaluation may consider factors such as whether the strategy will include investments in Portfolio Concerns that increase services to low income communities, engage in environmentally sustainable business practices or manufacture environmentally sustainable products, or that operate in industries of national priority other than in the sectors identified by SBA as an SBA-Identified Impact Investment. The Agency acknowledges that reaching a definitive and objective conclusion regarding a strategy's overall impact may be challenging. Impact is often described in qualitative, rather than quantitative terms. In anticipation of that challenge, the proposed rule has been drafted to mitigate the risk that SBA would be put in the position of having to accept or reject a proposed definition based solely on a value judgment.

    Applicants will be expected to make reasonable arguments, supported by convincing evidence, that their proposed definitions can meet the impact requirements of this rule. In this regard, the process SBA will use to evaluate proposed Fund-Identified Impact Investment definitions differs little from the process used to assess fund manager qualifications. SBA will use its standard due diligence tools, including principal interviews and reference calls, to test the strength of an applicant's proposal and the validity of the evidence presented therein. Just as a standard SBIC applicant might be rejected for making unsubstantiated track record claims, so too could a Fund-Identified Impact Investment definition be turned down if diligence suggests it lacks credibility.

    SBA takes a nuanced approach to its licensing decisions and does not rely solely on easy-to-measure financial metrics. An applicant's past financial performance is always carefully weighed against less tangible factors such as the level of cohesion among the proposed management team members; the alignment of incentives between the fund manager and private investors; and the quality of the proposed investment strategy, among other variables.

    SBA expects to receive few, if any, Fund-Identified Impact Investment definition proposals that are intended solely to obtain the fee reduction benefits of an Impact SBIC license. The fee reductions in the proposed rule are not material compared to the amount of capital raised by an SBIC applicant, and Impact SBIC licensees are subject to enhanced regulatory reporting requirements. Moreover, fund managers that have expressed interest in SBA's impact investing efforts have, to-date, all proposed strategies with clear benefits and no obvious risk of yielding negative effects. The following are examples of the types of impact investments being made in the market today and which SBA anticipates Impact SBICs applying under this section may target:

    • Healthcare companies that offer affordable, high-quality services to low-income consumers • Education companies that provide evidence-based, supplemental learning services designed to enhance student achievement • Energy efficiency and sustainability consulting firms • Agricultural businesses that employ humane and environmentally sustainable farming practices • Businesses that collect and reprocess industrial waste for alternative use • Alternative credit scoring firms that enhance access to financial services for low-income consumers

    In addition to approving an applicant's proposed definition of a Fund-Identified Impact Investment, SBA must be satisfied with the applicant's impact measurement and assessment plan, which an applicant must submit in accordance with proposed § 107.331(b). Under this section, the applicant must outline its plan to comply with proposed § 107.665, which requires Impact SBICs making Fund-Identified Impact Investments to obtain an assessment of their impact (1) from an independent, third-party assessment provider, (2) using an SBA-approved impact measurement standard, a list of which SBA will publish on its Web site from time to time, and (3) using an assessment process that is both transparent and comprehensive.

    Impact measurement is a defining characteristic of impact investors. Without it, impact fund managers and their capital providers face a much bigger challenge in determining whether their goal of generating positive social impact has been met. Unfortunately, determining whether a fund has reached its impact target is far more complicated than evaluating its financial performance. The process requires establishing a standard by which the targeted outcomes will be measured, then crafting an evaluation framework capable of weighing the resulting measurements to yield an overall assessment of impact.

    With regard to measurement, the proposed rule would require Impact SBICs licensed under this section to measure their impact using one of several pre-approved measurement standards. At the outset, SBA intends to approve the use of the three sets of standards listed below, although SBA may approve additional standards as they become more widely adopted by the impact investing industry:

    —The Impact Reporting and Investment Standards (“IRIS”), an impact evaluation framework created by GIIN; —The G4 Sustainability Reporting Standards, produced by the Global Reporting Initiative (“GRI”); and —The standards produced and maintained by the Sustainability Accounting Standards Board (“SASB”).

    The purpose of these standards is to establish a common language companies and investors can use to report the positive and negative impacts that result from their activities. These standards are part of a broader industry effort to bring to impact measurement what the Generally Accepted Accounting Standards (“GAAP”) provide for financial reporting. When comparing the GAAP-compliant financial statements of two different companies, an investor can be confident the same set of rules was used to report items such as revenue, inventory and operating cash flow in both statements. GAAP does not provide guidance on how to interpret the data, but it does ensure consistency in reporting.

    Impact measurement standards were developed to offer the same proposition. Consider the simple example of two Impact SBICs, both of which are pursuing similar strategies to create high-wage jobs in a particular region. In the absence of a measurement standard, the tasks of defining a “job” and calculating a “wage” are left to the funds themselves, which leaves room for methodological discrepancies. One fund may include the value of benefits in its calculation of wages, while the other restricts its definition to direct cash payments. An investor trying to determine which fund has been more effective in reaching its impact goal would have difficulty in this scenario. Measurement standards help reduce these definitional challenges. Were the two funds to use IRIS metrics, for instance, they could both rely on the IRIS definition of a “full-time” or “permanent” employee and use the method IRIS has established for calculating the wages of those employees.

    The impact investing industry has yet to coalesce around a single set of measurement standards and may never do so. However, the three standards SBA intends to approve were selected, in part, because of their prominence in the industry and the flexibility they provide for different types of impact strategies. Of the three, IRIS is likely the best-known and most widely used set of standards. GRI has a focus on sustainability, which may provide environmentally focused Impact SBICs additional flexibility. Finally, SASB's standards are designed primarily for public corporations and may facilitate reporting for Impact SBICs with portfolio companies that are already public or intend to go public.

    With clear options available for the measurement of impact, Impact SBICs can turn to the second component of SBA's proposed evaluation system, which deals with the assessment of impact. As noted above, impact measurement standards only provide guidance on how to report impact data. They are silent on how to interpret that data. Returning to the example above, the two fund managers may report IRIS-compliant employee and wage data to their investors, but an assessment framework is needed to determine what constitutes a “strong” level of employment growth, what threshold determines a wage is “high”, or how to weigh the growth in wages against the growth in employment when evaluating the funds' overall impact.

    As with financial performance, each individual investor is empowered to reach his or her own conclusions about what constitutes “success” with regard to impact. While numbers, such as an internal rate of return, cannot be easily manipulated by a fund manager, investors could receive biased reports on impact returns if a fund manager were to selectively choose metrics and the weighting associated with those metrics. The use of independent and transparent assessment systems not only helps reduce the risk of selective reporting, but it also promotes the use of best practices across the industry.

    For these reasons, SBA considers the assessment component of its proposed impact evaluation system critical to the credibility of the program. Impact SBIC applicants seeking a license under this section of the proposed rule must identify the assessment providers they expect to use to fulfill their reporting requirements and describe the systems those providers employ. Further, the applicant must provide evidence that each assessment provider is independent, that the criteria and weightings the providers use are publicly available and that each provider is capable of conducting a comprehensive assessment of the Impact SBIC's impact. A comprehensive assessment is one capable of evaluating the social, environmental and economic impacts of the applicant's proposed strategy.

    One assessment system SBA has already approved for use under its current Impact Investment Fund policy is the Global Impact Investment Ratings System (“GIIRS”), a product of the non-profit organization B Lab, which uses a standard set of IRIS impact metrics. GIIRS was created to bring to the impact investment industry the kind of consistent and comparable rating reports traditional finance has had for decades in the form of mutual fund ratings or credit ratings. With each investment fund they rate, B Lab staff collects a standard set of IRIS impact metrics from each company in the portfolio. That data is then run through the GIIRS assessment criteria, each of which is assigned a specific weight. The end result is a ratings report with an overall impact score and scores for each individual sub-component of the overall assessment. Since each rating uses the same set of core metrics, assessment criteria and weightings, one investment fund's score can be compared to that of another.

    With each new Impact SBIC licensed under this section, SBA will build a portfolio of investment strategies and impact reports that it hopes will help guide future applicants to the program. Both to facilitate that learning process and to ensure program transparency, Section 107.331(d) allows the Agency to publish information about the investment strategies and assessment systems the Impact SBICs licensed under this section have employed.

    However, the provisions of paragraph (d) will not release SBA from its responsibility to protect the confidential business information of its licensees. SBA intends only to publish general descriptions of the investment strategies it has approved and will not reveal any details that might compromise an applicant or licensee's confidential business information. Similarly, the Agency will make public the names of assessment providers it has approved and descriptions of the assessment systems those providers use, but will not reveal the results of any individual impact assessment.

    § 107.502—Representations to the public. SBA is proposing to add new paragraphs (b) and (c) to this section, which would require Impact SBIC license applicants and Impact SBICs to identify themselves as impact investment funds when marketing their funds to prospective investors. This requirement is meant to ensure that investors are made aware that the Impact SBIC applicant intends to participate, or that a licensed Impact SBIC is participating, in the SBIC program as an Impact SBIC. Requiring Impact SBICs to identify themselves as such will also help deter applicants whose sole interest in obtaining an Impact SBIC license is to benefit from the associated fee discounts.

    § 107.610—Required certifications for Loans and Investments. Proposed new paragraph (g) would provide for new certifications by Impact SBICs and the small businesses in which they make Impact Investments, certifying the basis for which each investment qualifies as an Impact Investment. As with most of the existing certifications in this section, the Impact certifications would be retained in the SBIC's files and be available for SBA's review.

    The paragraph would require different levels of certification depending on the type of Impact Investment. SBA-Identified Impact Investments will be based on certifications from both the Impact SBIC and its portfolio concerns; Fund-Identified Impact Investments will only require the certification of the Impact SBIC. Since SBA-Identified Impact Investments will be based on definitions in federal regulation and will generally depend on specific statistics collected at the company level, it is reasonable to expect the leaders of those businesses to certify the accuracy of their information. By contrast, Fund-Identified Impact Investments may be based on sector data or other information outside the control of the small business being financed. Therefore, for Impact SBICs making Fund-Identified Impact Investments, the regulation places the full certification burden on the Impact SBIC.

    As noted above, per the proposed rule, follow-on financings in Impact Investments would count towards the 50 percent requirement, and therefore, SBA will not require Impact SBICs to re-certify the investment as part of a follow-on financing. SBA believes that requiring Impact SBICs to re-certify their follow-on financings as Impact Investments might deter them from making long-term capital commitments out of concern that future financings might not count towards the “50 percent requirement.” Nonetheless, SBA is soliciting comments from the public on whether such follow-on investments should count towards the 50 percent requirement only if the Impact SBIC re-certifies the investment as an Impact Investment at the time a follow-on investment is made.

    § 107.665—Measurement and reporting requirements for Impact SBICs making Fund-Identified Impact Investments. This proposed section would require Impact SBICs making Fund-Identified Impact Investments to obtain independent assessments of the social, environmental and economic impact of their investment strategy. Unless the licensee obtains SBA approval to do otherwise, these assessments must be prepared in manner consistent with the plan approved during the licensing process.

    Impact SBICs subject to this section will face penalties if they fail to obtain impact assessments, but SBA will neither penalize nor reward an Impact SBIC based solely on the results of those impact assessments. One purpose of permitting Impact SBICs to make Fund-Identified Impact Investments is to encourage innovative approaches to social, environment and economic challenges. Penalizing licensees that fail to meet their impact goals, despite their best efforts, would be counterproductive. Instead, the Agency trusts that successful fund managers will earn their rewards in the market place, using the strength of their financial and social returns to attract private capital. SBA will also look favorably on subsequent Impact SBIC applicants with a record of strong social and financial performance. By contrast, Impact SBICs with poor impact assessments are more likely to face difficulty raising private capital and obtaining a subsequent Impact SBIC license.

    § 107.693—Impact SBIC examination fee discount. This new proposed section would allow a 10% reduction in the examination “base fee” that would otherwise be applicable to Impact SBICs under existing § 107.692. SBA will devote neither less time nor fewer resources to the examination of Impact SBIC licensees as a result of this discount. Under the proposed rule, licensees designated as Impact SBICs prior to the effective date of this rule will be eligible for fee discounts on a going-forward basis, but SBA will not return fees already paid.

    § 107.1120—General eligibility requirements for Leverage. Proposed new paragraph (l) would provide for a new certification by Impact SBICs seeking an SBA leverage commitment or draw. The Impact SBIC would be required to certify that it will invest at least 50 percent of the aggregate dollar amount of its financings in Impact Investments, in compliance with the Impact Investment and Impact SBIC definitions in § 107.50. This prospective certification is consistent with the other certifications required by § 107.1120. SBA intends to monitor Impact SBICs' performance in making Impact Investments to ensure that they are making investments that meet this requirement.

    § 107.1810—Events of default and SBA's remedies for Licensee's noncompliance with terms of Debentures. SBA is proposing two changes in this section that would apply only to Impact SBICs. First, under proposed § 107.1810(f)(13), it would be an event of default if an Impact SBIC fails to meet the requirement to invest at least 50 percent of its financing dollars in Impact Investments, as defined in proposed § 107.50. If the Impact SBIC fails to cure to SBA's satisfaction, SBA could invoke the remedies in existing § 107.1810(g), which includes the right to declare outstanding debenture leverage immediately due and payable. SBA would generally not expect to invoke such remedies if an Impact SBIC's failure to meet the 50 percent requirement appears to be temporary.

    Second, under proposed § 107.1810(f)(14), it would be an event of default if an Impact SBIC licensed under an SBA-approved plan to make Fund-Identified Impact Investments fails to obtain an acceptable independent, third-party assessment to measure the social, environmental or economic impact of the fund's Impact Investment strategy within the time frames required by proposed § 107.665. If the Impact SBIC fails to cure to SBA's satisfaction, SBA could invoke the remedies in existing § 107.1810(g), which include the right to declare outstanding debenture leverage immediately due and payable.

    § 107.1940—Impact SBIC licensee noncompliance with regulations. SBA proposes creating in this new section a series of actions the Agency may take with respect to Impact SBICs that fail to meet the 50 percent requirement and Fund-Identified Impact SBICs that fail to meet assessment requirements. Regardless of whether an Impact SBIC has outstanding leverage, if an event of default would have been triggered under proposed § 107.1810(f)(13) or (14), SBA will have the authority, upon written notice, to take any or all of the following actions: (1) Convert the licensee's Impact SBIC license to a standard SBIC license (including, in SBA's discretion, requiring the licensee to notify its private investors of the conversion); and (2) require the licensee to return to SBA up to the full dollar amount of any licensing or examinations fee discounts it has received prior to the date of the written notice. However, SBA will be authorized to take these actions only after giving the licensee at least 15 days to resolve its non-compliance and only after the licensee fails to resolve its non-compliance within the time period given.

    SBA included these additional remedies to address two areas of concern. First, the events of default proposed under § 107.1810(f) would only apply to Impact SBICs with outstanding leverage. As a result, Impact SBICs that are licensed as non-leveraged funds or those that pre-pay their leverage in full would not be subject to any remedies if they were to fall out of compliance with the 50 percent requirement or, as applicable, the assessment requirement. Second, the fee discounts proposed under this rule generally reward Impact SBIC applicants and licensees for future, rather than past behavior. For instance, an Impact SBIC will be eligible for a 60 percent discount on its licensing fee based on its proposal to deploy at least 50 percent of its capital in Impact Investments. Without the provisions proposed under this section, SBA would have limited authority to recover those benefits or otherwise take action against the fund if it fails to follow through on that commitment.

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

    The Office of Management and Budget has determined that this rule is a “significant” regulatory action under Executive Order 12866. The Regulatory Impact Analysis is set forth below.

    1. Need for Regulation

    The Small Business Investment Act of 1958, as amended, established the SBIC program to “stimulate and supplement the flow of private equity capital and long-term loan funds” to U.S.-based small businesses. 15 U.S.C. 661. As part of that effort, the Act contains several provisions aimed at promoting the flow of capital to several special categories of small business, including those located in low income geographic areas, those engaged in energy-saving activities and “smaller” businesses.15 U.S.C. 683(b)(2)(C), 683(b)(2)(D), 683(d).

    Over the past several years, SBA's focus on achieving these economic development goals has yielded results, but progress has come at a slower pace than anticipated. Despite the recent growth in the number of SBIC-financed businesses located in LMI areas, which rose from 216 in fiscal year (“FY”) 2012 to 229 in FY 2014, the program has yet to return to the high level achieved in FY 2011, during which SBICs financed 351 businesses located in LMI areas. The LMI Debenture, a leverage instrument meant to help facilitate these types of investments, is rarely used. Similarly, there has yet to be a single draw of SBA's Energy Savings Debenture, which has been available since 2012 to help finance small businesses involved in reducing the use of non-renewable energy sources.

    The proposed rule was crafted to enhance the SBIC program's effectiveness in channeling much-needed capital to these and other underserved segments of the U.S. economy. From an overall economic development perspective, SBA believes that capital investments made into small businesses located in LMI and other underserved areas have the potential to have the most meaningful and sustained impact due to the capital formation gaps in those areas.

    2. Alternative Approaches to Regulation

    SBA considered several alternatives to the proposed regulation, each of which will be discussed below. First, SBA considered pursuing its impact investment objectives solely through existing policy initiatives. Based on extensive feedback received from SBIC fund managers, lower-middle market industry representatives, impact investment fund managers, impact policy thought leaders and others, SBA rejected this alternative. SBA's existing impact investing policies impose additional burdens without providing sufficient incentives to attract Impact SBIC fund managers to the program. Further, given that SBIC licensees have operational lives of ten years or more, the market will be reluctant to embrace SBA's impact investing efforts unless the Agency demonstrates a lasting commitment to the space by promulgating regulations.

    SBA faced a challenge in developing a definition of an “Impact Investment” that dealt appropriately with the subjectivity inherent in any non-financial measure of performance. Initially, SBA considered restricting the definition of an Impact Investment to financings that meet requirements already outlined in federal regulations, such as Energy-Savings Investments, LMI Investments or investments in rural areas. These investments are aligned with federal policy priorities and are easy to define and monitor. The original Impact Investment Initiative policy launched in 2011 was structured in this manner and was slow to attract applicants. Given the nascence of the impact investing industry, which supports a diverse range of investment strategies, SBA determined a more accommodative approach would be more effective.

    The proposed rule has been drafted to allow Impact SBIC applicants to make SBA-Identified Impact Investments, which target federal priority areas, or make Fund-Identified Impact Investments that align with their own definitions of impact. This approach expands the reach of SBA's impact investing efforts beyond the limited sub-set of investments that meet existing regulatory criteria. The Agency also recognizes the complexities Fund-Identified Impact Investments may introduce to the SBIC licensing and monitoring process.

    SBA had to carefully consider the bases on which it would approve an Impact SBIC's proposed Fund-Identified Impact Investment definition. One option the Agency considered was to outline, as part of this regulation, a series of sector-specific eligibility requirements that Fund-Identified Impact Investments would have to satisfy. Working with colleagues at the U.S. Department of Education, SBA staff made an initial attempt at preparing guidelines for investments in the education sector but quickly discovered the impracticality of the approach. Even within a single sector, there exists such a tremendous diversity of economic activity that establishing requirements specific-enough to be useful would require an inordinate commitment of time and resources.

    An alternative approach would be to remove SBA from the approval process altogether and give Impact SBIC applicants complete latitude to pursue Fund-Identified Impact Investments of their choice. Under this approach, SBA would evaluate Impact SBICs using its existing licensing process without any additional consideration of the impact-related aspects of the applicant's proposal. A key advantage of this approach is that it would allow SBA to fully cede the definitional challenge of impact to fund managers and their private investors. It would also ensure the program remains open to innovative impact strategies.

    SBA will always encourage applicants to propose innovative investment strategies, but the Agency must retain the ability to review and approve proposed Fund-Identified Impact Investment definitions. Not only must the Agency ensure that SBICs are making investments that are consistent with the letter and spirit of program regulations, but it must also consider the reputation of the SBIC program within the private investor community. The statute underlying the SBIC program, known as the Small Business Investment Act, makes clear that the program should be implemented in a manner that “insure[s] the maximum participation of private financing sources.” 15 U.S.C. 661. Were SBA to ignore an applicant's proposed Fund-Identified Impact Investment definitions, private impact investors might take the Agency's approach as a signal of indifference to market development.

    In fact, the approach SBA has taken reflects the Agency's interest in not only enhancing the impact of the SBIC program, but also promoting industry best practices. SBA is as concerned with the process used to make Fund-Identified Impact Investments as it is with the outcomes of those investments. Each Impact SBIC applicant will have the burden of demonstrating, with qualitative or quantitative analysis, that its investment strategy will, in aggregate, generate a measurable positive impact. SBA staff will supplement their evaluation of the applicant's analysis and its other application materials with the results obtained using the standard tools of due diligence, such as interviews with the management team, reference calls, consultations with industry experts, public record searches and other research.

    As long as a fund manager is qualified and its definition does not run afoul of the Agency's mission, statutes, regulations or policies, SBA intends to give applicants substantial leeway in defining their Fund-Identified Impact Investments. The measurement and assessment requirements of the proposed rule ensure that even those Impact SBICs that fail to meet their targeted social returns will contribute to market development. Measuring results, good and bad, contributes to the industry's understanding of the relationship between financial and social returns and helps investors identify the most talented managers.

    SBA confronted two key questions as it considered how to create a robust measurement and assessment process. First, what means should SBA use to assess the impact of Fund-Identified Impact Investments? Second, what consequences, if any, should Impact SBICs face based on the result of their impact assessments?

    With regard to the first question, SBA could have assumed the full burden of evaluating each Fund-Identified Impact Investment to determine its impact. This alternative was rejected because SBA staff lack sufficient time, resources and expertise to properly evaluate the full range of potential Fund-Identified Impact Investments. A second alternative was to leverage the expertise of Impact SBIC fund managers themselves and allow them to prepare their own assessments. While it may be appropriate to have Impact SBIC applicants argue the merits of their Fund-Identified Impact Investment definitions during the licensing process, SBA considered it imprudent to allow Impact SBICs to evaluate their own success.

    The proposed rule instead requires Impact SBICs to obtain independent, third-party impact evaluations based on industry-adopted standards. The use of independent third parties helps reduce the bias inherent in a fund's own impact evaluation and relieves SBA of the potentially significant burden of assessing a wide range of impact investment strategies.

