Federal Register Vol. 81, No.220,

Federal Register Volume 81, Issue 220 (November 15, 2016)

Page Range79991-80562
FR Document

81_FR_220
Current View
Page and SubjectPDF
81 FR 80091 - Sunshine Act: Notice of Agency MeetingPDF
81 FR 80092 - Sunshine Act MeetingPDF
81 FR 80055 - Sunshine Act MeetingPDF
81 FR 80086 - Filing of Plats of Survey, WyomingPDF
81 FR 80084 - Final Long Range Transportation Plan for U.S. Fish and Wildlife Service Lands in the Northeast RegionPDF
81 FR 79998 - Establishment of and Modification to Restricted Areas; Fort Sill, OKPDF
81 FR 80056 - Valeant Pharmaceuticals International, Inc.; Analysis To Aid Public CommentPDF
81 FR 80166 - Tribal Health Programs-Community Care ConsolidationPDF
81 FR 80159 - Agency Information Collection Activities: Proposed RequestPDF
81 FR 80041 - South Atlantic Fishery Management Council; Public MeetingsPDF
81 FR 80016 - Mid-Atlantic Fishery Management Council (MAFMC); MeetingPDF
81 FR 80083 - Collection of Information Under Review by Office of Management and Budget; OMB Control Number: 1625-0066PDF
81 FR 80044 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 80049 - Agency Information Collection Activities; Comment Request; Integrated Postsecondary Education Data System (IPEDS) 2016-2019PDF
81 FR 80063 - Medicare Program; Medicare Part B Monthly Actuarial Rates, Premium Rate, and Annual Deductible Beginning January 1, 2017PDF
81 FR 80078 - Federal Financial Participation in State Assistance Expenditures; Federal Matching Shares for Medicaid, the Children's Health Insurance Program, and Aid to Needy Aged, Blind, or Disabled Persons for October 1, 2017 Through September 30, 2018PDF
81 FR 80003 - Medicaid Program; Covered Outpatient Drug; Delay in Change in Definitions of States and United StatesPDF
81 FR 80058 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
81 FR 80091 - Meetings of Humanities PanelPDF
81 FR 80006 - Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management AreaPDF
81 FR 80073 - Paul S. Singh: Debarment OrderPDF
81 FR 80077 - Louis Daniel Smith: Debarment OrderPDF
81 FR 80006 - Reef Fish Fishery of the Gulf of Mexico; 2017 Recreational Accountability Measures and Closure for Gulf of Mexico Gray TriggerfishPDF
81 FR 80047 - Defense Advisory Committee on Women in the Services (DACOWITS); Notice of Federal Advisory Committee MeetingPDF
81 FR 80056 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
81 FR 80038 - Fisheries of the Northeastern United States; Summer Flounder Fishery; 2017 and 2018 Summer Flounder SpecificationsPDF
81 FR 80051 - Amendment to Procedures Established Pursuant to the Nuclear Non-Proliferation Act of 1978PDF
81 FR 80048 - Submission for OMB Review; Comment RequestPDF
81 FR 80087 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Cooperative Research Group on Energy Storage System Evaluation and Safety IIPDF
81 FR 80087 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-ASTM International StandardsPDF
81 FR 80045 - Privacy Act of 1974; System of RecordsPDF
81 FR 80087 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Vendor Security AlliancePDF
81 FR 80161 - Qualification of Drivers; Exemption Applications; VisionPDF
81 FR 80164 - Qualification of Drivers; Exemption Applications; DiabetesPDF
81 FR 80059 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 80048 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Trends in International Mathematics and Science Study (TIMSS 2019) Field Test Recruitment and Pilot TestPDF
81 FR 80050 - Agency Information Collection Activities; Comment Request; Principal Follow-Up Survey (PFS 2016-17) to the National Teacher and Principal Survey (NTPS 2015-16)PDF
81 FR 80015 - Trade Promotion Coordinating CommitteePDF
81 FR 80161 - Second RTCA SC-236 Joint Plenary With EUROCAE WG-96PDF
81 FR 80161 - Nineteenth RTCA SC-227 Standards of Navigation Performance Navigation Information on Electronic MapsPDF
81 FR 80060 - Medicare Program; CY 2017 Inpatient Hospital Deductible and Hospital and Extended Care Services Coinsurance AmountsPDF
81 FR 80071 - Medicare Program; CY 2017 Part A Premiums for the Uninsured Aged and for Certain Disabled Individuals Who Have Exhausted Other EntitlementPDF
81 FR 80087 - Baseline Specifications for Law Enforcement Service Pistols With Security TechnologyPDF
81 FR 80083 - Notice of Advisory Council on Historic Preservation Quarterly Business MeetingPDF
81 FR 80002 - Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying BenefitsPDF
81 FR 80016 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Operation, Maintenance, and Repair of the Northeast Gateway Liquefied Natural Gas Port and the Algonquin Pipeline Lateral Facilities in Massachusetts BayPDF
81 FR 80053 - Columbia Gas Transmission, LLC; Notice of Request Under Blanket AuthorizationPDF
81 FR 80052 - Hampshire Paper Company, Inc., KE Emeryville, LLC; Notice of Application for Transfer of License and Soliciting Comments, Motions To Intervene, and ProtestsPDF
81 FR 80053 - Western Water and Power Production Limited LLC; Notice of Petition for EnforcementPDF
81 FR 80052 - Big Rivers Electric Corporation v. Midcontinent Independent System Operator, Inc.; Notice of ComplaintPDF
81 FR 80157 - Submission for OMB Review; Comment RequestPDF
81 FR 80137 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7014 and the Nasdaq Growth ProgramPDF
81 FR 80093 - Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing of a Proposed Rule Change in Connection With the Proposed Corporate Transaction Involving Bats Global Markets, Inc. and CBOE Holdings, Inc.PDF
81 FR 80157 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing of a Proposed Rule Change in Connection With a Proposed Corporate Transaction Involving CBOE Holdings, Inc. and Bats Global Markets, Inc.PDF
81 FR 80132 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing of a Proposed Rule Change in Connection With a Proposed Corporate Transaction Involving CBOE Holdings, Inc. and Bats Global Markets, Inc.PDF
81 FR 80101 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing of a Proposed Rule Change in Connection With the Proposed Corporate Transaction Involving Bats Global Markets, Inc. and CBOE Holdings, Inc.PDF
81 FR 80146 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing of a Proposed Rule Change in Connection With the Proposed Corporate Transaction Involving Bats Global Markets, Inc. and CBOE Holdings, Inc.PDF
81 FR 80114 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing of a Proposed Rule Change in Connection With the Proposed Corporate Transaction Involving Bats Global Markets, Inc. and CBOE Holdings, Inc.PDF
81 FR 80154 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Commentary .14 to Rule 4770 (Compliance With Regulation NMS Plan To Implement a Tick Size Pilot)PDF
81 FR 80123 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Commentary .14 to Rule 4770 (Compliance With Regulation NMS Plan To Implement a Tick Size Pilot)PDF
81 FR 80134 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Commentary .14 to Rule 3317 (Compliance With Regulation NMS Plan To Implement a Tick Size Pilot)PDF
81 FR 80109 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Cease and Desist Authority RulesPDF
81 FR 80140 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Cease and Desist Authority RulesPDF
81 FR 80125 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing of Proposed Rule Change To Amend Rule 5050 Series of Options Contracts Open for Trading To Provide for the Listing and Trading on the Exchange of RealDayTMPDF
81 FR 80051 - Secretary of Energy Advisory BoardPDF
81 FR 80050 - Hydrogen and Fuel Cell Technical Advisory Committee (HTAC)PDF
81 FR 80008 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meetings for the Circulator Pumps Working Group To Negotiate a Notice of Proposed Rulemaking (NOPR) for Energy Conservation Standards and Test ProceduresPDF
81 FR 80089 - MET Laboratories, Inc.: Application for Expansion of Recognition and Proposed Modification to the NRTL Program's List of Appropriate Test StandardsPDF
81 FR 80088 - Proposed Extension of Information Collection; Radiation Sampling and Exposure Records (Pertains to Underground Metal and Nonmetal Mines)PDF
81 FR 80081 - National Institute of Neurological Disorders and Stroke; Notice of Closed MeetingsPDF
81 FR 80082 - National Institute of Mental Health; Notice of Closed MeetingsPDF
81 FR 80081 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingsPDF
81 FR 80083 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
81 FR 80082 - Government-Owned Inventions; Availability for LicensingPDF
81 FR 80081 - Center For Scientific Review; Notice of Closed MeetingPDF
81 FR 80054 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
81 FR 80054 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated AuthorityPDF
81 FR 80075 - Agency Information Collection Activities; Proposed Collection; Comment Request; Evaluation of the Food and Drug Administration's Education at the Point of Sale CampaignPDF
81 FR 80011 - Standards for Safeguarding Customer InformationPDF
81 FR 80012 - Federal Acquisition Regulation: Clarification of Requirement for Justifications for 8(a) Sole Source ContractsPDF
81 FR 79991 - Energy Conservation Program for Consumer Products and Certain Commercial and Industrial Equipment: Final Determination of Compressors as Covered EquipmentPDF
81 FR 80170 - Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2017; Medicare Advantage Bid Pricing Data Release; Medicare Advantage and Part D Medical Loss Ratio Data Release; Medicare Advantage Provider Network Requirements; Expansion of Medicare Diabetes Prevention Program Model; Medicare Shared Savings Program RequirementsPDF
81 FR 80009 - Airworthiness Directives; Gulfstream Aerospace Corporation AirplanesPDF

Issue

81 220 Tuesday, November 15, 2016 Contents Antitrust Division Antitrust Division NOTICES Changes under the National Cooperative Research and Production Act: ASTM International Standards, 80087 2016-27405 Southwest Research Institute—Cooperative Research Group on Energy Storage System Evaluation and Safety II, 80087 2016-27406 Vendor Security Alliance, 80087 2016-27402 Army Army Department NOTICES Privacy Act; Systems of Records, 80045-80047 2016-27404 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 80044-80045 2016-27427 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 80058-80060 2016-27395 2016-27421 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicaid Program: Covered Outpatient Drug; Delay in Change in Definitions of States and United States, 80003-80005 2016-27423 Medicare Program: Revisions to Payment Policies under the Physician Fee Schedule and Other Revisions to Part B for CY 2017; Medicare Advantage Bid Pricing Data Release; Medicare Advantage and Part D Medical Loss Ratio Data Release; Medicare Advantage Provider Network Requirements; Expansion of Medicare Diabetes Prevention Program Model; Medicare Shared Savings Program Requirements, 80170-80562 2016-26668 NOTICES Medicare Program: CY 2017 Inpatient Hospital Deductible and Hospital and Extended Care Services Coinsurance Amounts, 80060-80063 2016-27389 CY 2017 Part A Premiums for the Uninsured Aged and for Certain Disabled Individuals Who Have Exhausted Other Entitlement, 80071-80073 2016-27388 Medicare Part B Monthly Actuarial Rates, Premium Rate, and Annual Deductible Beginning January 1, 2017, 80063-80071 2016-27425 Coast Guard Coast Guard NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 80083-80084 2016-27432 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

NOTICES Amendment to Procedures Established Pursuant to the Nuclear Non-Proliferation Act of 1978, 80051-80052 2016-27409
Defense Department Defense Department See

Army Department

PROPOSED RULES Federal Acquisition Regulations: Clarification of Requirement for Justifications for 8(a) Sole Source Contracts, 80012-80014 2016-27245 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 80048 2016-27407 Meetings: Defense Advisory Committee on Women in the Services, 80047 2016-27413
Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Integrated Post-Secondary Education Data System 2016-2019, 80049 2016-27426 Principal Follow-Up Survey to the National Teacher and Principal Survey, 80050 2016-27393 Trends in International Mathematics and Science Study Field Test Recruitment and Pilot Test, 80048-80049 2016-27394 Energy Department Energy Department See

Federal Energy Regulatory Commission

See

National Nuclear Security Administration

RULES Energy Conservation Programs: Consumer Products and Certain Commercial and Industrial Equipment; Compressors as Covered Equipment, 79991-79998 2016-26693 PROPOSED RULES Energy Conservation Standards and Test Procedures: Meetings of Appliance Standards and Rulemaking Federal Advisory Committee Circulator Pumps Working Group, 80008 2016-27358 NOTICES Meetings: Hydrogen and Fuel Cell Technical Advisory Committee, 80050-80051 2016-27361 Secretary of Energy Advisory Board; Cancellation, 80051 2016-27362
Federal Aviation Federal Aviation Administration RULES Restricted Areas: Fort Sill, OK, 79998-80002 2016-27441 PROPOSED RULES Airworthiness Directives: Gulfstream Aerospace Corporation Airplanes, 80009-80011 2016-25354 NOTICES Meetings: Nineteenth RTCA SC-227 Standards of Navigation Performance Navigation Information on Electronic Maps, 80161 2016-27390 Second RTCA SC-236 Joint Plenary with EUROCAE WG-96, 80161 2016-27391 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 80054-80055 2016-27331 2016-27332 Federal Energy Federal Energy Regulatory Commission NOTICES Complaints: Big Rivers Electric Corp. v. Midcontinent Independent System Operator Inc., 80052-80053 2016-27379 License Transfer Applications: Hampshire Paper Company, Inc.; KE Emeryville, LLC, 80052 2016-27381 Petitions for Enforcement: Western Water and Power Production Limited LLC, 80053-80054 2016-27380 Requests under Blanket Authorizations: Columbia Gas Transmission LLC, 80053 2016-27382 Federal Maritime Federal Maritime Commission NOTICES Meetings; Sunshine Act, 80055-80056 2016-27474 Federal Motor Federal Motor Carrier Safety Administration NOTICES Qualification of Drivers; Exemption Applications: Diabetes, 80164-80166 2016-27396 Vision, 80161-80164 2016-27397 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 80056 2016-27412 Federal Trade Federal Trade Commission PROPOSED RULES Standards for Safeguarding Customer Information, 80011-80012 2016-27266 NOTICES Proposed Consent Agreements: Valeant Pharmaceuticals International, Inc., 80056-80058 2016-27440 Fish Fish and Wildlife Service NOTICES Final Long Range Transportation Plan for U.S. Fish and Wildlife Service Lands in the Northeast Region, 80084-80086 2016-27442 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals Evaluation of the Education at the Point of Sale Campaign, 80075-80077 2016-27330 Debarment Orders: Louis Daniel Smith, 80077-80078 2016-27417 Paul S. Singh, 80073-80074 2016-27418 General Services General Services Administration PROPOSED RULES Federal Acquisition Regulations: Clarification of Requirement for Justifications for 8(a) Sole Source Contracts, 80012-80014 2016-27245 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

NOTICES Federal Financial Participation in State Assistance Expenditures: Matching Shares for Medicaid, the Children's Health Insurance Program, and Aid to Needy Aged, Blind, or Disabled Persons; October 1, 2017-September 30, 2018, 80078-80080 2016-27424
Historic Historic Preservation, Advisory Council NOTICES Meetings: Quarterly Business Meeting, 80083 2016-27386 Homeland Homeland Security Department See

Coast Guard

Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

International Trade Adm International Trade Administration NOTICES Requests for Nominations: Trade Promotion Coordinating Committee State and Federal Export Promotion Coordination Working Group, 80015-80016 2016-27392 Justice Department Justice Department See

Antitrust Division

See

Justice Programs Office

Justice Programs Justice Programs Office NOTICES Baseline Specifications for Law Enforcement Service Pistols with Security Technology, 80087-80088 2016-27387 Labor Department Labor Department See

Mine Safety and Health Administration

See

Occupational Safety and Health Administration

Land Land Management Bureau NOTICES Plats of Surveys: Wyoming, 80086 2016-27445 Mine Mine Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Radiation Sampling and Exposure Records, 80088-80089 2016-27343 NASA National Aeronautics and Space Administration PROPOSED RULES Federal Acquisition Regulations: Clarification of Requirement for Justifications for 8(a) Sole Source Contracts, 80012-80014 2016-27245 National Credit National Credit Union Administration NOTICES Meetings; Sunshine Act, 80091 2016-27543 National Endowment for the Humanities National Endowment for the Humanities NOTICES Meetings: Humanities Panel, 80091-80092 2016-27420 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Humanities

National Institute National Institutes of Health NOTICES Government-Owned Inventions; Availability for Licensing, 80082 2016-27337 Meetings: Center for Scientific Review, 80081-80082 2016-27336 National Heart, Lung, and Blood Institute, 80083 2016-27339 National Institute of Allergy and Infectious Diseases, 80081 2016-27340 National Institute of Mental Health, 80082 2016-27341 National Institute of Neurological Disorders and Stroke, 80081 2016-27342 Energy National Nuclear National Nuclear Security Administration NOTICES Amendment to Procedures Established Pursuant to the Nuclear Non-Proliferation Act of 1978, 80051-80052 2016-27409 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management Area, 80006-80007 2016-27419 Reef Fish Fishery of the Gulf of Mexico: 2017 Recreational Accountability Measures and Closure for Gulf of Mexico Gray Triggerfish, 80006 2016-27415 NOTICES Fisheries of the Northeastern United States: Summer Flounder Fishery; 2017 and 2018 Summer Flounder Specifications, 80038-80041 2016-27410 Meetings: Mid-Atlantic Fishery Management Council, 80016 2016-27433 South Atlantic Fishery Management Council, 80041-80044 2016-27434 Takes of Marine Mammals Incidental to Specified Activities: Operation, Maintenance, and Repair of the Northeast Gateway Liquefied Natural Gas Port and the Algonquin Pipeline Lateral Facilities, Massachusetts Bay, 80016-80038 2016-27383 National Transportation National Transportation Safety Board NOTICES Meetings; Sunshine Act, 80092 2016-27477 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Expansion of Recognition; Applications: MET Laboratories, Inc., 80089-80091 2016-27356 Pension Benefit Pension Benefit Guaranty Corporation RULES Benefits Payable in Terminated Single-Employer Plans: Interest Assumptions for Paying Benefits, 80002-80003 2016-27384 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 80157 2016-27377 Self-Regulatory Organizations; Proposed Rule Changes: Bats BYX Exchange Inc., 80093-80101 2016-27374 Bats BZX Exchange Inc., 80101-80109 2016-27371 Bats EDGA Exchange Inc., 80146-80154 2016-27370 Bats EDGX Exchange Inc., 80114-80123 2016-27369 BOX Options Exchange LLC, 80125-80132 2016-27363 C2 Options Exchange, Inc., 80132-80134 2016-27372 Chicago Board Options Exchange, Inc., 80157-80159 2016-27373 NASDAQ BX Inc., 80109-80114, 80123-80125 2016-27365 2016-27367 NASDAQ PHLX LLC, 80134-80137 2016-27366 NASDAQ Stock Market LLC, 80137-80146, 80154-80157 2016-27364 2016-27368 2016-27375 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 80159-80161 2016-27435 State Department State Department NOTICES Amendment to Procedures Established Pursuant to the Nuclear Non-Proliferation Act of 1978, 80051-80052 2016-27409 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

Veteran Affairs Veterans Affairs Department NOTICES Tribal Consultations: Tribal Health Programs—Community Care Consolidation, 80166-80167 2016-27436 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 80170-80562 2016-26668 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.

81 220 Tuesday, November 15, 2016 Rules and Regulations DEPARTMENT OF ENERGY 10 CFR Part 431 [Docket No. EERE-2012-BT-DET-0033] RIN 1904-AC83 Energy Conservation Program for Consumer Products and Certain Commercial and Industrial Equipment: Final Determination of Compressors as Covered Equipment AGENCY:

Office of Energy Efficiency and Renewable Energy, Department of Energy.

ACTION:

Final rule.

SUMMARY:

The U.S. Department of Energy (DOE) is classifying certain varieties of compressors as covered equipment under Part A-1 of Title III of the Energy Policy and Conservation Act (EPCA), as amended. Accordingly, this document establishes the definition of equipment that are considered compressors.

DATES:

This rule is effective December 15, 2016.

ADDRESSES:

This rulemaking can be identified by docket number EERE-2012-BT-DET-0033 and/or Regulatory Information Numbers (RIN) 1904-AC83.

Docket: The docket, which includes Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials, is available for review at www.regulations.gov. All documents in the docket are listed in the www.regulations.gov index. However, some documents listed in the index may not be publicly available, such as those containing information that is exempt from public disclosure.

A link to the docket Web page can be found at: https://www.regulations.gov/docket?D=EERE-2012-BT-DET-0033. The www.regulations.gov Web page contains simple instructions on how to access all documents, including public comments, in the docket.

For further information on how to review the docket, contact the Appliance and Equipment Standards Program staff at (202) 586-6636 or by email: [email protected]

FOR FURTHER INFORMATION CONTACT:

James Raba, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-8654. Email: [email protected]

Mary Greene, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-1817. Email: [email protected]

SUPPLEMENTARY INFORMATION: Table of Contents I. Statutory Authority II. Current Rulemaking Process III. Covered Equipment A. Compressors in Covered Products B. Pressure Ratio C. Equipment Configuration D. Electrical Connection Method E. Non-Electric Compressors F. Variety of Equipment Covered G. Federal Preemption H. Conclusion IV. Evaluation of Compressors as a Covered Equipment A. Energy Consumption in Operation B. Distribution in Commerce C. Prior Inclusion as a Covered Product D. Coverage Necessary To Carry Out Purposes of Part A-1 of the Energy Policy and Conservation Act V. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act of 1999 I. Review Under Executive Order 12630 J. Review Under the Treasury and General Government Appropriations Act of 2001 K. Review Under Executive Order 13211 L. Congressional Notification M. Review Under the Information Quality Bulletin for Peer Review VI. Approval of the Office of the Secretary I. Statutory Authority

Title III of the Energy Policy and Conservation Act of 1975, as amended (“EPCA” or, in context, “the Act”), sets forth a variety of provisions designed to improve energy efficiency. (42 U.S.C. 6291, et seq.) Part C of Title III, which for editorial reasons was re-designated as Part A-1 upon incorporation into the U.S. Code (42 U.S.C. 6311-6317), establishes the “Energy Conservation Program for Certain Industrial Equipment.” The purpose of Part A-1 is to improve the efficiency of electric motors and pumps and certain other industrial equipment in order to conserve the energy resources of the Nation. (42 U.S.C 6312(a))

EPCA provides that DOE may include a type of industrial equipment, including compressors, as covered equipment if it determines that to do so is necessary to carry out the purposes of Part A-1. (42 U.S.C. 6311(2)(B)(i) and 6312(b)). Industrial equipment, including compressors, must be of a type that consumes, or is designed to consume, energy in operation; is distributed in commerce for industrial or commercial use; and is not a covered product as defined in 42 U.S.C. 6291(a)(2) of EPCA. (42 U.S.C. 6311 (2)(A)). DOE has determined that compressors, the definition of which DOE is adding to subpart T of 10 CFR 431 and discusses in this rule, meet the statutory requirements under 42 U.S.C. 6311(2)(B)(i) and 6312(b) and is classifying them as covered equipment.

Separately, DOE is conducting rulemakings to consider test procedures, and energy conservation standards for compressors. Pursuant to EPCA, any new or amended energy conservation standard for compressors must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A) and 6316(a)). Furthermore, the new or amended standard must result in a significant conservation of energy. (42 U.S.C. 6295(o)(3)(B) and 6316(a)). DOE will determine if compressors satisfy these provisions during the course of the energy conservation standards rulemaking.

II. Current Rulemaking Process

On December 31, 2012 (77 FR 76972), DOE issued a Proposed Determination of Coverage (2012 NOPD) that proposed to determine that compressors qualify as covered equipment under part A-1 of Title III of EPCA, as amended (42 U.S.C. 6311 et seq). DOE proposed that coverage was necessary for the purposes of Part A-1 because (1) DOE may only prescribe energy conservation standards for covered equipment; and (2) energy conservation standards for compressors would improve the efficiency of such equipment more than would be likely to occur in the absence of standards. The 2012 NOPD tentatively determined adoption of energy conservation standards for compressors likely would satisfy the provisions of 42 U.S.C. 6311(2)(B)(i). On February 7, 2013 (78 FR 8998), DOE published a notice reopening the comment period on the 2012 NOPD.

On February 5, 2014 (79 FR 6839), DOE published a notice of public meeting and provided a framework document that addressed potential standards and test procedures rulemakings for compressors. DOE held a public meeting to discuss the framework document on April 1, 2014. At this meeting, DOE discussed and received comments on the framework document, which covered the analytical framework, models, and tools that DOE used to evaluate potential standards; and all other issues raised relevant to the development of energy conservation standards for the different categories of compressors. On March 18, 2014 (79 FR 15061), DOE extended the comment period.

On May 5, 2016 (81 FR 27219), DOE issued a notice of proposed rulemaking (NOPR) to propose a definition for the term “compressor” and to propose test procedures for certain compressors (hereafter, the “test procedure NOPR”). On May 19, 2016 (81 FR 31680), DOE issued a NOPR to propose energy conservation standards for certain varieties of compressors (hereafter, the “energy conservation standards NOPR”). On June 20, 2016, DOE held a public meeting to discuss the test procedure and energy conservation standards NOPRs and to accept comments from interested parties.

In this final rule, DOE responds to the seven comments received from interested parties in response to the 2012 NOPD. DOE notes that certain comments received in response to the 2012 NOPD discussed topics such as: Technology options to improve the efficiency of compressors, scope of potential energy conservations standards, and test methods for compressors, among other comments. These comments relate to the ongoing test procedure and/or energy conservation standards rulemakings and are, or will, be addressed in those rulemakings, as applicable. In this document, DOE also responds to certain comments that were submitted in response to the test procedure NOPR and pertain to the definition of “compressor.”

In this document, DOE addresses comments submitted by the following: The Air-Conditioning, Heating, and Refrigeration Institute (AHRI); American Council for an Energy-Efficient Economy (ACEEE); Appliance Standards Awareness Project (ASAP); Alliance to Save Energy (ASE); Atlas Copco AB (Atlas Copco); the Compressed Air & Gas Institute (CAGI); Compressed Air Systems; the Edison Electric Institute (EEI); Ingersoll Rand; Kaeser Compressors; the National Rural Electric Cooperative Association (NRECA); the Northwest Energy Efficiency Alliance (NEEA); the Northeast Energy Efficiency Partnerships (NEEP); the National Resources Defense Council (NRDC); the Pacific Gas and Electric Company (PG&E), San Diego Gas and Electric (SDG&E), Southern California Edison (SCE), and Southern California Gas Company (SCGC), collectively referred to as the California Investor Owned Utilities (CA IOUs); Scales Industrial Technologies; Sullair; Saylor-Beall Manufacturing Company and Sullivan-Palatek, collectively referred to as Sullivan-Palatek.

DOE will identify comments received in response to the test procedure NOPR by the number of the docket maintained at www.regulations.gov (Docket No. EERE-2014-BT-TP-0054), the commenter, the number of document as listed in that docket, and the page number of that document where the comment appears (for example: EERE-2014-BT-TP-0054, CAGI, No. 0010 at p. 3CAGI, No. 10 at p. 4). DOE will identify comments received in response to the energy conservation standards NOPR by the commenter, the number of document as listed in the docket maintained at www.regulations.gov (Docket No. EERE-2013-BT-STD-0040), and the page number of that document where the comment appears. DOE will cite comments in this rule's docket (EERE-2012-BT-DET-0033) solely using the commenter name, commenter number, and page number, without a docket reference.

III. Covered Equipment

“Compressor” is not an existing defined term under EPCA. In the 2012 NOPD, DOE tentatively determined to add compressors as a type of covered equipment and proposed a definition for “compressor.” 77 FR 76972, 76973 (Dec 31, 2012). Specifically, DOE proposed to define compressor as an electric-powered device that takes in air or gas at atmospheric pressure and delivers the air or gas at a higher pressure. DOE also clarified that compressors typically have a specific ratio, the ratio of delivery pressure to supply pressure, greater than 1.20 and compressors are classified as positive-displacement, dynamic, or hybrid. 77 FR 76972, 76973-76974 (Dec 31, 2012). Finally, DOE noted that compressors may have pistons, rollers, rotors, impeller wheels, spiral disks, cylinders, lubricant, motors and transmissions, controls, treatment equipment, filters, and/or a lubricant/air separators. 77 FR 76972, 76974 (Dec 31, 2012). In the 2016 test procedure NOPR, after considering comments in response to the February 5, 2014 framework document (79 FR 6839), DOE proposed revisions to its initial proposed “of a compressor”. Specifically, DOE proposed that a compressor means a machine or apparatus that converts different types of energy into the potential energy of gas pressure for displacement and compression of gaseous media to any higher pressure values above atmospheric pressure and has a pressure ratio greater than 1.3. 81 FR 27220, 27224 (May 5, 2016)

Several parties commented in response to the definition of “compressor” considered in the 2012 NOPD and proposed in the 2016 test procedure NOPR (and its associated public meeting). These comments are discussed by topic, in the sections that follow.

A. Compressors in Covered Products

In response to the 2012 NOPD, AHRI stated that DOE's proposed definition of “compressor” may unintentionally include some products as covered equipment. Specifically AHRI was concerned that heating, ventilating, air conditioning, and refrigeration (HVACR) equipment may meet the proposed definition, and suggested that DOE include a statement to exclude them. (AHRI, No. 0002 at pp. 1-2) AHRI stated that the energy consumption of HVACR compressors is already accounted for in the efficiency ratings for regulated HVACR equipment, which means that covering those compressors under separate regulations would lead to unwarranted double regulation on HVACR products. (AHRI, No. 0002 at p. 2).

EEI commented that certain electric motors sized under 500 horsepower (which are used on certain compressors), are already subject to DOE energy conservation standards, and DOE should take this into consideration in any future energy conservation standards, in order to avoid duplicative regulation of these motors. (EEI, No. 0009 at p. 4)

This final rule establishes a definition for “compressors” and classifies them as covered equipment under EPCA; it does not establish scope for any potential energy conservation standards. As such, AHRI's comment that compressors in HVACR systems and EEI comments regarding motors should be excluded from regulation will be addressed in the ongoing energy conservation standards rulemaking.

B. Pressure Ratio

In response to the 2016 test procedure NOPR, Atlas Copco commented that DOE should harmonize with international precedent to aid manufacturers in exporting their products, and reduce the minimum pressure ratio from 1.3 to 1.1, as is stated in European Union (EU) Lot 31 draft standard.1 (EERE-2014-BT-TP-0054, Atlas Copco, No. 0009 at p. 11).

1 The EU Lot 31 draft standard is available at: http://www.regulations.gov/contentStreamer?documentId=EERE-2013-BT-STD-0040-0031&disposition=attachment&contentType=pdf.

In response to Atlas Copco, DOE reiterates that it proposed a lower-bound pressure ratio of 1.3 to align the coverage determination of compressors with the coverage determination being considered in the fans and blowers rulemaking, with the intent that DOE regulations do not leave any gaps in coverage. 81 FR 27220, 27224 (May 5, 2016). DOE further reiterates that an Appliance Standards Rulemaking Advisory Committee (ASRAC) Working Group was established to negotiate proposed energy conservation standards for fans and blowers and this group discussed and came to general agreement on a maximum fan energy limit of 25 kJ/kg, which translates approximately to a 1.3 pressure ratio, as the appropriate cutoff to distinguish between fans and compressors. (EERE-2014-BT-TP-0054, Docket No. EERE-2013-BT-STD-0006; EERE-2014-BT-TP-0054, Public Meeting, No. 84 at p. 11) and 81 FR 27220, 27224 (May 5, 2016). If, through the fans and blowers rulemaking, DOE establishes coverage for equipment that incorporates a maximum1.3 pressure ratio limit, DOE would have the authority to establish test procedures and energy conservation standards for equipment with pressure ratios between 1.1 and 1.3, under the coverage of fans and blowers, rather than compressors. (see: Docket No. EERE-2013-BT-STD-0006). Alternatively, incorporating a minimum 1.1 pressure ratio into the definition of “compressor” would result in an overlap in coverage with fans and blowers, and create confusion in the market.

Additionally, incorporating a definition for “compressor” as covered equipment by itself has no material impact on manufacturers. Rather, a decision by DOE to establish test procedures and/or energy conservation standards for certain compressors could materially impact manufacturers and trade. As such, DOE's decision to establish coverage for compressors based on a minimum pressure ratio of 1.3 has no impact on manufacturing or exporting, as claimed by Atlas Copco.

In response to the 2012 NOPD, CAGI commented that the 1.2 compression ratio proposed by DOE is too low. CAGI suggested a compression ratio of 2.5 instead. CAGI noted that what are referred to as “low-pressure blowers” can reach pressure ratios below 2.5, but are not generally viewed as compressors. CAGI also stated that a compression ratio of 1.2 may result in the inclusion of blowers for hand drying and vending machine compressors. (CAGI, No. 0003 at pp. 6-7) Both Ingersoll Rand and Kaeser Compressors supported CAGI's recommendation to use a pressure ratio of 2.5 instead of 1.2. (Kaeser Compressors, No. 0007 at p. 1; Ingersoll Rand, No. 0004 at pp. 1-2). However, DOE notes that, in response to the 2016 test procedure NOPR, CAGI and Ingersoll Rand updated their opinions and provided support for the definition of “compressor,” with a 1.3 minimum pressure ratio, as proposed by DOE in the test procedure NOPR. (EERE-2014-BT-TP-0054, CAGI, No. 0010 at p. 3; EERE-2014-BT-TP-0054, Ingersoll Rand, No. 0011 at p. 1; EERE-2014-BT-TP-0054, Sullair, No. 0006 at p. 1) Kaeser Compressors provided no updated comments related minimum pressure ratio, in response to the 2016 test procedure NOPR.

In response to the 2016 test procedure NOPR, Scales Industrial Technologies commented that the term “compressor” was historically used for equipment with pressure values above 18-25 psig, corresponding to pressure ratios of 2.2-2.7, and that equipment with pressure values below this range were referred to as “blowers.” (EERE-2014-BT-TP-0054, Scales Industrial Technologies, No. 0013, at p. 3)

In response to Kaeser Compressors and Scales Industrial Technologies, DOE acknowledges that lower pressure compressors are often termed “blowers” in industry. However, significant industry precedent exists that classifies blowers (and other lower pressure ratio machines) as sub-varieties of compressors. Specifically, in the test procedure NOPR, DOE noted that the International Organization for Standardization (ISO) Technical Report 12942:2012, “Compressors—Classification—Complementary information to ISO 5390,” (ISO/TR 12942:2012) defines “compressor” as a machine or apparatus converting different types of energy into the potential energy of gas pressure for displacement and compression of gaseous media to any higher pressure values above atmospheric pressure with pressure-increase ratios exceeding 1.1. 81 FR 27219, 27223 (May 5, 2016). Additionally, the European Union (EU) Lot 31 draft standard,2 as previously discussed by Atlas Copco, also defines “compressor” using a minimum pressure ratio of 1.1.3 Technically, any machine with a pressure ratio of greater than 1.0 could meet the first clause of the proposed definition for “compressor”. In other words, it can convert different types of energy into the potential energy of gas pressure for displacement and compression of gaseous media to any higher pressure values above atmospheric pressure. Given the precedent established by ISO/TR 12942:2012 and the EU Lot 31 draft standard, DOE believes that 1.1 is the minimum pressure ratio used in the industry to describe compressors. Consequently, a machine that converts different types of energy into the potential energy of gas pressure for displacement and compression of gaseous media to any higher pressure values above atmospheric pressure and has a pressure ratio of 1.3 would technically be considered a compressor by the compressor industry.

2 The EU Lot 31 draft standard is available at: http://www.regulations.gov/contentStreamer?documentId=EERE-2013-BT-STD-0040-0031&disposition=attachment&contentType=pdf.

3 As discussed in the previous paragraph, DOE is adopting a minimum pressure ratio of 1.3, rather than 1.1, in order to align with the fans and blowers rule.

Finally, DOE notes that the CA IOUs, CAGI, Sullivan-Palatek, Ingersoll Rand, and Sullair all support the definition of “compressor” with a 1.3 minimum pressure ratio, as proposed in the test procedure NOPR. (EERE-2014-BT-TP-0054, CA IOUs, No. 0012 at p. 3; EERE-2014-BT-TP-0054, CAGI, No. 0010 at p. 3; EERE-2014-BT-TP-0054, Sullivan-Palatek, No. 0007 at p. 1; EERE-2014-BT-TP-0054, Ingersoll Rand, No. 0011 at p. 1; EERE-2014-BT-TP-0054, Sullair, No. 0006 at p. 1). For these reasons, DOE reaffirms its conclusion that a minimum pressure ratio of 1.3 is appropriate for use in the definition of “compressor.”

C. Equipment Configuration

In response to the 2012 NOPD, Ingersoll Rand made two recommendations regarding which components should be included in the definition of “compressor.” First, Ingersoll Rand suggested that “compressor” should be defined to include “onboard” controls that are integrated into the compressor package and solely for the operation of the compressor package to which they are mounted. (Ingersoll Rand, No. 0004 at p. 2).

Second, Ingersoll Rand suggested that “compressor” should be defined to include filters and treatment equipment that are integral and necessary to operate the compressor, such as oil coolers, aftercoolers, and filters, and deliver a certain quality of compressed air. (Ingersoll Rand, No. 0004 at p. 2).

In response, this final rule establishes a definition for “compressors” and classifies them as covered equipment under EPCA; it does not establish scope for any potential energy conservation standards. To that end, DOE notes that the definition of “compressor” adopted in this final rule (see section III.H), is broad and does not exclude the components recommended by Ingersoll Rand. However, DOE notes that it may limit the applicability of any test procedures and energy conservations standards it chooses to pursue in the future to address the (components/controls) identified by Ingersoll Rand.

D. Electrical Connection Method

In response to the 2012 NOPD, CAGI commented that the definition of “compressor” should not apply to compressors that are connected through a wall outlet using a plug connection. CAGI explained that these compressors generally have intermittent usage patterns, are small, and are not designed for continuous duty and, therefore, do not represent significant energy use. (CAGI, No. 0003 at p. 7)

DOE recognizes the benefits of focusing on compressors likely to account for significant energy use for the purposes of setting regulatory requirements. However, DOE notes that compressors can be modified to add or remove electrical plugs, without great cost or difficulty, by a party aiming to circumvent standards. Additionally, for certain compressor sizes (i.e., smaller horsepower), the presence of a plug has no bearing on end user utility, as plugs can be added or removed at a nominal cost to the end user. Therefore, many compressors with and without plugs may serve the same markets and applications and should be treated similarly.

Finally, DOE prefers to use attributes more native to a compressor (e.g., pressure ratios) to delineate, where needed, which compressors may fall within the coverage determination. As a result, DOE is declining CAGI's recommendation to remove from the coverage determination those compressors that are connected through a wall outlet using a plug connection.

E. Non-Electric Compressors

In response to the 2012 NOPD, EEI commented that DOE should use a definition that applies to non-electric in addition to electric compressors, arguing that limiting the definition to electric compressors would be inconsistent with DOE's other recent actions for similar products, and equipment such as pumps and fans, and would be inconsistent with the intent of EPCA. (EEI, No. 0009, at p. 2) NRECA also commented that any compressor definition should be fuel-neutral. (NRECA, No. 0008, at p. 2) EEI also noted that DOE provided no rationale supporting the exclusion of non-electric compressors, and that there are significant numbers of fossil fuel-driven compressors operating in the United States. (EEI, No. 0009, at p. 5)

Further, in response to the 2012 NOPD, EEI stated that excluding non-electric compressors carries the potential to distort markets—presumably by incentivizing end users to substitute unregulated compressors. (EEI, No. 0009, at p. 7) NRECA also commented that an electric-only compressor definition could encourage fuel-switching to non-electric compressors and not result in economic or energy savings. (NRECA, No. 0008, at p. 2)

In response to EEI's and NRECA's argument not to limit the definition of “compressor” to electric compressors, DOE notes that it is adopting a fuel-neutral definition of “compressor.”

F. Variety of Equipment Covered

In response to the 2016 test procedure NOPR, Compressed Air Systems commented that the term “compressor” may unintentionally include other equipment, such as refrigerators, air conditioners, bellows, hand air pumps, or turbochargers, and suggested a more narrow definition of the term that would encompass just the products intended for regulation. (EERE-2014-BT-TP-0054, Compressed Air Systems, No. 0008 at p. 1).

In response, DOE notes that the definition of “compressor,” as proposed in the test procedure NOPR, does not specifically include or exclude compressors installed as components of other covered products or equipment such as refrigerators and air conditioners. Nonetheless, it may apply to subcomponents of such equipment. Further, if equipment commonly referred to as bellows, hand air pumps, or turbochargers meets the definition of “compressor,” as proposed in the test procedure NOPR and adopted in this document, such equipment would fall within the coverage determination for compressors. However, DOE will determine appropriate scope(s) of applicability for future test procedure and energy conservation standards rulemakings based on the particular circumstances of the market.

G. Federal Preemption

In response to DOE's May 19, 2016 energy conversation standards NOPR (81 FR 31680), the CA IOUs, ASAP, ACEEE, NEEA, NRDC, NEEP, and ASE commented that if there are no energy conservation standards for reciprocating compressors, then reciprocating compressors should not be covered equipment in order to allow states to pursue standards. (EERE-2013-BT-STD-0040, CA IOUs, No. 0059 at pp. 2-3; EERE-2013-BT-STD-0040, CA IOUs, Public Meeting Transcript, No. 0044 at p. 153; EERE-2013-BT-STD-0040, ASAP, ACEEE, NEEA, NRDC, NEEP, ASE, No. 0060 at pp. 2-3)

In this final rule, DOE is establishing a broad definition for “compressors;” it is not establishing a definition for specific categories of compressors. DOE will define specific categories of compressors and the scope of applicability of test procedures and energy conservation standards in their respective rules. In turn, DOE is classifying compressors as covered equipment under EPCA because the agency concludes that commercial and industrial compressors qualify as covered equipment under part A-1 of Title III of EPCA, as amended. (42 U.S.C. 6311 et seq.). Once DOE has classified equipment as covered, any State regulation concerning the energy use or energy efficiency of the covered product is preempted by Federal coverage. (42 U.S.C. 6297(b), 6316(a)).

H. Conclusion

Ultimately, for the reasons discussed in this section and established in the test procedure NOPR, DOE is adopting the definition of “compressor,” as proposed in the test procedure NOPR, with one minor modification in nomenclature. Specifically, DOE is replacing the term “pressure ratio” with “pressure ratio at full-load operating pressure.”.

DOE will develop specific methods to determine pressure ratio at full-load operating pressure as a part of a separate test procedure rulemaking process.4

4 U.S. DOE—Energy Information Administration (2015), Annual Energy Outlook 2015, DOE/EIA-0383 (Available at: http://www.eia.gov/forecasts/archive/aeo15/pdf/0383(2015).pdf).

IV. Evaluation of Compressors as a Covered Equipment

The following sections describe DOE's evaluation of whether compressors fulfill the criteria for being added as covered equipment pursuant to 42 U.S.C. 6311(2) and 42 U.S.C. 6312. Compressors are listed as a type of industrial equipment at 42 U.S.C. 6311(2)(B)(i). The following discussion addresses DOE's consideration of the three requirements of 42 U.S.C. 6311(2)(A) and 42 U.S.C. 6312.

A. Energy Consumption in Operation

In the 2012 NOPD, DOE cited data from the 2002 United States Industrial Electric Motor Systems Market Opportunities Assessment, which estimated total annual industrial compressor energy use (from Manufacturing SIC codes 20-39) at 91,050 million kWh per year.5 DOE noted that, because industrial activity in 2012 is greater than it was in 2002, it was likely that annual compressor energy use was higher than this figure. 77 FR 76972, 76974 (Dec 31, 2012).

5 U.S. Department of Commerce, Census Bureau, Manufacturing and Construction Division, Series MA333P(10)-1, Stationary Air Compressors, Reciprocating, Single and Double Acting (333912110T), 2011.

In response to DOE's NOPD conclusions, EEI commented that data referenced in the proposed determination of coverage was neither accurate nor current. EEI noted that although DOE asserted industrial activity in 2012 exceeded that of 2002, the amount of industrial electricity consumed and number of industrial customers in 2011 were lower than in 2003 and 2004, respectively. (EEI, No. 0009 at pp. 2-3).

In its energy conservation standards NOPR, DOE revised the sources used to characterize the compressor market, DOE revised both initial shipments, (discussed in section IV.B) and industrial and commercial growth indicators. DOE projected future growth using Energy Information Administration's (EIA's) Annual Energy Outlook (AEO) Macroeconomic projections for the Value of Manufacturing Shipments, and Commercial Floor Space for industrial and commercial sectors, respectively.4 Based on the energy savings results discussed in section IV.D, DOE reaffirms its conclusion that compressors consume a significant amount of energy in the industrial and commercial sectors.

B. Distribution in Commerce

In the 2012 NOPD, DOE tentatively concluded that compressors are distributed in commerce for both the industrial and commercial sectors. Specifically, DOE estimated that 1.3 million motors are shipped annually to drive compressors in the U.S. commercial and industrial sectors, based on the 2011 International Energy Agency (IEA) Survey. DOE also assumed that only a small fraction of these motors are used as a motor only replacement in compressor systems (based on additional 2004 U.S. Census data); consequently, DOE estimated that nearly 1.3 million compressors were distributed in commerce annually for industrial or commercial use. 77 FR 76972, 76974 (Dec 31, 2012).