    With regard to the second question, SBA has chosen not to penalize licensees based on the results of their impact assessments. As noted above, assessments provide private capital with greater transparency regarding an applicant's track record of generating impact. Given that most fund managers seek to follow their first investment vehicle with a second, the assessment process itself creates sufficient risk that investors will decline to invest in a second fund. Accordingly, SBA does not believe that an Impact SBIC should incur regulatory penalties based on the results of an impact assessment.

    3. Potential Benefits and Costs

    The proposed rule offers two primary benefits to SBA and its stakeholders. First, it offers the potential to enhance the overall social, environmental and economic impact of the SBIC program. Existing SBICs already have tremendous impact on America's small business economy. In FY 2014, SBICs together invested nearly $5.5 billion in more than 1,000 small business concerns, helping them to grow and modernize their operations. The introduction of Impact SBICs will increase the portion of those annual financings that are intentionally directed towards economically-distressed communities and companies taking innovative approaches to social problems.

    SBA also hopes the proposed rule will support the development of the impact investing industry more broadly. The rule has been drafted to incorporate impact investing best practices, especially with regard to the measurement and assessment of impact. As more and more SBA- and Fund-Identified Impact Investments are made, the SBIC program will have more data to contribute to the industry on the balance between financial and social performance.

    In terms of costs, Impact SBICs are anticipated to have an additional 3% higher loss rate than regular SBICs, due to the risks that may be associated with Impact Investments contemplated under the proposed rule. Although SBA is targeting $200 million in commitments per year in terms of licensing, the number of Impact SBICs that SBA may license or the amount of debenture leverage commitments that may be approved for Impact SBICs in any year is subject to the limitations set forth in annual appropriations acts or in other statutes or regulations. In addition, both newly licensed Impact SBICs and previously licensed Impact SBICs have the opportunity to receive new leverage commitments in any year. The SBIC program subsidy model for FY 2017 has been formulated to reflect the provision proposed in this rule that Impact SBICs are allowed to be licensed as Early Stage SBICs. Early Stage SBICs are expected to have approximately a 10% higher loss rate than regular SBICs. The resulting fee of 34.7 basis points for FY 2017 remains well within historical ranges for the SBIC Debenture annual fee.

    Executive Order 12988

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

    Executive Order 13132

    The proposed rule will not have substantial direct effects on the States, or the distribution of power and responsibilities among the various levels of government. Therefore, for the purposes of Executive Order 13132, Federalism, SBA determines that this proposed rule has no federalism implications warranting the preparation of a federalism assessment.

    Executive Order 13563

    In drafting this proposed rule, SBA considered the input of impact investment industry experts on ways to facilitate the growth of private-sector led impact investing as a strategy to create jobs and strengthen communities. With the assistance of the White House Office of Social Innovation and Civic Participation, which included a White House hosted event in June 2014 (see, https://www.whitehouse.gov/blog/2014/06/25/executive-actions-accelerate-impact-investing-create-jobs-and-strengthen-communities), SBA held roundtable discussions with representatives from endowments, foundations, institutional asset managers, high net worth individuals, investment funds, standard SBICs, existing Impact SBICs, not-for-profit entities, banks, and other federal government agencies. The roundtables covered topics such as: (1) Increasing the flow of private capital toward sustainable business models; (2) supporting private sector investment in high-impact sectors and underserved communities; (3) making innovative impact enterprises investment-ready; (4) removing regulatory barriers that keep capital on the sidelines; and (5) growing the impact economy through policy interventions.

    Paperwork Reduction Act, 44 U.S.C. Ch. 35

    SBA has determined that this rulemaking proposes additional reporting requirements as defined by the Paperwork Reduction Act. Specifically, as discussed above, all Impact SBICs utilizing a Fund-Identified Impact strategy would be required to submit to SBA independent, third-party evaluations of the impacts of such investments. This proposed rule would also codify two other reporting requirements that are already imposed on Impact SBICs based on the terms and conditions of the Impact Investment Fund established by SBA on April 11, 2011, as amended on September 25, 2014, available at https://www.sba.gov/content/impact-investment-fund-overview. First, at the time of application, Impact SBIC applicants are currently required to outline in their proposed investment strategy whether a particular strategy is an “Impact Investment.” This requirement is not being changed by this rule; it is merely being codified in the regulations. Furthermore, this requirement is already approved as part of SBA Form 2181, Appendix 2 (OMB Control Number 3245-0062). Second, as part of reporting on their portfolio financings, Impact SBICs are also currently required to identify whether a completed financing is an Impact Investment. Therefore, this requirement is also not being imposed for the first time by this rule but rather merely being codified in the regulations. To make it easier for SBICs to meet this requirement, SBA recently proposed adding two questions to the Portfolio Financing Report (an existing information collection approved under OMB Control Number 3245-0078), to enable Impact SBICS to specifically identify whether a particular investment qualifies as an SBA-Identified or Fund Identified investment. This particular change will be made in conjunction with other revisions to Form 1031 as a result of other amendments to the SBIC program in the proposed rule, Small Business Investment Companies; Passive Business Expansion & Technical Clarifications. (RIN: 3245-AG67) (80 FR 60077, October 5, 2015). The description, number of respondents, and the purpose of the information collection that would be imposed by this rule is discussed below with an estimate of the annual reporting burden. Included in the estimate is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the requirements for the collection of information.

    A. Impact Evaluations

    Title: Independent, Third-Party Impact Evaluations.

    Summary: The proposed rule requires Impact SBICs licensed to make Fund-Identified Impact Investments to submit two impact evaluations to SBA. Each assessment must be completed by an independent third-party based on industry standards. One assessment is due within two years of licensing, while the second must be submitted between the 5th and 7th year after licensing. These independent evaluations are required only of Impact SBICs that make Fund-Identified Impact Investments. Impact SBICs that restrict themselves to SBA-Identified Impact Investments bear no additional reporting burden beyond what is required of all SBICs.

    Description and Number of Respondents: Only those Impact SBICs licensed to make Fund-Identified Impact Investments will be required to complete this requirement.

    Annual Estimated Number of Responses: SBA estimates that it may receive approximately 2 responses each year based on an annual average of 6 Impact SBICs requiring assessments during years 1-2 and again in years 5-7 of their lifecycle.

    Estimated Annual Hour and Cost Burden: Impact SBICs licensed to make Fund-Identified Impact Investments will be required to obtain an impact evaluation and may incur costs. SBA estimates that it may have approximately 6 Impact SBICs making Fund-Identified Impact Investments in any given year. One independent provider charges between $3,500 and $7,500 for a full portfolio rating, depending on the size of the fund and the number of portfolio companies. Two ratings completed at the maximum price of $7,500 would require an Impact SBIC to spend a total of $15,000 over the course of its 10 year fund life. On an annualized basis, the cost would be $1,500 per year. The total annual cost burden for the estimated 6 Impact SBICs making Fund-Identified Impact Investments is $9,000.

    The hourly burden for these respondents would be negligible, as the assessment work would be completed by an independent third-party. The total time required to contact the provider and initiate an assessment is estimated at a total of 24 hours per assessment. Impact SBICs subject to the third-party assessment requirement must submit a total of two assessments over the course of their 10 year fund life. On an annualized basis, these applicants each will spend 4.8 hours per year. With an estimated 6 Impact SBICs making Fund-Identified Impact Investments in the portfolio at any given time, the total annual hourly burden is estimated at 28.8 hours.

    Compliance With the Regulatory Flexibility Act, 5 U.S.C. 601-612

    When an agency promulgates a rule, the Regulatory Flexibility Act requires the agency to prepare an initial regulatory flexibility analysis (IRFA) which describes the potential economic impact of the rule on small entities and alternatives that may minimize that impact. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an IRFA, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

    This proposed rule would affect all SBICs issuing debentures, of which there are currently 193, most of which are small entities. Therefore, SBA has determined that this proposed rule would have an impact on a substantial number of small entities. However, SBA has determined that the impact on entities affected by the rule will not be significant. SBA keeps the SBIC program at a zero subsidy cost to taxpayers by charging up front and annual fees on its leverage. SBA calculates the annual fee each year using historical data to assess the appropriate fee to keep the program at zero subsidy cost. Because SBA expects Impact SBICs to be riskier than standard SBICs, SBA adjusted the SBIC debenture program budget formulation model which determines the annual fee needed to keep the debenture program at a zero subsidy cost.

    The projected leverage allocation to Impact SBICs would increase the annual fee charged to all SBICs seeking new debenture commitments by approximately 6.1 basis points. The annual fee would remain in line with historical levels. Since 2000, the annual fee has ranged from a high of 100 basis points (1 percent) to a low of 29 basis points, with a 15-year median of 83 basis points. The annual fee for FY 2015 is approximately 74.2 basis points. Although the cost will vary in the future based on economic factors and assumptions used to develop the annual fee, SBA expects the fee to remain under 1 percent, comparable to historical annual fees and below the statutory maximum of 1.38 percent. Accordingly, the Administrator of the SBA hereby certifies that this rule will not have a significant impact on a substantial number of small entities. SBA welcomes comment from members of the public who believe there will be a significant impact either on SBICs, or on companies that receive funding from SBICs.

    List of Subjects in 13 CFR Part 107

    Investment companies, Loan programs—business, Licensing fees, Examination fees, Small businesses.

    For the reasons stated in the preamble, SBA proposes to amend part 107 of title 13 of the Code of Federal Regulations as follows:

    PART 107—SMALL BUSINESS INVESTMENT COMPANIES 1. The authority citation for part 107 is revised to read as follows: Authority:

    15 U.S.C. 681 et seq., 683, 687(c), 687b, 687d, 687g, 687m.

    2. Amend § 107.50 by adding in alphabetical order definitions of “Fund-Identified Impact Investment,” “Impact Investment,” “Impact SBIC” and “SBA-Identified Impact Investment” to read as follows:
    § 107.50 Definition of terms.

    Fund-Identified Impact Investment means a Financing by an Impact SBIC that meets the definition of an Impact Investment proposed by the SBIC and approved by SBA in writing at the time of licensing, as described in § 107.331.

    Impact Investment means an SBA-Identified Impact Investment or Fund-Identified Impact Investment.

    Impact SBIC means any Section 301(c) Partnership Licensee that must make at least 50 percent of all of its Loans and Investments (in dollars) in Impact Investments and is designated by SBA as an “Impact SBIC.”

    SBA-Identified Impact Investment means a Financing that meets SBA's definition of an Impact Investment, which SBA will publish from time to time on its Web site and which will include geographies and sectors of national priority.

    3. Add § 107.301 to read as follows:
    § 107.301 Impact SBIC licensing fee discount.

    (a) All applicants seeking to be licensed as an Impact SBIC will receive a 60 percent discount, rounded to the nearest one-hundred dollars, on any fees to which they are subject under § 107.300.

    (b) In the event an applicant seeking to be licensed as an Impact SBIC is licensed as anything other than an Impact SBIC, SBA reserves the right to recover, prior to licensing, the full dollar amount of any licensing fee discounts the applicant has received.

    4. In § 107.310, designate the existing text as paragraph (a) and add paragraph (b) to read as follows:
    § 107.310 When and how to apply for licensing as an Early Stage SBIC.

    (b) Impact SBIC applicants. An applicant may elect to apply simultaneously for licensing as both an Early Stage SBIC and an Impact SBIC. Such applicants may apply as described in § 107.300 at any time and are not subject to the submission deadlines set forth in paragraph (a) of this section. Applicants seeking a dual license must comply with the regulations in this part pertaining to Early Stage SBICs and Impact SBICs, and to any requirements, other than submission deadlines, specified in the most recently published Early Stage Notice in the Federal Register.

    5. Add §§ 107.330 and 107.331 to read as follows:
    § 107.330 Evaluation of Impact SBIC license applicants.

    SBA will evaluate each applicant seeking to be licensed as an Impact SBIC based on the same factors applicable to other license applicants, as set forth in § 107.305, with particular emphasis on the managers' skill and experience in originating, evaluating, executing and monitoring Impact Investments consistent with the applicant's investment strategy.

    § 107.331 Evaluation of Fund-Identified Impact Investments and measurement plans.

    If an applicant intends to qualify for an Impact SBIC license based on investments in Fund-Identified Impact Investments, SBA will evaluate the applicant's proposed definition(s) of a Fund-Identified Impact Investment and its plan to comply with the measurement and reporting requirements of § 107.665, and will approve the same in writing at the time of licensing based the applicant's satisfaction of the following:

    (a) Fund-Identified Impact Investments. Using the submitted application materials, any interviews with the applicant's management team, the results of public record searches and any other due diligence conducted by SBA, SBA will assess the likelihood that the applicant's proposed investment strategy and Fund-Identified Impact Investment definition(s) will generate, in the aggregate, beneficial social, environmental or economic impacts. SBA's evaluation may consider factors such as whether the strategy will include investments in Portfolio Concerns that increase services to low income communities, engage in environmentally sustainable business practices or manufacture environmentally sustainable products, or that operate in industries of national priority other than in the sectors identified by SBA as an SBA-Identified Impact Investment.

    (b) Measurement and reporting plan. During licensing, each applicant seeking an Impact SBIC license under § 107.331 must identify the assessment provider(s) and assessment system(s) it intends to use in order to comply with the requirements of § 107.665. Using the submitted application materials, any interviews with the applicant's management team, the results of public record searches and any other due diligence conducted by SBA, SBA will assess the applicant's proposed measurement and reporting plan based on the following factors:

    (1) The applicant's proposed assessment system(s) must employ at least one approved measurement standard, from a list of approved standards published by SBA on its Web site from time to time.

    (2) The applicant's proposed assessment system must comply with the following:

    (i) The assessment system's criteria and weightings are publicly available; and

    (ii) The assessment system is capable of producing an assessment of the social, environmental and/or economic effects of impact investments.

    (3) The applicant's proposed assessment provider(s) must each be an independent, third-party. An assessment provider will not be considered an independent third-party if any of the following conditions exist at the time of licensing or assessment:

    (i) The assessment provider is an Associate of the Impact SBIC or any of its Portfolio Concerns; or

    (ii) The assessment provider is materially financed by an association that represents the interests of the specific industry in which the Impact SBIC or its Portfolio Concerns are engaged.

    (c) Publication. SBA may periodically publish on its Web site:

    (i) General descriptions of impact investment strategies pursued by Impact SBICs licensed to make Fund-Identified Impact Investments; and

    (ii) Detailed descriptions of the assessment systems SBA has approved for use by Impact SBICs licensed to make Fund-Identified Impact Investments.

    6. In § 107.502, designate the existing text as paragraph (a) and add paragraphs (b) and (c) to read as follows:
    § 107.502 Representations to the public.

    (b) Impact SBIC applicants must declare their intention to apply for an Impact SBIC license in any solicitation to investors.

    (c) Impact SBIC licensees must indicate that they have obtained an Impact SBIC license from SBA in any solicitation to investors.

    7. Amend § 107.610 by adding paragraphs (g) and (h) to read as follows:
    § 107.610 Required certifications for Loans and Investments.

    (g) For each SBA-Identified Impact Investment:

    (i) A certification by the concern, dated as of the date of application for SBIC financing, as to the basis for its qualification as an Impact Investment; and

    (ii) A certification by the Impact SBIC, made contemporaneously with the certification of the concern, that the concern qualifies as an Impact Investment as of the date of the concern's certification and the basis for such qualification.

    (h) For each Fund-Identified Impact Investment, a certification by the Impact SBIC, as of the date of the financing, that the concern qualifies as a Fund-Identified Impact Investment under the definition(s) approved in writing by SBA and the basis for such qualification.

    8. Add § 107.665 to read as follows:
    § 107.665 Measurement and reporting requirements for Impact SBICs making Fund-Identified Impact Investments.

    Impact SBICs that SBA approved in writing to make Fund-Identified Impact Investments must obtain an assessment of their impact investment strategy from an independent, third-party provider within two years after licensing and again between five and seven years after licensing. Without prior written SBA approval, the Impact SBIC may not use an assessment system(s) or assessment provider(s) different from those the Impact SBIC identified and SBA approved during the licensing process. Each assessment must be submitted to SBA within 30 days of its completion.

    9. Add § 107.693 to read as follows:
    § 107.693 Impact SBIC examination fee discount.

    An Impact SBIC will receive a 10% discount on its examination base fee, rounded to the nearest one-hundred dollars, subject to the following:

    (a) The discount will be calculated based on the examination base as determined prior to any adjustments provided for under § 107.692.

    (b) Impact SBICs also licensed as Early Stage SBICs are entitled to any additional discounts, but exempt from any premium, that Early Stage SBICs would otherwise be required to pay under § 107.692.

    10. Amend § 107.1120 by adding paragraph (l) to read as follows:
    § 107.1120 General eligibility requirements for Leverage.

    (l) If you are an Impact SBIC, certify in writing that, in accordance with § 107.1810(f)(13), at least 50 percent of the aggregate dollar amount of your Financings will qualify as Impact Investments defined in § 107.50.

    11. Amend § 107.1810 by adding paragraphs (f)(13) and (14) to read as follows:
    § 107.1810 Events of default and SBA's remedies for Licensee's noncompliance with terms of Debentures.

    (f) * * *

    (13) Failure by an Impact SBIC to meet investment requirements. You are an Impact SBIC and, beginning on the first fiscal quarter end when your cumulative total Financings (in dollars) are at least equal to your Regulatory Capital, you have not made at least 50 percent of such Financings to Small Businesses that at the time of your initial Financing were Impact Investments.

    (14) Failure by an Impact SBIC to meet assessment requirements. You are an Impact SBIC making Fund-Identified Impact Investments and you fail to obtain an independent, third-party assessment within two years of your licensing date and, again, between five and seven years from your licensing date, pursuant to the requirements under § 107.665.

    12. Add § 107.1940 to read as follows:
    § 107.1940 Impact SBIC licensee noncompliance with regulations.

    (a) For any occurrence (as determined by SBA) of one or more of the events in this paragraph (a), SBA may avail itself of one or more of the remedies in paragraph (b) of this section.

    (1) Failure by an Impact SBIC to meet investment requirements. You are an Impact SBIC and, beginning on the first fiscal quarter end when your cumulative total Financings (in dollars) are at least equal to your Regulatory Capital, you have not made at least 50 percent of such Financings to Small Businesses that at the time of your initial Financing were Impact Investments.

    (2) Failure by an Impact SBIC to meet assessment requirements. You are an Impact SBIC making Fund-Identified Impact Investments and you fail to obtain an independent, third-party assessment within two years of your licensing date and, again, between five and seven years from your licensing date, pursuant to the requirements under § 107.665.

    (b) SBA may exercise any or all of the following rights:

    (1) Convert your Impact SBIC license to a standard SBIC license (including, in SBA's discretion, requiring you to promptly notify your investors of the conversion); and

    (2) Require you to refund to SBA up to the full dollar amount of any licensing or examination fee discounts you have received prior to the date of your written notice.

    (c) SBA may invoke the remedies in paragraph (b) of this section only if:

    (1) It has given you at least 15 days to cure the noncompliance;

    (2) You fail to cure the noncompliance to SBA's satisfaction within the allotted time.

    Dated: October 7, 2015. Maria Contreras-Sweet, Administrator. Editorial Note:

    This document was received for publication by the Office of the Federal Register on January 29, 2016.

    [FR Doc. 2016-01986 Filed 2-2-16; 8:45 am] BILLING CODE 8025-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2015-8060; Airspace Docket No. 15-ASW-4] Proposed Establishment of Class E Airspace; Moriarty, NM AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to establish Class E airspace at Moriarty, NM. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures developed at Moriarty Airport, for the safety and management of Instrument Flight Rules (IFR) operations at the airport.

    DATES:

    Comments must be received on or before March 21, 2016.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2015-8060; Docket No.15-ASW-4, at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527), is on the ground floor of the building at the above address.

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 29591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA order 7400.9Z at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Raul Garza Jr., Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: 817-222-5874.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace at Moriarty Airport, Moriarty, NM.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-8060/Airspace Docket No. 15-ASW-4.” The postcard will be date/time stamped and returned to the commenter.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the Central Service Center, Operation Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

    Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

    Availability and Summary of Documents Proposed for Incorporation by Reference

    This document would amend FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Proposal

    The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within an 7.5-mile radius of Moriarty Airport, Moriarty, NM, to accommodate new standard instrument approach procedures. Controlled airspace is needed for the safety and management of IFR operations at the airport.

    Class E airspace designations are published in Section 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air)

    The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: Section 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASW NM E5 Moriarty, NM [New] Moriarty Airport, NM (Lat. 34°58′41″ N., long. 106°00′00″ W.)

    That airspace extending upward from 700 feet above the surface within a 7.5-mile radius of Moriarty Airport.

    Issued in Fort Worth, TX, on January 20, 2015. Christopher L. Southerland, Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2016-01877 Filed 2-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 960 [Docket No. FR-5904-A-01] Strengthening Oversight of Over-Income Tenancy in Public Housing; Advance Notice of Proposed Rulemaking AGENCY:

    Office of the Assistant Secretary for Public and Indian Housing, HUD.

    ACTION:

    Advanced notice of proposed rulemaking (ANPR).

    SUMMARY:

    Through this notice, HUD announces that it is considering rulemaking to ensure that individuals and families residing in HUD public housing in fact continue to need housing assistance from HUD after admission. HUD's consideration of rulemaking is prompted by a report recently issued by HUD's Office of Inspector General (OIG). The report found, through comparison of annual household income reported in HUD's Public and Housing Information Center for approximately 1.1 million families to the applicable 2014 admission income limit, that as many as 25,226 families were subsequently over-income. Some of those families significantly exceeded the income limits. HUD seeks comment from PHAs and other interested parties and members of the public on the questions presented in this notice, including how HUD can structure policies to reduce the number of individuals and families in public housing whose incomes significantly exceed the income limit and have significantly exceeded the income limit for a sustained period of time after initial admission.

    DATES:

    Comments Due Date: March 4, 2016.

    ADDRESSES:

    Interested persons are invited to submit comments to the Office of the General Counsel, Regulations Division, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Communications should refer to the above docket number and title and should contain the information specified in the “Request for Comments” section. There are two methods for submitting public comments.

    1. Submission of Comments by Mail. Comments may be submitted by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Due to security measures at all federal agencies, however, submission of comments by mail often results in delayed delivery. To ensure timely receipt of comments, HUD recommends that comments submitted by mail be submitted at least two weeks in advance of the public comment deadline.

    2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make comments immediately available to the public. Comments submitted electronically through the http://www.regulations.gov Web site can be viewed by other commenters and interested members of the public. Commenters should follow instructions provided on that site to submit comments electronically.

    Note: To receive consideration as public comments, comments must be submitted using one of the two methods specified above. Again, all submissions must refer to the docket number and title of the notice.

    No Facsimile Comments. Facsimile (fax) comments are not acceptable.

    Public Inspection of Comments. All comments and communications submitted to HUD will be available, for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at (202) 708-3055 (this is not a toll-free number). Copies of all comments submitted are available for inspection and downloading at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Todd Thomas, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 4100, Washington DC 20410-4000; telephone number (678) 732-2056 (this is not a toll-free number). Persons with hearing or speech impairments may contact this number via TTY by calling the toll-free Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION: I. Background

    The United States Housing Act of 1937 (42 U.S.C. 1437 et. seq.) (1937 Act), which is the primary statute that governs public housing and its administration by HUD and PHAs, provides that public housing dwelling units shall be rented only to families who are low-income families at the time of their initial occupancy of such units. In accordance with the 1937 Act, and HUD regulations and policies, PHAs must undertake periodic reviews of family income. The 1937 Act does not require eviction or termination of tenancy of families whose income exceeds the income limits while residing in public housing. See 42 U.S.C. 1437a. HUD's regulations at 24 CFR part 960, which govern public housing admissions, reflect this statutory framework.

    The parameters for income limits that determine initial eligibility for public housing are developed by HUD and outlined in 24 CFR part 5, subpart F. In general, HUD sets the low-income limit at 80 percent and very low-income limit at 50 percent of the median income for the county or metropolitan area in which the household resides. Income limits vary from area to area and may be adjusted based on local market conditions.1 Annual income is the anticipated total income from all sources received from the family head and spouse, and each additional member of the family 18 years of age or older. An individual's or family's rent is referred to as the Total Tenant Payment (TTP) and is based on a family's anticipated annual income less deductions, if any, or the applicable flat rent.

    1 2015 Income Limit Documentation http://www.huduser.gov/portal/datasets/il/il15/HUD_sec8_15.pdf.

    On July 21, 2015, HUD's OIG issued an audit report that presented the results of OIG's review of the number of families residing in HUD public housing whose income exceed the current income limits used in determining eligibility for such housing, several of whom significantly exceeded the income limits. The families identified by HUD OIG met the income limits at the time of admission to public housing but their income now exceeds such income limits. Currently, the regulations do not prohibit a family from continued occupancy when their income rises above the limit for initial admission. An increase in income is a good and welcomed event for families, and when a family's income steadily rises, it may be an indication that the family is on its way to self-sufficiency. However, an increase in income may be minimal or temporary, and a minimal or temporary rise in income should not be the basis for termination of public housing assistance. This ANPR solicits comment on how to structure policies to reduce the number of individuals and families whose incomes significantly exceed the income limit and have significantly exceeded the income limit for a sustained period of time after initial admission.

    HUD takes seriously its obligation to provide clean, safe affordable housing to the neediest population. The Public Housing program is an essential resource for some of the nation's most vulnerable families. HUD strongly supports the efforts of PHAs to further the goals of providing quality affordable housing to eligible families in a manner that moves families toward increased and sustained self-sufficiency. At the same time, scarce public resources must be provided to those most in need of affordable housing. Any changes that would require the termination of tenancy for over-income families should be enacted with caution so as not to impede a family's progress towards self-sufficiency.

    In a final rule published on November 26, 2004, at 69 FR 68786, HUD gave PHAs the authority to terminate the tenancy of or evict over-income residents. See 24 CFR 960.261. The final rule did not require PHAs to take action to evict over-income residents but provides PHAs with discretion to implement such policies and thereby make units available to applicants who are income eligible. The final rule noted that the 1937 Act did not require eviction and the purpose of rulemaking was to clarify that the absence of such a statutory requirement did not prohibit PHAs from terminating the tenancy of over-income families. The preamble to the rule stated that PHAs may decide that an over-income family is able to find other housing, and that the family's public housing unit could be made available to a family with greater housing need. The rule included discussion of the many factors that could be considered in developing these policies, including local market conditions, community stability, the source and duration of increased income, and whether the resident was elderly or disabled.

    HUD is considering revising HUD's regulations at 24 CFR 960.261 (Restriction on eviction of families based on income) in a manner that would continue to give PHAs discretion on when to evict or terminate the tenancies of over-income families but narrow that discretion by providing circumstances that would require a PHA to terminate tenancy or evict an over-income family. Specifically, HUD is considering whether a family whose income significantly exceeds the income limit and has exceeded such limit for a sustained period of time must be notified by the PHA that the family will be evicted or tenancy terminated. HUD is also considering what a reasonable period of time to find alternative housing would be.

    HUD is not considering whether to alter the existing statutorily based exceptions to eviction or termination of tenancy related to income limits. Specifically, a family over the income limits who has a valid contract for participation in a Family Self-Sufficiency (FSS) program administered under HUD regulations in 24 CFR part 984 would not be subject to eviction or termination of tenancy. Additionally, a PHA may not evict a family over the income limits if the family is currently receiving the earned income disallowance authorized by the 1937 Act (See 42 U.S.C. 1473a(d)) and implemented through HUD regulations in 24 CFR 960.255 and 24 CFR 960.261(b).

    II. Request for Comments

    In a letter provided to PHAs on September 3, 2015, HUD strongly recommended that PHAs adopt local over-income policies while considering many factors, including, but not limited to how over-income is defined, income stability, length of time to provide a safety net for fluctuating incomes, preference for return and hardship policies.2 In anticipation of a proposed rulemaking, HUD specifically solicits comment on the following issues:

    2 This letter can be found at http://portal.hud.gov/hudportal/HUD?src=/program_offices/public_indian_housing/programs/ph.

    1. How should HUD define income that “significantly” exceeds the income limit for public housing residency? Should such higher amount be determined by dollar amount, by a percentage, or as a function of the current income limit, and what should the amount be?

    2. Should area cost of living and family finances be taken into consideration when determining whether an individual or family no longer needs public housing assistance? Are there limits to the circumstances in which said data should be requested and applied in a determination?

    3. What period of time in which an individual or family has had income that significantly exceeds the income limits should be determined as indicative that the individual or family no longer needs public housing assistance?

    4. How should local housing market conditions or housing authority wait list data be considered?

    5. What period of time should be allowed for an individual or family to find alternative housing?

    6. Are there exceptions to eviction or termination of tenancy that HUD should consider beyond those listed in HUD's regulation in 24 CFR 960.261?

    7. Should HUD allow over-income individuals or families to remain in public housing, while paying unsubsidized or fair market, rent? How would such a provision impact PHA operations and finances?

    8. Should HUD require a local appeals process for individuals or families deemed over-income?

    9. Where over-income policies have been implemented, what were the results to public housing residents and PHAs? What were the specific positive and negative impacts?

    10. What financial impact would over-income policies have on PHA operations, and how can any negative impacts be mitigated?

    11. What are the potential costs and benefits to public housing residents and PHAs that could result from the forcible eviction of public housing tenants?

    12. What evidence currently exists in favor of or against the adoption of this type of policy?

    It is the responsibility of HUD and PHAs to ensure that public housing units are available to those who need HUD assistance. All comments directed to steps that HUD and PHAs can take to ensure availability of public housing units for individuals and families meeting the income limits are welcome.

    Dated: January 25, 2016. Lourdes Castro Ramírez, Principal Deputy Assistant Secretary for Public and Indian Housing.
    [FR Doc. 2016-01921 Filed 2-2-16; 8:45 am] BILLING CODE 4210-67-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2015-1011] RIN 1625-AA09 Drawbridge Operation Regulation; Broad Creek, Laurel, DE AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to change the operating schedule that governs the Norfolk Southern Railroad Bridge over Broad Creek, mile 8.0, at Laurel, DE. This proposed rule will change the current regulation requiring a four-hour advance notice and allow the bridge to remain in the closed position for the passage of vessels.

    DATES:

    Comments and related material must reach the Coast Guard on or before March 21, 2016.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2015-1011 using Federal eRulemaking Portal at http://www.regulations.gov.

    See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this proposed rule, call or email Mrs. Jessica Shea, Fifth Coast Guard District (dpb), at (757) 398-6422, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security E.O. Executive order FR Federal Register NPRM Notice of proposed rulemaking Pub. L. Public Law § Section U.S.C. United States Code II. Background, Purpose and Legal Basis

    The current operating schedule for the bridge is set out in 33 CFR 117.233 (a) issued September 11, 2006. As outlined in this regulation, the Norfolk Southern Railroad Bridge shall open on signal if at least four hours notice is given. The Fifth Coast Guard District Commander received a request from the bridge owner in July 2015 to consider making a permanent change to the operating regulation for the Norfolk Southern Railroad Bridge per 33 CFR 117.8(a). This proposed rulemaking aligns the new schedule with the observed lack of marine traffic that requires a bridge opening and the operating regulations for the Poplar Street and US Highway 13A, which also cross Broad Creek. The proposed change would amend the existing regulation to state that the bridge need not open.

    The Norfolk Southern Railroad Bridge over Broad Creek, mile 8.0, at Laurel, DE, has a vertical clearance of fourteen feet above mean high water in the closed position and is unlimited in the open position. The charted depth at the bridge is four feet. The existing structure is a swing bridge that was authorized in 1910. The structure has been used by trains since it was completed in 1915; however, the bridge owner reported that no openings have been requested since it was acquired by Norfolk Southern in 1999.

    Milford Fertilizer had a dock that was used by commercial traffic upstream of the railroad bridge when the existing structure was issued a bridge permit in 1910. Prior to publishing this NPRM, the Coast Guard contacted the fertilizer company to determine if there would be any impacts to their operations. The fertilizer plant modified the operations conducted in this location and has not used the dock since the 1970s. There is no record of any other commercial maritime traffic on Broad Creek, DE. There are residential docks and municipal boat ramps downstream of the Norfolk Southern Railroad Bridge. Recreational traffic is present during the boating season with the peak during the summer months.

    III. Discussion of Proposed Rule

    This NPRM proposes to change the status of the Norfolk Southern Railroad Bridge to need not open for the passage of vessels. In order to align the operating schedule of the bridge with observed marine traffic, the proposed change amends the regulation to state that the bridge need not open. The lack of requests from vessels for bridge openings since 1999 illustrate that the vessels that use this waterway can safely navigate while the drawbridge is in the closed-to-navigation position.

    IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes and Executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on these statutes and E.O.s and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    E.O.s 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 NPRM has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget. Based on current maritime traffic, using Norfolk Southern documentation and notes in the Coast Guard bridge files, there will be few, if any, vessels impacted by this proposed change as there has not been a requested opening since 1999.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. While some owners or operators of vessels intending to transit the bridge may be small entities, since there have been no requests for openings since 1999, this proposed rule would not have a significant economic impact on any vessel owner or operator.

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

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

    C. Collection of Information

    This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    D. Federalism and Indian Tribal Government

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed 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 proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule simply promulgates the operating regulations or procedures for drawbridges. Normally such actions are categorically excluded from further review, under figure 2-1, paragraph (32)(e), of the Instruction.

    Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

    Documents mentioned in this document, and all public comments, are in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    List of Subjects in 33 CFR Part 117

    Bridges.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

    PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority:

    33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

    2. Revise § 117.233(a) to read as follows:
    § 117.233 Broad Creek.

    (a) The draw of the Norfolk Southern bridge at mile 8.0, at Laurel, need not open for the passage of vessels.

    Dated: January 14, 2016. Stephen P. Metruck, Rear Admiral, United States Coast Guard Commander, Fifth Coast Guard District.
    [FR Doc. 2016-01897 Filed 2-2-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150629562-6025-01] RIN 0648-BF25 Fisheries of the Exclusive Economic Zone Off Alaska; Bycatch Management in the Bering Sea Pollock Fishery AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS proposes regulations to implement Amendment 110 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). If approved, Amendment 110 and this proposed rule would improve the management of Chinook and chum salmon bycatch in the Bering Sea pollock fishery by creating a comprehensive salmon bycatch avoidance program. This action is necessary to minimize Chinook and chum salmon bycatch in the Bering Sea pollock fishery to the extent practicable while maintaining the potential for the full harvest of the pollock total allowable catch within specified prohibited species catch limits. Amendment 110 is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable laws.

    DATES:

    Comments must be received no later than March 4, 2016.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2015-0081 of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0081, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    Electronic copies of Amendment 110 and the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action (collectively the “Analysis”) may be obtained from www.regulations.gov.

    Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted by mail to NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; in person at NMFS Alaska Region, 709 West 9th Street, Room 420A, Juneau, AK; and by email to [email protected] or by fax to 202-395-5806.

    FOR FURTHER INFORMATION CONTACT:

    Gretchen Harrington or Alicia Miller, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands Management Area (BSAI) under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 679.

    This proposed rule would implement Amendment 110 to the FMP. The Council has submitted Amendment 110 for review by the Secretary of Commerce, and a Notice of Availability (NOA) of this amendment was published in the Federal Register on January 8, 2016, with comments invited through March 8, 2015 (81 FR 897). Respondents do not need to submit the same comments on both the NOA and this proposed rule. All relevant written comments received by the end of the applicable comment period, whether specifically directed to the FMP amendment, this proposed rule, or both, will be considered in the approval/disapproval decision for Amendment 110 and addressed in the response to comments in the final decision.

    The following sections describe the fisheries and the current management programs that would be affected by Amendment 110 and this proposed rule: (1) The Bering Sea pollock fishery, (2) salmon bycatch in the Bering Sea pollock fishery, (3) importance of salmon in western Alaska, (4) management of salmon bycatch in the Bering Sea and Aleutian Islands, (5) objectives of and rationale for Amendment 110 and this proposed rule, (6) proposed salmon bycatch management measures, (7) proposed changes to monitoring and enforcement requirements, and (8) other regulatory changes in the proposed rule.

    The Bering Sea Pollock Fishery

    Amendment 110 and this proposed rule would apply to owners and operators of catcher vessels, catcher/processors, motherships, inshore processors, and the six Western Alaska Community Development Quota (CDQ) Program groups participating in the pollock (Gadus chalcogrammus) fishery in the Bering Sea subarea of the BSAI. Currently, pollock in the BSAI is managed in three separate geographic units: The Bering Sea subarea, the Aleutian Islands subarea, and the Bogoslof District of the Bering Sea subarea. Amendment 110 and this proposed rule only apply to management of the pollock fishery in the Bering Sea subarea. Amendment 110 would not affect the management of pollock fisheries in the Aleutian Islands or the status of pollock fishing in the Bogoslof District. Therefore, in this proposed rule, the term “pollock fishery” refers only to the Bering Sea pollock fishery, unless otherwise specified.

    The pollock fishery is the largest single species fishery, by volume, in the United States. The wholesale gross value of this fishery was more than 1.329 billion dollars in 2013, the most recent year of complete wholesale value data. The pollock fishery is managed under the American Fisheries Act (AFA) (16 U.S.C. 1851 note). In October 1998, Congress enacted the AFA, which “rationalized” the pollock fishery by identifying the vessels and processors eligible to participate in the fishery and allocating pollock among those eligible participants. For more information on the AFA, please see the final rule implementing the AFA (67 FR 79692, December 30, 2002).

    Under the AFA, 10 percent of the pollock total allowable catch (TAC) is allocated to the CDQ Program. After the CDQ Program allocation is subtracted, an amount needed for the incidental catch of pollock in other non-pollock groundfish fisheries is subtracted from the TAC. In 2015, the pollock TAC was 1,310,000 metric tons (mt). In 2015, the CDQ allocation was 131,000 mt of pollock and the incidental catch allowance was 47,160 mt. The “directed fishing allowance” is the remaining amount of pollock, after subtraction of the CDQ Program allocation and the incidental catch allowance. The directed fishing allowance is then allocated among the AFA inshore sector (50 percent), the AFA catcher/processor sector (40 percent), and the AFA mothership sector (10 percent). Annually, NMFS further apportions the pollock allocations to the CDQ Program and the AFA sectors between two seasons—40 percent to the A season (January 20 to June 10) and 60 percent to the B season (June 10 to November 1) (see § 679.20(a)(5)(i)(B)(1)).

    The allocation of pollock to the CDQ sector is further allocated among the six non-profit corporations (CDQ groups) that represent the 65 communities eligible for the CDQ Program under section 305(i)(1)(D) of the Magnuson-Stevens Act. The current percentage allocations of pollock among the six CDQ groups were approved by NMFS in 2005 based on recommendations from the State of Alaska (State). These percentage allocations are now the required allocations of pollock among the CDQ groups under section 305(i)(1)(B) of the Magnuson-Stevens Act. More information about the allocations of pollock, other groundfish, crab, and prohibited species (including Chinook salmon) among the six CDQ groups is provided in the Federal Register notice that described the effect of the 2006 amendments to the Magnuson-Stevens Act on CDQ Program allocations (71 FR 51804, August 31, 2006).

    CDQ groups typically sell or lease their pollock allocations to harvesting partners, including vessels owned, in part, by the CDQ group. Although CDQ groups are not required to partner with AFA-permitted vessels to harvest CDQ pollock, to date, the vessels harvesting CDQ pollock have also been AFA-permitted vessels. Specifically, the CDQ pollock allocations have most often been harvested by AFA catcher/processors, and to a lesser extent, AFA catcher vessels delivering to a mothership. A relatively small amount of CDQ pollock has been harvested by AFA catcher vessels delivering to inshore processing plants.

    The AFA allows for the formation of fishery cooperatives within the non-CDQ sectors. A purpose of these AFA cooperatives is to further subdivide each sector's or inshore cooperative's pollock allocation among participants in the sector or cooperative through private contractual agreements. The cooperatives manage these allocations to ensure that individual vessels and companies do not harvest more than their agreed upon share. The cooperatives also facilitate transfers of pollock among the cooperative members, enforce contract provisions, and participate in an intercooperative agreement to minimize non-Chinook salmon bycatch and an incentive plan agreement to minimize Chinook salmon bycatch.

    Each year, catcher vessels eligible to deliver pollock to the seven eligible AFA inshore processors may form inshore cooperatives associated with a particular inshore processor. NMFS permits the inshore cooperatives, allocates pollock to them, and manages these allocations through a regulatory prohibition against an inshore cooperative exceeding its pollock allocation. The amount of pollock allocated to each inshore cooperative is based on the member vessel's pollock catch history from 1995 through 1997, as required under section 210(b) of the AFA (16 U.S.C. 1851 note). These catcher vessels are not required to join an inshore cooperative. Those that do not join an inshore cooperative are managed by NMFS under the “inshore open access fishery.” For 2015, seven inshore cooperatives have been formed by AFA eligible inshore catcher vessels and their partner inshore processors.

    The AFA catcher/processor sector is made up of the catcher/processors and catcher vessels eligible under the AFA to deliver to catcher/processors. Owners of the catcher/processors that are listed by name in the AFA and are still active in the pollock fishery have formed a cooperative called the Pollock Conservation Cooperative (PCC). Owners of the catcher vessels eligible to deliver pollock to the catcher/processors have formed a cooperative called the High Seas Catcher's Cooperative (HSCC). Collectively, the AFA catcher/processor sector operates as a single entity and coordinates the harvesting of its pollock allocation. All participants that harvest pollock allocated to the catcher/processor sector are members of the two cooperatives, except for one participant. Section 208(e)(21) of the AFA expressly limits the amount of harvest by the one participant in the catcher/processor sector who is not a member of a cooperative to 0.5 percent of the TAC allocated to the catcher/processor sector.

    The AFA mothership sector is made up of three motherships named in the AFA that are eligible to receive and process pollock harvested by catcher vessels, and the catcher vessels eligible under the AFA to deliver pollock to these motherships. All catcher vessels delivering to these three motherships have formed a cooperative called the Mothership Fleet Cooperative (MFC). The primary purpose of the cooperative is to sub-allocate the mothership sector pollock allocation among the catcher vessels authorized to harvest this pollock and to manage these allocations.

    The cooperatives control the harvest by their member vessels so that the pollock allocation to the sector is not exceeded. However, NMFS monitors pollock harvest by all members of the catcher/processor sector and mothership sector. NMFS retains the authority to close directed fishing for pollock by a sector if vessels in that sector continue to fish once the sector's seasonal allocation of pollock has been harvested.

    Salmon Bycatch in the Bering Sea Pollock Fishery

    Pollock is harvested with fishing vessels using trawl gear, which are large nets towed through the water by the vessel. Pollock can occur in the same locations as Chinook salmon and chum salmon. Consequently, Chinook salmon and chum salmon are incidentally caught in the nets as fishermen target pollock.

    Section 3 of the Magnuson-Stevens Act defines bycatch as fish that are harvested in a fishery, which are not sold or kept for personal use. Therefore, Chinook salmon and chum salmon caught in the pollock fishery are considered bycatch under the Magnuson-Stevens Act, the FMP, and NMFS regulations at 50 CFR part 679. Bycatch of any species, including discard or other mortality caused by fishing, is a concern of the Council and NMFS. National Standard 9 and section 303(a)(11) of the Magnuson-Stevens Act require the Council to select, and NMFS to implement, conservation and management measures that, to the extent practicable, minimize bycatch and bycatch mortality.

    The bycatch of culturally and economically valuable species like Chinook salmon and chum salmon, which are fully allocated and, in some cases, facing conservation concerns, are categorized as prohibited species under the FMP. They are the most regulated and closely managed category of bycatch in the groundfish fisheries off Alaska, and specifically in the BS pollock fishery. In addition to Pacific salmon, other species including steelhead trout, Pacific halibut, king crab, Tanner crab, and Pacific herring are classified as prohibited species in the groundfish fisheries off Alaska. As a prohibited species, fishermen must avoid salmon bycatch and any salmon caught must either be donated to the Prohibited Species Donation (PSD) Program (see regulations at § 679.26), or returned to Federal waters as soon as is practicable, with a minimum of injury, after an observer has determined the number of salmon and collected any scientific data or biological samples.