In response to DOE's NOPD conclusions, Ingersoll Rand commented that the estimate of annual compressor shipments provided by DOE is grossly inflated. (Ingersoll Rand, No. 0004 at p. 2) CAGI commented that DOE's estimates most likely incorporate compressors going into consumer applications, and if only commercial and industrial applications were counted, the number would be significantly lower. (CAGI, No. 0003 at p. 7) EEI recommended that DOE elaborate on how it derived the 1.3 million compressor shipment estimate, if DOE is to use it in in any future energy conservation standards analyses. (EEI, No. 0009 at p. 3)

In response to comments from Ingersoll Rand, CAGI, and EEI, DOE sought, and received, shipments data for rotary screw compressors from a number of manufacturer stakeholders and subject matter experts, which DOE published in its energy conservation standards NOPR. However, DOE was able to find only limited shipments data for reciprocating compressors, so DOE continued to use the data from the U.S. Census Bureau.5 DOE estimated in its energy conservation standards NOPR shipments analysis that 31 thousand rotary screw and 538 thousand reciprocating compressors were shipped to commercial and industrial sectors in 2013. (EERE-2013-BT-STD-0040-0037) Based on these revised shipments estimates, DOE reaffirms its conclusion that compressors are distributed in commerce to commercial and industrial sectors.

C. Prior Inclusion as a Covered Product

Compressors are not currently included as covered products under Title 10 of the Code of Federal Regulations, part 430.

D. Coverage Necessary To Carry Out Purposes of Part A-1 of the Energy Policy and Conservation Act

The purpose of part A-1 of EPCA is to improve the energy efficiency of electric motors, pumps and certain other industrial equipment to conserve the energy resources of the Nation. (42 U.S.C. 6312 (a)). In the 2012 NOPD, DOE proposed that coverage of compressors was necessary to carry out the purposes of part A-1 of EPCA because coverage will promote the conservation of energy resources. DOE concluded that efficiency standards that may result from coverage would help to capture some portion of the potential for improving the efficiency of compressors. 77 FR 76972, 76974 (Dec 31, 2012).

In response to DOE's conclusion that efficiency standards that may result from coverage of compressors would help to capture some portion of the potential for improving the efficiency of compressors, CAGI commented that compressor designs are mature and compressor manufacturers have already incorporated the most efficient motor designs and technologies available in the market. CAGI believes that including compressors as covered equipment would inhibit investment in research and development because of the hurdles involved in approving new designs for the market. (CAGI, No. 0003 at p. 8) CAGI also argued that, due to variation in field applications that lead to changes in overall efficiency, regulation of compressor packages is an ineffective way to capture significant energy savings. CAGI suggested that, therefore, DOE exclude commercial and industrial compressors under Part A-1 of Title III of EPCA. (CAGI, No. 0003 at pp. 4-5)

Kaeser Compressors commented that since manufacturers already publish test data at various load levels and that data is verified by a third-party and since annual energy costs are dependent on the dynamics of an individual system, Kaeser does not believe that including compressors alone as covered equipment would be beneficial to carrying out the purposes of Part A-1 of EPCA. (Kaeser Compressors, No. 0007 at pp. 3)

DOE published consumer saving for lubricated rotary screw, lubricant-free rotary screw, and reciprocating compressors in its energy conservation standard NOPR TSD.6 These equipment account for over 90 percent of compressors in the commercial and industrial sectors and are used in a wide variety of applications. While DOE did not propose an increase in efficiency above the baseline for lubricant-free rotary screw, or, new standards for reciprocating compressors, DOE's analysis found that there was energy, and consumer savings for these equipment at most efficiency levels. Further, DOE published national energy saving estimates for lubricated rotary screw compressors in its energy conservation standard NOPR. DOE estimated, at the proposed level, significant national energy savings of 0.18 quads.

6 U.S. Department of Energy, Energy Efficiency and Renewable Energy Office (2015), NOPR Technical Support Document (TSD): Energy Efficiency Program for Consumer Products and Commercial and Industrial Equipment: Air Compressors (Available at: https://www.regulations.gov/document?D=EERE-2013-BT=STD-0040-0037).

These estimated saving presented in the energy conservation standard TSD and NOPR are an indication that coverage will result in conservation of energy resources. While DOE proposed new energy conservation standards for a sub-set of compressor designs currently available in commerce, broadening of the energy conservations standards beyond lubricated rotary screw compressors will likely increase the amount of energy savings.

Based on the preceding discussion, DOE reaffirms its conclusion that incorporating compressors as covered equipment is necessary to carry out the purposes of Part A-1 of EPCA, and that efficiency standards that may result from coverage would improve the efficiency of compressors and help to capture some portion of the potential for energy savings from this improved efficiency. Based on the information in sections IV.A, IV.B, and IV.C of this rule, DOE determines that commercial and industrial compressors qualify as covered equipment under part A-1 of Title III of EPCA, as amended (42 U.S.C. 6311 et seq.).

V. Procedural Issues and Regulatory Review

DOE has reviewed this final rule, which determines coverage for compressors, under the following executive orders and acts.

A. Review Under Executive Order 12866

The Office of Management and Budget (OMB) has determined that coverage determination rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this final action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the OMB.

B. Review Under the Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996) requires preparation of a regulatory flexibility analysis for any rule that, by law, must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. A regulatory flexibility analysis examines the impact of the rule on small entities and considers alternative ways of reducing negative effects. Also, as required by E.O. 13272, “Proper Consideration of Small Entities in Agency Rulemaking” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003 to ensure that the potential impact of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990 (Feb. 19, 2003). DOE makes its procedures and policies available on the Office of the General Counsel's Web site at www.gc.doe.gov.

DOE reviewed this final rule under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. This final rule sets no test procedures or standards; it only positively determines that compressors meet the criteria for classification as covered equipment and that future standards may be warranted to regulate their energy use. Economic impacts on small entities would be considered in the context of such rulemakings. On the basis of the foregoing, DOE certifies that the determination has no significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this final rule. DOE will transmit this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

This final rule, which concludes that compressors meet the criteria for a covered product for which the Secretary may prescribe an energy conservation standard pursuant to 42 U.S.C. 6295(o) and (p), imposes no new information or record-keeping requirements. Accordingly, the OMB clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et seq.)

D. Review Under the National Environmental Policy Act of 1969

In this document, DOE positively determines that compressors meet the criteria for classification as covered equipment and that future standards may be warranted to regulate their energy use. Should DOE pursue that option, the relevant environmental impacts would be explored as part of that rulemaking. As a result, DOE has determined that this action falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this action establishes a class of equipment (compressors) for which energy conservation standards would be appropriate. However, this action does not establish energy conservation standards, and, therefore, does not result in any environmental impacts. Thus, this action is covered by Categorical Exclusion A6 “Procedural rulemakings” under 10 CFR part 1021, subpart D. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

E. Review Under Executive Order 13132

Executive Order (E.O.) 13132, “Federalism” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to assess carefully the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in developing regulatory policies that have Federalism implications. On March 14, 2000 (65 FR 13735), DOE published a statement of policy describing the intergovernmental consultation process that it will follow in developing such regulations. DOE has examined this final rule and concludes that it does not preempt State law or have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the product that is the subject of this final rule. States can petition DOE for exemption from such preemption to the extent permitted, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) No further action is required by E.O. 13132.

F. Review Under Executive Order 12988

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the duty to: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation specifies the following: (1) The preemptive effect, if any; (2) any effect on existing Federal law or regulation; (3) a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) the retroactive effect, if any; (5) definitions of key terms; and (6) other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of E.O. 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether these standards are met, or whether it is unreasonable to meet one or more of them. DOE completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of E.O. 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4, codified at 2 U.S.C. 1501 et seq.) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal governments and the private sector. For regulatory actions likely to result in a rule that may cause expenditures by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any 1 year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a) and (b)). UMRA requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and tribal governments on a proposed “significant intergovernmental mandate.” UMRA also requires an agency plan for giving notice and opportunity for timely input to small governments that may be potentially affected before establishing any requirement that might significantly or uniquely affect them. On March 18, 1997 (62 FR 12820), DOE published a statement of policy on its process for intergovernmental consultation under UMRA. (This policy also is available at www.gc.doe.gov). DOE reviewed this final rule pursuant to these existing authorities and its policy statement and determined that the rule contains neither an intergovernmental mandate nor a mandate that may result in the expenditure of $100 million or more in any year, so the UMRA requirements do not apply.

H. Review Under the Treasury and General Government Appropriations Act of 1999

Section 654 of the Treasury and General Government Appropriations Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final rule does not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

I. Review Under Executive Order 12630

Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (Mar. 15, 1988), DOE determined that this final rule does not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

J. Review Under the Treasury and General Government Appropriations Act of 2001

The Treasury and General Government Appropriation Act of 2001 (44 U.S.C. 3516, note) requires agencies to review most disseminations of information they make to the public under guidelines established by each agency pursuant to general guidelines issued by the OMB. The OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

K. Review Under Executive Order 13211

E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates a final rule or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under E.O. 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of the Office of Information and Regulatory Affairs (OIRA) as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the proposal is implemented, and of reasonable alternatives to the proposed action and their expected benefits on energy supply, distribution, and use.

DOE has concluded that this regulatory action establishing certain definitions and determining that compressors meet the criteria for a covered product for which the Secretary may prescribe an energy conservation standard pursuant to 42 U.S.C. 6295(o) and (p) does not have a significant adverse effect on the supply, distribution, or use of energy. This action is also not a significant regulatory action for purposes of E.O. 12866, and the OIRA Administrator has not designated this final determination as a significant energy action under E.O. 12866 or any successor order. Therefore, this final rule is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

L. Congressional Notification

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is a “major rule” as defined by 5 U.S.C. 804(2).

M. Review Under the Information Quality Bulletin for Peer Review

On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (OSTP), issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal government, including influential scientific information related to agency regulatory actions. The purpose of the Bulletin is to enhance the quality and credibility of the Government's scientific information. DOE has determined that the analyses conducted for the regulatory action discussed in this document do not constitute “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have or does have a clear and substantial impact on important public policies or private sector decisions.” 70 FR 2667 (Jan. 14, 2005). The analyses were subject to pre-dissemination review prior to issuance of this rulemaking.

DOE will determine the appropriate level of review that would apply to any future rulemaking to establish energy conservation standards for compressors.

VI. Approval of the Office of the Secretary

The Secretary of Energy has approved publication of this final rule.

Issued in Washington, DC, on October 28, 2016. David J. Friedman, Acting Assistant Secretary, Energy Efficiency and Renewable Energy.

For the reasons stated in the preamble, DOE amends part 431 of chapter II of Title 10, Code of Federal Regulations as set forth below:

PART 431—ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND INDUSTRIAL EQUIPMENT 1. The authority citation for part 431 continues to read as follows: Authority:

42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.

2. Add subpart T to part 431 to read as follows: Subpart T—Compressors Sec. 431.341 Purpose and scope. 431.342 Definitions concerning compressors. Subpart T—Compressors
§ 431.341 Purpose and scope.

This subpart contains and energy conservation requirements for compressors, pursuant to Part A-1 of Title III of the Energy Policy and Conservation Act, as amended, 42 U.S.C. 6311-6317.

§ 431.342 Definitions concerning compressors.

Compressor means a machine or apparatus that converts different types of energy into the potential energy of gas pressure for displacement and compression of gaseous media to any higher pressure values above atmospheric pressure and has a pressure ratio at full-load operating pressure greater than 1.3.

[FR Doc. 2016-26693 Filed 11-14-16; 8:45 am] BILLING CODE 6450-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 73 [Docket No. FAA-2015-3680; Airspace Docket No. 13-ASW-15] RIN 2120-AA66 Establishment of and Modification to Restricted Areas; Fort Sill, OK AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This action establishes 2 new restricted areas (R-5601G and R-5601H) to the special use airspace (SUA) complex located at Fort Sill, OK, to provide additional maneuvering airspace for current and planned hazardous training activities. Specifically, the restricted areas provide participating fighter and bomber aircraft with non-eye safe laser firing and maneuvering airspace when training at the Falcon Bombing Range contained in R-5601C, the West Range Target Area contained in R-5601B, or the East Range Target Area contained in R-5601A. Additionally, the using agency information for all Fort Sill restricted areas is updated for standardization and to reflect the current organization. This action also updates a number of geographic coordinates for R-5601A-E, G, and H as a result of more accurate digital charting capabilities, updates the arc radius distance in R-5601B and R-5601H from statute miles to nautical miles (NM), and corrects the controlling agency information for R-5601H. This action ensures realistic U.S. Army training on current tactics for employing hazardous targeting laser systems and weapons capabilities at longer ranges from the target area.

DATES:

Effective date 0901 UTC, March 2, 2017.

FOR FURTHER INFORMATION CONTACT:

Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.

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 the 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 restructures the restricted airspace at Fort Sill, OK, enhancing safety and accommodating essential military training.

History

On October 19, 2015, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) (80 FR 63153), Docket No. FAA-2015-3680, to establish two restricted areas and amend using agency information for six other restricted areas designated to support hazardous training activities conducted within the Fort Sill, OK, special use airspace (SUA) complex. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. One comment from the Aircraft Owners and Pilots Association (AOPA) was received.

Discussion of Comments

In their response to the NPRM, AOPA raised several substantive issues. AOPA contended the proposed airspace design would have a negative impact on general aviation aircraft and offered the following recommendations to mitigate the negative effects: consider other types of SUA before establishing additional restricted areas; change the ceiling of R-5601G so it aligns with the Minimum Enroute Altitude (MEA) of V-436; if unable to change the ceiling altitude, update the enroute charts to show V-436 penetrates R-5601G; reduce the northern boundary of V-436 to provide additional lateral spacing from V-436; and synchronize the effective date of any new restricted areas to coincide with sectional chart dates.

Having considered the issues and recommendations provided by AOPA, the FAA offers the following responses.

Consider Other Types of Special Use Airspace (SUA) Before Enacting a Restricted Area

The purpose of a restricted area is to confine or segregate activities considered hazardous to nonparticipating aircraft. The FAA recognizes that R-5601G and H, when activated, would restrict access by non-participating aircraft. As noted in the NPRM, the U.S. Army requested this action to allow realistic training on current tactics developed and refined during recent combat operation for employing hazardous (non-eye safe) combat targeting laser systems and weapons capabilities at longer ranges from the target area. It was also noted that there was no alternative SUA complex within 200 NM where combat lasers could be employed that would support this aircrew training requirement. Therefore, the FAA has determined restricted area airspace is the appropriate SUA solution for conducting the hazardous activities associated with the U.S. Army's training requirement.

Reduce the Maximum Altitude of R-5601 To Align With the Minimum Enroute Altitude of VHF Omnidirectional Range (VOR) Federal Airway V-436

This recommendation would drop the ceiling of R-5601G from “to but not including 8,000 feet MSL” to 5,400 feet MSL. Such a lowered ceiling would prevent laser employment at ranges beyond 10 miles due to graze angle restrictions and result in loss of the increased standoff ranges proposed for realistic aircrew combat training. Additionally, the western portion of R-5601G overlies the Wichita Mountains National Wildlife Refuge. As mitigation to adverse effects when R-5601F was established in 2007, the Army agreed to restrict flights below 5,500 feet MSL over the Wildlife Refuge. Observing this local flight restriction to not overfly the Wildlife Refuge below 5,500 feet MSL and AOPA's recommended restricted area ceiling of 5,400 feet MSL would actually result in no available restricted area airspace over the Wichita Mountains National Wildlife Refuge and compression of the remaining portions of R-5601G to the point that the restricted area would not meet the military's training requirements any longer. The FAA does not support lowering the R-5601G ceiling as recommended.

The R-5601G boundaries description information in the regulatory text is being amended to reflect the U.S. Army's local flight restriction to not overfly the Wichita Mountains National Wildlife Refuge below 5,500 feet MSL and match the corresponding flight restriction documented in the R-5601F legal description and on the applicable aeronautical charts.

If Unable To Reduce the Ceiling of R-5601G, Update the Enroute Charts To Show V-436 Penetrates an Established Restricted Area

It is common practice for the FAA to depict Air Traffic Service (ATS) Routes and SUA areas on IFR and VFR aeronautical charts in accordance with established charting standards. Additionally, SUA times are published in a tab on the associated IFR and VFR charts to identify the SUA times of use. As such, V-436 will be charted on the IFR enroute charts, depicting it running through R-5601G and the R-5601 times of use will be published on the associated charts.

Truncate the Northern Boundary of R-5601G To Preserve V-436 Through Lateral Separation

The FAA acknowledges that amending the proposed R-5601G northern boundary to provide a 4 NM buffer from the V-436 centerline would allow unimpeded use of the airway when the restricted area is active. However, this recommendation reduces the north-south lateral dimension of R-5601G by approximately 7 NM at its northeast corner. One of the stated purposes of this action, as noted in the NPRM, was to allow realistic training on current tactics developed during recent combat operation for employing hazardous targeting laser systems and weapons capabilities at longer ranges from the target area. Modern rangefinder and laser designators can be employed at ranges out to 25 NM. As proposed, the distance from the target arrays in R-5601C (Falcon Range) to the northeast corner of R-5601G is approximately 22 NM and the distance from the targets in R-5601B to the proposed northeast corner is approximately 17 NM. Amending the R-5601G northern boundary as recommended by AOPA would reduce these distances to 17 NM and 12 NM, respectively. As such, the FAA does not support this recommendation since the reduced distances to the target areas would be inadequate for the military to conduct realistic training on current tactics employing targeting laser systems and weapons systems at longer ranges.

Synchronize the Effective Date of Any New Restricted Areas To Coincide With Sectional Chart Dates

The FAA normally makes regulatory airspace actions, including restricted areas, effective on a 56-day enroute chart date; however, consideration is given to selecting a sectional aeronautical chart date when deemed appropriate based on the potential aeronautical impacts associated with the airspace action being taken. This action is being made effective on a sectional chart date that matches the 56-day enroute chart dates.

Differences From the NPRM

Subsequent to publication of the NPRM, the FAA identified a number of geographic lat./long. coordinate updates to the R-5601A-E, G, and H boundaries information to more accurately reflect the existing boundaries using digital charting capabilities. Additionally, the arc radius distance listed in the R-5601B and R-5601H descriptions was determined to be described using statute miles and is being updated to reflect the corresponding nautical mile distance. Finally, the R-5601H controlling agency title proposed in the NPRM did not match the controlling agency title for the other R-5601 complex restricted areas and is being updated to match. The using agency, controlling agency, and boundaries updates are administrative in nature and do not affect the overall restricted area boundaries; designated altitudes; times of designation; or activities conducted within those restricted areas. The following restricted area updates are incorporated in this action.

The geographical lat./long. coordinates for the points located on Interstate Highway 44 (I-44) listed in the R-5601A and R-5601B descriptions, and a corresponding point listed in the R-5601H description, are actually located west of I-44. The geographical coordinates are updated to accurately reflect the points on I-44.

The 3-mile arc radius distance listed in the existing R-5601B and proposed R-5601H descriptions is not clear that it is defined in reference to statute miles. The 3-mile [statute miles] arc radius is updated to reflect it as 2.6 NM to retain the boundary, unchanged, and comply with FAA Order JO 7400.2, Procedures for Handling Airspace Matters, guidance.

The geographical lat./long. coordinates listed for the eastern-most point located on the 2.6 NM arc radius (formerly 3-mile arc radius as noted above) in the existing R-5601B and proposed R-5601H descriptions is actually located north of the arc. The geographical coordinates are updated to accurately reflect the point on the 2.6 NM arc.

The geographical lat./long. coordinates listed for the northern boundary point located on Oklahoma State Highway No. 115 in the R-5601B and R-5601C descriptions, and the corresponding point listed in the R-5601D description, is actually located east of the highway. The geographical coordinates are updated to accurately reflect the point on Oklahoma State Highway No. 115.

The geographical lat./long. coordinates for one point listed in the R-5601E description does not match the geographical coordinates for the corresponding point listed in the R-5601B and R-5601C descriptions. The geographical coordinates for the point are updated to match the information published in the R-5601B and R-5601C descriptions.

The geographical lat./long. coordinates for the first point listed in the R-5601G description does not create a shared boundary with R-5601F and results in a gap between the two restricted areas. The geographical lat./long. coordinates for the point are updated to ensure a shared R-5601F and R-5601G boundary.

The controlling agency information listed in the R-5601H description does not match the controlling agency information verbatim in all the other R-5601 restricted areas. The controlling agency information is updated to standardize the information in all R-5601 restricted areas.

The Rule

The FAA is amending 14 CFR part 73 to establish 2 new restricted areas (R-5601G and R-5601H) at Fort Sill, OK, and update the using agency information listed for the existing restricted areas (R-5601A-F) as noted in the NPRM. The FAA is also incorporating the restricted area updates noted in the Differences from the NPRM section. The FAA is taking this action to ensure containment of the hazardous activities associated with aircrew training missions that are incorporating non-eye safe targeting laser employment and weapons delivery tactics used by the military today, at increased distances from the target range, within restricted area airspace. The amendments are as follows:

R-5601A: The geographic coordinates “lat. 34°40′47″ N., long. 98°23′09″ W.,” in the boundaries description are changed to “lat. 34°40′47″ N., long. 98°23′07″ W.,” and the geographic coordinates “lat. 34°43′30″ N., long. 98°24′01″ W.,” are changed to “lat. 34°43′30″ N., long. 98°23′59″ W.,” to coincide with I-44.

R-5601B: The geographic coordinates “lat. 34°40′47″ N., long. 98°23′09″ W.,” in the boundaries description are changed to “lat. 34°40′47″ N., long. 98°23′07″ W.,” and the geographic coordinates “lat. 34°43′30″ N., long. 98°24′01″ W.,” are changed to “lat. 34°43′30″ N., long. 98°23′59″ W.,” to coincide with I-44. Additionally, the geographic coordinates “lat. 34°40′54″ N., long. 98°37′54″ W.,” are changed to “lat. 34°40′54″ N., long. 98°37′56″ W.,” to coincide with Oklahoma State Highway No. 115. Lastly, the arc radius “3-mile″ is changed to “2.6 NM” to retain the existing boundary defined in terms of NM and the geographic coordinates “lat. 34°40′12″ N., long. 98°26′18″ W.,” are changed to “lat. 34°40′11″ N., long. 98°26′18″ W.,” to coincide with the 2.6 NM arc radius.

R-5601C: The geographic coordinates “lat. 34°40′54″ N., long. 98°37′54″ W.,” in the boundaries description are changed to “lat. 34°40′54″ N., long. 98°37′156″ W.,” to coincide with Oklahoma State Highway No. 115.

R-5601D: The geographic coordinates “lat. 34°40′54″ N., long. 98°37′54″ W.,” in the boundaries description are changed to “lat. 34°40′54″ N., long. 98°37′56″ W.,” to coincide with Oklahoma State Highway No. 115.

R-5601E: The geographic coordinates “lat. 34°38′15″ N., long. 98°37′58″ W.,” in the boundaries description are changed to “lat. 34°38′15″ N., long. 98°37′57″ W.,” to match the corresponding point in R-5601B and R-5601C.

R-5601G: Establish R-5601G to abut the northern boundary of R-5601F, to the north, underlying the Washita MOA. The new restricted area extends upward from 500 feet above ground level (AGL) to, but not including 8,000 feet MSL; excluding the airspace below 5,500 feet MSL over the Wichita Mountains National Wildlife Refuge, as noted in the Discussion of Comments section. R-5601G extends laterally across approximately three quarters of the restricted area complex, west to east, and northward between 5 NM to 11 NM along the northern boundary of R-5601F. Additionally, the geographic coordinates “lat. 34°46′07″ N., long. 98°25′50″ W.,” in the proposed boundaries description are changed to “lat. 34°46′03″ N., long. 98°25′50″ W.,” to ensure a shared boundary with R-5601F. Lastly, the controlling agency “FAA, Fort Worth Center” is changed to “FAA, Fort Worth ARTCC.”

R-5601H: Establish R-5601H to fill a small airspace area over Fort Sill Army Post, OK, surrounded by two continuously active restricted areas (R-5601A and R-5601B). The new restricted area extends upward from the surface to FL400. Additionally, the geographic coordinates “lat. 34°40′47″ N., long. 98°23′09″ W.,” in the proposed boundaries description are changed to “lat. 34°40′47″ N., long. 98°23′07″ W.,” to match the corresponding point in R-5601A. Lastly, the arc radius “3-mile″ is changed to “2.6 NM” to retain the existing boundary defined in terms of NM and the geographic coordinates “lat. 34°40′12″ N., long. 98°26′18″ W.,” are changed to “lat. 34°40′11″ N., long. 98°26′18″ W.,” to coincide with the 2.6 NM arc radius.

The two new restricted areas allow participating aircraft to maneuver within the current Fort Sill Approach Control Airspace and contain the hazardous combat laser energy within restricted airspace. As noted in the NPRM, R-5601G will be used for aircraft maneuvering and combat laser targeting employment and R-5601H will be used for aircraft conducting Close Air Support (CAS) training. There are no changes to the existing pattern of firing, ordnance delivery runs, or weapons impact areas and all weapons release continue to occur in R-5601A, R-5601B, or R-5601C, as they are now. Further, no supersonic flight will occur.

This action also changes the using agency information “U.S. Army, Commanding General, Fort Sill, OK,” listed for R-5601A-E to “U.S. Army, Commanding General, U.S. Army Fires Center of Excellence (USAFCOE) and Fort Sill, Fort Sill, OK” and the using agency “Commanding General, United States Army Field Artillery Center (USAFACFS), Fort Sill, OK,” listed for R-5601F is changed to “U.S. Army, Commanding General, U.S. Army Fires Center of Excellence (USAFCOE) and Fort Sill, Fort Sill, OK.” These changes reflect the current organizational responsibilities and match the using agency information published in R-5601G and R-5601H.

The boundaries, designated altitudes, times of designation, and controlling agency information for restricted areas R-5601A-F are not changed by this action.

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. It, therefore: (1) Is not a “significant regulatory action″under Executive Order 12866; (2) is not a “significant rule″under Department of Transportation (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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Environmental Review

In accordance with FAA Order 1050.1F, paragraphs 6-3.c and 8-2, the FAA has conducted an independent evaluation of the U.S. Army's Final Environmental Assessment (EA) for the Creation of Restricted Areas (RAs) R-5601G and R-5601H. The FAA determined that no significant impacts would occur as a result of the Federal action and therefore, preparation of an Environmental Impact Statement is not warranted and a Finding of No Significant Impact in accordance with 40 CFR 1501.4(e) is appropriate. Subsequently, and in accordance with 40 CFR 1506.3, the FAA adopted the U.S. Army's final EA and prepared a Finding of No Significant Impact/Record of Decision dated November 7, 2016.

List of Subjects in 14 CFR Part 73

Airspace, Prohibited areas, Restricted areas.

Adoption of the Amendment

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

PART 73—SPECIAL USE AIRSPACE 1. The authority citation for part 73 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.

§ 73.56 [Amended]
2. Section 73.56 is amended as follows: R-5601A Fort Sill, OK [Amended]

By removing the current boundaries and using agency information and substituting the following:

Boundaries. Beginning at lat. 34°38′15″ N., long. 98°17′01″ W.; to lat. 34°38′15″ N., long. 98°20′56″ W.; to lat. 34°38′30″ N., long. 98°21′41″ W.; to lat. 34°38′50″ N., long. 98°22′06″ W.; to lat. 34°39′53″ N., long. 98°22′16″ W.; to lat. 34°40′47″ N., long. 98°23′07″ W.; thence north along the western edge of Interstate Highway 44 to lat. 34°43′30″ N., long. 98°23′59″ W.; to lat. 34°43′30″ N., long. 98°21′21″ W.; to lat. 34°43′45″ N., long. 98°21′01″ W.; to lat. 34°46′06″ N., long. 98°21′01″ W.; to lat. 34°46′06″ N., long. 98°17′01″ W.; to the point of beginning.

Using agency. U.S. Army, Commanding General, U.S. Army Fires Center of Excellence (USAFCOE) and Fort Sill, Fort Sill, OK.

R-5601B Fort Sill, OK [Amended]

By removing the current boundaries and using agency information and substituting the following:

Boundaries. Beginning at lat. 34°40′47″ N., long. 98°23′07″ W.; thence counterclockwise along an arc, 2.6 NM radius centered at lat. 34°38′18″ N., long. 98°24′07″ W.; to lat. 34°40′11″ N., long. 98°26′18″ W.; to lat. 34°38′15″ N., long. 98°26′19″ W.; to lat. 34°38′15″ N., long. 98°37′57″ W.; thence north along Oklahoma State Highway No. 115 to lat. 34°40′54″ N., long. 98°37′56″ W.; to lat. 34°42′07″ N., long. 98°37′20″ W.; to lat. 34°43′21″ N., long. 98°36′02″ W.; to lat. 34°43′30″ N., long. 98°35′40″ W.; to lat. 34°43′30″ N., long. 98°23′59″ W.; thence south along the western edge of Interstate Highway 44 to the point of beginning.

Using agency. U.S. Army, Commanding General, U.S. Army Fires Center of Excellence (USAFCOE) and Fort Sill, Fort Sill, OK.

R-5601C Fort Sill, OK [Amended]

By removing the current boundaries and using agency information and substituting the following:

Boundaries. Beginning at lat. 34°38′15″ N., long. 98°37′57″ W.; to lat. 34°38′15″ N., long. 98°45′21″ W.; to lat. 34°41′47″ N., long. 98°45′21″ W.; to lat. 34°41′47″ N., long. 98°44′17″ W.; to lat. 34°41′21″ N., long. 98°44′17″ W.; to lat. 34°41′21″ N., long. 98°40′36″ W.; to lat. 34°40′54″ N., long. 98°40′36″ W.; to lat. 34°40′54″ N., long. 98°37′56″ W.; thence south along Oklahoma State Highway No. 115 to the point of beginning.

Using agency. U.S. Army, Commanding General, U.S. Army Fires Center of Excellence (USAFCOE) and Fort Sill, Fort Sill, OK.

R-5601D Fort Sill, OK [Amended]

By removing the current boundaries and using agency information and substituting the following:

Boundaries. Beginning at lat. 34°38′15″ N., long. 98°45′21″ W.; to lat. 34°38′15″ N., long. 98°48′01″ W.; to lat. 34°42′15″ N., long. 98°50′01″ W.; to lat. 34°45′00″ N., long. 98°40′31″ W.; to lat. 34°43′30″ N., long. 98°35′40″ W.; to lat. 34°43′21″ N., long. 98°36′02″ W.; to lat. 34°42′07″ N., long. 98°37′20″ W.; to lat. 34°40′54″ N., long. 98°37′56″ W.; to lat. 34°40′54″ N., long. 98°40′36″ W.; to lat. 34°41′21″ N., long. 98°40′36″ W.; to lat. 34°41′21″ N., long. 98°44′17″ W.; to lat. 34°41′47″ N., long. 98°44′17″ W.; to lat. 34°41′47″ N., long. 98°45′21″ W.; to the point of beginning.

Using agency. U.S. Army, Commanding General, U.S. Army Fires Center of Excellence (USAFCOE) and Fort Sill, Fort Sill, OK.

R-5601E Fort Sill, OK [Amended]

By removing the current boundaries and using agency information and substituting the following:

Boundaries. Beginning at lat. 34°38′15″ N., long. 98°37′57″ W.; to lat. 34°36′00″ N., long. 98°46′46″ W.; to lat. 34°38′15″ N., long. 98°48′01″ W.; to lat. 34°38′15″ N., long. 98°45′21″ W.; to the point of beginning.

Using agency. U.S. Army, Commanding General, U.S. Army Fires Center of Excellence (USAFCOE) and Fort Sill, Fort Sill, OK.

R-5601F Fort Sill, OK [Amended]

By removing the current using agency and substituting the following:

Using agency. U.S. Army, Commanding General, U.S. Army Fires Center of Excellence (USAFCOE) and Fort Sill, Fort Sill, OK.

R-5601G Fort Sill, OK [New]

Boundaries. Beginning at lat. 34°46′03″ N., long. 98°25′50″ W.; to lat. 34°45′03″ N., long. 98°29′46″ W.; thence counterclockwise via the 46 NM arc of SPS VORTAC to lat. 34°43′46″ N., long. 98°49′55″ W.; to lat. 34°47′00″ N., long. 98°51′00″ W.; to lat. 34°50′30″ N., long. 98°46′02″ W.; to lat. 34°57′51″ N., long. 98°25′47″ W.; to the point of beginning. Excluding that airspace below 5,500 feet MSL over the Wichita Mountains National Wildlife Refuge.

Designated altitudes. 500 feet AGL to, but not including, 8,000 feet MSL.

Time of designation. Sunrise to 2200 local time, Monday-Friday; other times by NOTAM.

Controlling agency. FAA, Fort Worth ARTCC.

Using agency. U.S. Army, Commanding General, U.S. Army Fires Center of Excellence (USAFCOE) and Fort Sill, Fort Sill, OK.

R-5601H Fort Sill, OK [New]

Boundaries. Beginning at lat. 34°38′15″ N., long. 98°20′56″ W.; to lat. 34°38′30″ N., long. 98°21′41″ W.; to lat. 34°38′50″ N., long. 98°22′06″ W.; to lat. 34°39′53″ N., long. 98°22′16″ W.; to lat. 34°40′47″ N., long. 98°23′07″ W.; thence counterclockwise along an arc, 2.6 NM radius centered at lat. 34°38′18″ N., long. 98°24′07″ W.; to lat. 34°40′11″ N., long. 98°26′18″ W.; to lat. 34°38′15″ N., long. 98°26′19″ W.; to the point of beginning.

Designated altitudes. Surface to FL 400.

Time of designation. By NOTAM.

Controlling agency. FAA, Fort Worth ARTCC.

Using agency. U.S. Army, Commanding General, U.S. Army Fires Center of Excellence (USAFCOE) and Fort Sill, Fort Sill, OK.

Issued in Washington, DC, on November 8, 2016. Leslie M. Swann, Acting Manager, Airspace Policy Group.
[FR Doc. 2016-27441 Filed 11-14-16; 8:45 am] BILLING CODE 4910-13-P
PENSION BENEFIT GUARANTY CORPORATION 29 CFR Part 4022 Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying Benefits AGENCY:

Pension Benefit Guaranty Corporation.

ACTION:

Final rule.

SUMMARY:

This final rule amends the Pension Benefit Guaranty Corporation's regulation on Benefits Payable in Terminated Single-Employer Plans to prescribe interest assumptions under the regulation for valuation dates in December 2016. The interest assumptions are used for paying benefits under terminating single-employer plans covered by the pension insurance system administered by PBGC.

DATES:

Effective December 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Deborah C. Murphy ([email protected]), Assistant General Counsel for Regulatory Affairs, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC 20005, 202-326-4400 ext. 3451. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4400 ext. 3451.)

SUPPLEMENTARY INFORMATION:

PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's Web site (http://www.pbgc.gov).

PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.

The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for December 2016.1

1 Appendix B to PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) prescribes interest assumptions for valuing benefits under terminating covered single-employer plans for purposes of allocation of assets under ERISA section 4044. Those assumptions are updated quarterly.

The December 2016 interest assumptions under the benefit payments regulation will be 0.75 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for November 2016, these interest assumptions represent an increase of 0.25 percent in the immediate rate and are otherwise unchanged.

PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during December 2016, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

List of Subjects in 29 CFR Part 4022

Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.

In consideration of the foregoing, 29 CFR part 4022 is amended as follows:

PART 4022—BENEFITS PAYABLE IN TERMINATED SINGLE-EMPLOYER PLANS 1. The authority citation for part 4022 continues to read as follows: Authority:

29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.

2. In appendix B to part 4022, Rate Set 278, as set forth below, is added to the table. Appendix B to Part 4022—Lump Sum Interest Rates For PBGC Payments Rate set For plans with a
  • valuation date
  • On or
  • after
  • Before Immediate
  • annuity rate
  • (percent)
  • Deferred annuities
  • (percent)
  • i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 278 12-1-16 1-1-17 0.75 4.00 4.00 4.00 7 8
    3. In appendix C to part 4022, Rate Set 278, as set forth below, is added to the table. Appendix C to Part 4022—Lump Sum Interest Rates For Private-Sector Payments Rate set For plans with a
  • valuation date
  • On or
  • after
  • Before Immediate
  • annuity rate
  • (percent)
  • Deferred annuities
  • (percent)
  • i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 278 12-1-16 1-1-17 0.75 4.00 4.00 4.00 7 8
    Judith Starr, General Counsel, Pension Benefit Guaranty Corporation.
    [FR Doc. 2016-27384 Filed 11-14-16; 8:45 am] BILLING CODE 7709-02-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 447 [CMS-2345-IFC] RIN 0938-AT09 Medicaid Program; Covered Outpatient Drug; Delay in Change in Definitions of States and United States AGENCY:

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

    ACTION:

    Interim final rule with comment period.

    SUMMARY:

    The Covered Outpatient Drug final rule with comment period was published in the February 1, 2016 Federal Register. As part of that final rule with comment, we amended the regulatory definitions of “States” and “United States” to include the U.S. territories (American Samoa, the Northern Mariana Islands, Guam, the Commonwealth of Puerto Rico, and the Virgin Islands) beginning April 1, 2017. This interim final rule with comment period delays the inclusion of the territories in the definition of “States” and “United States” until April 1, 2020.

    DATES:

    Effective date: These regulations are effective on November 15, 2016.

    Comment date: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on January 17, 2017.

    ADDRESSES:

    In commenting, please refer to file code CMS-2345-IFC. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.

    You may submit comments in one of four ways (please choose only one of the ways listed)

    1. Electronically. You may submit electronic comments on this regulation to http://www.regulations.gov. Follow the “Submit a comment” instructions.

    2. By regular mail. You may mail written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2345-IFC, P.O. Box 8016, Baltimore, MD 21244-8016.

    Please allow sufficient time for mailed comments to be received before the close of the comment period.

    3. By express or overnight mail. You may send written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2345-IFC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.

    4. By hand or courier. Alternatively, you may deliver (by hand or courier) your written comments ONLY to the following addresses prior to the close of the comment period:

    a. For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.

    (Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)

    b. For delivery in Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.

    If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-7195 in advance to schedule your arrival with one of our staff members.

    Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.

    For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section.

    FOR FURTHER INFORMATION CONTACT:

    Wendy Tuttle, (410) 786-8690.

    SUPPLEMENTARY INFORMATION:

    Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following Web site as soon as possible after they have been received: http://regulations.gov. Follow the search instructions on that Web site to view public comments.

    Comments received timely will be also available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.

    I. Background A. Introduction

    The Covered Outpatient Drug final rule with comment period was published in the February 1, 2016 Federal Register (81 FR 5170). That final rule with comment period implemented provisions of section 1927 of the Social Security Act (the Act) that were added by the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010 (collectively referred to as the Affordable Care Act) pertaining to Medicaid reimbursement for covered outpatient drugs (CODs). That final rule with comment period also revised other requirements related to CODs, including key aspects of Medicaid coverage and payment and the Medicaid Drug Rebate (MDR) program under section 1927 of the Act. The rule became effective on April 1, 2016. However, the regulatory definitions of “States” and “United States” under § 447.502, included the U.S. territories (American Samoa, Northern Mariana Islands, Guam, Puerto Rico, and the Virgin Islands) beginning April 1, 2017.

    We stated in the preamble to the final rule with comment period that U.S. territories may use existing waiver authority to elect not to participate in the MDR program consistent with the statutory waiver standards. The Northern Mariana Islands and American Samoa may seek to opt out of participation under the broad waiver that has been granted to them in accordance with section 1902(j) of the Act. Puerto Rico, the Virgin Islands, and Guam may use waiver authority under section 1115(a)(1) of the Act to waive section 1902(a)(54) of the Act, which requires state compliance with the applicable requirements of section 1927 of the Act (81 FR 5203 through 5204).

    We also stated in the final rule with comment period that, effective with the change in the definition of “United States,” drug manufacturers would be required to include prices paid by entities located in one of the U.S. territories in the same manner in which they include prices paid by entities located in one of the 50 states and District of Columbia (81 FR 5224) in their calculations of average manufacturer price (AMP) and best price. This change requires manufacturers to include eligible sales and associated discounts, rebates, and other financial transactions that take place in the U.S. territories in their calculations of AMP and best price once the revised definitions of States and United States become effective, regardless of whether the U.S. territories seek to waive participation in the MDR program.

    B. Impracticability of Implementation by April 1, 2017

    Based on discussions with the U.S. territories, it has become evident that interested U.S. territories could not be ready to implement the program by April 1, 2017, although a few territories have expressed interest in participating once they have made the necessary systems changes. Specifically, the territories need time to develop and change electronic claims processing systems to identify and report utilization (taking into account all of the complexities in tracking utilization by National drug code numbers) and to match utilization with the unit rebate amounts to generate rebate invoices. Further, these systems must be capable of collecting, reporting, validating and tracking drug utilization on an ongoing basis. In addition, they require extensive advance planning and budgeting. We received comments during the comment period of the proposed rule which requested that CMS delay the inclusion of the territories in the MDR program because the manufacturers and territories would need this additional time to implement provisions necessary to include territories in all aspects of the MDR program. We took these comments into consideration and in the final rule delayed the inclusion of the territories into the definitions of States and United States until 1 year after the effective date of the final rule (81 FR 5203, 5204). Despite this 1 year delay, it has since become evident that we underestimated the timeline required, particularly in light of other demands on territorial systems development and the fact that the territories are at various stages of planning and development with respect to these systems. While the U.S. territories have the ability to seek a waiver from the requirements that they would have to meet when classified as “states,” doing so would impose some burdens on a territory, particularly for those territories that are not included in the broad waiver authority under section 1902(j) of the Act. Moreover, waivers under section 1115 of the Act are limited to requirements applicable to states or territories under section 1902(a) of the Act, and would not apply to the requirements placed on drug manufacturers that sell in the territories. These manufacturers cannot be waived from the section 1927 of the Act requirements under which manufacturers must include sales that take place in the U.S. territories when determining AMP and best price.

    We have heard from various stakeholders who have reiterated many of the concerns that were summarized in the final rule with comment (81 FR 5224) that drug manufacturers will likely be prompted to increase drug prices, including prices paid by U.S. territory Medicaid programs. This would result in the U.S. territories that receive a waiver realizing an increase in their Medicaid drug costs without the offsetting benefit of receiving Medicaid rebates. Furthermore, the increase in Medicaid costs could adversely impact territories because of their Medicaid funding cap.

    II. Provisions of the Interim Final Rule

    For the reasons discussed in the Background section, this interim final rule with comment period amends the regulatory definitions of “States” and “United States” under § 447.502 to include the U.S. territories (American Samoa, Northern Mariana Islands, Guam, Puerto Rico, and the Virgin Islands) beginning April 1, 2020 rather than April 1, 2017.

    III. Waiver of Proposed Rulemaking

    We ordinarily publish a notice of proposed rulemaking in the Federal Register and invite public comment on the proposed rule. The notice of proposed rulemaking includes a reference to the legal authority under which the rule is proposed, and the terms and substances of the proposed rule or a description of the subjects and issues involved. This procedure can be waived, however, if an agency finds good cause that a notice-and-comment procedure is impracticable, unnecessary, or contrary to the public interest and incorporates a statement of the finding and its reasons in the rule issued.

    As discussed in section I.B. of this interim final rule with comment period, in light of the longer time frames needed by territories for planning, budgeting and developing systems necessary to implement the Medicaid drug rebate program, the competing demand on system development resources, and the long time frames for manufacturer pricing determinations, we believe it is necessary to provide territories and manufacturers with advance notice of any change in the timing for the inclusion of territories in the Medicaid drug rebate program. Issuance of a proposed rule would be impracticable because it would result in a notice of the final rule without sufficient time for territories or manufacturers to adjust their actions to take into account the revised timing. Thus, we find good cause to waive the requirement for proposed rulemaking because the short time frame before the inclusion of territories would otherwise take effect does not permit sufficient time to both undertake proposed rulemaking and provide the necessary advance notice for territories and manufacturers to meaningfully adjust planning and systems development to accommodate the revised timing. Furthermore, we find good cause to waive the requirement for proposed rulemaking because it would be contrary to public interest to delay notifying manufacturers of the change in the timing of the territorial inclusion in light of the potential that, absent sufficient advance notice, drug manufacturers may raise prices on drugs sold in the territories and thereby increase drug costs for both Medicaid and non-Medicaid consumers in the territories.

    Therefore, we find good cause to waive the notice of proposed rulemaking and to issue this final rule on an interim basis. We are providing a 60-day public comment period.

    IV. Collection of Information Requirements

    This rule's delay in including the territories in the definitions of “States” and “United States” until April 1, 2020, does not impose any new or revised information collection, reporting, recordkeeping or third-party disclosure requirements or burden. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

    V. Response to Comments

    Because of the large number of public comments we normally receive on Federal Register documents, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, and, when we proceed with a subsequent document, we will respond to the comments in the preamble to that document.

    VI. Regulatory Impact Statement

    We have examined the impact of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This rule does not reach the economic threshold and thus is not considered a major rule.

    The RFA requires agencies to analyze options for regulatory relief of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.5 million to $38.5 million in any 1 year. Individuals and states are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined, and the Secretary certifies, that this interim final rule with comment period will not have a significant economic impact on a substantial number of small entities.

    In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined, and the Secretary certifies, that this interim final rule with comment period will not have a significant impact on the operations of a substantial number of small rural hospitals.

    Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2016, that threshold is approximately $146 million. This rule will have no consequential effect on state, local, or tribal governments or on the private sector.

    Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts state law, or otherwise has federalism implications. Since this regulation does not impose any costs on state or local governments, the requirements of Executive Order 13132 are not applicable.

    In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

    List of Subjects in 42 CFR Part 447

    Accounting, Administrative practice and procedure, Drugs, Grant programs—health, Health facilities, Health professions, Medicaid, Reporting and recordkeeping requirements, Rural areas.

    For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 42 CFR chapter IV as set forth below:

    PART 447—PAYMENTS FOR SERVICES 1. The authority citation for part 447 continues to read as follows: Authority:

    Sec. 1102 of the Social Security Act (42 U.S.C. 1302).

    2. Section 447.502 is amended by revising the definitions of “States” and “United States” to read as follows:
    § 447.502 Definitions.

    States means the 50 States and the District of Columbia and, beginning April 1, 2020, also includes the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands and American Samoa.

    United States means the 50 States and the District of Columbia and, beginning April 1, 2020, also includes the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands and American Samoa.

    Dated: October 5, 2016. Andrew M. Slavitt, Acting Administrator, Centers for Medicare & Medicaid Services. Dated: November 8, 2016. Sylvia M. Burwell, Secretary, Department of Health and Human Services.
    [FR Doc. 2016-27423 Filed 11-14-16; 8:45 am] BILLING CODE 4120-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 121004518-3398-01] RIN 0648-XF005 Reef Fish Fishery of the Gulf of Mexico; 2017 Recreational Accountability Measures and Closure for Gulf of Mexico Gray Triggerfish AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements accountability measures (AMs) for the gray triggerfish recreational sector in the exclusive economic zone (EEZ) of the Gulf of Mexico (Gulf) for the 2017 fishing year through this temporary rule. NMFS has determined that the 2016 recreational annual catch limit (ACL) for Gulf gray triggerfish was exceeded; therefore, NMFS reduces the gray triggerfish recreational ACL and annual catch target (ACT) in 2017. As a result of the recreational ACL and ACT overages in 2016, the gray triggerfish 2017 recreational season in the Gulf EEZ will not open on January 1, 2017, and will remain closed for the entire 2017 fishing year. This closure is necessary to protect the Gulf gray triggerfish resource.

    DATES:

    This rule is effective from 12:01 a.m., local time, January 1, 2017, until 12:01 a.m., local time, January 1, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Rich Malinowski, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    NMFS manages the Gulf reef fish fishery, including gray triggerfish, under the Fishery Management Plan for the Reef Fish Resources of the Gulf (FMP). The Gulf of Mexico Fishery Management Council (Council) prepared the FMP and NMFS implements the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All gray triggerfish weights discussed in this temporary rule are in round weight.

    The recreational ACL for Gulf gray triggerfish specified in 50 CFR 622.41(b)(2)(iii) is 241,200 lb (109,406 kg) and the recreational ACT is 217,100 lb (98,475 kg). However, in 2015, gray triggerfish landings exceeded the 2015 ACL by 39,977 lbs. Therefore, the 2016 ACL and ACT were adjusted to 201,223 lb (91,273 kg) and 177,123 lb (80,342 kg), respectively. In 2016, the recreational fishing season did not re-open after the annual spawning season closure from June 1 through July 31, and the recreational harvest of gray triggerfish exceeded the 2016 recreational ACL by 221,213 lb (100,341 kg). Therefore, consistent with the AM requirements specified in 50 CFR 622.41(b)(2)(ii), NMFS reduces the recreational ACL and ACT for gray triggerfish in 2017 by the amount of the recreational ACL overage to 19,987 lb (9,066 kg) and 0 lb (0 kg), respectively.

    Under 50 CFR 622.41(b)(2)(i), NMFS is required to close the recreational sector for gray triggerfish when the recreational ACT is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the recreational ACT for the 2017 fishing year is 0 lb (0 kg). Therefore, NMFS closes the recreational harvest of gray triggerfish for the 2017 fishing year.

    During the recreational closure, the bag and possession limits for gray triggerfish in or from the Gulf EEZ are zero. The prohibition on possession in the Gulf on board a vessel for which a valid Federal charter vessel/headboat permit for Gulf reef fish has been issued applies regardless of whether gray triggerfish were harvested in state or Federal waters.

    The recreational sector for gray triggerfish in the Gulf EEZ will reopen on January 1, 2018, the beginning of the 2018 recreational fishing year, unless changed by subsequent notification in the Federal Register.

    Classification

    The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of Gulf gray triggerfish and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.41(b)(2)(i) and (ii) and is exempt from review under Executive Order 12866.

    These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

    This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA), finds that the need to immediately implement this action to close the recreational sector for gray triggerfish constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule establishing the closure provisions was subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because the public requires as much advanced notice as possible of season closures to allow time to adequately plan for recreational fishing trips during the 2017 fishing year.

    For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 9, 2016. Tracey Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-27415 Filed 11-9-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150916863-6211-02] RIN 0648-XF032 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 catcher vessels using trawl gear and catcher vessels greater than or equal to 60 feet (18.3 meters (m)) length overall (LOA) using pot gear to catcher processors (C/Ps) using hook-and-line gear and C/Ps using pot gear in the Bering Sea and Aleutian Islands (BSAI) management area. This action is necessary to allow the 2016 total allowable catch of Pacific cod to be harvested.

    DATES:

    Effective November 9, 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 2016 Pacific cod TAC specified for catcher vessels using trawl gear in the BSAI is 46,638 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the BSAI (81 FR 14773, March 18, 2016) and reallocations (81 FR 69445, October 6, 2016, 81 FR 76530, November 3, 2016). The Regional Administrator has determined that catcher vessels using trawl gear will not be able to harvest 1,500 mt of the remaining 2016 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(9).

    The 2016 Pacific cod TAC specified for catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear in the BSAI is 17,598 mt as established by the final 2016 and 2017 harvest specifications for groundfish of the BSAI (81 FR 14773, March 18, 2016) and reallocation (81 FR 69445, October 6, 2016). The Regional Administrator has determined that catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear will not be able to harvest 3,000 mt of the remaining 2016 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(5).

    Therefore, in accordance with § 679.20(a)(7)(iii), taking into account the capabilities of the sectors to harvest reallocated amounts of Pacific cod, and following the hierarchies set forth in § 679.20(a)(7)(iii)(A) and § 679.20(a)(7)(iii)(B), NMFS reallocates 4,500 mt of Pacific cod to C/Ps using hook-and-line gear and C/Ps using pot gear in the Bering Sea and Aleutian Islands management area.

    The harvest specifications for Pacific cod included in the final 2016 and 2017 harvest specifications for groundfish of the BSAI (81 FR 14773, March 18, 2016, 81 FR 57491, August 23, 2016, 81 FR 61143, September 6, 2016, 81 FR 69445, October 6, 2016, 81 FR 76530, November 3, 2016) are revised as follows: 45,138 mt for catcher vessels using trawl gear, 14,598 for catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear, 111,783 for C/Ps using hook-and-line gear, and 6,607 mt for C/Ps using 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 multiple sectors to C/Ps using hook-and-line gear and C/Ps using pot gear in the Bering Sea and Aleutian Islands management area. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 7, 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: November 9, 2016. Tracey Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-27419 Filed 11-9-16; 4:15 pm] BILLING CODE 3510-22-P
    81 220 Tuesday, November 15, 2016 Proposed Rules 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 Open Meetings for the Circulator Pumps Working Group To Negotiate a Notice of Proposed Rulemaking (NOPR) for Energy Conservation Standards and Test Procedures AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Announcement of public meetings.

    SUMMARY:

    The Department of Energy (DOE) announces public meetings and webinars for the Circulator Pumps Working Group. The Federal Advisory Committee Act requires that agencies publish notice of an advisory committee meeting in the Federal Register.

    DATES:

    See SUPPLEMENTARY INFORMATION section for meeting dates.

    ADDRESSES:

    The meetings will be held at Navigant, 1200 19th St. NW., Suite 700, Washington, DC, unless otherwise stated in the SUPPLEMENTARY INFORMATION section. Individuals will also have the opportunity to participate by webinar. To register for the webinars and receive call-in information, please register at DOE's Web site: https://www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=66&action=viewcurrent.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Joe Hagerman, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-4549. Email: [email protected]

    Ms. Johanna Jochum, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-6307 Email: [email protected].

    SUPPLEMENTARY INFORMATION:

    On January 20, 2016, ASRAC met and unanimously passed the recommendation to form a circulator pumps working group. The purpose of the working group is 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 consists 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 December 31, 2016. This notice announces the next series of meetings for this working group.

    DOE will host public meetings and webinars on the below dates.

    • Tuesday, November 29, 2016 from 9:00 a.m. to 5:00 p.m. at 1200 19th St. NW., Suite 700, Washington, DC.

    • Wednesday, November 30, 2016 from 8:00 a.m. to 4:00 p.m. at 1200 19th St. NW., Suite 700, Washington, DC.

    • Thursday, December 1, 2016 from 8:00 a.m. to 4:00 p.m. at 1200 19th St. NW., Suite 700, Washington, DC.

    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 you are a foreign national, and wish 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 have been made 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.

    Docket: The docket is available for review at www.regulations.gov, including Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials. All documents in the docket are listed in the www.regulations.gov index. However, not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure.

    Issued in Washington, DC, on November 8, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-27358 Filed 11-14-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9191; Directorate Identifier 2016-NM-106-AD] RIN 2120-AA64 Airworthiness Directives; Gulfstream Aerospace Corporation Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Gulfstream Aerospace Corporation Model GVI airplanes. This proposed AD was prompted by a report indicating that there are design deficiencies in the software used for monitoring the disconnect for the flight control computer (FCC)-hosted flight controls actuation main ram linear variable differential transducer (LVDT). This proposed AD would require an update of the FCC software. We are proposing this AD to prevent the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by December 30, 2016.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone: 800-810-4853; fax: 912-965-3520; email: [email protected]; Internet: http://www.gulfstream.com/product_support/technical_pubs/pubs/index.htm. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9191; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Myles Jalalian, Aerospace Engineer, Systems and Equipment Branch, ACE-119A, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5572; fax: 404-474-5606; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9191; Directorate Identifier 2016-NM-106-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

    Discussion

    We have received a report indicating that there are design deficiencies in the FCC software used for monitoring the disconnect for the FCC-hosted flight controls actuation main ram LVDT. When a failure occurs, if the actuator LVDT mechanical disconnect monitor and oscillatory monitor are not reliably triggered, there could be an undetected actuation of the main ram LVDT. This condition, if not corrected, could result in undetected actuation of the main ram LVDT. Undetected actuation of the main ram LVDT, if not corrected, could result in mechanical failure of the flight control surface actuator mechanism under force fight (the actuator is working against the intended load forces), causing primary surface hardover, spoiler hardover, and loss of control of the airplane.

    Related Service Information Under 1 CFR Part 51

    We reviewed Gulfstream G650 Aircraft Service Change Number 037, Revision A, dated June 28, 2016; and Gulfstream G650ER Aircraft Service Change Number 037, Revision A, dated June 28, 2016. The service information describes procedures for doing an update of the FCC software. These documents are distinct since they apply to different airplane models. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

    We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

    Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified in the service information described previously.

    Interim Action

    We consider this proposed AD interim action. The manufacturer is currently developing an additional software update that will complete the actions necessary to address the unsafe condition identified in this proposed AD. Once this additional software update is developed, approved, and available, we might consider additional rulemaking.

    Costs of Compliance

    We estimate that this proposed AD affects 90 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Software update 57 work-hours × $85 per hour = $4,845 $9,126 $13,971 $1,257,390

    According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    (3) Will not affect intrastate aviation in Alaska, and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Gulfstream Aerospace Corporation: Docket No. FAA-2016-9191; Directorate Identifier 2016-NM-106-AD. (a) Comments Due Date

    We must receive comments by December 30, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Gulfstream Aerospace Corporation Model GVI airplanes, certificated in any category, serial numbers 6001 through 6164 inclusive.

    Note 1 to paragraph (c) of this AD:

    Model GVI airplanes are also referred to by marketing designations G650 and G650ER.

    (d) Subject

    Air Transport Association (ATA) of America Code 27; Flight controls.

    (e) Unsafe Condition

    This AD was prompted by a report indicating that there are design deficiencies in the software used for monitoring the disconnect for the flight control computer (FCC)-hosted flight controls actuation main ram linear variable differential transducer (LVDT). We are issuing this AD to prevent undetected actuation of the main ram LVDT. Undetected actuation of the main ram LVDT, if not corrected, could result in mechanical failure of the flight control surface actuator mechanism under force fight (the actuator is working against the intended load forces), causing primary surface hardover, spoiler hardover, and loss of control of the airplane.

    (f) Compliance

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

    (g) Software Update for FCC

    Within 24 months after the effective date of this AD, do an FCC software update, in accordance with the Modification Instructions of Gulfstream G650 Aircraft Service Change Number 037, Revision A, dated June 28, 2016; or Gulfstream G650ER Aircraft Service Change Number 037, Revision A, dated June 28, 2016; as applicable.

    (h) Reporting Not Required

    Although Gulfstream G650 Aircraft Service Change Number 037, Revision A, dated June 28, 2016; and Gulfstream G650ER Aircraft Service Change Number 037, Revision A, dated June 28, 2016; specify to submit certain information to the manufacturer, this AD does not require that action.

    (i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Atlanta Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j)(1) of this AD.

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (j) Related Information

    (1) For more information about this AD, contact Myles Jalalian, Aerospace Engineer, Systems and Equipment Branch, ACE-119A, FAA, Atlanta ACO, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5572; fax: 404-474-5606; email: [email protected]

    (2) For service information identified in this AD, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone: 800-810-4853; fax: 912-965-3520; email: [email protected]; Internet: http://www.gulfstream.com/product_support/technical_pubs/pubs/index.htm. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on October 12, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-25354 Filed 11-14-16; 8:45 am] BILLING CODE 4910-13-P
    FEDERAL TRADE COMMISSION 16 CFR Part 314 RIN 3084-AB35 Standards for Safeguarding Customer Information AGENCY:

    Federal Trade Commission.

    ACTION:

    Request for public comment; reopening for public comments.

    SUMMARY:

    The Federal Trade Commission (“FTC” or “Commission”) is extending the deadline for filing public comments on its recent Request for Public Comment on the Standards for Safeguarding Customer Information (“Safeguards Rule” or “Rule”).

    DATES:

    The comment period for the request for public comment published in the Federal Register on September 7, 2016 (81 FR 61632), is reopened. Comments must be received on or before November 21, 2016.

    ADDRESSES:

    Interested parties may file a comment online or on paper by following the Instructions for Submitting Comments part of the SUPPLEMENTARY INFORMATION section below. Write “Safeguards Rule, 16 CFR 314, Project No. P145407,” on your comment and file your comment online at https://ftcpublic.commentworks.com/ftc/safeguardsrulenprm by following the instructions on the web-based form. If you prefer to file your comment on paper, mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex B), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex B), Washington, DC 20024.

    FOR FURTHER INFORMATION CONTACT:

    David Lincicum or Katherine McCarron, Division of Privacy and Identity Protection, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580, (202) 326-2773 or (202) 326-2333.

    SUPPLEMENTARY INFORMATION: I. Comment Period Extension

    On September 7, 2016 (81 FR 61632), as part of the Commission's systematic review of all current FTC rules and guides, the Commission published a Request for Comments requesting public comment on the overall costs, benefits, necessity, and regulatory impact of the Safeguards Rule, with a deadline for filing comments of November 7, 2016. On September 12, 2016 (81 FR 63435), the Commission published a Request for Public Comment on its Disposal Rule, with a deadline for comments of November 21, 2016. On October 21, 2016, the American Financial Services Association, Consumer Data Industry Association, and the National Auto Dealer Association, requested that the comment period be extended until November 21, 2016 to coincide with the comment period for Disposal Rule Request for Comments. The requesters explained that the two rules are closely related and that comments on the two rules may overlap. Therefore, having the two comment periods coincide would make it easier for commenters to provide feedback on both rules.

    The Commission agrees that allowing additional time for filing comments on the Safeguards Rule would help facilitate the creation of a more complete record. In addition, extending the comment period would not harm consumers because the current Rule will remain in effect during the review process. Therefore, the Commission has decided to extend the comment period to November 21, 2016.

    II. Request for Comment

    You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before November 21, 2016. Write “Safeguards Rule, 16 CFR 314, Project No. P145407” on the comment. Your comment, including your name and your state, will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at https://www.ftc.gov/policy/public-comments. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site. Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, such as a Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or payment card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually identifiable health information.

    In addition, do not include any “[t]rade secret or any commercial or financial information which is . . . privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

    If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you must follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comments to be withheld from the public record. Your comment will be kept confidential only if the FTC General Counsel grants your request in accordance with the law and the public interest.

    Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comment online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/ftc/safeguardsrulenprm by following the instructions on the web-based form. If this document appears at http://www.regulations.gov/#!home, you also may file a comment through that Web site.

    If you file your comment on paper, write “Safeguards Rule, 16 CFR 314, Project No. P145407” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex B), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex B), Washington, DC 20024.

    Visit the Commission Web site at http://www.ftc.gov to read this document and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before November 21, 2016. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see http://www.ftc.gov/ftc/privacy.htm.

    By direction of the Commission.

    Donald S. Clark, Secretary.
    [FR Doc. 2016-27266 Filed 11-14-16; 8:45 am] BILLING CODE 6750-01-P
    DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 5, 6, and 19 [FAR Case 2013-018; Docket No. 2013-0018, Sequence No. 1] RIN 9000-AM90 Federal Acquisition Regulation: Clarification of Requirement for Justifications for 8(a) Sole Source Contracts AGENCY:

    Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

    ACTION:

    Proposed rule.

    SUMMARY:

    DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to clarify the guidance for sole-source 8(a) contract awards exceeding $22 million.

    DATES:

    Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before January 17, 2017 to be considered in the formation of the final rule.

    ADDRESSES:

    Submit comments in response to FAR Case 2013-018 by any one of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “FAR Case 2013-018” under the heading “Enter Keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “FAR Case 2013-018.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “FAR Case 2013-018” on your attached document.

    Mail: General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd floor, Washington, DC 20405.

    Instructions: Please submit comments only and cite FAR Case 2013-018, in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Mahruba Uddowla, Procurement Analyst, via email at [email protected], or telephone at 703-605-2868, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAR Case 2013-018.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD, GSA, and NASA are proposing to revise the FAR to further clarify guidance for justifications of 8(a) sole-source contract awards in excess of $22 million. This proposed rule responds to the recommendations made by the Government Accountability Office (GAO) in its report, GAO-13-118, “Slow Start to Implementation of Justifications for 8(a) Sole-Source Contracts.” The GAO report focuses on the revisions made to the FAR to implement section 811 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84) (see 77 FR 23369). Section 811 established the requirement that the head of an agency may not award a sole-source 8(a) contract for an amount exceeding $20 million (subsequently updated to $22 million) unless—

    • The contracting officer justifies the use of a sole-source contract in writing;

    • The justification is approved by the appropriate official designated to approve contract awards for dollar amounts that are comparable to the amount of the sole-source contract; and

    • The justification and related documentation are made available to the public in accordance with 10 U.S.C. 2304(f)(1)(C) and (l), and 41 U.S.C. 253(f)(1)(C) and (j) (recodified at 41 U.S.C. 3304(e)(1)(C) and (f)), as applicable.

    The FAR Council published an interim rule in the Federal Register at 76 FR 14559 on March 16, 2011 implementing section 811 requirements. The interim rule was subsequently adopted without change as a final rule and published in the Federal Register at 77 FR 23369 on April 18, 2012. Prior to publication of the rule, three tribal consultations were conducted in the Fall of 2010 to address the implementation of section 811.

    On December 12, 2012, the GAO released its report regarding the use of the of the sole-source 8(a) justification across the Federal Government. The GAO-13-118 report indicates that the FAR needed additional clarification of justification and recommended that clarifying guidance is needed to help ensure that agencies are applying the justification requirement consistently. The GAO report recommended that OFPP, in consultation with the FAR Council, promulgate guidance to clarify the circumstances in which an 8(a) justification is required. As recommended, OFPP and the FAR Council agree to clarify the FAR with guidance that will:

    • Clarify whether an 8(a) justification is required for 8(a) contracts that are subject to a pre-existing Competition in Contracting Act of 1984 (Pub. L. 98-369) (CICA) class justification.

    • Provide additional information on actions contracting officers should take to comply with the justification requirement when the contract value rises above or falls below $22 million between the Small Business Administration's (SBA's) acceptance of the contract for negotiation under the 8(a) program and the contract award.

    • Clarify whether and under what circumstances a separate sole-source justification is necessary for out-of-scope modifications to 8(a) sole-source contracts.

    • This rule does not expand on the requirements of section 811. The intent of the proposed rule is to further clarify the processes and procedures in the FAR to ensure uniform, consistent, and coherent guidance regarding the use of sole-source 8(a) justifications.

    II. Discussion and Analysis

    The following is a summary of the proposed FAR amendments associated with this rule:

    A. Clarify Whether an 8(a) Justification Is Required for 8(a) Contracts That Are Subject to a Pre-Existing CICA Class Justification

    The proposed rule will clarify that a justification executed under any other authority cannot be substituted for a sole-source 8(a) justification.

    B. Provide Additional Information on Actions Contracting Officers Should Take To Comply With the Justification Requirement When the Contract Value Rises Above or Falls Below $22 Million Between SBA's Acceptance of the Contract for Negotiation Under the 8(a) Program and Contract Award

    The current requirement in the FAR to prepare and approve the sole-source 8(a) justification prior to negotiation remains intact to ensure that the justification “. . . is executed prior to negotiation, a critical juncture in the contract award continuum” (77 FR 23369). However, the FAR will be amended to clarify the appropriate actions contracting officers should take in the event the estimated contract value rises above or falls below $22 million prior to award. DoD, GSA and NASA propose to add the following:

    • If the estimated contract value at the time of submission of the offering letter exceeds $22 million, include the approved justification with the offering letter.

    • If the estimated contract value at the time of submission of the offering letter is less than or equal to $22 million, but the contract value at time of award exceeds $22 million, send the approved justification prior to contract award.

    C. Clarify Whether and Under What Circumstances a Separate Sole-Source Justification Is Necessary for Out-of-Scope Modifications to Sole-Source 8(a) Contracts

    At FAR 43.102, the FAR provides guidance to contracting officers acting within the scope of their authority. In general, if the modification to the contract is out of scope, then it would be considered a new contract and would therefore, need to go through the appropriate procurement process for a new contract. Agencies' contracting officers use their discretion to determine if a modification is within the scope of the original contract.

    D. Other Changes

    Conforming changes were proposed to part 6 and subpart 19.8. Other minor editorial clarifications were made.