    The PSD Program was established to reduce the amount of edible protein discarded under prohibited species catch (PSC) regulatory requirements (see regulations § 679.21). One reason for requiring the discard of prohibited species is that some of the fish may live if they are returned to the sea with a minimum of injury and delay. However, salmon caught incidentally in trawl nets die as a result of that capture due to damage they suffer within the nets. The PSD Program allows permitted seafood processors to retain salmon bycatch for distribution to economically disadvantaged individuals through tax-exempt hunger relief organizations. Section 4.5.6 of the Analysis provides additional detail on the PSD Program and donations received and processed through that program.

    Chinook Salmon Bycatch

    The pollock fishery catches more than 95 percent of the Chinook salmon taken incidentally in the BSAI groundfish fisheries, based on data from 1992 through 2014. However, the amount of Chinook salmon bycatch taken by the pollock fishery has declined since 2007. From 1992 through 2001 the average Chinook salmon bycatch in the pollock fishery was 32,482 fish per year. Bycatch increased substantially from 2002 through 2007, to an average of 74,067 Chinook salmon per year. A historic high of approximately 122,000 Chinook salmon was taken in the pollock fishery in 2007. However, since 2007 Chinook salmon bycatch declined substantially to an average of 15,500 Chinook salmon per year from 2008 to 2014. The decline is most likely due to a combination of factors, including changes in abundance and distribution of Chinook salmon and pollock, as well as changes in fleet behavior to avoid salmon bycatch.

    In years of historically high Chinook salmon bycatch in the pollock fishery (2002 through 2007), the rate of Chinook salmon bycatch averaged 52 Chinook salmon per 1,000 tons of pollock harvested. With so few salmon relative to the large amount of pollock harvested, Chinook salmon encounters are difficult to predict or avoid. Vessel-level cooperation to share information about areas of high Chinook salmon encounter rates probably is the best tool that the industry currently has to quickly identify areas of high bycatch and to avoid fishing there. However, it will continue to be difficult to predict when and where large amounts of Chinook salmon bycatch will be encountered by the pollock fleet, primarily because of the current lack of understanding of the biological and oceanographic conditions that influence the distribution and abundance of salmon in the areas where the pollock fishery occurs.

    Chinook salmon taken in the pollock fishery originate from river systems in Alaska, the Pacific Northwest, and Canada. Estimates vary from year to year, but on average approximately 65 percent of the Chinook salmon bycatch in the pollock fishery may be destined for western Alaska. Western Alaska includes the Bristol Bay, Kuskokwim, Yukon, and Norton Sound areas. Chinook salmon destined for elsewhere in Alaska, the Pacific Northwest, and Canada comprise approximately 28 percent of the bycatch. Section 3.4 of the Analysis provides additional information about Chinook salmon biology, distribution, and stock assessments by river system or region (see ADDRESSES).

    Chum Salmon Bycatch

    The pollock fishery catches over 95 percent of the chum salmon taken incidentally as bycatch in the BSAI groundfish fisheries. The pollock fishery catches chum salmon almost exclusively in the B season (after June 10). The pollock fishery has caught large numbers of chum, with a historic high of approximately 700,000 chum salmon taken in 2005. Since then, bycatch levels in the pollock fishery have been quite variable, ranging from a low of 13,280 chum salmon in 2010 to a high of 309,646 chum salmon in 2006. Average chum salmon bycatch from 2006 through to 2014 was 115,190 chum salmon. In 2014, the pollock fishery caught 219,428 chum salmon.

    Genetic information indicates that the majority of the chum salmon caught in the pollock fishery are of Asian origin (approximately 60 percent) while a smaller percentage (approximately 21 percent) originate from aggregate streams in western Alaska. Chum salmon from elsewhere in Alaska, the Pacific Northwest, and Canada comprise the remaining percentage of the bycatch (approximately 19 percent). While the genetics cannot differentiate hatchery-origin fish from wild Asian chum salmon, given the high proportion of Pacific Rim hatchery-released chum from Japan, much of the Asian origin chum observed in the bycatch is likely to be of Asian hatchery-origin. Alaska chum salmon runs have indicated a history of volatility in run sizes, and chum salmon stocks in Alaska are generally at higher levels of abundance than historical periods. Section 3.4 of the Analysis provides additional information about chum salmon biology, distribution, and stock assessments by river system or region (see ADDRESSES).

    Importance of Salmon in Western Alaska

    The Council and NMFS have been concerned about the potential impact of Chinook and chum salmon bycatch on returns to western Alaska given the relatively large proportion of bycatch from these river systems that occurs in the pollock fishery. Chinook salmon and chum salmon destined for western Alaska support commercial, subsistence, sport, and personal use fisheries. The Alaska Board of Fisheries adopts regulations through a public process to conserve salmon and to allocate salmon to the various users. The State of Alaska Department of Fish and Game manages the salmon commercial, subsistence, sport, and personal use fisheries. The first management priority is to meet spawning escapement goals to sustain salmon resources for future generations. The next priority is for subsistence use under both State and Federal law. Salmon is a primary subsistence food in some areas. Subsistence fisheries management includes coordination with U.S. Federal agencies where Federal rules apply under the Alaska National Interest Lands Conservation Act. Section 3.4 of the Analysis provides a detailed description of the State and Federal management process. Appendix A-4 of the Analysis provides an overview of the importance of subsistence salmon harvests and commercial salmon harvests.

    Management of Salmon Bycatch in the Bering Sea and Aleutian Islands (BSAI)

    Over the last 20 years, the Council and NMFS have adopted and implemented several management measures to limit salmon bycatch in the BSAI trawl fisheries, and particularly in the pollock fishery. Management measures have focused on minimizing Chinook salmon bycatch, chum salmon bycatch, and non-Chinook salmon bycatch. Non-Chinook bycatch is a category that includes all salmon species except Chinook salmon, but is comprised predominantly of chum salmon.

    In 1994, the Chum Salmon Savings Area in the eastern Bering Sea was established by an emergency rule (59 FR 35476, July 12, 1994). This Chum Salmon Savings Area corresponded to a region of historically high chum salmon bycatch compared to other areas in the Bering Sea. The Council subsequently recommended maintaining the Chum Salmon Savings Area under Amendment 35 to the FMP (60 FR 34904, July 5, 1995). Amendment 35 closed the Chum Salmon Savings Area to all trawling from August 1 through August 31 and established a 42,000 non-Chinook salmon PSC limit for trawl vessels operating in the Bering Sea. A PSC limit is effectively a bycatch limit; it constrains fishing once the amount of PSC is reached. Amendment 35 also established a separate Catcher Vessel Operational Area. The Catcher Vessel Operational Area corresponds to another region in the eastern Bering Sea where trawl catcher vessels had historically been observed to have high non-Chinook salmon (i.e., chum salmon) bycatch. Under Amendment 35, if the non-Chinook salmon PSC limit was caught in the Catcher Vessel Operational Area between August 15 and October 14, NMFS prohibited fishing with trawl gear for the remainder of the period September 1 through October 14 in the Chum Salmon Savings Area. Figure 9 to part 679 shows the Chum Salmon Savings Area and Catcher Vessel Operational Area.

    In 1995, NMFS also established the Chinook Salmon Savings Area, which was implemented under Amendment 21b to the FMP (60 FR 61215, November 29, 1995). The Chinook Salmon Savings Area was established based on historic information regarding the location and timing of Chinook salmon bycatch. Regulations implementing Amendment 21b established annual PSC limits for Chinook salmon and specific seasonal no-trawling zones in the Chinook Salmon Savings Area that would close when the limits were reached. Once the 48,000 Chinook salmon PSC limit was reached, these regulations prohibited trawling in the Chinook Salmon Savings Area through April 15.

    In 2000, NMFS implemented Amendment 58 to the FMP, which reduced the Chinook Salmon Savings Area PSC limit from 42,000 to 29,000 Chinook salmon, redefined the Chinook Salmon Savings Area as two non-contiguous areas (Area 1 in the Aleutian Islands subarea and Area 2 in the Bering Sea subarea), and established new closure periods (65 FR 60587, October 12, 2000).

    In 2005, NMFS implemented Amendment 82 to the FMP. Amendment 82 established the Aleutian Islands Chinook salmon PSC limit of 700 fish. If the limit is reached, NMFS will close the directed pollock fishery in the Aleutian Islands Chinook Salmon Savings Area (70 FR 9856, March 1, 2005).

    In 2007, NMFS implemented Amendment 84 to the FMP to enhance the effectiveness of salmon bycatch measures. The Council and NMFS were concerned that increases in Chinook salmon and non-Chinook (predominantly chum) salmon bycatch in the pollock fishery were occurring despite Chinook and chum salmon PSC limits being reached and the closures of the Chinook Salmon Savings Area and Chum Salmon Savings Area (72 FR 61070, October 29, 2007). Amendment 84 exempted pollock vessels from Chinook Salmon Savings Area and Chum Salmon Savings Area closures if they participate in an intercooperative agreement (ICA) to reduce salmon bycatch. Amendment 84 also exempted vessels participating in non-pollock trawl fisheries from Chum Salmon Savings Area closures because these fisheries intercept minimal amounts of salmon. In 2010, NMFS implemented Amendment 91 to the FMP to manage Chinook salmon bycatch in the pollock fishery (75 FR 53026, August 30, 2010), and to remove Chinook salmon from the Amendment 84 regulations. However, Amendment 84 continues to apply to non-Chinook salmon bycatch.

    The ICA allowed vessels participating in the pollock fishery to use their internal cooperative structure to reduce Chinook salmon and non-Chinook salmon bycatch using a method called the voluntary rolling hotspot system. Amendment 84 required that parties to the ICA include the AFA cooperatives; the six CDQ groups; at least one third-party group, including any organizations representing western Alaskans who depend on salmon and have an interest in salmon bycatch reduction but do not directly fish in a groundfish fishery; and at least one entity retained to facilitate bycatch avoidance behavior and information sharing. All AFA cooperatives and CDQ groups participated in the ICA and continue to do so to avoid incidentally catching non-Chinook salmon.

    Amendment 84 continues to exempt vessels participating in the ICA from the Chum Salmon Savings Area closure. Closure of the Chum Salmon Savings Area was designed to reduce the total amount of chum salmon bycatch by closing areas with historically high levels of chum salmon bycatch. The ICA operates in lieu of a fixed area closure, and is required to identify and close areas of high salmon bycatch and move vessels to other areas.

    Fishery participants provide the ICA with real-time salmon bycatch information and the ICA uses that information to inform other fishery participants to avoid areas of high non-Chinook salmon bycatch rates. Using a system specified in regulations, the ICA assigns vessels in a cooperative to certain tiers, based on bycatch rates of vessels in that cooperative relative to a base rate established in regulations, and implements large area closures for vessels in tiers associated with higher bycatch rates. The ICA managers monitor salmon bycatch in the pollock fisheries and announce area closures for areas with relatively high salmon bycatch rates. Monitoring and enforcement are accomplished through private contractual arrangements. The efficacy of voluntary closures and bycatch reduction measures are reported to the Council annually.

    Amendment 91, as implemented in 2010 to manage Chinook salmon bycatch in the pollock fishery (75 FR 53026, August 30, 2010), combined a limit on the amount of Chinook salmon that may be caught incidentally with a novel approach designed to minimize bycatch to the extent practicable in all years and prevent bycatch from reaching the limit in most years, while providing the fleet the flexibility to harvest the pollock TAC. Amendment 91 removed Chinook salmon from the Amendment 84 regulations, and established two Chinook salmon PSC limits for the pollock fishery—60,000 and 47,591 Chinook salmon. Under Amendment 91, the PSC limit is 60,000 Chinook salmon if some, or all, of the pollock fishery participates in an industry-developed contractual arrangement, called an incentive plan agreement (IPA). An IPA establishes an incentive program to minimize bycatch at all levels of Chinook salmon abundance. Participation in an IPA is voluntary; however, any vessel or CDQ group that chooses not to participate in an IPA is subject to a restrictive opt-out allocation (also called a backstop cap). Since Amendment 91 was implemented, all AFA vessels have participated in an IPA.

    To ensure participants develop effective IPAs, participants provide the Council and NMFS an annual report that describes the efforts each IPA is taking to accomplish the intent of the program that each vessel actively avoids Chinook salmon at all times while fishing for pollock and, collectively, that bycatch is minimized in each year. The IPA system is designed to be flexible, responsive, and can be tailored by each sector to fit its operational needs. The IPAs impose rewards for avoiding Chinook salmon bycatch or penalties for failure to avoid Chinook salmon bycatch at the vessel level. While the IPAs provide an incentive to minimize bycatch in all years to a level below the limit, a limit of 60,000 Chinook salmon provides the industry the flexibility to harvest the pollock TAC in high-encounter years when bycatch is difficult to avoid.

    Since implementation, all the participants in the pollock fishery are currently participating in IPA agreements. There are three NMFS-approved IPA agreements currently in place: the Inshore Chinook Salmon Savings Incentive Plan Agreement, the Mothership Salmon Savings Incentive Plan Agreement, and the Catcher Processor Chinook Salmon Bycatch Reduction Incentive Plan and Agreement. Section 2.1.2.3 of the Analysis provides details on the features of the current IPA agreements.

    Under Amendment 91, if fishery participants do not form any IPAs, the 47,591 Chinook salmon PSC limit applies rather than the 60,000 Chinook salmon PSC limit. This PSC limit was the approximate 10-year average of Chinook salmon bycatch from 1997 to 2006, the years considered by the Council and NMFS when developing Amendment 91. The 47,591 Chinook salmon PSC limit constrains Chinook salmon bycatch in the pollock fishery if no other incentives, namely the IPAs, are operating to minimize bycatch below this level.

    Both the 60,000 and 47,591 Chinook salmon PSC limits are apportioned between the A and B seasons and allocated to the AFA catcher/processor sector, the AFA mothership sector, the AFA inshore sector, and CDQ Program. NMFS further allocates the AFA inshore sector PSC among the inshore cooperative and the CDQ Program PSC among the CDQ groups. Chinook salmon PSC allocations made to sectors, inshore cooperatives, and the CDQ groups are transferable. Transferability mitigates the variation in the salmon encounter rates among sectors, inshore cooperatives, and CDQ groups, in a given pollock season. It allows eligible participants to obtain a larger portion of the PSC allocation in order to harvest their pollock allocation or to transfer surplus PSC allocation to other entities. When a Chinook salmon PSC allocation is reached, the affected sector, inshore cooperative, or CDQ group must stop fishing for pollock for the remainder of the season even if its pollock allocation has not been fully harvested.

    Amendment 91 also established a performance standard as an additional tool to ensure that the IPA is effective and that the AFA sectors and the CDQ Program do not fully harvest their Chinook salmon PSC allocations under the 60,000 Chinook salmon PSC limit in most years. For an AFA sector or the CDQ Program to continue to receive Chinook salmon PSC allocations under the 60,000 Chinook salmon PSC limit, that AFA sector or the CDQ Program may not exceed its annual threshold amount in any three years within seven consecutive years. If this performance standard is not met, that AFA sector or CDQ Program will permanently be allocated a portion of the 47,591 Chinook salmon PSC limit. The risk of bearing the potential adverse economic impacts of a reduction from the 60,000 PSC limit to the 47,591 PSC limit creates incentives for fishery participants to cooperate in an effective IPA.

    Before each fishing year, NMFS calculates each sector's annual threshold amount. If some, but not all, members of a sector were to participate in an IPA, NMFS would reduce that sector's annual threshold amount by an amount equal to the sum of each non-participating vessel's portion of the applicable performance standard. At the end of each fishing year, NMFS evaluates each sector's annual bycatch against that sector's annual threshold amount. Only the bycatch of vessels or CDQ groups participating in an IPA accrue against a sector's annual threshold amount. A sector's annual threshold amount does not change when vessels from other sectors or entire sectors opt out of an IPA or if another sector exceeds its performance standard.

    Additional information the provisions of Amendment 91 are provided in the final rule prepared for that action (75 FR 53026, August 30, 2010).

    Objectives of and Rationale for Amendment 110 and This Proposed Rule

    In April 2015, the Council adopted Amendment 110. The objective of Amendment 110 and this proposed rule is to create a comprehensive salmon bycatch avoidance program that would work more effectively than the current salmon bycatch programs to avoid Chinook salmon bycatch and Alaska-origin chum salmon bycatch. The Council's action is designed to consider the importance of continued production of critical chum salmon runs in western Alaska by focusing on bycatch avoidance of Alaskan chum salmon runs. These runs have a history of volatility in run sizes, and are of historic importance in the subsistence lifestyle of Alaskans. Additional protections to other chum stocks outside of Alaska are embedded in the Council's objective to avoid the high bycatch of chum salmon overall, recognizing that most non-Alaska chum salmon are likely from Asian hatcheries.

    The Council recognized that the chum salmon bycatch reduction program under Amendment 84 does not meet the Council's objective for the pollock fishery to effectively avoid both Chinook salmon and chum salmon bycatch. Amendment 84 did not provide the flexibility necessary to avoid Chinook salmon when fishermen encountered both species, avoid Alaska chum salmon stocks, or to harvest pollock in times and places that best support those goals.

    The Council recognized that Chinook salmon are an extremely important resource to Alaskans who depend on local fisheries for their sustenance and livelihood. Multiple years of historically low Chinook salmon abundance have resulted in significant restrictions for subsistence users in western Alaska and failure to achieve conservation objectives. The current Chinook salmon bycatch reduction program under Amendment 91 was designed to minimize bycatch to the extent practicable in all years, under all conditions of salmon and pollock abundance. While Chinook salmon bycatch impact rates have been low under the program, the Council determined that there is evidence that improvements could be made to ensure the program is reducing Chinook salmon bycatch at low levels of salmon abundance. An analysis of the possible improvements is provided in section 3.5.3 of the Analysis.

    The Council considered a broad suite of measures to induce some level of behavior change to further avoid salmon bycatch, which is the primary objective of this action. Experience has shown that salmon avoidance requires flexibility and the ability of vessels to adjust to real-time information and fishery conditions. The Council also considered the trade-offs between the potential salmon saved and the forgone pollock catch.

    In selecting the proposed salmon bycatch avoidance program, the Council considered five alternatives, with many options, to assess the impacts of minimizing Chinook salmon and chum salmon bycatch to the extent practicable while maintaining the potential for the full harvest of the pollock TAC. The Analysis contains a complete description of the alternatives and a comparative analysis of the potential impacts of the alternatives (see ADDRESSES).

    The Council recommended all four action alternatives as Amendment 110. Amendment 110 would adjust the existing Chinook salmon bycatch program to incorporate revised chum salmon bycatch measures into the existing IPAs. In addition, the Council sought to provide greater incentives to avoid Chinook salmon by strengthening incentives during times of historically low Chinook salmon abundance in western Alaska. Thus, the management measures included in Amendment 110 focus on retaining the incentives to avoid Chinook salmon bycatch at all levels of abundance as intended by Amendment 91. The Council also expressed that it remains extremely important to provide the incentives to avoid Alaska-origin chum salmon while maintaining the flexibility to avoid Chinook salmon.

    In developing Amendment 110, the Council and NMFS considered consistency with the Magnuson-Stevens Act's 10 National Standards and sought to balance the competing demands of the National Standards. Specifically, the Council and NMFS recognized the need to balance and be consistent with both National Standard 9 and National Standard 1. National Standard 9 requires that conservation and management measures minimize bycatch to the extent practicable. National Standard 1 requires that conservation and management measures prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the U. S. fishing industry. Amendment 110 meets National Standards 1 and 9, as well as the other eight National Standards. Amendment 110 also retains the structure and meets the original goals of Amendment 91, but makes improvements by providing greater incentives to minimize salmon bycatch in all conditions of abundance, while also providing a reasonable opportunity to harvest the full pollock TAC each year and to achieve the optimum yield for pollock over the long term.

    The provisions of Amendment 110, and the rational for each provision, are described in the following section on the proposed salmon bycatch management measures.

    Proposed Salmon Bycatch Management Measures

    Amendment 110 and this proposed rule would—

    • incorporate chum salmon avoidance into the IPAs established under Amendment 91 to the FMP, and remove the non-Chinook salmon bycatch reduction ICA previously established under Amendment 84 to the FMP;

    • modify the requirements for the content of the IPAs to increase the incentives for fishermen to avoid Chinook salmon;

    • change the seasonal apportionments of the pollock TAC to allow more pollock to be harvested earlier in the year;

    • reduce the Chinook salmon PSC limit and performance standard in years with low Chinook salmon abundance in western Alaska; and

    • improve the monitoring of salmon bycatch in the pollock fishery.

    Incorporate Chum Salmon Avoidance Into the Incentive Plan Agreements (IPAs)

    Currently, Chinook salmon and chum salmon bycatch are managed under two different programs (Amendment 84 for chum salmon bycatch and Amendment 91 for Chinook salmon bycatch). This has created inefficiencies, as having separate programs does not allow participants in the pollock fishery the flexibility to modify harvest patterns and practices to effectively minimize both Chinook salmon and chum salmon bycatch. Adding chum salmon measures to the IPAs would increase flexibility in responding to changing conditions and provide greater incentives to reduce bycatch of both salmon species, thereby making salmon bycatch management more effective, comprehensive, and efficient. The chum salmon-specific requirements in the Amendment 84 implementing regulations sometimes prevent fishery participants from making decisions to avoid Chinook salmon when vessels encounter both chum salmon and Chinook salmon.

    Amendment 110 and this proposed rule would incorporate chum salmon avoidance into the IPAs established under Amendment 91. This proposed rule would remove the Amendment 84 implementing regulations by removing § 679.21(g). However, Amendment 110 and this proposed rule would maintain the current non-Chinook salmon PSC limit of 42,000 fish and the closure of the Chum Salmon Savings Area to the pollock fishery when the 42,000 non-Chinook salmon PSC limit has been reached (see the above section Management of Salmon Bycatch in the Bering Sea and Aleutian Islands (BSAI) for more detail on the existing salmon regulations). Vessels that participate in an IPA would be exempt from the Chum Salmon Savings Area closure. The purpose of maintaining the non-Chinook salmon PSC limit and the Chum Salmon Savings Area closure is to provide additional incentives for vessels to join an IPA, and to serve as back-stop chum salmon measures for those vessels that choose not to participate in an IPA.