    III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    IV. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule does not impose any new requirements, limitations, or restrictions on small businesses. However, an Initial Regulatory Flexibility Analysis (IRFA) has been prepared and is summarized as follows:

    The proposed rule responds to the recommendations made in GAO-113-118 issued on December 12, 2012, to promulgate clarifying guidance in the FAR regarding sole-source 8(a) justifications for contract awards exceeding $22 million. This clarification pertains to processes and procedures that have already been established in the FAR pursuant to section 811 of the National Defense Authorization Act for Fiscal Year 2010.

    This rule does not impose any new reporting, recordkeeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules. There are no known alternatives which would accomplish the stated objectives of the applicable statues.

    DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule consistent with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2013-018), in correspondence.

    VII. Paperwork Reduction Act

    The proposed rule clarifies guidance that implemented section 811, which prohibited the award of a sole-source contract in an amount over $20 million (subsequently revised to $22 million) under the 8(a) program authority (15 U.S.C. 637(a)) without the contracting officer first obtaining a written justification and approval approved by an appropriate official and making public the justification and approval and related information (see 76 FR 14559). This clarifying guidance pertains to documentation that is internal to the Government and does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Parts 5, 6, and 19

    Government procurement.

    Dated: November 7, 2016. William F. Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy.

    For the reasons set forth in the preamble, 48 CFR parts 5, 6, and 19 are proposed to be amended as follows:

    1. The authority citation for 48 CFR parts 5, 6, and 19 continues to read as follows: Authority:

    40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.

    PART 5—PUBLICIZING CONTRACT ACTIONS 2. Amend section 5.406 by adding paragraph (d) to read as follows:
    5.406 Public disclosure of justification documents for certain contract actions.

    (d) Sole-source 8(a) justifications for awards exceeding $22 million shall be posted in accordance with 6.305.

    PART 6—COMPETITION REQUIREMENTS 3. Amend section 6.204 by revising paragraph (b) to read as follows:
    6.204 Section 8(a) competition.

    (b) No separate justification or determination and findings is required under this part to limit competition to eligible 8(a) contractors except for sole source 8(a) awards exceeding $22 million (see 6.302-5 and 6.303-1).

    6.302-5 [Amended]
    4. Amend section 6.302-5 by removing from paragraph (b)(4) “6.303” and adding “6.303-2 and 19.804-3” in its place; removing “over” and adding “exceeding” in its place; and removing “(See subpart 19.8).”. 5. Amend section 6.303-1 by— a. Revising paragraph (b); and b. Removing from paragraph (d) “above” and adding “of this section” in its place.

    The revisions read as follows:

    6.303-1 Requirements.

    (b)(1) In accordance with section 811 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84), the contracting officer shall not award a sole-source contract under the 8(a) authority (15 U.S.C. 637(a)) for an amount exceeding $22 million unless—

    (i) The contracting officer justifies the use of a sole-source contract in writing in accordance with 6.303-2; and

    (ii) The justification is approved by the appropriate official designated at 6.304; (see 19.804-2(a)(15) and 19.804-2(b) for required information for agency offering letter).

    (2) The justification and related information shall be made public after award in accordance with 6.305.

    (3) The requirement for a sole-source 8(a) justification and approval shall not be satisfied by any other justification and approval executed under a different authority (e.g., justification and approval in accordance with 6.302-2).

    6. Amend section 6.303-2 by— a. Revising the introductory text of paragraph (b); b. Removing from the introductory text of paragraph (d) the word “over” and adding “exceeding” in its place; and c. Revising paragraph (d)(2).

    The revisions read as follows:

    6.303-2 Content.

    (b) As a minimum, each justification, except for sole-source 8(a) contracts exceeding $22 million (see paragraph (d) of this section), shall include the following information:

    (d) * * *

    (2) A specification of the statutory provision providing the exception from the requirement at 19.805-1(a) to use competitive procedures in entering into the contract (15 U.S.C. 637(a); and 10 U.S.C. 2304(c)(5) or 41 U.S.C. 3304(a)(5)).

    PART 19—SMALL BUSINESS PROGRAMS 7. Amend section 19.804-2 by revising paragraph (b)(3) to read as follows:
    19.804-2 Agency offering.

    (b) * * *

    (3) Sole source requirements, other than construction, should be forwarded directly to the district office that services the nominated firm. If the contracting officer is not nominating a specific firm, the offering letter should be forwarded to the district office servicing the geographical area in which the contracting office is located. For sole-source requirements with an estimated contract value exceeding $22 million, an approved sole source 8(a) justification (see 6.303-1(b)) shall be included in the agency's offering letter.

    19.804-3 through 10.804-6 [Redesignated]
    8. Redesignate sections 19.804-3 through 19.804-6 as sections 19.804-4 through 19.804-7, respectively. 9. Add new section 19.804-3 to read as follows:
    19.804-3 Sole-source 8(a) contract awards.

    This subsection implements section 811 of the National Defense Authorization Act for Fiscal Year 2010, (Pub. L. 111-84), which requires justification for the award of a sole-source 8(a) contract exceeding $22 million.

    (a)(1) The contracting officer shall not award a sole-source 8(a) contract exceeding $22 million unless—

    (i) The contracting officer has justified, in writing, the use of a sole-source 8(a) contract in accordance with 6.303—1(b) and 6.303-2(d); and

    (ii) The justification has been approved by the appropriate official designated at 6.304.

    (2) A copy of the approved justification shall be provided to the SBA District Office identified in the agency's offering letter (see 19.804-2(a)(15) and 19.804-2(b)).

    (i) If the estimated contract value at the time of submission of the offering letter exceeds $22 million, include the approved justification with the offering letter.

    (ii) If the estimated contract value at the time of submission of the offering letter is less than or equal to $22 million, but the contract value at time of award exceeds $22 million, send the approved justification prior to contract award.

    (b) The justification and related information shall be made public after award, using the procedures at 6.305.

    19.805-1 [Amended]
    10. Amend section 19.805-1 by removing from the introductory text of paragraph (b) “sole source” and adding “sole-source” in its place.
    19.805-2 [Amended]
    11. Amend section 19.805-2 by removing from paragraph (a) “19.804-3” and adding “19.804-4” in its place. 12. Amend section 19.808-1 by revising paragraph (a) to read as follows:
    19.808-1 Sole source.

    (a) The SBA may not accept for negotiation a sole-source 8(a) contract that exceeds $22 million unless the requesting agency has submitted an approved sole-source 8(a) justification in accordance with the requirements of 6.303-1(b).

    [FR Doc. 2016-27245 Filed 11-14-16; 8:45 am] BILLING CODE P
    81 220 Tuesday, November 15, 2016 Notices DEPARTMENT OF COMMERCE International Trade Administration Trade Promotion Coordinating Committee AGENCY:

    International Trade Administration, U.S. Department of Commerce.

    ACTION:

    Notice and request for nominations from state, local, and municipal governments to the Trade Promotion Coordinating Committee State and Federal Export Promotion Coordination Working Group; extension of deadline.

    SUMMARY:

    The Secretary of Commerce, as Chair of the Trade Promotion Coordinating Committee (TPCC), announces the establishment of the State and Federal Export Promotion Coordination Working Group as a subcommittee of the TPCC. The Trade Facilitation and Trade Enforcement Act of 2015 (the Act) requires the President to establish this Working Group as a subcommittee of the TPCC to identify issues related to the coordination of Federal resources relating to export promotion and export financing with such resources provided by State and local governments. The original notice (FR Doc. 2016-23501) ([citation]) called for nominations to be submitted by October 24, 2016. This notice hereby extends the deadline to November 25, 2016.

    DATES:

    Nominations for immediate consideration for the Working Group must be received electronically on or before 5:00 p.m. (ET) on November 25, 2016. After that date, ITA will continue to accept submissions under this notice for a period of up to two years from the deadline to fill any vacancies that may arise.

    FOR FURTHER INFORMATION CONTACT:

    Patrick Kirwan, Director, Trade Promotion Coordinating Committee Secretariat, Room 31027, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230, telephone: 202-482-5455, email: [email protected]

    SUPPLEMENTARY INFORMATION: Table of Contents I. Establishment of Working Group II. Member and Meeting Information III. Request for Nominations I. Establishment of Working Group

    Section 504(a) of the Trade Facilitation and Trade Enforcement Act of 2015 (“Act”), amended the Export Enhancement Act of 1988 to add a new section 2313A. Section 2313A notes that U.S. policy is to promote exports as an opportunity for small businesses, and in exercising their powers and functions to advance that policy, all Federal agencies shall work constructively with State and local agencies engaged in export promotion and export financing activities. Section 2313A directs the President to establish the State and Federal Export Promotion Coordination Working Group (“Working Group”) under the TPCC with the purposes to:

    (1) Identify issues related to the coordination of Federal resources relating to export promotion and export financing with such resources provided by State and local governments;

    (2) identify ways to improve coordination with respect to export promotion and export financing activities through the TPCC annual strategic plan;

    (3) develop a strategy for improving coordination of Federal and State resources relating to export promotion and export financing, including methods to eliminate duplication of effort and overlapping functions; and

    (4) develop a strategic plan for considering and implementing the suggestions of the Working Group as part of the TPCC annual strategic plan.

    The President issued Executive Order No. 13733, Delegation of Certain Authorities and Assignment of Certain Functions under the Trade Facilitation and Trade Enforcement Act of 2015, on July 22, 2016, assigning to the Secretary of Commerce the function under Section 2313A(b) of establishing the Working Group. In the Executive Order, the President further directed that, in carrying out its functions, the State and Federal Export Promotion Coordination Working Group shall also coordinate with local and municipal governments representing regionally diverse areas.

    II. Member and Meeting Information

    The Secretary of Commerce shall select the members of the Working Group, who shall include representatives from State trade agencies and local and municipal governments representing regionally diverse areas and representatives of the federal departments and agencies that are represented on the TPCC. The Working Group will comprise up to sixteen members. Representatives from State trade agencies must be: (1) Elected officers of a State, or (2) State employees designated by an elected State officer to represent the State trade agency with authority to act on his or her behalf. Representatives from local and municipal governments must be: (1) Elected officers or (2) local or municipal employees designated by an elected officer to represent the local and municipal government with authority to act on his or her behalf.

    Because the Working Group will be an intergovernmental committee composed wholly of full-time or part-time Federal Government officers or employees, State government elected officers or their designees, and local and municipal elected officials or their designees, all of whom will be acting in their official capacities solely to exchange views, information, or advice relating to the management and implementation of Federal programs established by statute that explicitly share intergovernmental responsibilities and administration, the Working Group is not covered by the Federal Advisory Committee Act, 5 U.S.C. App.

    Members appointed as representatives from State trade agencies and local and municipal governments will not receive any Federal compensation for their services and will not be reimbursed for travel expenses. Meetings will be held in person and/or via teleconference. The TPCC will make every effort to use technology to allow for remote participation in meetings, but there will be times when in-person meetings will be necessary. The TPCC will strive to provide members of the Working Group notice of meetings at least 15 calendar days in advance.

    III. Request for Nominations

    The TPCC Secretariat seeks nominations for representatives from State trade agencies and local and municipal governments to the Working Group. For purposes of this notice, a “State trade agency” is the lead official governmental trade promotion agency for a State, and includes separately established trade agencies as well as trade offices within a State agency or department or the Office of the Governor. A “local or municipal government” includes, but is not limited to, town, city, and county governments. The TPCC seeks representation of regionally diverse areas. Qualified individuals may self-nominate or be nominated by a senior level State government or local or municipal government official. To be considered, nominators should submit the following information:

    (1) Name, title, and relevant contact information (including phone and email address) for the nominee, the state trade agency that the nominee would represent or the local or municipal government the nominee would represent;

    (2) A resume or short biography of the nominee, including professional and academic credentials.

    (3) A statement of the nominee's role in state, local, or municipal export promotion activities. Should more information be needed, TPCC staff will contact the nominee. If nominees are not an elected official, a letter may be requested from an elected official that indicates the nominee has been designated to participate in the Working Group on his or her behalf.

    Nominators should submit the above information via electronic transmission to [email protected] The submission must be received on or before 5:00 p.m. (ET) on November 25, 2016. Nominations submitted in response to the prior notice, including those received after October 24, 2016, will be considered and do not need to be resubmitted.

    Dated: November 8, 2016. Patrick Kirwan, Director, Trade Promotion Coordinating Committee Secretariat.
    [FR Doc. 2016-27392 Filed 11-14-16; 8:45 am] BILLING CODE 3510-25-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF034 Mid-Atlantic Fishery Management Council (MAFMC); Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Mid-Atlantic Fishery Management Council (MAFMC) will hold a public meeting of its Atlantic Mackerel, Squid, and Butterfish (MSB) Committee and its MSB Advisory Panel.

    DATES:

    The meeting will be held on Thursday, December 1, 2016, from 10 a.m. to 5 p.m., to view the agenda see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The meeting will be held at The Doubletree Baltimore-BWI Airport, 890 Elkridge Landing Road, Linthicum, MD 21090; telephone: 410-859-8400. There will be a listen-only Webinar link available, at http://www.mafmc.org/council-events/dec-1-msb-committee-ap-meeting.

    Council address: Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901; telephone: (302) 674-2331 or on their Web site, at www.mafmc.org.

    FOR FURTHER INFORMATION CONTACT:

    Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.

    SUPPLEMENTARY INFORMATION: Agenda

    The Mid-Atlantic Fishery Management Council's Atlantic Mackerel, Squid, and Butterfish (MSB) Committee will meet jointly with the MSB Advisory Panel to develop recommendations on alternatives to include in an Amendment that could affect the squid fisheries. The amendment could reduce the capacities of the longfin squid and Illex squid fleets. The Council is considering this action because of concern that activation of latent capacity in the squid fisheries could lead to excessive fishing effort and increased catch of non-target species. Several other issues are being considered as well: (1) New permits for Maine/northern states; (2) re-evaluation of longfin squid trimesters; (3) longfin squid buffer zones beyond state waters in the area south of Martha's Vineyard/Nantucket; and (4) revision of the goals and objectives of the MSB Fishery Management Plan. A detailed agenda and background documents will be made available on the Council's Web site, at www.mafmc.org, prior to the meeting. Additional information is also available at the Web page for this action: http://www.mafmc.org/actions/squid-capacity-amendment.

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 business days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 9, 2016. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-27433 Filed 11-14-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [0648-XE753] Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Operation, Maintenance, and Repair of the Northeast Gateway Liquefied Natural Gas Port and the Algonquin Pipeline Lateral Facilities in Massachusetts Bay AGENCY:

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

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments and information.

    SUMMARY:

    NMFS has received a request from Excelerate Energy, L.P. (Excelerate) and Tetra Tech, Inc. (Tetra Tech), on behalf of the Northeast Gateway® Energy BridgeTM, L.P. (Northeast Gateway or NEG) and Algonquin Gas Transmission, L.L.C. (Algonquin) for an authorization to take small numbers of 14 species of marine mammals, by Level B harassment, incidental to operating, maintaining, and repairing a liquefied natural gas (LNG) port and the Algonquin Pipeline Lateral (Pipeline Lateral) facilities by NEG and Algonquin, in Massachusetts Bay. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an authorization to NEG and Algonquin to incidentally take, by Level B harassment, small numbers of marine mammals during the specified activity for a period of one year.

    DATES:

    Comments and information must be received no later than December 15, 2016.

    ADDRESSES:

    Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments on this action is [email protected] Comments sent via email, including all attachments, must not exceed a 25-megabyte file size. A copy of the application and a list of references used in this document may be obtained by writing to this address, and are also available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. NMFS is not responsible for comments sent to addresses other than those provided here.

    Instructions: All comments received are a part of the public record and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications without change. All personal identifying information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) Final Environmental Impact Statement (Final EIS) on the Northeast Gateway Energy Bridge NEG Deepwater Port license application is available for viewing at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

    FOR FURTHER INFORMATION CONTACT:

    Shane Guan, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for a one-year authorization to incidentally take small numbers of marine mammals by harassment, provided that there is no potential for serious injury or mortality to result from the activity. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.

    Summary of Request

    On June 9, 2015, NMFS received an application from Excelerate and Tetra Tech, on behalf of NEG and Algonquin, for an annual IHA and a subsequent five-year letter of authorization (LOA) pursuant to a rulemaking under section 101(a)(5)(A), to take 14 species of marine mammals by Level B harassment incidental to operations, maintenance, and repair of the NEG Port and the Pipeline Lateral facilities in Massachusetts Bay. They are: North Atlantic right whale, humpback whale, fin whale, sei whale, minke whale, long-finned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, short-beaked common dolphin, killer whale, Risso's dolphin, harbor porpoise, harbor seal, and gray seal. Since the NEG Port and Pipeline Lateral operation, maintenance, and repair activities have the potential to take marine mammals, a marine mammal take authorization under the MMPA is warranted. NMFS issued an IHA to NEG and Algonquin on December 22, 2015 (81 FR 744; January 7, 2016). The IHA is valid until December 22, 2016. In June 2016 NMFS learned that NEG and Algonquin are considering decommissioning the NEG Port in the foreseeable future. Upon discussion with Excelerate and Tetra Tech, it was agreed that instead of conducting a rulemaking for five years of incidental take authorization that may not be needed, NMFS will process another one-year IHA to NEG and Algonquin to cover marine mammal takes from its operations, maintenance, and repair work from December 23, 2016 through December 22, 2017.

    NMFS first issued an IHA to NEG and Algonquin to allow for the incidental harassment of small numbers of marine mammals resulting from the construction and operation of the NEG Port and the Pipeline Lateral (72 FR 27077; May 14, 2007). Subsequently, NMFS issued five one-year IHAs for the take of marine mammals incidental to the operation of the NEG Port activity pursuant to section 101(a)(5)(D) of the MMPA (73 FR 29485; May 21, 2008, 74 FR 45613; September 3, 2009 75 FR 53672; September 1, 2010, and 76 FR 62778; October 11, 2011). After that, NMFS issued two one-year IHAs to NEG and Algonquin to take marine mammals incidental to the operations of the NEG Port as well as maintenance and repair (79 FR 78806; December 31, 2014, 81 FR 744; January 7, 2016).

    Description of the Specified Activity

    The proposed NEG and Algonquin activities include the following:

    NEG Port Operations: The NEG Port operations involve docking of NEG vessels and regasification of NEG for delivery to shore. Noises generated during these activities, especially from the NEG vessel's dynamic positioning (DP) thrusters during docking, could result in takes of marine mammals in the port vicinity by level B behavioral harassment.

    NEG Port Maintenance and Repair: Regular maintenance and occasional repair of the NEG Port are expected to occur throughout the NEG Port operation period. Machinery used during these activities generate noises that could result in takes of marine mammals in the port vicinity by Level B behavioral harassment.

    Algonquin Pipeline Lateral Routine Operations and Maintenance: The Algonquin Pipeline Lateral that is used for gas delivery would be inspected regularly to ensure proper operations. The work would be done using support vessels operating in dynamic positioning mode. Noises generated from these activities could result in takes of marine mammals in the vicinity of Pipeline Lateral by Level B behavioral harassment.

    Unplanned Pipeline Repair Activities: Unplanned repair activities may be required from time to time at a location along the Pipeline Lateral in west Massachusetts Bay, as shown in Figure 2.1 of the application. The repair would involve the use of a dive vessel operating in dynamic positioning mode. Noise generated from this activity could result in takes of marine mammals in the vicinity of repair work by Level B behavioral harassment.

    An IHA was previously issued to NEG and Algonquin for this activity on December 22, 2014 (79 FR 78806; December 31, 2014), based on activities described on Excelerate and Tetra Tech's IHA application submitted in June 2014 and on the Federal Register notice for the proposed IHA (78 FR 69049; November 18, 2013). The latest application submitted by Excelerate and Tetra Tech on June 9, 2015 contains the same information on project descriptions as described in the June 2014 IHA application. There is no change on the NEG and Algonquin's proposed NEG Port and Pipeline Lateral operations and maintenance and repair. Please refer to these documents for a detailed description of NEG and Algonquin's proposed NEG Port and Pipeline Lateral operations and maintenance and repair activities.

    Description of Marine Mammals in the Area of the Specified Activities

    Marine mammal species that potentially occur in the vicinity of the Northeast Gateway facility include the North Atlantic right whale, humpback whale, fin whale, sei whale, minke whale, long-finned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, common dolphin, killer whale, Risso's dolphin, harbor porpoise, harbor seal, and gray seal. General information on the distribution of these marine mammal species can be found in NMFS Stock Assessment Reports (Waring et al., 2016). This latter document is available at: http://www.nmfs.noaa.gov/pr/sars/pdf/atlantic2015_final.pdf. Additional information regarding these species within the NEG's proposed action area is provided below, with a summary in Table 1.

    Humpback Whale

    The highest abundance for humpback whales is distributed primarily along a relatively narrow corridor following the 100-meter (m) (328-feet (ft)) isobath across the southern Gulf of Maine from the northwestern slope of Georges Bank, south to the Great South Channel, and northward alongside Cape Cod to Stellwagen Bank and Jeffreys Ledge. The relative abundance of whales increases in the spring with the highest occurrence along the slope waters (between the 40- and 140-m, or 131- and 459-ft, isobaths) off Cape Cod and Davis Bank, Stellwagen Basin and Tillies Basin and between the 50- and 200-m (164- and 656-t) isobaths along the inner slope of Georges Bank. High abundance is also estimated for the waters around Platts Bank. In the summer months, abundance increases markedly over the shallow waters (<50 m, or <164 ft) of Stellwagen Bank, the waters (100-200 m or 328-656 ft) between Platts Bank and Jeffreys Ledge, the steep slopes (between the 30- and 160-m isobaths) of Phelps and Davis Bank north of the Great South Channel towards Cape Cod, and between the 50- and 100-m (164- and 328-ft) isobath for almost the entire length of the steeply sloping northern edge of Georges Bank. This general distribution pattern persists in all seasons except winter, when humpbacks remain at high abundance in only a few locations including Porpoise and Neddick Basins adjacent to Jeffreys Ledge, northern Stellwagen Bank and Tillies Basin, and the Great South Channel. The best estimate of abundance for Gulf of Maine, formerly western North Atlantic, humpback whales is 823 animals (Waring et al., 2016).

    Fin Whale

    Spatial patterns of habitat utilization by fin whales are very similar to those of humpback whales. Spring and summer high-use areas follow the 100-m (328 ft) isobath along the northern edge of Georges Bank (between the 50- and 200-m (164- and 656-ft) isobaths), and northward from the Great South Channel (between the 50-and 160-m, or 164- and 525-ft, isobaths). Waters around Cashes Ledge, Platts Bank, and Jeffreys Ledge are all high-use areas in the summer months. Stellwagen Bank is a high-use area for fin whales in all seasons, with highest abundance occurring over the southern Stellwagen Bank in the summer months. In fact, the southern portion of the Stellwagen Bank National Marine Sanctuary (SBNMS) is used more frequently than the northern portion in all months except winter, when high abundance is recorded over the northern tip of Stellwagen Bank. In addition to Stellwagen Bank, high abundance in winter is estimated for Jeffreys Ledge and the adjacent Porpoise Basin (100- to 160-m, 328- to 656-ft, isobaths), as well as Georges Basin and northern Georges Bank. The best estimate of abundance for the western North Atlantic stock of fin whales is 1,618 (Waring et al., 2016). Currently, there are insufficient data to determine population trends for this species.

    Minke Whale

    Like other piscivorous baleen whales, highest abundance for minke whale is strongly associated with regions between the 50- and 100-m (164- and 328-ft) isobaths, but with a slightly stronger preference for the shallower waters along the slopes of Davis Bank, Phelps Bank, Great South Channel and Georges Shoals on Georges Bank. Minke whales are sighted in the SBNMS in all seasons, with highest abundance estimated for the shallow waters (approximately 40 m, or 131 ft) over southern Stellwagen Bank in the summer and fall months. Platts Bank, Cashes Ledge, Jeffreys Ledge, and the adjacent basins (Neddick, Porpoise and Scantium) also support high relative abundance. Very low densities of minke whales remain throughout most of the southern Gulf of Maine in winter. The best estimate of abundance for the Canadian East Coast stock, which occurs from the western half of the Davis Strait to the Gulf of Mexico, of minke whales is 20,741 animals (Waring et al., 2016). Currently, there are insufficient data to determine population trends for this species.

    North Atlantic Right Whale

    North Atlantic right whales are generally distributed widely across the southern Gulf of Maine in spring with highest abundance located over the deeper waters (100- to 160-m (328- to 525-ft) isobaths) on the northern edge of the Great South Channel and deep waters (100-300 m, 328-984 ft) parallel to the 100-m (328-ft) isobath of northern Georges Bank and Georges Basin. High abundance is also found in the shallowest waters (< 30 m, or <98 ft) of Cape Cod Bay, over Platts Bank and around Cashes Ledge. Lower relative abundance is estimated over deep-water basins including Wilkinson Basin, Rodgers Basin and Franklin Basin. In the summer months, right whales move almost entirely away from the coast to deep waters over basins in the central Gulf of Maine (Wilkinson Basin, Cashes Basin between the 160- and 200-m (525- and 656-ft) isobaths) and north of Georges Bank (Rogers, Crowell and Georges Basins). Highest abundance is found north of the 100-m (328-ft) isobath at the Great South Channel and over the deep slope waters and basins along the northern edge of Georges Bank. The waters between Fippennies Ledge and Cashes Ledge are also estimated as high-use areas. In the fall months, right whales are sighted infrequently in the Gulf of Maine, with highest densities over Jeffreys Ledge and over deeper waters near Cashes Ledge and Wilkinson Basin. In winter, Cape Cod Bay, Scantum Basin, Jeffreys Ledge, and Cashes Ledge were the main high-use areas. Although SBNMS does not appear to support the highest abundance of right whales, sightings within SBNMS are reported for all four seasons, albeit at low relative abundance. Highest sighting within SBNMS occurred along the southern edge of the Bank.

    The western North Atlantic minimum stock size is based on a census of individual whales identified using photo-identification techniques. A review of the photo-ID recapture database as it existed on 20 October 2014 indicated that 476 individually recognized whales in the catalog were known to be alive during 2011. This number represents a minimum population size. This is a direct count and has no associated coefficient of variation (Waring et al., 2016). Examination of the minimum number alive population index calculated from the individual sightings database, as it existed on 20 October 2014, for the years 1990-2011 suggests a positive and slowly accelerating trend in population size. These data reveal a significant increase in the number of catalogued whales with a geometric mean growth rate for the period of 2.8 percent (Waring et al., 2016).

    Long-Finned Pilot Whale

    The long-finned pilot whale is more generally found along the edge of the continental shelf (a depth of 330 to 3,300 ft or 100 to 1,000 m), choosing areas of high relief or submerged banks in cold or temperate shoreline waters. This species is split between two subspecies: The Northern and Southern subspecies. The Southern subspecies is circumpolar with northern limits of Brazil and South Africa. The Northern subspecies, which could be encountered during operation of the NEG Port, ranges from North Carolina to Greenland (Reeves et al., 2002; Wilson and Ruff 1999). In the western North Atlantic, long-finned pilot whales are pelagic, occurring in especially high densities in winter and spring over the continental slope, then moving inshore and onto the shelf in summer and autumn following squid and mackerel populations (Reeves et al., 2002). They frequently travel into the central and northern Georges Bank, Great South Channel, and Gulf of Maine areas during the summer and early fall (May and October) (NOAA 1993). According to the species stock report, the population estimate for the Western North Atlantic long-finned pilot whale is 5,636 individuals (Waring et al., 2010). Currently, there are insufficient data to determine population trends for the long-finned pilot whale.

    Atlantic White-Sided Dolphin

    In spring, summer and fall, Atlantic white-sided dolphins are widespread throughout the southern Gulf of Maine, with the high-use areas widely located either side of the 100-m (328-ft) isobath along the northern edge of Georges Bank, and north from the Great South Channel to Stellwagen Bank, Jeffreys Ledge, Platts Bank and Cashes Ledge. In spring, high-use areas exist in the Great South Channel, northern Georges Bank, the steeply sloping edge of Davis Bank and Cape Cod, southern Stellwagen Bank and the waters between Jeffreys Ledge and Platts Bank. In summer, there is a shift and expansion of habitat toward the east and northeast. High-use areas are identified along most of the northern edge of Georges Bank between the 50- and 200-m (164- and 656-ft) isobaths and northward from the Great South Channel along the slopes of Davis Bank and Cape Cod. High numbers of sightings are also recorded over Truxton Swell, Wilkinson Basin, Cashes Ledge and the bathymetrically complex area northeast of Platts Bank. High numbers of sightings of white-sided dolphin are recorded within SBNMS in all seasons, with highest density in summer and most widespread distributions in spring located mainly over the southern end of Stellwagen Bank. In winter, high numbers of sightings are recorded at the northern tip of Stellwagen Bank and Tillies Basin.

    A comparison of spatial distribution patterns for all baleen whales (Mysticeti) and all porpoises and dolphins combined show that both groups have very similar spatial patterns of high- and low-use areas. The baleen whales, whether piscivorous or planktivorous, are more concentrated than the dolphins and porpoises. They utilize a corridor that extended broadly along the most linear and steeply sloping edges in the southern Gulf of Maine indicated broadly by the 100-m (328-ft) isobath. Stellwagen Bank and Jeffreys Ledge support a high abundance of baleen whales throughout the year. Species richness maps indicate that high-use areas for individual whales and dolphin species co-occur, resulting in similar patterns of species richness primarily along the southern portion of the 100-m (328-ft) isobath extending northeast and northwest from the Great South Channel. The southern edge of Stellwagen Bank and the waters around the northern tip of Cape Cod are also highlighted as supporting high cetacean species richness. Intermediate to high numbers of species are also calculated for the waters surrounding Jeffreys Ledge, the entire Stellwagen Bank, Platts Bank, Fippennies Ledge and Cashes Ledge. The best estimate of abundance for the western North Atlantic stock of white-sided dolphins is 48,819 (Waring et al., 2016). A trend analysis has not been conducted for this species.

    Killer Whale, Common Dolphin, Bottlenose Dolphin, Risso's Dolphin, and Harbor Porpoise

    Although these five species are some of the most widely distributed small cetacean species in the world (Jefferson et al., 1993), they are not commonly seen in the vicinity of the proposed project area in Massachusetts Bay (Wiley et al., 1994; Northeast Gateway Marine Mammal Monitoring Weekly Reports 2007). The total number of killer whales off the eastern U.S. coast is unknown, and present data are insufficient to calculate a minimum population estimate or to determine the population trends for this stock (Blaylock et al., 1995). The best estimate of abundance for the western North Atlantic stock of common dolphins is 173,486 animals, and a trend analysis has not been conducted for this species (Waring et al., 2016). There are several stocks of bottlenose dolphins found along the eastern United States from Maine to Florida. The stock that may occur in the area of the Neptune Port is the western North Atlantic coastal northern migratory stock of bottlenose dolphins. The best estimate of abundance for this stock is 11,548 animals (Waring et al., 2016). There are insufficient data to determine the population trend for this stock. The best estimate of abundance for the western North Atlantic stock of Risso's dolphins is 18,250 animals (Waring et al., 2016). There are insufficient data to determine the population trend for this stock. The best estimate of abundance for the Gulf of Maine/Bay of Fundy stock of harbor porpoise is 79,833 animals (Waring et al., 2016). A trend analysis has not been conducted for this species.

    Harbor Seal and Gray Seal

    In the U.S. waters of the western North Atlantic, both harbor and gray seals are usually found from the coast of Maine south to southern New England and New York (Waring et al., 2010).

    Along the southern New England and New York coasts, harbor seals occur seasonally from September through late May (Schneider and Payne 1983). In recent years, their seasonal interval along the southern New England to New Jersey coasts has increased (deHart 2002). In U.S. waters, harbor seal breeding and pupping normally occur in waters north of the New Hampshire/Maine border, although breeding has occurred as far south as Cape Cod in the early part of the 20th century (Temte et al., 1991; Katona et al., 1993). The best estimate of abundance for the western North Atlantic stock of harbor seals is 75,834 animals (Waring et al., 2016). Although gray seals are often seen off the coast from New England to Labrador, within the U.S. waters, only small numbers of gray seals have been observed pupping on several isolated islands along the Maine coast and in Nantucket-Vineyard Sound, Massachusetts (Katona et al., 1993; Rough, 1995). In the late 1990s, a year-round breeding population of approximately 400 gray seals was documented on outer Cape Cod and Muskeget Island (Warring et al., 2007). Depending on the model used, the minimum estimate for the Canadian gray seal population was estimated to range between 125,541 and 169,064 animals (Trzcinski et al., 2005, cited in Waring et al., 2009); however, present data are insufficient to calculate the minimum population estimate for U.S. waters. Waring et al. (2016) note that gray seal abundance in the U.S. Atlantic is likely increasing, but the rate of increase is unknown.

    Table 1—Marine Mammal Species Potentially Present in Region of Activity Species ESA Status MMPA Status Abundance Range Occurrence North Atlantic right whale Endangered Depleted 476 N. Atlantic Occasional. Humpback whale Endangered Depleted 823 N. Atlantic Occasional. Fin whale Endangered Depleted 1618 N. Atlantic Occasional. Sei whale Endangered Depleted 357 N. Atlantic Occasional. Minke whale Not listed Non-depleted 20741 N. Atlantic Occasional. Long-finned pilot whale Not listed Non-depleted 5636 N. Atlantic Occasional. Atlantic white-sided dolphin Not listed Non-depleted 48819 N. Atlantic Occasional. Bottlenose dolphin Not listed Non-depleted 11548 N. Atlantic Uncommon. Common dolphin Not listed Non-depleted 173486 N. Atlantic Uncommon. Killer whale Not listed Non-depleted Unknown N. Atlantic Uncommon. Risso's dolphin Not listed Non-depleted 18250 N. Atlantic Uncommon. Harbor porpoise Not listed Non-depleted 79833 N. Atlantic Uncommon. Harbor Seal Not listed Non-depleted 75834 N. Atlantic Occasional. Gray seal Not listed Non-depleted Unknown N. Atlantic Occasional. Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., pile removal and pile driving) have been observed to impact marine mammals. This discussion may also include reactions that we consider to rise to the level of a take and those that we do not consider to rise to the level of a take (for example, with acoustics, we may include a discussion of studies that showed animals not reacting at all to sound or exhibiting barely measurable avoidance). This section is intended as a background of potential effects and does not consider either the specific manner in which this activity will be carried out or the mitigation that will be implemented and how either of those will shape the anticipated impacts from this specific activity. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section, the “Proposed Mitigation” section, and the “Anticipated Effects on Marine Mammal Habitat” section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.

    When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data. NMFS (2016) designate “marine mammal hearing groups” for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The marine mammal hearing groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their hearing range):

    • Low frequency cetaceans (13 species of mysticetes): Functional hearing is estimated to occur between approximately 7 Hertz (Hz) and 35 kilo Hertz (kHz);

    • Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;

    • High frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): Functional hearing is estimated to occur between approximately 275 Hz and 160 kHz;

    • Phocid pinnipeds (true seals): Functional hearing is estimated between 50 Hz to 86 kHz; and

    • Otariid pinnipeds (sea lions and fur seals): Functional hearing is estimated between 60 Hz to 39 kHz.

    Species found in the vicinity of the NEG Port and Pipeline Lateral operations and maintenance and repair area include five low-frequency cetacean species (North Atlantic right whale, humpback whale, fin whale, sei whale, and minke whale), six mid-frequency cetacean species (long-finned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, common dolphin, Risso's dolphin, and killer whale), one high-frequency cetacean species (harbor porpoise), and two pinniped species (harbor seal and gray seal) (Table 1).

    The proposed NEG Port operations and maintenance and repair activities could adversely affect marine mammal species and stocks by exposing them to elevated noise levels in the vicinity of the activity area.

    Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt et al., 2000; Finneran et al., 2002; 2005). TS can be permanent (PTS), in which case the loss of hearing sensitivity is unrecoverable, or temporary (TTS), in which case the animal's hearing threshold will recover over time (Southall et al., 2007). Since marine mammals depend on acoustic cues for vital biological functions, such as orientation, communication, finding prey, and avoiding predators, marine mammals that suffer from PTS or TTS will have reduced fitness in survival and reproduction, either permanently or temporarily. Repeated noise exposure that leads to TTS could cause PTS.

    In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions (Clark et al., 2009). Acoustic masking can interfere with detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. Therefore, under certain circumstances, marine mammals whose acoustical sensors or environment are being severely masked could also be impaired from maximizing their performance fitness in survival and reproduction.

    Masking occurs at the frequency band which the animals utilize. Therefore, since noise generated from in-water vibratory pile driving and removal is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes (toothed whales). However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (e.g., Clark et al., 2009) and cause increased stress levels (e.g., Foote et al., 2004; Holt et al., 2009).

    Unlike TS, masking can potentially affect the species at population, community, or even ecosystem levels, as well as individual levels. Masking affects both senders and receivers of the signals and could have long-term chronic effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 decibel (dB) (more than 3 times in terms of sound pressure level (SPL)) in the world's ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand 2009). All anthropogenic noise sources, such as those from vessel traffic, vessel docking, and stationing while operating DP thrusters, dredging and pipe laying associated with NEG Port and Pipeline Lateral maintenance and repair, and NEG regasification activities, contribute to the elevated ambient noise levels, thus increasing potential for or severity of masking.

    Finally, exposure of marine mammals to certain sounds could lead to behavioral disturbance (Richardson et al., 1995), such as: changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where noise sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries).

    The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification are expected to be biologically significant if the change affects growth, survival, and/or reproduction.

    The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall et al., 2007). Currently NMFS uses 160 dB re 1 microPascal (root-mean-square) (μPa (rms)) at received level for impulse noises (such as impact pile driving) as the onset of marine mammal behavioral harassment, and 120 dB re 1 μPa (rms) for non-impulse noises (such as operating DP thrusters, dredging, pipe laying, and NEG regasification). No impulse noise is expected from the NEG and Algonquin's proposed NEG Port and Pipeline Lateral operation, maintenance, and repair activities. For the NEG Port and Pipeline Lateral operations and maintenance and repair activities, only the 120 dB re 1 μPa (rms) threshold is considered because only non-impulse noise sources would be generated.

    Potential Effects on Marine Mammal Habitat

    The proposed action area is considered biologically important habitat for the North Atlantic right, fin, humpback, and minke whales during part of the seasons, and it is adjacent to the SBNMS. There is no critical habitat in the vicinity of the proposed action area.

    NEG Port Operations

    Operation of the NEG Port will not result in short-term effects, however, long-term effects on the marine environment, including alteration of the seafloor conditions, continued disturbance of the seafloor, regular withdrawal of sea water, and regular generation of underwater noise, will result from NEG Port operations. Specifically, a small area (0.14 acre) along the Pipeline Lateral has been permanently altered (armored) at two cable crossings. In addition, the structures associated with the NEG Port (flowlines, mooring wire rope and chain, suction anchors, and pipeline end manifolds) occupy 4.8 acres of seafloor. An additional area of the seafloor of up to 43 acres (worst case scenario based on severe 100-year storm with Energy Bridge Regasification Vehicle (EBRV) occupying both submerged turret loading (STL) buoys will be subject to disturbance due to chain sweep while the buoys are occupied. Given the relatively small size of the NEG Port area that will be directly affected by Port operations, NMFS does not anticipate that habitat loss will be significant.

    EBRVs are currently authorized to withdraw an average of 4.97 million gallons per day (mgd) and 2.6 billion gallons per year of sea water for general ship operations during cargo delivery activities at the NEG Port. However, as we explained in the Federal Register notice for the 2015 IHA (78 FR 69049; November 18, 2013), during the operations of the NEG Port facility, it was revealed that significantly more water usage is needed than what was originally evaluated in the final USCG Environmental Impact Statement/Environmental Impact Report (EIS/EIR). The updates for the needed water intake and discharge temperature are:

    • 11 billion gallons of total annual water use at the Port;

    • Maximum daily intake volume of up to 56 mgd at a rate of 0.45 ft per second when an EBRV is not able to achieve the heat recovery system (HRS) it is the capability of reducing water use during the regasification process) mode of operation; and,

    • Maximum daily change in discharge temperature of 12ºC (53.6ºF) from ambient from the vessel's main condenser cooling system.

    Under the requested water-use scenario, Tetra Tech (2011) conducted an environmental analysis on the potential impacts to marine mammals and their prey. To evaluate impacts to phytoplankton under the increased water usage, the biomass of phytoplankton lost from the Massachusetts Bay ecosystem was estimated based on the method presented in the final EIS/EIR. Phytoplankton densities of 65,000 to 390,000 cells/gallon were multiplied by the annual planned activities of withdrawal rate of 11 billion gallons to estimate a loss of 7.15 × 1014 to 4.29 × 1015 cells per year. Assuming a dry-weight biomass of 10−10 to 10−11 gramper cell (g/cell), an estimated 7.2 kilograms (kg) to 429 kg of biomass would be lost from Massachusetts Bay under the proposed activity, up to approximately 4.2 times that estimated in the final EIS/EIR for the permitted operational scenario. An order of magnitude estimate of the effect of this annual biomass loss on the regional food web can be calculated assuming a 10 percent transfer of biomass from one trophic level to the next (Sumich 1988) following the method used in the final EIS/EIR. This suggests that the loss of 7.2 kg to 429 kg of phytoplankton will result in the loss of about 0.7 kg to 42.9 kg of zooplankton, less than 0.1 kg to 4.3 kg of small planktivorous fish, and up to 0.4 kg of large piscivorous fish (approximately equivalent to a single 1=pound striped bass). Relative to the biomass of these trophic levels in the project area, this biomass loss is minor and consistent with the findings in the final EIS/EIR.

    In addition, zooplankton losses will also increase proportionally to the increase in water withdrawn. The final EIS/EIR used densities of zooplankton determined by the sampling conducted by the Massachusetts Water Resource Authority (MWRA) to characterize the area around its offshore outfall and assumed a mean zooplankton density of 34.9 x 103 organisms per m3. Applying this density, the water withdrawal volume under the proposed activity would result in the entrainment of 2.2 x 1010 zooplankton individuals per trip or 1.5 x 1012 individuals per year. Assuming an average biomass of 0.63 x10-6 g per individual, this would result in the loss of 14.1 kg of zooplankton per shipment or 916.5 kg of zooplankton per year. As discussed for phytoplankton, biomass transfers from one trophic level to the next at a rate of about 10 percent. Therefore, this entrainment of zooplankton would result in loss of about 91.6 kg of planktivorous fish and 9.2 kg of large piscivorous fish (approximately equivalent to two 9-pound striped bass). These losses are minor relative to the total biomass of these trophic levels in Massachusetts Bay.

    Finally, ichthyoplankton (fish eggs and larvae) losses and equivalent age one juvenile fish estimates under the proposed activity were made based on actual monthly ichthyoplankton data collected in the port area from October 2005 through December 2009 and the proposed activity withdrawal volume of 11 billion gallons per year evenly distributed among months (0.92 billion gallons per month) as a worst-case scenario, representing the maximum number of NEG Port deliveries during any given month. Similarly, the lower, upper, and mean annual entrainment estimates are based on the lower and upper 95 percent confidence limits, of the monthly mean ichthyoplankton densities, and the monthly mean estimates multiplied by the monthly withdrawal rate of 0.92 billion gallons per month. At this withdrawal rate approximately 106 million eggs and 67 million larvae are estimated to be lost (see Table 4.2-2 of the IHA application). The most abundant species and life stages estimated to be entrained under the proposed activity are cunner post yolk-sac larvae (33.3 million), yellowtail flounder/Labridae eggs (27.4 million) and hake species eggs (18.7 million). Together, these species and life stages accounted for approximately 46 percent of the total entrainment estimated. Entrainment was estimated to be highest in June through July when 97.4 million eggs and larvae (approximately 57 percent of the annual total) were estimated to be entrained. However, the demand for natural gas and corresponding NEG Port activities will likely be greatest during the winter heating season (November through March) when impacts from entrainment will likely be lower.

    These estimated losses are not significant given the very high natural mortality of ichthyoplankton. This comparison was done in the final EIS/EIR where ichthyoplankton losses based on historic regional ichthyoplankton densities and a withdrawal rate of approximately 2.6 billion gallons per year were represented by the equivalent number of age-one fish. Under the final EIS/EIR withdrawal scenario, equivalent age-one losses due to entrainment ranged from 1 haddock to 43,431 sand lance (Tetra Tech 2010). Equivalent age-one losses under the conditions when no NEG Port operation occurrence were recalculated using Northeast Gateway monitoring data in order to facilitate comparisons between the permitted scenario and the updated scenario. Using Northeast Gateway monitoring data, withdrawal of 2.6 billion gallons per year would result in equivalent age-one losses ranging from less than 1 haddock to 5,602 American sand lance. By comparison, equivalent age one losses under the proposed activity withdrawal rate of 11 billion gallons per year ranged from less than 1 haddock to 23,701 sand lance and were generally similar to or less than those in the final EIS/EIR. Substantially more equivalent age-one Atlantic herring, pollock, and butterfish were estimated to be lost under the final EIS/EIR at a withdrawal rate of 2.6 billion gallons per year, while substantially more equivalent age-one Atlantic cod, silver hake and hake species, cunner, and Atlantic mackerel are estimated to be lost under the proposed activity.