    Incorporating chum salmon into the IPAs meets the purpose of this action by providing measures to prevent high chum salmon bycatch, while also giving participants in the pollock fishery the flexibility to avoid Alaska chum stocks, and to use coordinated management under the IPAs to adapt quickly to changing conditions. The Council determined and NMFS agreed that this action for chum bycatch would strike an appropriate balance between regulatory requirements and adaptive management.

    To incorporate chum salmon into the IPAs, the proposed rule would modify the required contents of the IPAs at § 679.21(f)(12), to include the following:

    • The incentives for the operator of each vessel to avoid Chinook salmon and chum salmon bycatch under any condition of pollock and Chinook salmon abundance in all years.

    • An explanation of how the incentives to avoid chum salmon do not increase Chinook salmon bycatch.

    • The rewards for avoiding Chinook salmon, and the penalties for failure to avoid, Chinook salmon at the vessel level.

    • An explanation of how the incentive measures in the IPA are expected to promote reductions in a vessel's Chinook salmon and chum salmon bycatch rates relative to what might have occurred in absence of the incentive program.

    • An explanation of how the incentive measures in the IPA promote Chinook salmon savings and chum salmon savings in any condition of pollock abundance or Chinook salmon abundance in a manner that is expected to influence operational decisions by vessel operators to avoid Chinook salmon and chum salmon.

    • An explanation of how the IPA ensures that the operator of each vessel governed by the IPA will manage that vessel's Chinook salmon bycatch to keep total bycatch below the performance standard for the sector in which the vessel participates.

    • An explanation of how the IPA ensures that the operator of each vessel governed by the IPA will manage that vessel's chum salmon bycatch to avoid areas and times where the chum salmon are likely to return to western Alaska.

    • The rolling hot spot program for salmon bycatch avoidance and the agreement to provide notifications of closure areas and any violations of the rolling hot spot program to at least one third party group representing western Alaskans who depend on salmon and do not directly fish in a groundfish fishery.

    Amendment 110 and this proposed rule would maintain the important chum salmon avoidance features of the Amendment 84 ICAs. Amendment 110 and this proposed rule would: (1) Ensure that the operator of each vessel governed by the IPA will manage that vessel's chum salmon bycatch to avoid areas and times where the chum salmon are likely to return to western Alaska, (2) require the use of the rolling hot spot program for salmon bycatch avoidance, and (3) require notifications of closure areas and any violations of the rolling hot spot program to at least one third party group representing western Alaskans. Because Amendment 110 and this proposed rule would require a rolling hot spot program for both Chinook and chum salmon, the notification process would apply for both species. This proposed rule would also add reporting requirements to the IPA Annual Report in regulations at § 679.21(f)(13) to require the IPA representative to describe how the IPA addresses the goals and objectives in the IPA provisions related to chum salmon. Section 3.5.2 of the Analysis provides more detail on adding elements of chum salmon management.

    Modify the IPAs To Increase the Incentives to Avoid Chinook Salmon

    Amendment 110 and this proposed rule would modify the IPAs to increase the incentives for fishermen to avoid Chinook salmon. The Council and NMFS recognize that the IPAs were effective at providing incentives for each vessel to avoid Chinook salmon, but that additional measures were necessary to address higher Chinook salmon PSC rates observed in October (the last month when the pollock fishery is authorized to operate) and to address concerns with individual vessels that consistently have significantly higher Chinook salmon PSC rates relative to other vessels fishing at the same time. The Council and NMFS wanted to ensure the use of salmon excluder devices (i.e., gear modifications that are designed to exclude salmon bycatch while retaining pollock) and a rolling hotspot program. The proposed new provisions described below are intended to provide an opportunity for IPAs to increase their responsiveness in October, and improve performance of individual vessels.

    These new provisions would increase the incentives to reduce Chinook salmon bycatch within the IPAs. To incorporate additional incentives for Chinook salmon savings into the IPAs, the proposed rule would modify the required contents of the IPAs at § 679.21(f)(12) to include the following six provisions.

    • Restrictions or penalties targeted at vessels that consistently have significantly higher Chinook salmon PSC rates relative to other vessels fishing at the same time.

    • Requirement that vessels to enter a fishery‐wide in‐season salmon PSC data sharing agreement.

    • Requirement for the use of salmon excluder devices, with recognition of contingencies, from January 20 through March 31 and from September 1 until the end of the B season.

    • Requirement for a rolling hotspot program that operates throughout the entire A and B seasons.

    • For savings-credit-based IPAs, limititation on the salmon savings credits to maximum of three years.

    • Restrictions or performance criteria to ensure that Chinook salmon PSC rates in October are not significantly higher than those achieved in the preceding months, thereby avoiding late-season spikes in salmon PSC.

    Restrictions or penalties targeted at vessels that consistently have significantly higher Chinook salmon PSC rates. To reduce the potential for a vessel to consistently maintain higher rates of Chinook salmon PSC than other vessels fishing at the same time (i.e., an outlier), Amendment 110 and this proposed rule would incorporate additional restrictions or penalties targeted at individual vessels that consistently have significantly higher PSC rates as a way for IPAs to increase their responsiveness and improve an individual vessel's performance. Restrictions or penalties targeted at the outliers have the potential to induce changes in fishing behaviors. Strong incentives will induce vessel operators to change where they fish to avoid Chinook salmon bycatch. Changes in fishing patterns can involve several different behaviors: Avoiding an area that has historically or recently had high bycatch; using and sharing more information on high-bycatch areas; and moving immediately once high bycatch has been observed. Section 3.5.3.1 of the Analysis provides more detail on this addition to the IPA requirements.

    Require vessels to enter a fishery-wide in-season salmon PSC data sharing agreement. Information sharing is a core component of the IPA agreements for all sectors. While unlikely, communication about salmon bycatch could be withheld or distorted with the new incentives that would reward or punish vessels based on their relative performance. In order to reduce this possibility, Amendment 110 and this proposed rule would require the IPAs to require sharing information on PSC. PSC data is not confidential. Section 3.5.3.1 of the Analysis provides more detail on this addition to the IPA requirements.

    Require use of a salmon excluder device. Salmon excluder devices are modifications to trawl gear that allow salmon to escape the trawl net while the net is in the water. The majority of pollock fishermen in the Bering Sea regularly use salmon excluder devices as part of the steps taken by the fishery to reduce its salmon bycatch. Amendment 110 and this proposed rule would require that IPAs require all vessels to use a salmon excluder device from January 20 through March 31, and from September 1 until the end of the B season. This is the time when there is a potential for pollock fishermen to encounter Chinook salmon bycatch. Salmon excluder devices would not be required in the few remaining months of the pollock season when Chinook salmon are not typically encountered.

    The Council and NMFS also recognize that contingencies exist when vessels cannot use excluder devices. Trawl gear can have problems; therefore, salmon excluder devices would not be required during rare occasions such as when a net tears or a spare excluder device is not available. In order to allow for innovation that might lead to the development of better excluder devices, the requirement to use a salmon excluder device does not specify the type of design. Section 3.5.3.2 of the Analysis provides more detail on this addition to the IPA requirements (see ADDRESSES).

    Require a rolling hotspot program. A Chinook salmon rolling hotspot program is a component of the current IPAs, however, it is not a mandatory requirement. The catcher/processor IPA and the mothership IPA have a rolling hotspot program in place throughout the year. The inshore IPA has a rolling hotspot program that can be suspended during the season. This provision would require all IPAs to have a rolling hot spot program that operates throughout the entire A and B seasons. This provision would also require notifications of closure areas and any violations of the rolling hot spot program to at least one third party group representing western Alaskans, consistent with the requirement for the chum salmon rolling hotspot program. This notification provision, which is an important feature of the current Amendment 84 ICAs, would not entail the release of any confidential data. Section 3.5.3.3 of the Analysis provides more detail on this addition to the IPA requirements (see ADDRESSES).

    Limit the use of salmon savings credits to a maximum of three years. The inshore IPA and mothership IPA allow vessels to earn credits by avoiding salmon in one year, which they can use in the future to fish above the vessel or mothership platform's share of the performance standard for a limited number of years. In no case can credits saved in the inshore IPA or mothership IPA allow that sector to exceed its annual allocation of Chinook salmon PSC. Savings credits can only be used by vessels within an IPA up to the overall allocation for the AFA mothership sector or inshore cooperative.

    For IPAs based on savings credits, Amendment 110 and this proposed rule would limit the amount of time savings credits could be used to three years after the year that the savings credits are earned. The Council and NMFS reviewed the use of savings credits and concluded that limiting the duration of credits to three years would likely increase the incentive to earn credits and increase the incentive to reduce Chinook salmon PSC. Section 3.5.3.4 of the Analysis provides more detail on this addition to the IPA requirements (see ADDRESSES).

    Restrictions or performance criteria to prevent significantly higher Chinook salmon PSC rates in October. The purpose of this provision is for the IPAs to implement restrictions or criteria designed to ensure that vessels do not have “excessive” bycatch late in October. Chinook salmon bycatch rates are generally higher in October. This provision would strengthen incentives to fish early in the B season and provide greater flexibility to vessels to catch their pollock quota while ensuring vessels do not have excessively high Chinook salmon bycatch late in the season. Section 3.5.3.5 of the Analysis provides more detail on this addition to the IPA requirements (see ADDRESSES).

    Revise the Bering Sea Pollock Seasonal Allocations

    This proposed rule would change the pollock allocation between the A and B seasons at § 679.20(a)(5)(i)(B)(1). Five percent of the pollock allocation for the B season would be reallocated to the A season for new seasonal apportionments of 45 percent in the A season and 55 percent in the B season. The proposed rule maintains the rollover of any remaining pollock from the A season to the B season. The Council recognized that shifting a limited amount of pollock to the A season would relieve some fishing pressure in the B season and allow the fleet more flexibility to change fishing practices to avoid salmon bycatch while harvesting the pollock TAC. Additionally, because pollock is more valuable in the A season, this allocation change may increase the value of pollock and offset the costs associated with avoiding salmon bycatch.

    Revising the season allocation would work in conjunction with the new IPA requirements to shift effort out of the late B season and provide fishery participants more flexibility to avoid Chinook salmon PSC in the late B season. Both the research on salmon migration patterns and Chinook salmon bycatch rates show the time at which there is the greatest overlap with Chinook salmon and pollock fishing. In general, more Chinook salmon are on the grounds in the early A season and the late B season, and less Chinook salmon on the grounds during the late A season and early B season. This provision is intended to shift pollock effort away from these high overlap periods and allow for more effort during the low overlap periods. With the existing rollover provision, this adjustment in the seasonal allocation of pollock does not mandate that more pollock be harvested in the A season, but it does provide the flexibility for up to 5 percent more pollock to be harvested in times when salmon PSC is lower. Section 3.5.4 of the Analysis provides more detail on this addition to the IPA requirements (see ADDRESSES).

    Reduce the Chinook Salmon Performance Standard and PSC Limit in Years of Low Chinook Salmon Abundance in Western Alaska

    Amendment 110 and this proposed rule would add a new lower Chinook salmon performance standard and PSC limit for the pollock fishery in years of low Chinook salmon abundance in western Alaska. The Council and NMFS determined that a lower performance standard and PSC limit would be appropriate at low levels of Chinook salmon abundance in western Alaska to accommodate the fact that most of the Chinook salmon bycatch comes from western Alaska. These provisions would work in conjunction with the proposed changes to the IPA requirements to ensure that Chinook salmon bycatch is avoided at all times, particularly at low abundance levels.

    Each year, NMFS would determine whether Chinook salmon was at low abundance based on information provided by the State. By October 1 of each year, the State would provide an index of abundance based on the post-season in-river Chinook salmon run size for the Kuskokwim, Unalakleet, and Upper Yukon aggregate stock grouping. When this index is less than or equal to 250,000 Chinook salmon, the new lower performance standard and low PSC limit would apply.

    The Council and State conducted an extensive analysis about the appropriate index to use to indicate a low Chinook salmon abundance year. Low Chinook salmon abundance years are years characterized by difficulty meeting escapement goals and in-river salmon fisheries being severely restricted or fully closed. Section 2.6 of the Analysis evaluates various indices and shows that the 3-system index (Unalakleet, Upper Yukon, and Kuskokwim river systems) meets the objectives. These river systems provide a broad regional representation of stocks and signify very important river systems and subsistence fisheries in western Alaska. Subsistence harvests from these three river systems account for up to 87 percent of the statewide subsistence harvest of Chinook salmon. As shown in the Analysis, having more than one system in the index and having broad regional representation makes the index more robust. The Analysis also shows a clear natural break in the data that index sizes less than 250,000 Chinook salmon correspond to years with historically low run sizes.

    If NMFS determines it was a low Chinook salmon abundance year, NMFS would set the performance standard at 33,318 Chinook salmon and the PSC limit at 45,000 Chinook salmon for the following pollock fishing year. NMFS would publish the lower PSC limit and performance standard in the annual harvest specifications. In years when abundance is above 250,000 Chinook salmon, NMFS would manage under the current 47,591 Chinook salmon performance standard and 60,000 Chinook salmon PSC limit established under Amendment 91.

    The performance standard of 33,318 Chinook salmon would function the same as the existing performance standard of 47,591 Chinook salmon under Amendment 91. The 33,318 performance standard would apply to each sector that has at least some members participating in an IPA. In each low Chinook salmon abundance year, NMFS would allocate the 33,318 performance standard as an “annual threshold amount” to the catcher/processor sector, the mothership sector, the inshore sector, and the CDQ Program. The same seasonal and sector apportionments would apply to both performance standards. Although Chinook salmon PSC allocations are made to the inshore cooperatives and the CDQ groups, the performance standard applies to the sector, not to individual inshore cooperatives or CDQ groups. In addition to participation by at least some members in an IPA, for each sector to continue to receive its allocation of the 45,000 Chinook salmon PSC limit in low Chinook salmon abundance years, the total annual Chinook salmon bycatch by all members of a sector participating in an IPA could not exceed the sector's annual threshold amount (the sector's annual portion of the performance standard) in any three years within a consecutive seven-year period. The 33,318 performance standard would also be the PSC limit in low abundance years if no IPA was approved or for a sector that had exceeded its performance standard.

    If there is an approved IPA, then the PSC limit in low Chinook salmon abundance years would be 45,000 Chinook salmon. The 45,000 PSC limit would function the same as the 60,000 Chinook salmon PSC limit under Amendment 91. NMFS would issue allocations of the 45,000 PSC limit to the AFA catcher/processor sector, the AFA mothership sector, the AFA inshore cooperatives, and the CDQ groups using the same seasonal and sector apportionments. Separate allocations would be issued for the A season and the B season. Chinook salmon remaining from the A season could be used in the B season (“rollover”). Entities could transfer PSC allocations within a season and could also receive transfers of Chinook salmon bycatch to cover overages (“post-delivery transfers”).

    The inclusion of a lower PSC limit and performance standard is based on the need to reduce bycatch when these Chinook salmon stocks are critically low in order to minimize the impact of the pollock fishery on the stocks. Any additional Chinook salmon returning to Alaska rivers improves the ability to meet the State's spawning escapement goals, which is necessary for long-term sustainability of Chinook salmon and the people reliant on salmon fisheries. While the performance standard is the functional limit in the IPAs, the Council and NMFS determined that the 60,000 PSC limit should also be reduced given the potential for decreased bycatch reduction incentives should a sector exceed its performance standard before the PSC limit is reached. The reduced PSC limit is intended to encourage vessels to avoid bycatch to a greater degree in years of low abundance, and to set a maximum permissible PSC limit that reduces the risk of adverse impact on stocks in western Alaska during periods of low abundance.

    Proposed Changes to Monitoring and Enforcement Requirements

    This proposed rule would amend the monitoring and enforcement regulations to clarify and strengthen those implemented by Amendment 91. These changes would: Revise salmon retention and handling requirements on catcher vessels; improve observer data entry and transmission requirements aboard catcher vessels; clarify the requirements applicable to viewing salmon in a storage container; and clarify the requirements for the removal of salmon from an observer sample area at the end of a haul or delivery.

    Salmon Retention and Handling on Catcher Vessels

    Current catch handling practices on catcher vessels includes the delivery of “deckloaded” pollock to shoreside processors or stationary floating processors. Deckloading is the practice of retaining catch in the codend of the net rather than dumping the catch in refrigerated saltwater tanks (RSW). For reasons detailed in the Section 2.7 of the Analysis, NMFS has recognized deckloading as a historic and operationally important practice for catcher vessels participating in the pollock fishery. This proposed rule would move regulations currently at § 679.21(c) to § 679.21(f)(15), modify regulations currently at § 679.21(c)(2)(ii) to remove the requirement to store all salmon bycatch in an RSW, which is not possible when a vessel's catch exceeds the storage capacity of the RSW tanks, and add the following requirements at § 679.21(f)(15)(ii)(B) to clarify catch handling, sorting, and storage requirements on board catcher vessels:

    (1) All salmon must be retained until delivery to the processor.

    (2) The vessel operator must notify the observer at least 15 minutes prior to the transfer of fish from one storage location to another, or any sorting, handling, or discard of catch prior to delivery.

    (3) After the observer has completed sampling duties, catch must be secured on board the vessel until delivery. (Catch may be handled after securing it, but only if the observer is notified and catch re-secured after the completion of catch handling activity.)

    These additional catch handling and notification requirements would facilitate observer sampling during the delivery, and ensure observers are given the opportunity to monitor all catch handling activities when sorting or discard of salmon may occur. This would ensure accurate salmon accounting at the processor receiving the vessel's catch.

    Observer Data Entry and Transmission Requirements Aboard Catcher Vessels

    Catcher vessels participating in the pollock fishery are required to carry an observer on all trips but only catcher vessels greater than or equal to 125 ft length overall (LOA) are required to provide a computer, data entry software, and data transmission capabilities to the observer. Currently, an observer on board a catcher vessel less than 125 ft LOA sends data to NMFS on paper forms via facsimile at the completion of each trip. Observer data sent to NMFS via fax can take a week or more to be available for management purposes. Access to a computer for electronic data entry significantly increases the speed at which observer data can be made available for inseason management and catch accounting. Further, the data validation measures built into the software improve initial data quality and decrease the need for corrections during the observer debriefing process. Additional information about the projected costs and benefits of this proposed regulatory amendment are detailed in Sections 2.7 and 4.8.4 of the Analysis.

    This proposed regulatory amendment will clarify the existing observer data entry and communications requirements and expand the equipment and software requirements to apply to all catcher vessels less than 125 ft LOA participating in the pollock fishery. NMFS proposes to reorganize regulations at § 679.51(e)(1)(iii) to separate the equipment requirements from the applicability paragraphs to clearly identify which vessel operators must provide a computer, software, and data transmission capabilities. As a result of this proposed action, current requirements for observer data entry equipment, software, and transmission would remain, and the computer and software requirements would be expanded to apply to catcher vessels less than 125 ft LOA participating in the pollock fishery.

    Viewing Salmon in a Storage Container

    Regulations at § 679.28(d)(7)(ii) require that all salmon stored in the salmon storage container on a catcher/processor or mothership must remain in view of the observer at the observer sampling station at all times during the sorting of each haul. NMFS proposes to revise the wording of this regulation to better reflect the intent that the salmon storage container (and not each individual salmon in the container) must remain in view of the observer at the observer sampling station at all times during the sorting of each haul.

    Removal of Salmon From Observer Sample Area at the End of a Haul or Delivery

    Current regulations do not require that all salmon be removed from the observer sampling area and the salmon storage location at the end of each haul or each delivery. NMFS proposes to modify regulations at § 679.21(f)(15)(ii)(A)(3) and § 679.21(f)(15)(ii)(C)(6) to require that all salmon must be removed, in the presence of the observer, from the salmon storage container and adjacent area at the end of each haul or delivery after the observer has completed his or her data collection duties. NMFS proposes this revision to the regulations to ensure that salmon are properly accounted for between hauls and deliveries.

    Other Regulatory Changes

    NMFS proposes to revise to the regulations for clarity and efficiency, as follows—

    • Remove Tables 47a, b, c, and d to part 679;

    • Correct a cross reference error in paragraph (6) of the definition of a fishing trip in § 679.2.

    • Remove the requirement to submit an application form with a proposed IPA or amended IPA at § 679.21(f)(12)(iii)(A) and § 679.21(f)(12)(v)(C);

    • Remove the requirement at § 679.21(f)(12)(v)(C)(2) that an amendment to the list of IPA participants be received by NMFS no later than 1700 hours, Alaska local time, on December 1;

    • Move and consolidate the regulations for the non-Chinook salmon PSC limit and Chum Salmon Savings Area from § 679.21(e) to § 679.21(f)(14);

    • Move and consolidate the regulations for Chinook salmon bycatch in the Aleutian Islands pollock fishery from § 679.21(e) to § 679.21(g);

    • Correct a cross reference error in § 679.51(e)(2);

    • Remove “aboard the vessel” from § 679.51(e)(2)(iii)(B)(3); and

    • Make additional very minor non-substantive technical edits.

    Remove Tables 47a, b, c, and d

    NMFS proposes to remove Tables 47a, b, c, and d to part 679 from the regulations and would instead maintain these tables on the NMFS Alaska Region Web site. Removing these tables would not impose any costs on industry and would decrease the costs of regulatory amendments necessary to update the tables in the future.

    NMFS added Tables 47a, b, c, and d to part 679 with the final rule to implement Amendment 91. At that time, Tables 47a, b, c, and d were the most efficient way to be transparent about the values NMFS uses in making the necessary calculations under Amendment 91: The percent of each sector's pollock allocation, numbers of Chinook salmon associated with each vessel in the sector used to calculate the opt-out allocation and annual threshold amounts, and the percent of the pollock allocation associated with each vessel that NMFS uses to calculate minimum participation in the IPAs.

    Since these tables were published in August 2010, catcher vessels have changed names and consolidated pollock allocations. In June 2014, NMFS recalculated the pollock allocations and Chinook salmon limits for catcher vessels whose allocation and limits has changes since 2010. NMFS revised Table 47c to show the original and revised information and published the revised table on the NMFS Alaska Region's Web site.

    However, a regulatory amendment is required to change these tables in the regulations. Changes to the information in these tables may become more frequent as vessels change names, ownership, or are replaced under the provisions of the recently implemented regulations for Amendment 106 (79 FR 54590, September 12, 2014). Removing these tables from regulation, and posting the necessary information on the Alaska Region Web site, would reduce inaccuracies that could exist between actual vessel characteristics and the table in regulations.

    Correct a Cross Reference Error in the Definition of a Fishing Trip

    The proposed rule would correct a cross reference error in paragraph (6) of the definition of a fishing trip in § 679.2. This paragraph defines a fishing trip for purposes of implementing the post-delivery transfer provisions under Amendment 91. These provisions are described in more detail on page 14026 and 14027 of the proposed rule for Amendment 91 (75 FR 14016; March 23, 2010). The cross reference to the CDQ Program prohibition in paragraph (6) of the fishing trip definition should refer to § 679.7(d)(5)(ii)(C)(2) instead of § 679.7(d)(9).

    Remove Requirement To Submit an Application With a Proposed or Amended IPA

    NMFS proposes to remove the requirement at § 679.21(f)(12)(iii)(A) and § 679.21(f)(12)(v)(C) that an IPA representative submit an application form along with a proposed IPA or amended IPA based on public comment under the Paperwork Reduction Act. Under the Paperwork Reduction Act, every three years NMFS is required to obtain approval from the Office of Management and Budget (OMB) to continue to collect information authorized under previous final rules. The most recent request for public comments on renewal of the information collection authorized under the AFA (OMB Control Number 0648-0401) was published in the Federal Register on June 19, 2014 (79 FR 35150). In response to this request for comments, NMFS received a comment that the requirement to submit an application form in addition to submitting a proposed or amended IPA was duplicative with the information in the IPA itself. NMFS agrees that the application form is unnecessary and therefore proposes removing it from the regulations.

    Remove the Deadline for an Amendment to the List of IPA Participants

    NMFS proposes to remove the requirement at § 679.21(f)(12)(v)(C)(2) that an amendment to the list of IPA participants (vessels) must be received by NMFS no later than 1700 hours, A.l.t., on December 1. In removing this requirement, NMFS proposes to add a requirement at § 679.21(f)(12)(ii)(D) that once a member of an IPA, a vessel owner or CDQ group cannot withdraw from the IPA during the fishing year. This change more directly implements the Amendment 91 requirement that IPA members cannot leave an IPA mid-year and that changes to an IPA membership must be made after the directed pollock fishery closes by regulation (after November 1 of each year).

    Move and Consolidate the Regulations for the Non-Chinook Salmon PSC Limit and Chum Salmon Savings Area

    Regulations at § 679.21(e)(1)(vii), (e)(3)(i)(A)(3)(ii), (e)(7)(vii), and (e)(7)(ix) pertain to the non-Chinook salmon PSC limit, the allocation of the non-Chinook salmon PSC to the CDQ Program, the closure of the Chum Salmon Savings Area, and the exemption to the closure for participants in an ICA. NMFS proposes to move these regulations to § 679.21(f)(14) where other salmon bycatch regulations are found because they are management measures to address salmon bycatch in the pollock fishery. NMFS does not propose any substantive changes to these regulations, except to replace the term “ICA” with “IPA” in the regulations to be consistent with the proposed revisions described earlier in this preamble.

    Move and Consolidate the Regulations for Chinook Salmon Bycatch in the Aleutian Islands Pollock Fishery

    Regulations at § 679.21(e)(1)(viii), (e)(3)(i)(A)(3)(i), and (e)(7)(viii) pertain to the Chinook salmon PSC limit for the Aleutian Islands pollock fishery, the allocation of the Aleutian Islands Chinook salmon PSC to the CDQ Program, and closure of the Aleutian Islands Chinook Salmon Savings Area. NMFS proposes to move these regulations to § 679.21(g). NMFS does not propose any substantive changes to these regulations.

    Correct a Cross Reference Error in § 679.51(e)(2)

    The proposed rule would correct a cross reference error in § 679.51(e)(2). This paragraph describes the applicability of manager responsibilities for a shoreside processor or stationary floating processor required to maintain observer coverage. The cross reference to the observer requirements for shoreside processors and stationary floating processors should refer to § 679.51(b) instead of § 679.51(d).

    Remove “Aboard the Vessel” From § 679.51(e)(2)(iii)(B)(3)

    Regulations at § 679.51(e)(2)(iii)(B)(3) pertain to the observer data entry and communications equipment required at a shoreside processor or stationary floating processor, some of which are not vessels. Therefore, NMFS proposes to remove the language “aboard the vessel” from this paragraph for clarity.

    Classification

    Pursuant to sections 304(b) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration of comments received during the public comment period.

    This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.

    Regulatory Impact Review (RIR)

    An RIR was prepared to assess all costs and benefits of available regulatory alternatives. The RIR considers all quantitative and qualitative measures. A copy of this analysis is available from NMFS (see ADDRESSES). The Council recommended Amendment 110 based on those measures that maximized net benefits to the Nation. Specific aspects of the economic analysis are discussed below in the Initial Regulatory Flexibility Analysis section.

    Initial Regulatory Flexibility Analysis (IRFA)

    An IRFA was prepared for this action, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA for this proposed action describes the reasons why this action is being proposed; the objectives and legal basis for the proposed rule; the number of small entities to which the proposed rule would apply; any projected reporting, recordkeeping, or other compliance requirements of the proposed rule; any overlapping, duplicative, or conflicting Federal rules; and any significant alternatives to the proposed rule that would accomplish the stated objectives of the Magnuson-Stevens Act and any other applicable statutes, and that would minimize any significant adverse economic impacts of the proposed rule on small entities. Descriptions of the proposed action, its purpose, and the legal basis are contained earlier in this preamble and are not repeated here. A summary of the IRFA follows. A copy of the IRFA is available from NMFS (see ADDRESSES).

    Number and Description of Small Entities Regulated by the Proposed Action

    The proposed action applies only to those entities that participate in the directed pollock trawl fishery in the Bering Sea. These entities include vessels harvesting pollock under the AFA and the six CDQ groups that receive allocations of pollock.

    The RFA requires consideration of affiliations among entities for the purpose of assessing if an entity is small. The AFA pollock cooperatives are a type of affiliation. All the non-CDQ entities directly regulated by the proposed action were members of AFA cooperatives in 2014 and, therefore, NMFS considers them “affiliated” large (non-small) entities for RFA purposes. Section 5.6 of the IRFA notes that all of the AFA cooperatives have gross annual revenues that are substantially greater than $20.5 million, the standard used by the Small Business Administration to define the annual gross revenue of a large (non-small) business engaged in finfish harvesting, such as pollock. Therefore, all the non-CDQ pollock fishery participants are defined as large (non-small) entities.

    Due to their status as non-profit corporations, the six CDQ groups are identified as “small” entities for RFA purposes. This proposed action directly regulates the six CDQ groups. As described in regulations implementing the RFA (13 CFR 121.103), the CDQ groups' affiliations with other large entities do not define them as large entities.

    The six CDQ groups, formed to manage and administer the CDQ allocations, investments, and economic development projects, are the Aleutian Pribilof Island Community Development Association, the Bristol Bay Economic Development Corporation, the Central Bering Sea Fishermen's Association, the Coastal Villages Region Fund, the Norton Sound Economic Development Corporation, and the Yukon Delta Fisheries Development Association. The 65 communities, with approximately 27,000 total residents, benefit from participation in the CDQ Program, but are not directly regulated by this action.

    Recordkeeping, Reporting, and Other Compliance Requirements

    This proposed rule would revise some existing requirements and remove some requirements. The revised requirements are those related to—

    • Development and submission of proposed IPAs and amendments to approved IPAs;

    • An annual report from the participants in each IPA, documenting information and data relevant to the Bering Sea Chinook salmon bycatch management program; and

    • Salmon handling and storage on board a vessel, and obligations to facilitate observer data reporting.

    The proposed rule would remove the requirements for an application form for a proposed IPA or amended IPA.

    Duplicate, Overlapping, or Conflicting Federal Rules

    No duplication, overlap, or conflict between this proposed action and existing Federal rules has been identified.

    Description of Significant Alternatives That Minimize Adverse Impacts on Small Entities

    The proposed action is a comprehensive program to minimize Chinook and chum salmon bycatch that accomplished the stated objectives and is consistent with applicable statutes. No alternatives were identified in addition to those analyzed in the IRFA that had the potential to further reduce the economic burden on small entities, while achieving the objectives of this action. Section 2.10 of the Analysis contains a detailed discussion of alternatives considered and eliminated from further analysis (see ADDRESSES).

    This proposed rule includes performance standards, rather than design standards, to minimize Chinook salmon and chum salmon bycatch, while limiting the burden on CDQ groups. A system of transferable PSC allocations and a performance standard, even in years of low Chinook salmon abundance, would allow CDQ groups to decide how best to comply with the requirements of this action, given the other constraints imposed on the pollock fishery (e.g., pollock TAC, market conditions, area closures associated with other rules, gear restrictions, climate and oceanographic change).

    Tribal Summary Impact Statement (E.O. 13175)

    Executive Order 13175 of November 6, 2000 (25 U.S.C. 450 note), the Executive Memorandum of April 29, 1994 (25 U.S.C. 450 note), the American Indian and Alaska Native Policy of the U.S. Department of Commerce (March 30, 1995), and the Tribal Consultation and Coordination Policy of the U.S. Department of Commerce (May 21, 2013), outline the responsibilities of NMFS in matters affecting tribal interests. Section 161 in Division H of Public Law 108-199 (188 Stat. 452), as amended by section 518 in Division H of Public Law 108-447 (118 Stat. 3267), extends the consultation requirements of Executive Order 13175 to Alaska Native corporations.

    NMFS is obligated to consult and coordinate with federally recognized tribal governments and Alaska Native Claims Settlement Act regional and village corporations on a government-to-government basis pursuant to Executive Order 13175 which establishes several requirements for NMFS, including (1) to provide regular and meaningful consultation and collaboration with Indian tribal governments and Alaska Native corporations in the development of Federal regulatory practices that significantly or uniquely affect their communities, (2) to reduce the imposition of unfunded mandates on Indian tribal governments, and (3) to streamline the applications process for and increase the availability of waivers to Indian tribal governments. Executive Order 13175 requires Federal agencies to have an effective process to involve and consult with representatives of Indian tribal governments in developing regulatory policies and prohibits regulations that impose substantial, direct compliance costs on Indian tribal governments.

    Section 5(b)(2)(B) of Executive Order 13175 requires NMFS to prepare a tribal summary impact statement as part of the final rule. This statement must contain (1) a description of the extent of the agency's prior consultation with tribal officials, (2) a summary of the nature of their concerns, (3) the agency's position supporting the need to issue the regulation, and (4) a statement of the extent to which the concerns of tribal officials have been met. If the Secretary of Commerce approves Amendment 110, a tribal impact summary statement that summarizes and responds to issues raised in all tribal consultations on the proposed action and describes the extent to which the concerns of tribal officials have been met will be included in the final rule for Amendment 110.

    The consultation process for this action started during the Council process when the Council started developing Amendment 110. A number of tribal representatives and tribal organizations provided written public comments and oral public testimony to the Council during Council outreach meetings on Amendment 110 and at the numerous Council meetings at which Amendment 110 was discussed.

    NMFS conducted two tribal consultations, one in December 2014 and one in April 2015, with representatives from the Tanana Chiefs Conference; the Association of Village Council Presidents; the Yukon River Drainage Fisheries Association; the Kawerak, Inc.; and the Bering Sea Fishermen's Association. These organizations prepared letters for the Council and requested the consultations to discuss the salmon bycatch management measures under consideration by the Council. NMFS posted reports from these consultations on the NMFS Alaska Region Web site at https://alaskafisheries.noaa.gov/tribal-consultations.

    NMFS continued the consultation process by sending a letter to all Alaska Native representatives when the Notice of Availability for Amendment 110 published in the Federal Register notifying them of the opportunity to comment.

    Collection-of-Information Requirements

    This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). These requirements have been submitted to OMB for approval. The collections are listed below by OMB control number.

    OMB Control Number 0648-0318

    Public reporting burden is estimated to average 5 minutes per individual response for use of a vessel's computer, software, and data transmission; 5 minutes per individual response for notification of observer before handling the vessel's Bering Sea pollock catch; and 5 minutes for notification of crew person responsible for ensuring all sorting, retention, and storage of salmon.

    OMB Control Number 0648-0393

    Public reporting burden is estimated to average 8 hours per individual response for the Application to Receive Transferable Chinook Salmon PSC Allocations, including the attached contract; 4 hours for the amendment to contract; and 15 minutes for the Application for the Transfer of Chinook Salmon PSC Allocations.

    OMB Control Number 0648-0401

    Public reporting burden is estimated to average 40 hours per individual response for the Salmon Bycatch Incentive Plan Agreement (IPA); and 8 hours for the IPA Annual Report.

    Public reporting burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

    Public comment is sought regarding (1) whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (2) the accuracy of the burden estimate; (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, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS Alaska Region at the ADDRESSES above, email to [email protected], or fax to (202) 395-5806.

    Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

    List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: January 28, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:

    PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA 1. The authority citation for 50 CFR part 679 continues to read as follows: Authority:

    16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108-447; Pub. L. 111-281.

    2. In § 679.2: a. Remove the definition for “Chinook salmon bycatch incentive plan agreement (IPA)”; b. Revise the definitions for “Chum Salmon Savings Area of the BSAI CVOA”, and paragraph (6) of “Fishing trip”; c. Remove the definition for “Non-Chinook salmon bycatch reduction intercooperative agreement (ICA)”; d. Revise the definition for “PSQ reserve”; and c. Add the definition for “Salmon bycatch incentive plan agreement (IPA)” in alphabetical order;

    The revisions and additions read as follows:

    § 679.2 Definitions.

    Chum Salmon Savings Area of the BSAI CVOA (See § 679.21(f)(14) and Figure 9 to this part).

    Fishing trip means: * * *

    (6) For purposes of § 679.7(d)(5)(ii)(C)(2) for CDQ groups and § 679.7(k)(8)(ii) for AFA entities, the period beginning when a vessel operator commences harvesting any pollock that will accrue against a directed fishing allowance for pollock in the BS or against a pollock CDQ allocation harvested in the BS and ending when the vessel operator offloads or transfers any processed or unprocessed pollock from that vessel.

    PSQ reserve means the amount of a prohibited species catch limit established under § 679.21 that has been allocated to the CDQ Program under § 679.21.

    Salmon bycatch incentive plan agreement (IPA) is a voluntary private contract, approved by NMFS under § 679.21(f)(12), that establishes incentives for participants to avoid Chinook salmon and chum salmon bycatch while directed fishing for pollock in the BS.

    3. In § 679.7: a. Revise paragraphs (d)(5)(ii)(B), (d)(5)(ii)(C)(5), and (k)(8) heading; b. Redesignate paragraph (k)(8)(iv) as (k)(8)(v); and c. Add new paragraph (k)(8)(iv).

    The revisions and addition read as follows:

    § 679.7 Prohibitions.

    (d) * * *

    (5) * * *

    (ii) * * *

    (B) Non-Chinook salmon. For the operator of a vessel, to use trawl gear to harvest pollock CDQ in the Chum Salmon Savings Area between September 1 and October 14 after the CDQ group's non-Chinook salmon PSQ is attained, unless the vessel is participating in an approved IPA under § 679.21(f)(12).

    (C) * * *

    (5) For the operator of a catcher vessel delivering pollock CDQ catch to a shoreside processor or stationary floating processor to:

    (i) Deliver pollock CDQ to a processor that does not have a catch monitoring and control plan approved under § 679.28(g).

    (ii) Handle, sort, or discard catch without notifying the observer 15 minutes prior to handling, sorting, or discarding catch as described in § 679.21(f)(15)(ii)(B)(2).

    (iii) Fail to secure catch after the completion of catch handling and the collection of scientific data and biological samples as described in § 679.21(f)(15)(ii)(B)(3).

    (k) * * *

    (8) Salmon PSC. * * *

    (iv) Catcher vessels. (A) For the operator of a catcher vessel, to handle, sort, or discard catch without notifying the observer 15 minutes prior to handling, sorting, or discarding catch as described in § 679.21(f)(15)(ii)(B)(2).

    (B) For the operator of a catcher vessel to fail to secure catch after the completion of catch handling and the collection of scientific data and biological samples as described in § 679.21(f)(15)(ii)(B)(3).

    4. In § 679.20, revise paragraph (a)(5)(i)(B)(1) to read as follows:
    § 679.20 General limitations.

    (a) * * *

    (5) * * *

    (i) * * *

    (B) * * *

    (1) Inshore, catcher/processor, mothership, and CDQ sectors. The portions of the BS subarea pollock directed fishing allowances allocated to each sector under sections 206(a) and 206(b) of the AFA and the CDQ allowance in the BSAI will be divided into two seasonal allowances corresponding to the two fishing seasons set out at § 679.23(e)(2), as follows:

    (i) A Season, 45 percent;

    (ii) B Season, 55 percent.

    5. In § 679.21:

    a. Remove and reserve paragraph (c);

    b. Remove paragraphs (e)(1)(vi), (vii), and (viii); (e)(3)(i)(A)(3); and (e)(7)(vii), (viii), and (ix); and

    c. Revise paragraphs (f) and (g) to read as follows:

    § 679.21 Prohibited species bycatch management.

    (f) Salmon Bycatch Management in the BS Pollock Fishery —(1) Applicability. This paragraph contains regulations governing the bycatch of salmon in the BS pollock fishery.

    (2) Chinook salmon prohibited species catch (PSC) limit. Each year, NMFS will allocate to AFA sectors listed in paragraph (f)(3)(ii) of this section a portion of the applicable Chinook salmon PSC limit. NMFS will publish the applicable Chinook salmon PSC limit in the annual harvest specifications after determining if it is a low Chinook salmon abundance year. NMFS will determine that it is a low Chinook salmon abundance year when abundance of Chinook salmon in western Alaska is less than or equal to 250,000 Chinook salmon. By October 1 of each year, the State of Alaska will provide to NMFS an estimate of Chinook salmon abundance based on a post-season in-river Chinook salmon run size index for western Alaska based on the Kuskokwim, Unalakleet, and Upper Yukon aggregate stock grouping.

    (i) An AFA sector will receive a portion of the 47,591 Chinook salmon PSC limit, or, in a low Chinook salmon abundance year, the 33,318 Chinook salmon PSC limit, if—

    (A) No Chinook salmon bycatch incentive plan agreement (IPA) is approved by NMFS under paragraph (f)(12) of this section; or

    (B) That AFA sector has exceeded its performance standard under paragraph (f)(6) of this section.

    (ii) An AFA sector will receive a portion of the 60,000 Chinook salmon PSC limit, or, in a low Chinook salmon abundance year, the 45,000 Chinook salmon PSC limit, if—

    (A) At least one IPA is approved by NMFS under paragraph (f)(12) of this section; and

    (B) That AFA sector has not exceeded its performance standard under paragraph (f)(6) of this section.

    (3) Allocations of the Chinook salmon PSC limits—(i) Seasonal apportionment. NMFS will apportion the Chinook salmon PSC limits annually 70 percent to the A season and 30 percent to the B season, which are described in § 679.23(e)(2).

    (ii) AFA sectors. Each year, NMFS will make allocations of the applicable Chinook salmon PSC limit to the following four AFA sectors:

    AFA Sector: Eligible participants are: (A) Catcher/processor AFA catcher/processors and AFA catcher vessels delivering to AFA catcher/processors, all of which are permitted under § 679.4(l)(2) and (l)(3)(i)(A), respectively. (B) Mothership AFA catcher vessels harvesting pollock for processing by AFA motherships, all of which are permitted under § 679.4(l)(3)(i)(B) and (l)(4), respectively. (C) Inshore AFA catcher vessels harvesting pollock for processing by AFA inshore processors, all of which are permitted under § 679.4(l)(3)(i)(C). (D) CDQ Program The six CDQ groups authorized under section 305(i)(1)(D) of the Magnuson-Stevens Act to participate in the CDQ Program.

    (iii) Allocations to each AFA sector. NMFS will allocate the Chinook salmon PSC limits to each AFA sector as follows:

    (A) If a sector is managed under the 60,000 Chinook salmon PSC limit, the maximum amount of Chinook salmon PSC allocated to each sector in each season and annually is—

    AFA sector A season % Allocation # of Chinook B season % Allocation # of Chinook Annual total % Allocation # of Chinook (1) Catcher/processor 32.9 13,818 17.9 3,222 28.4 17,040 (2) Mothership 8.0 3,360 7.3 1,314 7.8 4,674 (3) Inshore 49.8 20,916 69.3 12,474 55.6 33,390 (4) CDQ Program 9.3 3,906 5.5 990 8.2 4,896

    (B) If the sector is managed under the 45,000 Chinook salmon PSC limit, the sector will be allocated the following amount of Chinook salmon PSC in each season and annually:

    AFA sector A season % Allocation # of Chinook B season % Allocation # of Chinook Annual total % Allocation # of Chinook (1) Catcher/processor 32.9 10,363 17.9 2,415 28.4 12,780 (2) Mothership 8.0 2,520 7.3 987 7.8 3,510 (3) Inshore 49.8 15,687 69.3 9,355 55.6 25,020 (4) CDQ Program 9.3 2,930 5.5 743 8.2 3,690

    (C) If the sector is managed under the 47,591 Chinook salmon PSC limit, the sector will be allocated the following amount of Chinook salmon PSC in each season and annually:

    AFA sector A season % Allocation # of Chinook B season % Allocation # of Chinook Annual total % Allocation # of Chinook (1) Catcher/processor 32.9 10,906 17.9 2,556 28.4 13,516 (2) Mothership 8.0 2,665 7.3 1,042 7.8 3,707 (3) Inshore 49.8 16,591 69.3 9,894 55.6 26,485 (4) CDQ Program 9.3 3,098 5.5 785 8.2 3,883

    (D) If the sector is managed under the 33,318 Chinook salmon PSC limit, the sector will be allocated the following amount of Chinook salmon PSC in each season and annually:

    AFA sector A season % Allocation # of Chinook B season % Allocation # of Chinook Annual total % Allocation # of Chinook (1) Catcher/processor 32.9 7,673 17.9 1,789 28.4 9,462 (2) Mothership 8.0 1,866 7.3 730 7.8 2,599 (3) Inshore 49.8 11,615 69.3 6,926 55.6 18,525 (4) CDQ Program 9.3 2,169 5.5 550 8.2 2,732

    (iv) Allocations to the AFA catcher/processor and mothership sectors. (A) NMFS will issue transferable Chinook salmon PSC allocations under paragraph (f)(3)(iii) of this section to entities representing the AFA catcher/processor sector and the AFA mothership sector if these sectors meet the requirements of paragraph (f)(8) of this section.

    (B) If no entity is approved by NMFS to represent the AFA catcher/processor sector or the AFA mothership sector, then NMFS will manage that sector under a non-transferable Chinook salmon PSC allocation under paragraph (f)(10) of this section.

    (v) Allocations to inshore cooperatives and the AFA inshore open access fishery. NMFS will further allocate the inshore sector's Chinook salmon PSC allocation under paragraph (f)(3)(iii) of this section among the inshore cooperatives and the inshore open access fishery based on the percentage allocations of pollock to each inshore cooperative under § 679.62(a). NMFS will issue transferable Chinook salmon PSC allocations to inshore cooperatives. Any Chinook salmon PSC allocated to the inshore open access fishery will be as a non-transferable allocation managed by NMFS under the requirements of paragraph (f)(10) of this section.

    (vi) Allocations to the CDQ Program. NMFS will further allocate the Chinook salmon PSC allocation to the CDQ Program under paragraph (f)(3)(iii) of this section among the six CDQ groups based on each CDQ group's percentage of the CDQ Program pollock allocation. NMFS will issue transferable Chinook salmon PSC allocations to CDQ groups.

    (vii) Accrual of Chinook salmon bycatch to specific PSC allocations.

    If a Chinook salmon PSC allocation is: Then all Chinook salmon bycatch: (A) A transferable allocation to a sector-level entity, inshore cooperative, or CDQ group under paragraph (f)(8) of this section By any vessel fishing under a transferable allocation will accrue against the allocation to the entity representing that vessel. (B) A non-transferable allocation to a sector or the inshore open access fishery under paragraph (f)(10) of this section By any vessel fishing under a non-transferable allocation will accrue against the allocation established for the sector or inshore open access fishery, whichever is applicable. (C) The opt-out allocation under paragraph (f)(5) of this section By any vessel fishing under the opt-out allocation will accrue against the opt-out allocation.

    (viii) Public release of Chinook salmon PSC information. For each year, NMFS will release to the public and publish on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov/):

    (A) The Chinook salmon PSC allocations for each entity receiving a transferable allocation;

    (B) The non-transferable Chinook salmon PSC allocations;

    (C) The vessels fishing under each transferable or non-transferable allocation;

    (D) The amount of Chinook salmon bycatch that accrues towards each transferable or non-transferable allocation;

    (E) Any changes to these allocations due to transfers under paragraph (f)(9) of this section, rollovers under paragraph (f)(11) of this section, and deductions from the B season non-transferable allocations under paragraphs (f)(5)(v) or (f)(10)(iii) of this section; and

    (F) Tables for each sector that provide the percent of the sector's pollock allocation, numbers of Chinook salmon associated with each vessel in the sector used to calculate the opt-out allocation and annual threshold amounts, and the percent of the pollock allocation associated with each vessel that NMFS will use to calculate IPA minimum participation assigned to each vessel.

    (4) Reduction in allocations of the Chinook salmon PSC limit—(i) Reduction in sector allocations. NMFS will reduce the seasonal allocation of the Chinook salmon PSC limit to the catcher/processor sector, the mothership sector, the inshore sector, or the CDQ Program under paragraph (f)(3)(iii)(A) or (B) of this section, if the owner of any permitted AFA vessel in that sector, or any CDQ group, does not participate in an approved IPA under paragraph (f)(12) of this section. NMFS will subtract the amount of Chinook salmon from each sector's allocation associated with each vessel not participating in an approved IPA.

    (ii) Adjustments to the inshore sector and inshore cooperative allocations. (A) If some members of an inshore cooperative do not participate in an approved IPA, NMFS will reduce the allocation to the cooperative to which those vessels belong, or the inshore open access fishery.

    (B) If all members of an inshore cooperative do not participate in an approved IPA, the amount of Chinook salmon that remains in the inshore sector's allocation, after subtracting the amount of Chinook salmon associated with the non-participating inshore cooperative, will be reallocated among the inshore cooperatives participating in an approved IPA based on the proportion each participating cooperative represents of the Chinook salmon PSC initially allocated among the participating inshore cooperatives that year.

    (iii) Adjustment to CDQ group allocations. If a CDQ group does not participate in an approved IPA, the amount of Chinook salmon that remains in the CDQ Program's allocation, after subtracting the amount of Chinook salmon associated with the non-participating CDQ group, will be reallocated among the CDQ groups participating in an approved IPA based on the proportion each participating CDQ group represents of the Chinook salmon PSC initially allocated among the participating CDQ groups that year.

    (iv) All members of a sector do not participate in an approved IPA. If all members of a sector do not participate in an approved IPA, the amount of Chinook salmon that remains after subtracting the amount of Chinook salmon associated with the non-participating sector will not be reallocated among the sectors that have members participating in an approved IPA. This portion of the PSC limit will remain unallocated for that year.

    (5) Chinook salmon PSC opt-out allocation. The following table describes requirements for the opt-out allocation:

    (i) What is the amount of Chinook salmon PSC that will be allocated to the opt-out allocation in the A season and the B season? The opt-out allocation will equal the sum of the Chinook salmon PSC deducted under paragraph (f)(4)(i) of this section from the seasonal allocations of each sector with members not participating in an approved IPA. (ii) Which participants will be managed under the opt-out allocation? Any AFA-permitted vessel or any CDQ group that is a member of a sector eligible under paragraph (f)(2)(ii) of this section to receive allocations of the 60,000 PSC limit or the 45,000 PSC limit, but that is not participating in an approved IPA. (iii) What Chinook salmon bycatch will accrue against the opt-out allocation? All Chinook salmon bycatch by participants under paragraph (f)(5)(ii) of this section. (iv) How will the opt-out allocation be managed? All participants under paragraph (f)(5)(ii) of this section will be managed as a group under the seasonal opt-out allocations. If the Regional Administrator determines that the seasonal opt-out allocation will be reached, NMFS will publish a notice in the Federal Register closing directed fishing for pollock in the BS, for the remainder of the season, for all vessels fishing under the opt-out allocation. (v) What will happen if Chinook salmon bycatch by vessels fishing under the opt-out allocation exceeds the amount allocated to the A season opt-out allocation? NMFS will deduct from the B season opt-out allocation any Chinook salmon bycatch in the A season that exceeds the A season opt-out allocation. (vi) What will happen if Chinook salmon bycatch by vessels fishing under the opt-out allocation is less than the amount allocated to the A season opt-out allocation? If Chinook salmon bycatch by vessels fishing under the opt-out allocation in the A season is less than the amount allocated to the opt-out allocation in the A season, this amount of Chinook salmon will not be added to the B season opt-out allocation. (vii) Is Chinook salmon PSC allocated to the opt-out allocation transferable? No. Chinook salmon PSC allocated to the opt-out allocation is not transferable.

    (6) Chinook salmon bycatch performance standard. If the total annual Chinook salmon bycatch by the members of a sector participating in an approved IPA is greater than that sector's annual threshold amount of Chinook salmon in any three of seven consecutive years, that sector will receive an allocation of Chinook salmon under the 47,591 PSC limit in all future years, except in low Chinook salmon abundance years when that sector will receive an allocation under the 33,318 Chinook salmon PSC limit.

    (i) Annual threshold amount. Prior to each year, NMFS will calculate each sector's annual threshold amount. NMFS will post the annual threshold amount for each sector on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov/). At the end of each year, NMFS will evaluate the Chinook salmon bycatch by all IPA participants in each sector against that sector's annual threshold amount.

    (ii) Calculation of the annual threshold amount. A sector's annual threshold amount is the annual number of Chinook salmon that would be allocated to that sector under the 47,591 Chinook salmon PSC limit, as shown in the table in paragraph (f)(3)(iii)(C) of this section, or the 33,318 Chinook salmon PSC limit in low Chinook salmon abundance years, as shown in the table in paragraph (f)(3)(iii)(D) of this section. If any vessels in a sector do not participate in an approved IPA, NMFS will reduce that sector's annual threshold amount by the number of Chinook salmon associated with each vessel not participating in an approved IPA. If any CDQ groups do not participate in an approved IPA, NMFS will reduce the CDQ Program's annual threshold amount by the number of Chinook salmon associated with each CDQ group not participating in an approved IPA.

    (iii) Exceeding the performance standard. If NMFS determines that a sector has exceeded its performance standard by exceeding its annual threshold amount in any three of seven consecutive years, NMFS will issue a notification in the Federal Register that the sector has exceeded its performance standard. In all subsequent years, NMFS will allocate to that sector either the amount of Chinook salmon in the table in paragraph (f)(3)(iii)(C) of this section or, in low Chinook salmon abundance years, the amount of Chinook salmon in the table in paragraph (f)(3)(iii)(D) of this section. All members of the affected sector will fish under this lower PSC allocation regardless of whether a vessel or CDQ group within that sector participates in an approved IPA.

    (7) Replacement vessels. If an AFA-permitted vessel is no longer eligible to participate in the BS pollock fishery or if a vessel replaces a currently eligible vessel, NMFS will assign the portion and number of Chinook salmon associated with that vessel to the replacement vessel or distribute it among other eligible vessels in the sector based on the procedures in the law, regulation, or private contract that accomplishes the vessel removal or replacement action.

    (8) Entities eligible to receive transferable Chinook salmon PSC allocations. (i) NMFS will issue transferable Chinook salmon PSC allocations to the following entities, if these entities meet all the applicable requirements of this section.

    (A) Inshore cooperatives. NMFS will issue transferable Chinook salmon PSC allocations to the inshore cooperatives permitted annually under § 679.4(l)(6). The representative and agent for service of process (see definition at § 679.2) for an inshore cooperative is the cooperative representative identified in the application for an inshore cooperative fishing permit issued under § 679.4(l)(6), unless the inshore cooperative representative notifies NMFS in writing that a different person will act as its agent for service of process for purposes of this paragraph (f). An inshore cooperative is not required to submit an application under paragraph (f)(8)(ii) of this section to receive a transferable Chinook salmon PSC allocation.

    (B) CDQ groups. NMFS will issue transferable Chinook salmon PSC allocations to the CDQ groups. The representative and agent for service of process for a CDQ group is the chief executive officer of the CDQ group, unless the chief executive officer notifies NMFS in writing that a different person will act as its agent for service of process. A CDQ group is not required to submit an application under paragraph (f)(8)(ii) of this section to receive a transferable Chinook salmon PSC allocation.

    (C) Entity representing the AFA catcher/processor sector. NMFS will authorize only one entity to represent the catcher/processor sector for purposes of receiving and managing transferable Chinook salmon PSC allocations on behalf of the catcher/processors eligible to fish under transferable Chinook salmon PSC allocations. NMFS will issue transferable Chinook salmon allocations under the Chinook salmon PSC limit to the entity representing the catcher/processor sector if that entity represents all the owners of AFA-permitted vessels in this sector that are participants in an approved IPA.

    (D) Entity representing the AFA mothership sector. NMFS will authorize only one entity to represent the mothership sector for purposes of receiving and managing transferable Chinook salmon PSC allocations on behalf of the vessels eligible to fish under transferable Chinook salmon PSC allocations. NMFS will issue transferable Chinook salmon allocations under the Chinook salmon PSC limit to an entity representing the mothership sector if that entity represents all the owners of AFA-permitted vessels in this sector that are participants in an approved IPA.

    (ii) Request for approval as an entity eligible to receive transferable Chinook salmon PSC allocations. A representative of an entity representing the catcher/processor sector or the mothership sector may request approval by NMFS to receive transferable Chinook salmon PSC allocations on behalf of the members of the sector. The application must be submitted to NMFS at the address in paragraph (b)(6) of this section. A completed application consists of the application form and a contract, described below.

    (A) Application form. The applicant must submit a paper copy of the application form with all information fields accurately filled in, including the affidavit affirming that each eligible vessel owner, from whom the applicant received written notification requesting to join the sector entity, has been allowed to join the sector entity subject to the same terms and conditions that have been agreed on by, and are applicable to, all other parties to the sector entity. The application form is available on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov/) or from NMFS at the address in paragraph (b)(6) of this section.

    (B) Contract. A contract containing the following information must be attached to the completed application form:

    (1) Information that documents that all vessel owners party to the contract agree that the entity, the entity's representative, and the entity's agent for service of process named in the application form represent them for purposes of receiving transferable Chinook salmon PSC allocations.

    (2) A statement that the entity's representative and agent for service of process are authorized to act on behalf of the vessel owners party to the contract.

    (3) Signatures, printed names, and date of signature for the owners of each AFA-permitted vessel identified in the application form.

    (C) Contract duration. Once submitted, the contract attached to the application form is valid until amended or terminated by the parties to the contract.

    (D) Deadline. An application form and contract must be received by NMFS no later than 1700 hours, A.l.t., on October 1 of the year prior to the year for which the Chinook salmon PSC allocations are effective.

    (E) Approval. If more than one entity application form is submitted to NMFS, NMFS will approve the application form for the entity that represents the most eligible vessel owners in the sector.

    (F) Amendments to the sector entity. (1) An amendment to the sector entity contract, with no change in entity participants, may be submitted to NMFS at any time and is effective upon written notification of approval by NMFS to the entity representative. To amend a contract, the entity representative must submit a complete application, as described in paragraph (f)(8)(ii) of this section.

    (2) To make additions or deletions to the vessel owners represented by the entity for the next year, the entity representative must submit a complete application, as described in paragraph (f)(8)(ii) of this section, by December 1.

    (iii) Entity representative. (A) The entity's representative must—

    (1) Act as the primary contact person for NMFS on issues relating to the operation of the entity;

    (2) Submit on behalf of the entity any applications required for the entity to receive a transferable Chinook salmon PSC allocation and to transfer some or all of that allocation to and from other entities eligible to receive transfers of Chinook salmon PSC allocations;

    (3) Ensure that an agent for service of process is designated by the entity; and

    (4) Ensure that NMFS is notified if a substitute agent for service of process is designated. Notification must include the name, address, and telephone number of the substitute agent in the event the previously designated agent is no longer capable of accepting service on behalf of the entity or its members within the 5-year period from the time the agent is identified in the application to NMFS under paragraph (f)(8)(ii) of this section.

    (B) Any vessel owner that is a member of an inshore cooperative, or a member of the entity that represents the catcher/processor sector or the mothership sector, may authorize the entity representative to sign a proposed IPA submitted to NMFS, under paragraph (f)(12) of this section, on his or her behalf. This authorization must be included in the contract submitted to NMFS, under paragraph (f)(8)(ii)(B) of this section, for the sector-level entities and in the contract submitted annually to NMFS by inshore cooperatives under § 679.61(d).

    (iv) Agent for service of process. The entity's agent for service of process must

    (A) Be authorized to receive and respond to any legal process issued in the United States with respect to all owners and operators of vessels that are members of an entity receiving a transferable allocation of Chinook salmon PSC or with respect to a CDQ group. Service on or notice to the entity's appointed agent constitutes service on or notice to all members of the entity.

    (B) Be capable of accepting service on behalf of the entity until December 31 of the year five years after the calendar year for which the entity notified the Regional Administrator of the identity of the agent.

    (v) Absent a catcher/processor sector or mothership sector entity. If the catcher/processor sector or the mothership sector does not form an entity to receive a transferable allocation of Chinook salmon PSC, the sector will be managed by NMFS under a non-transferable allocation of Chinook salmon PSC under paragraph (f)(10) of this section.

    (9) Transfers of Chinook salmon PSC. (i) A Chinook salmon PSC allocation issued to eligible entities under paragraph (f)(8)(i) of this section may be transferred to any other entity receiving a transferable allocation of Chinook salmon PSC by submitting to NMFS an application for transfer described in paragraph (f)(9)(iii) of this section. Transfers of Chinook salmon PSC allocations among eligible entities are subject to the following restrictions:

    (A) Entities receiving transferable allocations under the 60,000 PSC limit may only transfer to and from other entities receiving allocations under the 60,000 PSC limit.

    (B) Entities receiving transferable allocations under the 45,000 PSC limit may only transfer to and from other entities receiving allocations under the 45,000 PSC limit.

    (C) Entities receiving transferable allocations under the 47,591 PSC limit may only transfer to and from other entities receiving allocations under the 47,591 PSC limit.

    (D) Entities receiving transferable allocations under the 33,318 PSC limit may only transfer to and from other entities receiving allocations under the 33,318 PSC limit.

    (E) Chinook salmon PSC allocations may not be transferred between seasons.

    (ii) Post-delivery transfers. If the Chinook salmon bycatch by an entity exceeds its seasonal allocation, the entity may receive transfers of Chinook salmon PSC to cover overages for that season. An entity may conduct transfers to cover an overage that results from Chinook salmon bycatch from any fishing trip by a vessel fishing on behalf of that entity that was completed or is in progress at the time the entity's allocation is first exceeded. Under § 679.7(d)(5)(ii)(C)(2) and (k)(8)(v)(B), vessels fishing on behalf of an entity that has exceeded its Chinook salmon PSC allocation for a season may not start a new fishing trip for pollock in the BS on behalf of that same entity for the remainder of that season.

    (iii) Application for transfer of Chinook salmon PSC allocations—(A) Completed application. NMFS will process a request for transfer of Chinook salmon PSC provided that a paper or electronic application is completed, with all information fields accurately filled in. Application forms are available on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov/) or from NMFS at the address in paragraph (b)(6) of this section.

    (B) Certification of transferor—(1) Non-electronic submittal. The transferor's designated representative must sign and date the application certifying that all information is true, correct, and complete. The transferor's designated representative must submit the paper application as indicated on the application.

    (2) Electronic submittal. The transferor's designated entity representative must log onto the NMFS online services system and create a transfer request as indicated on the computer screen. By using the transferor's NMFS ID, password, and Transfer Key, and submitting the transfer request, the designated representative certifies that all information is true, correct, and complete.

    (C) Certification of transferee—(1) Non-electronic submittal. The transferee's designated representative must sign and date the application certifying that all information is true, correct, and complete.

    (2) Electronic submittal. The transferee's designated representative must log onto the NMFS online services system and accept the transfer request as indicated on the computer screen. By using the transferee's NMFS ID, password, and Transfer Key, the designated representative certifies that all information is true, correct, and complete.

    (D) Deadline. NMFS will not approve an application for transfer of Chinook salmon PSC after June 25 for the A season or after December 1 for the B season.

    (10) Non-transferable Chinook salmon PSC allocations. (i) All vessels belonging to a sector that is ineligible to receive transferable allocations under paragraph (f)(8) of this section, any catcher vessels participating in an inshore open access fishery, and all vessels fishing under the opt-out allocation under paragraph (f)(5) of this section will fish under specific non-transferable Chinook salmon PSC allocations.

    (ii) All vessels fishing under a non-transferable Chinook salmon PSC allocation, including vessels fishing on behalf of a CDQ group, will be managed together by NMFS under that non-transferable allocation. If, during the fishing year, the Regional Administrator determines that a seasonal non-transferable Chinook salmon PSC allocation will be reached, NMFS will publish a notice in the Federal Register closing the BS to directed fishing for pollock by those vessels fishing under that non-transferable allocation for the remainder of the season or for the remainder of the year.

    (iii) For each non-transferable Chinook salmon PSC allocation, NMFS will deduct from the B season allocation any amount of Chinook salmon bycatch in the A season that exceeds the amount available under the A season allocation.

    (11) Rollover of unused A season allocation—(i) Rollovers of transferable allocations. NMFS will add any Chinook salmon PSC allocation remaining at the end of the A season, after any transfers under paragraph (f)(9)(ii) of this section, to an entity's B season allocation.

    (ii) Rollover of non-transferable allocations. For a non-transferable allocation for the mothership sector, catcher/processor sector, or an inshore open access fishery, NMFS will add any Chinook salmon PSC remaining in that non-transferable allocation at the end of the A season to that B season non-transferable allocation.

    (12) Salmon bycatch incentive plan agreements (IPAs)—(i) Minimum participation requirements. More than one IPA may be approved by NMFS. Each IPA must have participants that represent the following:

    (A) Minimum percent pollock. Parties to an IPA must collectively represent at least 9 percent of the BS pollock quota.

    (B) Minimum number of unaffiliated AFA entities. Parties to an IPA must represent any combination of two or more CDQ groups or corporations, partnerships, or individuals who own AFA-permitted vessels and are not affiliated, as affiliation is defined for purposes of AFA entities in § 679.2.

    (ii) Membership in an IPA. (A) No vessel owner or CDQ group is required to join an IPA.

    (B) For a vessel owner in the catcher/processor sector or mothership sector to join an IPA, that vessel owner must be a member of the entity representing that sector under paragraph (f)(8).

    (C) For a CDQ group to be a member of an IPA, the CDQ group must sign the IPA and list in that IPA each vessel harvesting BS pollock CDQ, on behalf of that CDQ group, that will participate in that IPA.

    (D) Once a member of an IPA, a vessel owner or CDQ group cannot withdraw from the IPA during a fishing year.

    (iii) Request for approval of a proposed IPA. The IPA representative must submit a proposed IPA to NMFS at the address in paragraph (b)(6) of this section. The proposed IPA must contain the following information:

    (A) Affidavit. The IPA must include the affidavit affirming that each eligible vessel owner or CDQ group, from whom the IPA representative received written notification requesting to join the IPA, has been allowed to join the IPA subject to the same terms and conditions that have been agreed on by, and are applicable to, all other parties to the IPA.

    (B) Name of the IPA.

    (C) Representative. The IPA must include the name, telephone number, and email address of the IPA representative who submits the proposed IPA on behalf of the parties and who is responsible for submitting proposed amendments to the IPA and the annual report required under paragraph (f)(13) of this section.

    (D) Third party group. The IPA must identify at least one third party group. Third party groups include any entities representing western Alaskans who depend on salmon and have an interest in salmon bycatch reduction but do not directly fish in a groundfish fishery.

    (E) Description of the incentive plan. The IPA must contain a description of the following—

    (1) The incentive(s) that will be implemented under the IPA for the operator of each vessel participating in the IPA to avoid Chinook salmon and chum salmon bycatch under any condition of pollock and Chinook salmon abundance in all years.

    (2) How the incentive(s) to avoid chum salmon do not increase Chinook salmon bycatch.

    (3) The rewards for avoiding Chinook salmon, penalties for failure to avoid Chinook salmon at the vessel level, or both.

    (4) How the incentive measures in the IPA are expected to promote reductions in a vessel's Chinook salmon and chum salmon bycatch rates relative to what would have occurred in absence of the incentive program.

    (5) How the incentive measures in the IPA promote Chinook salmon and chum salmon savings in any condition of pollock abundance or Chinook salmon abundance in a manner that is expected to influence operational decisions by vessel operators to avoid Chinook salmon and chum salmon.

    (6) How the IPA ensures that the operator of each vessel governed by the IPA will manage that vessel's Chinook salmon bycatch to keep total bycatch below the performance standard described in paragraph (f)(6) of this section for the sector in which the vessel participates.

    (7) How the IPA ensures that the operator of each vessel governed by the IPA will manage that vessel's chum salmon bycatch to avoid areas and times where the chum salmon are likely to return to western Alaska.

    (8) The rolling hot spot program for salmon bycatch avoidance that operates throughout the entire A season and B season and the agreement to provide notifications of closure areas and any violations of the rolling hot spot program to the third party group.

    (9) The restrictions or penalties targeted at vessels that consistently have significantly higher Chinook salmon PSC rates relative to other vessels fishing at the same time.

    (10) The requirement for vessels to enter a fishery‐wide in‐season salmon PSC data sharing agreement.

    (11) The requirement for the use of salmon excluder devices, with recognition of contingencies, from January 20 to March 31, and from September 1 until the end of the B season.

    (12) The requirement that salmon savings credits are limited to a maximum of three years for IPAs with salmon savings credits.

    (13) The restrictions or performance criteria used to ensure that Chinook salmon PSC rates in October are not significantly higher than those achieved in the preceding months.

    (F) Compliance agreement. The IPA must include a written statement that all parties to the IPA agree to comply with all provisions of the IPA.

    (G) Signatures. The names and signatures of the owner or representative for each vessel and CDQ group that is a party to the IPA. The representative of an inshore cooperative, or the representative of the entity formed to represent the AFA catcher/processor sector or the AFA mothership sector under paragraph (f)(8) of this section may sign a proposed IPA on behalf of all vessels that are members of that inshore cooperative or sector level entity.

    (iv) Deadline and duration—(A) Deadline for proposed IPA. A proposed IPA must be received by NMFS no later than 1700 hours, A.l.t., on October 1 of the year prior to the year for which the IPA is proposed to be effective.

    (B) Duration. Once approved, an IPA is effective starting January 1 of the year following the year in which NMFS approves the IPA, unless the IPA is approved between January 1 and January 19, in which case the IPA is effective starting in the year in which it is approved. Once approved, an IPA is effective until December 31 of the first year in which it is effective or until December 31 of the year in which the IPA representative notifies NMFS in writing that the IPA is no longer in effect, whichever is later. An IPA may not expire mid-year. No party may join or leave an IPA once it is approved, except as allowed under paragraph (f)(12)(v)(C) of this section.

    (v) NMFS review of a proposed IPA—(A) Approval. An IPA will be approved by NMFS if it meets the following requirements:

    (1) Meets the minimum participation requirements in paragraph (f)(12)(i) of this section;

    (2) Is submitted in compliance with the requirements of paragraphs (f)(12)(ii) and (iv) of this section; and

    (3) Contains the information required in paragraph (f)(12)(iii) of this section.

    (B) IPA identification number. If approved, NMFS will assign an IPA identification number to the approved IPA. This number must be used by the IPA representative in amendments to the IPA.

    (C) Amendments to an IPA. Amendments to an approved IPA may be submitted to NMFS at any time and will be reviewed under the requirements of this paragraph (f)(12). An amendment to an approved IPA is effective upon written notification of approval by NMFS to the IPA representative.

    (D) Disapproval. (1) NMFS will disapprove a proposed IPA or a proposed amendment to an IPA for either of the following reasons:

    (i) If the proposed IPA fails to meet any of the requirements of paragraphs (f)(12)(i) through (iii) of this section, or

    (ii) If a proposed amendment to an IPA would cause the IPA to no longer be consistent with the requirements of paragraphs (f)(12)(i) through (iv) of this section.

    (2) Initial Administrative Determination (IAD). If, in NMFS' review of the proposed IPA, NMFS identifies deficiencies in the proposed IPA that require disapproval of the proposed IPA, NMFS will notify the applicant in writing. The IPA representative will be provided one 30-day period to address, in writing, the deficiencies identified by NMFS. Additional information or a revised IPA received by NMFS after the expiration of the 30-day period specified by NMFS will not be considered for purposes of the review of the proposed IPA. NMFS will evaluate any additional information submitted by the applicant within the 30-day period. If the Regional Administrator determines that the additional information addresses deficiencies in the proposed IPA, the Regional Administrator will approve the proposed IPA under paragraphs (f)(12)(iv)(B) and (f)(12)(v)(A) of this section. However, if, after consideration of the original proposed IPA and any additional information submitted during the 30-day period, NMFS determines that the proposed IPA does not comply with the requirements of paragraph (f)(12) of this section, NMFS will issue an initial administrative determination (IAD) providing the reasons for disapproving the proposed IPA.

    (3) Administrative Appeals. An IPA representative who receives an IAD disapproving a proposed IPA may appeal under the procedures set forth at § 679.43. If the IPA representative fails to file an appeal of the IAD pursuant to § 679.43, the IAD will become the final agency action. If the IAD is appealed and the final agency action is a determination to approve the proposed IPA, then the IPA will be effective as described in paragraph (f)(12)(iv)(B) of this section.

    (4) Pending appeal. While appeal of an IAD disapproving a proposed IPA is pending, proposed members of the IPA subject to the IAD that are not currently members of an approved IPA will fish under the opt-out allocation under paragraph (f)(5) of this section. If no other IPA has been approved by NMFS, NMFS will issue all sectors allocations of the 47,591 Chinook salmon PSC limit as described in paragraph (f)(3)(iii)(C) of this section, or, in low Chinook salmon abundance years, allocations of the 33,318 Chinook salmon PSC limit as described in paragraph (f)(3)(iii)(D) of this section.

    (vi) Public release of an IPA. NMFS will make all proposed IPAs and all approved IPAs and the list of participants in each approved IPA available to the public on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov/).

    (13) IPA Annual Report. The representative of each approved IPA must submit a written annual report to the Council at the address specified in § 679.61(f). The Council will make the annual report available to the public.

    (i) Submission deadline. The IPA Annual Report must be received by the Council no later than March 15.

    (ii) Information requirements. The IPA Annual Report must contain the following information:

    (A) A comprehensive description of the incentive measures, including the rolling hot spot program and salmon excluder use, in effect in the previous year;

    (B) A description of how these incentive measures affected individual vessels;

    (C) An evaluation of whether incentive measures were effective in achieving salmon savings beyond levels that would have been achieved in absence of the measures, including the effectiveness of—

    (1) Measures to ensure that chum salmon were avoided in areas and at times where chum salmon are likely to return to western Alaska;

    (2) Restrictions or penalties that target vessels that consistently have significantly higher Chinook salmon PSC rates relative to other vessels; and

    (3) Restrictions or performance criteria used to ensure that Chinook PSC rates in October are not significantly higher than in previous months.

    (D) A description of any amendments to the terms of the IPA that were approved by NMFS since the last annual report and the reasons that the amendments to the IPA were made.

    (E) The sub-allocation to each participating vessel of the number of Chinook salmon PSC and amount of pollock (mt) at the start of each fishing season, and number of Chinook salmon PSC and amount of pollock (mt) caught at the end of each season.

    (F) The following information on in-season transfer of Chinook salmon PSC and pollock among AFA cooperatives, entities eligible to receive Chinook salmon PSC allocations, or CDQ groups:

    (1) Date of transfer;

    (2) Name of transferor;

    (3) Name of transferee;

    (4) Number of Chinook salmon PSC transferred; and

    (5) Amount of pollock (mt) transferred.

    (G) The following information on in-season transfers among vessels participating in the IPA:

    (1) Date of transfer;

    (2) Name of transferor;

    (3) Name of transferee;

    (4) Number of Chinook salmon PSC transferred; and

    (5) Amount pollock (mt) transferred.

    (14) Non-Chinook salmon prohibited species catch (PSC) limit and Chum Salmon Savings Area. (i) The PSC limit for non-Chinook salmon caught by vessels using trawl gear from August 15 through October 14 in the Catcher Vessel Operational Area, as defined under § 679.22(a)(5) and in Figure 2 to this part, is 42,000 fish.

    (ii) 10.7 percent of the non-Chinook PSC limit is allocated to the CDQ Program as a PSQ reserve.

    (iii) If the Regional Administrator determines that 42,000 non-Chinook salmon have been caught by vessels using trawl gear during the period August 15 through October 14 in the Catcher Vessel Operational Area, NMFS will prohibit fishing for pollock for the remainder of the period September 1 through October 14 in the Chum Salmon Savings Area as defined in Figure 9 to this part.

    (iv) Trawl vessels participating in directed fishing for pollock and operating under an IPA approved by NMFS under paragraph (f)(12) of this section are exempt from closures in the Chum Salmon Savings Area.

    (15) Salmon handling. Regulations in this paragraph apply to vessels directed fishing for pollock in the BS, including pollock CDQ, and processors taking deliveries from these vessels.

    (i) Salmon discard. The operator of a vessel and the manager of a shoreside processor or SFP must not discard any salmon or transfer or process any salmon under the PSD Program at § 679.26 if the salmon were taken incidental to a directed fishery for pollock in the BS until the number of salmon has been determined by the observer and the observer's collection of any scientific data or biological samples from the salmon has been completed.

    (ii) Salmon retention and storage. (A) Operators of catcher/processors or motherships must—

    (1) Sort and transport all salmon bycatch from each haul to an approved storage container located adjacent to the observer sampling station that allows an observer free and unobstructed access to the salmon (see § 679.28(d)(2)(i) and (d)(7)). The salmon storage container must remain in view of the observer from the observer sampling station at all times during the sorting of the haul.

    (2) If, at any point during sorting of a haul or delivery, the salmon are too numerous to be contained in the salmon storage container, cease all sorting and give the observer the opportunity to count the salmon in the storage container and collect scientific data or biological samples. Once the observer has completed all counting and sampling duties for the counted salmon, the salmon must be removed by vessel personnel from the approved storage container and the observer sampling station, in the presence of the observer.

    (3) Before sorting of the next haul may begin, give the observer the opportunity to complete the count of salmon and the collection of scientific data or biological samples from the previous haul. When the observer has completed all counting and sampling duties for a haul or delivery, vessel personnel must remove the salmon, in the presence of the observer, from the salmon storage container and the observer sampling station.

    (4) Ensure no salmon of any species pass the observer sample collection point, as identified in the scale drawing of the observer sample station (see § 679.28(d)(2)(i) and (d)(7)).

    (B) Operators of vessels delivering to shoreside processors or stationary floating processors must—

    (1) Retain all salmon taken incidental to a directed fishery for pollock in the BS until the salmon are delivered to the processor receiving the vessel's BS pollock catch.

    (2) Notify the observer at least 15 minutes before handling catch on board the vessel, including, but not limited to, moving catch from one location to another, sorting, or discard of catch prior to the delivery of catch to the processor receiving the vessel's BS pollock catch. This notification requirement is in addition to the notification requirements in § 679.51(e).

    (3) Secure all salmon and catch after the observer has completed the collection of scientific data and biological samples and after the vessel crew has completed handling the catch. All salmon and any other catch retained on board the vessel must be made unavailable for sorting and discard until the delivery of catch to the processor receiving the vessel's BS pollock catch. Methods to make salmon or retained catch unavailable for sorting or discard include but are not limited to securing the catch in a completely enclosed container above or below deck, securing the catch in an enclosed codend, or completely and securely covering the fish on deck.

    (4) Comply with the requirements in paragraphs (f)(15)(ii)(B)(2) and (3) of this section, before handling the catch prior to delivery.

    (C) Shoreside processors or stationary floating processors must —

    (1) Comply with the requirements in § 679.28(g)(7)(vii) for the receipt, sorting, and storage of salmon from deliveries of catch from the BS pollock fishery.

    (2) Ensure no salmon of any species pass beyond the last point where sorting of fish occurs, as identified in the scale drawing of the plant in the Catch Monitoring Control Plan (CMCP).

    (3) Sort and transport all salmon of any species to the salmon storage container identified in the CMCP (see § 679.28(g)(7)(vi)(C) and(g)(7)(x)(F)). The salmon must remain in that salmon storage container and within the view of the observer at all times during the offload.

    (4) If, at any point during the offload, salmon are too numerous to be contained in the salmon storage container, cease the offload and all sorting and give the observer the opportunity to count the salmon and collect scientific data or biological samples. The counted salmon then must be removed from the area by plant personnel in the presence of the observer.

    (5) At the completion of the offload, give the observer the opportunity to count the salmon and collect scientific data or biological samples.

    (6) Before sorting of the next offload of catch from the BS pollock fishery may begin, give the observer the opportunity to complete the count of salmon and the collection of scientific data or biological samples from the previous offload of catch from the BS pollock fishery. When the observer has completed all counting and sampling duties for the offload, plant personnel must remove the salmon, in the presence of the observer, from the salmon storage container and location where salmon are counted and biological samples or scientific data are collected.

    (iii) Assignment of crew to assist observer. Operators of vessels and managers of shoreside processors and SFPs that are required to retain salmon under paragraph (f)(15)(i) of this section must designate and identify to the observer aboard the vessel, or at the shoreside processor or SFP, a crew person or employee responsible for ensuring all sorting, retention, and storage of salmon occurs according to the requirements of (f)(15)(ii) of this section.

    (iv) Discard of salmon. Except for salmon under the PSD Program at § 679.26, all salmon must be returned to the sea as soon as is practicable, following notification by an observer that the number of salmon has been determined and the collection of scientific data or biological samples has been completed.

    (g) Chinook salmon bycatch management in the AI pollock fishery—(1) Applicability. This paragraph contains regulations governing the bycatch of Chinook salmon in the AI pollock fishery.

    (2) AI Chinook salmon PSC limit. (i) The PSC limit for Chinook salmon caught by vessels while harvesting pollock in the AI is 700 fish.

    (ii) 7.5 percent of the PSC limit is allocated to the CDQ Program as a PSQ reserve.

    (3) Area closures. If, during the fishing year, the Regional Administrator determines that catch of Chinook salmon by vessels using trawl gear while directed fishing for pollock in the AI will reach the PSC limit, NMFS, by notification in the Federal Register, will close the AI Chinook Salmon Savings Area, as defined in Figure 8 to this part, to directed fishing for pollock with trawl gear on the following dates:

    (i) From the effective date of the closure until April 15, and from September 1 through December 31, if the Regional Administrator determines that the annual limit of AI Chinook salmon will be attained before April 15.

    (ii) From September 1 through December 31, if the Regional Administrator determines that the annual limit of AI Chinook salmon will be attained after April 15.

    6. In § 679.22, revise paragraph (a)(10) to read as follows:
    § 679.22 Closures.

    (a) * * *

    (10) Chum Salmon Savings Area. Directed fishing for pollock by vessels using trawl gear is prohibited from August 1 through August 31 in the Chum Salmon Savings Area defined at Figure 9 to this part (see also § 679.21(f)(14)). Vessels directed fishing for pollock in the BS, including pollock CDQ, and operating under an approved IPA under § 679.21(f)(12) are exempt from closures in the Chum Salmon Savings Area.

    7. In § 679.28, revise paragraphs (d)(7)(i), (ii), and (iii) to read as follows:
    § 679.28 Equipment and operational requirements.

    (d) * * *

    (7) * * *

    (i) A salmon storage container must be located adjacent to the observer sampling station;

    (ii) The salmon storage container must remain in view of the observer at the observer sampling station at all times during the sorting of each haul; and

    (iii) The salmon storage container must be at least 1.5 cubic meters.

    8. In § 679.51, revise paragraphs (e)(1)(iii), (e)(2) introductory text, and (e)(2)(iii)(B)(3) to read as follows:
    § 679.51 Observer requirements for vessels and plants.

    (e) * * *

    (1) * * *

    (iii) Communications and observer data entry—(A) Observer use of equipment. Allow an observer to use the vessel's communications equipment and personnel, on request, for the confidential entry, transmission, and receipt of work-related messages, at no cost to the observer or the United States.

    (B) The operator of a catcher/processor, mothership, or catcher vessel 125 ft LOA or longer (except for a catcher vessel fishing for groundfish with pot gear) must provide the following equipment, software and data transmission capabilities:

    (1) Observer access to computer. Make a computer available for use by the observer.

    (2) NMFS-supplied software. Ensure that the most recent release of NMFS data entry software provided by the Regional Administrator or other approved software is installed on the computer described in paragraph (e)(1)(iii)(B)(1) of this section.

    (3) Data transmission. The computer and software described in paragraphs (e)(1)(iii)(B)(1) and (2) of this section must be connected to a communication device that provides a point-to-point connection to the NMFS host computer.

    (4) Functional and operational equipment. Ensure that the required equipment described in paragraph (e)(1)(iii)(B) of this section and that is used by an observer to enter or transmit data is fully functional and operational. “Functional” means that all the tasks and components of the NMFS-supplied, or other approved, software described in paragraph (e)(1)(iii)(B)(2) of this section and any required data transmissions to NMFS can be executed effectively aboard the vessel by the equipment.

    (C) The operator of a catcher vessel participating in the Rockfish Program or a catcher vessel less than 125 ft LOA directed fishing for pollock in the BS must comply with the computer and software requirements described in paragraphs (e)(1)(iii)(B)(1), (2), and (4) of this section.

    (2) Shoreside processor and stationary floating processor responsibilities. A manager of a shoreside processor or a stationary floating processor that is required to maintain observer coverage as specified under paragraph (b) of this section must:

    (iii) * * *

    (B) * * *

    (3) Functional and operational equipment. Ensuring that the communications equipment required under paragraph (e)(2)(iii)(B) of this section that is used by observers to enter and transmit data is functional and operational. “Functional” means that all the tasks and components of the NMFS-supplied, or other approved, software described at paragraph (e)(2)(iii)(B)(2) of this section and any data transmissions to NMFS can be executed effectively by the communications equipment.

    Tables 47a through 47d to Part 679 [Removed]
    9. Remove Tables 47a through 47d to part 679.
    [FR Doc. 2016-01890 Filed 2-2-16; 8:45 am] BILLING CODE 3510-22-P
    81 22 Wednesday, February 3, 2016 Notices DEPARTMENT OF AGRICULTURE National Institute of Food and Agriculture Submission for OMB Review; Comment Request; Correction January 28, 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 March 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.

    National Institute of Food and Agriculture

    Title: Reporting Requirements for State Plans of Work for Agricultural Research and Extension Formula Funds.

    Action: Notice; Correction.

    OMB Control Number: 0524-0036.

    Summary of Collection: The Department of Agriculture published a document in the Federal Register on January 22, 2016, Volume 81, page 3779 concerning a request for comments on the Information Collection “Reporting Requirements for State Plans of Work for Agricultural Research and Extension Formula Funds” OMB control number 0524-0036. The document contained incorrect burden hours. The total burden hours should be 49,248 not 49 as published.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2016-01985 Filed 2-2-16; 8:45 am] BILLING CODE 3410-09-P
    COMMISSION ON CIVIL RIGHTS Revised Sunshine Act Meeting Notice AGENCY:

    United States Commission on Civil Rights.

    ACTION:

    Revised briefing notice.

    DATES:

    Date and Time: Friday, February 5, 2016; 9:00 a.m.-4:30 p.m. EST.

    ADDRESSES:

    Place: National Place Building, 1331 Pennsylvania Ave. NW., 11th Floor, Suite 1150, Washington, DC 20245.

    FOR FURTHER INFORMATION CONTACT:

    Gerson Gomez, Media Advisor at telephone: (202) 376-8371, TTY: (202) 376-8116 or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This briefing is open to the public. The public may listen on the following toll-free number: 1-888-510-1785 with passcode 2485466. Hearing-impaired persons who will attend the briefing and require the services of a sign language interpreter should contact Pamela Dunston at (202) 376-8105 or at [email protected] at least seven business days before the scheduled date of the meeting.

    During the briefing, Commissioners will ask questions and discuss the briefing topic with the panelists. The public may submit written comments on the topic of the briefing to the above address for 30 days after the briefing. Please direct your comments to the attention of the “Staff Director” and clearly mark “Briefing Comments Inside” on the outside of the envelope. Please note we are unable to return any comments or submitted materials. Comments may also be submitted by email to [email protected]

    Topic: Completion of Briefing on Environmental Justice: Toxic Materials, Poor Economies, and the Impact to Low-Income, Minority Communities; A review of the Environmental Protection Agency's Civil Rights Enforcement of Environmental Justice in the Context of Title VI, E.O. 12,989 and the Coal Ash Rule.

    Agenda I. Introductory Remarks by Chairman: 9:00 a.m. II. Presentations: Community Leaders/Advocates Who Have Experienced the Impacts of Environmental Injustices: 9:20 a.m.-10:05 a.m. Speakers' Remarks • Esther Calhoun, Alabama Resident • Dulce Ortiz, Illinois Resident • Rev. Leo Woodberry, South Carolina Resident III. Panel 1: Health Issues: 10:10 a.m.-11:30 a.m. • Barbara Gottlieb, Physicians for Social Responsibility • Abel Russ, Environmental Integrity Project • D