    Although no reliable annual food consumption rates of baleen whales are available for comparison, based on the calculated quantities of phytoplankton, zooplankton, and ichthyoplankton removal analyzed above, it is reasonable to conclude that baleen whale predation rates would dwarf any reasonable estimates of prey removals by NEG Port operations.

    NEG Port Maintenance

    As stated earlier, NEG Port will require scheduled maintenance inspections using either divers or remote operated vehicles (ROVs). The duration of these inspections are not anticipated to be more than two 8-hour working days. An EBRV will not be required to support these annual inspections. Water usage during the NEG Port maintenance would be limited to the standard requirements of NEG's normal support vessel. As with all vessels operating in Massachusetts Bay, sea water uptake and discharge is required to support engine cooling, typically using a once-through system. The rate of seawater uptake varies with the ship's horsepower and activity and therefore will differ between vessels and activity type. For example, the Gateway Endeavor is a 90-foot vessel powered with a 1,200-horsepower diesel engine with a four-pump seawater cooling system. This system requires seawater intake of about 68 gallons per minute (gpm) while idling and up to about 150 gpm at full power. Use of full power is required generally for transit. A conservatively high estimate of vessel activity for the Gateway Endeavor would be operation at idle for 75 percent of the time and full power for 25 percent of the time. During the routine activities this would equate to approximately 42,480 gallons of seawater per 8-hour work day. When compared to the engine cooling requirements of an EBRV over an 8-hour period (approximately 18 million gallons), the Gateway Endeavour uses about 0.2 percent of the EBRV requirement. To put this water use into context, potential effects from the water-use scenario of 56 mgd have been concluded to be orders of magnitude less than the natural fluctuations of Massachusetts Bay and Cape Cod Bay and not detectable. Water use by support vessels during routine port activities would not materially add to the overall impacts.

    Certain maintenance and repair activities may also require the presence of an EBRV at the NEG Port. Such instances may include maintenance and repair on the STL Buoy, vessel commissioning, and any onboard equipment malfunction or failure occurring while a vessel is present for cargo delivery. Because the requested water-use scenario allows for daily water use of up to 56 mgd to support standard EBRV requirements when not operating in the HRS mode, vessels would be able to remain at the NEG Port as necessary to support all such maintenance and repair scenarios. Therefore, NMFS considers that NEG Port maintenance and repair would have negligible impacts to marine mammal habitat in the proposed activity area.

    Unanticipated Algonquin Pipeline Lateral Maintenance and Repair

    As stated earlier, proper care and maintenance of the Pipeline Lateral should minimize the likelihood of an unanticipated maintenance and/or repair event. However, unanticipated activities may occur from time to time if facility components become damaged or malfunction. Unanticipated repairs may range from relatively minor activities requiring minimal equipment and one or two diver/ROV support vessels to major activities requiring larger construction-type vessels similar to those used to support the construction and installation of the facility.

    Major repair activities, although unlikely, may include repairing or replacement of pipeline manifolds or sections of the Pipeline Lateral. This type of work would likely require the use of large specialty construction vessels such as those used during the construction and installation of the NEG Port and Pipeline Lateral. The duration of a major unplanned activity would depend upon the type of repair work involved and would require careful planning and coordination.

    Turbidity would likely be a potential effect of Pipeline Lateral maintenance and repair activities on listed species. In addition, the possible removal of benthic or planktonic species, resulting from relatively minor construction vessel water use requirements, as measured in comparison to EBRV water use, is unlikely to affect in a measurable way the food sources available to marine mammals. Thus, any impacts to marine mammal habitat are not expected to cause significant or long-term consequences for individual marine mammals or their populations.

    Proposed Mitigation Measures

    In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat.

    For the proposed NEG's NEG Port operations and maintenance and repair activities, Excelerate and Tetra Tech worked with NMFS to develop mitigation measures to minimize the potential impacts to marine mammal populations in the project vicinity as a result of the NEG Port and Pipeline Lateral operations and maintenance and repair activities. The primary purpose of these proposed mitigation measures is to ensure that no marine mammal would be injured or killed by vessels transiting the NEG Port facility, and to minimize the intensity of noise exposure of marine mammals in the activity area. For the proposed NEG Port and Pipeline Lateral operations and maintenance and repair, the following mitigation measures are proposed.

    (a) General Marine Mammal Avoidance Measures

    All vessels shall utilize the International Maritime Organization (IMO)-approved Boston Traffic Separation Scheme (TSS) on their approach to and departure from the NEG Port and/or the repair/maintenance area at the earliest practicable point of transit in order to avoid the risk of whale strikes.

    Upon entering the TSS and areas where North Atlantic right whales are known to occur, including the Great South Channel Seasonal Management Area (GSC-SMA) and the SBNMS, EBRVs shall go into “Heightened Awareness” as described below.

    (1) Prior to entering and navigating the modified TSS, the Master of the vessel shall:

    • Consult Navigational Telex (NAVTEX), NOAA Weather Radio, the NOAA Right Whale Sighting Advisory System (SAS) or other means to obtain current right whale sighting information as well as the most recent Cornell acoustic monitoring buoy data for the potential presence of marine mammals;

    • Post a look-out to visually monitor for the presence of marine mammals;

    • Provide the USCG required 96-hour notification of an arriving EBRV to allow the NEG Port manager to notify Cornell of vessel arrival.

    (2) The look-out shall concentrate his/her observation efforts within the 2-mile radius ZOI from the maneuvering EBRV.

    (3) If marine mammal detection was reported by NAVTEX, NOAA Weather Radio, SAS and/or an acoustic monitoring buoy, the look-out shall concentrate visual monitoring efforts towards the areas of the most recent detection.

    (4) If the look-out (or any other member of the crew) visually detects a marine mammal within the 2-mile radius ZOI of a maneuvering EBRV, he/she will take the following actions:

    • The Officer-of-the-Watch shall be notified immediately; who shall then relay the sighting information to the Master of the vessel to ensure action(s) can be taken to avoid physical contact with marine mammals; and

    • The sighting shall be recorded in the sighting log by the designated look-out.

    In accordance with 50 CFR 224.103(c), all vessels associated with NEG Port and Pipeline Lateral activities shall not approach closer than 500 yards (yd, 460 m) to a North Atlantic right whale and 100 yd (91 m) to other whales to the extent physically feasible given navigational constraints. In addition, when approaching and departing the project area, vessels shall be operated so as to remain at least 1 kilometer away from any visually-detected North Atlantic right whales.

    In response to active right whale sightings and active acoustic detections, and taking into account exceptional circumstances, EBRVs as well as repair and maintenance vessels shall take appropriate actions to minimize the risk of striking whales. Specifically vessels shall:

    (1) Respond to active right whale sightings and/or Dynamic Management Areas (DMAs) reported on the Mandatory Ship Reporting (MSR) or SAS by concentrating monitoring efforts towards the area of most recent detection and reducing speed to 10 knots or less if the vessel is within the boundaries of a DMA or within the circular area centered on an area 8 nautical miles (nmi) in radius from a sighting location;

    (2) Respond to active acoustic detections by concentrating monitoring efforts towards the area of most recent detection and reducing speed to 10 knots or less within an area 5 nm in radius centered on the detecting auto-detection buoy (AB); and

    (3) Respond to additional sightings made by the designated look-outs within a 2-mile radius of the vessel by slowing the vessel to 10 knots or less and concentrating monitoring efforts towards the area of most recent sighting.

    All vessels operated under NEG and Algonquin must follow the established specific speed restrictions when calling at the NEG Port. The specific speed restrictions required for all vessels (i.e., EBRVs and vessels associated with maintenance and repair) consist of the following:

    (1) Vessels shall reduce their maximum transit speed while in the TSS from 12 knots or less to 10 knots or less from March 1 to April 30 in all waters bounded by straight lines connecting the following points in the order stated below unless an emergency situation dictates for an alternate speed. This area shall hereafter be referred to as the Off Race Point Seasonal Management Area (ORP-SMA) and tracks NMFS regulations at 50 CFR 224.105:

    42°30′ N. 70°30′ W. 41°40′ N. 69°57′ W. 42°30′ N. 69°45′ W. 42°12′ N. 70°15′ W. 41°40′ N. 69°45′ W. 42°12′ N. 70°30′ W. 42°04.8′ N. 70°10′ W. 42°30′ N. 70°30′ W.;

    (2) Vessels shall reduce their maximum transit speed while in the TSS to 10 knots or less unless an emergency situation dictates for an alternate speed from April 1 to July 31 in all waters bounded by straight lines connecting the following points in the order stated below. This area shall hereafter be referred to as the GSC-SMA and tracks NMFS regulations at 50 CFR 224.105:

    42°30′ N. 69°45′ W. 41°40′ N. 69°45′ W. 42°30′ N. 67°27′ W. 42°30′ N. 69°45′ W. 42°09′ N. 67°08.4′ W. 41°00′ N. 69°05′ W.;

    (3) Vessels are not expected to transit the Cape Cod Bay or the Cape Cod Canal; however, in the event that transit through the Cape Cod Bay or the Cape Cod Canal is required, vessels shall reduce maximum transit speed to 10 knots or less from January 1 to May 15 in all waters in Cape Cod Bay, extending to all shorelines of Cape Cod Bay, with a northern boundary of 42°12′ N. latitude and the Cape Cod Canal. This area shall hereafter be referred to as the Cape Cod Bay Seasonal Management Area (CCB-SMA);

    (4) All Vessels transiting to and from the project area shall report their activities to the mandatory reporting Section of the USCG to remain apprised of North Atlantic right whale movements within the area. All vessels entering and exiting the MSRA shall report their activities to WHALESNORTH. Vessel operators shall contact the USCG by standard procedures promulgated through the Notice to Mariner system;

    (5) All Vessels greater than or equal to 300 gross tons (GT) shall maintain a speed of 10 knots or less, unless an emergency situation requires speeds greater than 10 knots; and

    (6) All Vessels less than 300 GT traveling between the shore and the project area that are not generally restricted to 10 knots will contact the Mandatory Ship Reporting (MSR) system, the USCG, or the project site before leaving shore for reports of active DMAs and/or recent right whale sightings and, consistent with navigation safety, restrict speeds to 10 knots or less within 5 miles (mi) (8 km) of any sighting location, when traveling in any of the seasonal management areas (SMAs) or when traveling in any active DMA.

    (b) NEG Port-Specific Operations

    In addition to the general marine mammal avoidance requirements identified above, vessels calling on the NEG Port must comply with the following additional requirements:

    (1) EBRVs shall travel at 10 knots maximum speed when transiting to/from the TSS or to/from the NEG Port/Pipeline Lateral area. For EBRVs, at 1.86 mi (3 km) from the NEG Port, speed will be reduced to 3 knots and to less than 1 knot at 1,640 ft (500 m) from the NEG buoys, unless an emergency situation dictates the need for an alternate speed;

    (2) EBRVs that are approaching or departing from the NEG Port and are within the Area to be Avoided (ATBA) surrounding the NEG Port, shall remain at least 1 km away from any visually-detected North Atlantic right whale and at least 100 yd (91 m) away from all other visually-detected whales unless an emergency situation requires that the vessel stay its course. During EBRV maneuvering, the Vessel Master shall designate at least one look-out to be exclusively and continuously monitoring for the presence of marine mammals at all times while the EBRV is approaching or departing from the NEG Port;

    (3) During NEG Port operations, in the event that a whale is visually observed within 1 km of the NEG Port or a confirmed acoustic detection is reported on either of the two ABs closest to the NEG Port (western-most in the TSS array), departing EBRVs shall delay their departure from the NEG Port, unless an emergency situation requires that departure is not delayed. This departure delay shall continue until either the observed whale has been visually (during daylight hours) confirmed as more than 1 km from the NEG Port or 30 minutes have passed without another confirmed detection either acoustically within the acoustic detection range of the two ABs closest to the NEG Port, or visually within 1 km from the NEG Port.

    Vessel captains shall focus on reducing DP thruster power to the maximum extent practicable, taking into account vessel and Port safety, during the operation activities. Vessel captains will shut down thrusters whenever they are not needed.

    (c) Planned and Unplanned Maintenance and Repair Activities NEG Port

    (1) The Northeast Gateway shall conduct empirical source level measurements on all noise emitting from construction equipment and all vessels that are involved in maintenance/repair work.

    (2) If DP systems are to be employed and/or activities will emit noise with a source level of 139 dB re 1 μPa at 1 m, activities shall be conducted in accordance with the requirements for DP systems listed above.

    (3) Northeast Gateway shall provide the NMFS Headquarters Office of the Protected Resources, NMFS Northeast Region Ship Strike Coordinator, and SBNMS with a minimum of 30-days notice prior to any planned repair and/or maintenance activity. For any unplanned/emergency repair/maintenance activity, Northeast Gateway shall notify the agencies as soon as it determines that repair work must be conducted. Northeast Gateway shall continue to keep the agencies apprised of repair work plans as further details (e.g., the time, location, and nature of the repair) become available. A final notification shall be provided to agencies 72 hours prior to crews being deployed into the field.

    Pipeline Lateral

    (1) Pipeline maintenance/repair vessels less than 300 GT traveling between the shore and the maintenance/repair area that are not generally restricted to 10 knots shall contact the MSR system, the USCG, or the project site before leaving shore for reports of active DMAs and/or recent right whale sightings and, consistent with navigation safety, restrict speeds to 10 knots or less within 5 mi (8 km) of any sighting location, when travelling in any of the seasonal management areas (SMAs) as defined above.

    (2) Maintenance/repair vessels greater than 300 GT shall not exceed 10 knots, unless an emergency situation that requires speeds greater than 10 knots.

    (3) Planned maintenance and repair activities shall be restricted to the period between May 1 and November 30 when most of the majority of North Atlantic right whales are absent in the area.

    (4) Unplanned/emergency maintenance and repair activities shall be conducted utilizing anchor-moored dive vessel whenever operationally possible.

    (5) Algonquin shall also provide the NMFS Office of the Protected Resources, NMFS Northeast Region Ship Strike Coordinator, and SBNMS with a minimum of 30-day notice prior to any planned repair and/or maintenance activity. For any unplanned/emergency repair/maintenance activity, Northeast Gateway shall notify the agencies as soon as it determines that repair work must be conducted. Algonquin shall continue to keep the agencies apprised of repair work plans as further details (e.g., the time, location, and nature of the repair) become available. A final notification shall be provided to agencies 72 hours prior to crews being deployed into the field.

    (6) If DP systems are to be employed and/or activities will emit noise with a source level of 139 dB re 1 μPa at 1 m, activities shall be conducted in accordance with the requirements for DP systems listed in (5)(b)(ii).

    (7) In the event that a whale is visually observed within 0.5 mi (0.8 km) of a repair or maintenance vessel, the vessel superintendent or on-deck supervisor shall be notified immediately. The vessel's crew shall be put on a heightened state of alert and the marine mammal shall be monitored constantly to determine if it is moving toward the repair or maintenance area.

    (8) Repair/maintenance vessel(s) must cease any movement and/or cease all activities that emit noises with source level of 139 dB re 1 μPa @1 m or higher when a right whale is sighted within or approaching at 500 yd (457 meters) from the vessel. The source level of 139 dB corresponds to 120 dB received level at 500 yd (457 meters). Repair and maintenance work may resume after the marine mammal is positively reconfirmed outside the established zones (500 yd (457 meters)) or 30 minutes have passed without a redetection. Any vessels transiting the maintenance area, such as barges or tugs, must also maintain these separation distances.

    (9) Repair/maintenance vessel(s) must cease any movement and/or cease all activities that emit noises with source level of 139 dB re 1 μPa @1 m or higher when a marine mammal other than a right whale is sighted within or approaching at 100 yd (91 m) from the vessel. Repair and maintenance work may resume after the marine mammal is positively reconfirmed outside the established zones (100 yd (91 meters)) or 30 minutes have passed without a redetection. Any vessels transiting the maintenance area, such as barges or tugs, must also maintain these separation distances.

    (10) Algonquin and associated contractors shall also comply with the following:

    • Operations involving excessively noisy equipment (source level exceeding 139 dB re 1μPa @1 m) shall “ramp-up” sound sources, allowing whales a chance to leave the area before sounds reach maximum levels. In addition, Northeast Gateway, Algonquin, and other associated contractors shall maintain equipment to manufacturers' specifications, including any sound-muffling devices or engine covers in order to minimize noise effects. Noisy construction equipment shall only be used as needed and equipment shall be turned off when not in operation;

    • Any material that has the potential to entangle marine mammals (e.g., anchor lines, cables, rope or other construction debris) shall only be deployed as needed and measures shall be taken to minimize the chance of entanglement;

    • For any material that has the potential to entangle marine mammals, such material shall be removed from the water immediately unless such action jeopardizes the safety of the vessel and crew as determined by the Captain of the vessel; and

    • In the event that a marine mammal becomes entangled, the marine mammal coordinator and/or protected species observer (PSO) will notify NMFS (if outside the SBNMS), and SBNMS staff (if inside the SBNMS) immediately so that a rescue effort may be initiated.

    (11) All maintenance/repair activities shall be scheduled to occur between May 1 and November 30. However, in the event of unplanned/emergency repair work that cannot be scheduled during the preferred May through November work window, the following additional measures shall be followed for Pipeline Lateral maintenance and repair related activities between December and April:

    • Between December 1 and April 30, if on-board PSOs do not have at least 0.5-mile visibility, they shall call for a shutdown. At the time of shutdown, the use of thrusters must be minimized. If there are potential safety problems due to the shutdown, the captain will decide what operations can safely be shut down;

    • Prior to leaving the dock to begin transit, the barge shall contact one of the PSOs on watch to receive an update of sightings within the visual observation area. If the PSO has observed a North Atlantic right whale within 30 minutes of the transit start, the vessel shall hold for 30 minutes and again get a clearance to leave from the PSOs on board. PSOs shall assess whale activity and visual observation ability at the time of the transit request to clear the barge for release;

    • Transit route, destination, sea conditions and any marine mammal sightings/mitigation actions during watch shall be recorded in the log book. Any whale sightings within 1,000 meters of the vessel shall result in a high alert and slow speed of 4 knots or less and a sighting within 750 m shall result in idle speed and/or ceasing all movement;

    • The material barges and tugs used in repair and maintenance shall transit from the operations dock to the work sites during daylight hours when possible provided the safety of the vessels is not compromised. Should transit at night be required, the maximum speed of the tug shall be 5 knots; and

    • All repair vessels must maintain a speed of 10 knots or less during daylight hours. All vessels shall operate at 5 knots or less at all times within 5 km of the repair area.

    Acoustic Monitoring Related Activities

    Vessels associated with maintaining the AB network operating as part of the mitigation/monitoring protocols shall adhere to the following speed restrictions and marine mammal monitoring requirements.

    (1) In accordance with 50 CFR 224.103 (c), all vessels associated with NEG Port activities shall not approach closer than 500 yd (460 meters) to a North Atlantic right whale.

    (2) All vessels shall obtain the latest DMA or right whale sighting information via the NAVTEX, MSR, SAS, NOAA Weather Radio, or other available means prior to operations.

    Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

    • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;

    • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and

    • The practicability of the measure for applicant implementation.

    Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:

    (1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal);

    (2) A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of pile driving and pile removal or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only);

    (3) A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of pile driving, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only);

    (4) Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time and

    (5) For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

    Based on our evaluation of the applicant's proposed measures that include vessel speed reduction, noise level related shutdown measures, and ramping up procedures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Tetra Tech submitted a marine mammal monitoring plan as part of the IHA application. It can be found at http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The plan may be modified or supplemented based on comments or new information received from the public during the public comment period.

    Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:

    (1) An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;

    (2) An increase in our understanding of how many marine mammals are likely to be exposed to levels of pile driving that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;

    (3) An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:

    Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information); and

    Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;

    (4) An increased knowledge of the affected species; and

    (5) An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.

    Proposed Monitoring Measures (a) Vessel-Based Visual Monitoring

    Vessel-based monitoring for marine mammals shall be done by trained look-outs during NEG Port and Pipeline Lateral operations and maintenance and repair activities. The observers shall monitor the occurrence of marine mammals near the vessels during NEG Port and Pipeline Lateral related activities. Lookout duties include watching for and identifying marine mammals; recording their numbers, distances, and reactions to the activities; and documenting “take by harassment.” The vessel look-outs assigned to visually monitor for the presence of marine mammals shall be provided with the following:

    (1) Recent NAVTEX, NOAA Weather Radio, SAS and/or acoustic monitoring buoy detection data;

    (2) Binoculars to support observations;

    (3) Marine mammal detection guide sheets; and

    (4) Sighting log.

    (b) NEG NEG Port Operations

    All individuals onboard the EBRVs responsible for the navigation duties and any other personnel that could be assigned to monitor for marine mammals shall receive training on marine mammal sighting/reporting and vessel strike avoidance measures.

    While an EBRV is navigating within the designated TSS, there shall be three people with look-out duties on or near the bridge of the ship including the Master, the Officer-of-the-Watch and the Helmsman-on-watch. In addition to the standard watch procedures, while the EBRV is transiting within the designated TSS, maneuvering within the ATBA, and/or while actively engaging in the use of thrusters, an additional look-out shall be designated to exclusively and continuously monitor for marine mammals.

    All sightings of marine mammals by the designated look-out, individuals posted to navigational look-out duties, and/or any other crew member while the EBRV is transiting within the TSS, maneuvering within the ATBA and/or when actively engaging in the use of thrusters, shall be immediately reported to the Officer-of-the-Watch who shall then alert the Master. The Master or Officer-of-the-Watch shall ensure the required reporting procedures are followed and the designated marine mammal look-out records all pertinent information relevant to the sighting.

    Visual sightings made by look-outs from the EBRVs shall be recorded using a standard sighting log form. Estimated locations shall be reported for each individual and/or group of individuals categorized by species when known. This data shall be entered into a database and a summary of monthly sighting activity shall be provided to NMFS. Estimates of take and copies of these log sheets shall also be included in the reports to NMFS.

    (c) Planned and Unplanned Maintenance and Repair

    Two qualified and NMFS-approved PSOs shall be assigned to each vessel that will use DP systems during maintenance and repair related activities. PSOs shall operate individually in designated shifts to accommodate adequate rest schedules. Additional PSOs shall be assigned to additional vessels if AB data indicates that sound levels exceed 120 dB re 1 µPa, further then 100 m (328 ft) from these vessels.

    All PSOs shall receive NMFS-approved marine mammal observer training and be approved in advance by NMFS after review of their resume. All PSOs shall have direct field experience on marine mammal vessels and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico.

    PSOs (one primary and one secondary) shall be responsible for visually locating marine mammals at the ocean's surface and, to the extent possible, identifying the species. The primary PSO shall act as the identification specialist and the secondary PSO will serve as data recorder and also assist with identification. Both PSOs shall have responsibility for monitoring for the presence of marine mammals and sea turtles. Specifically PSO's shall:

    (1) Monitor at all hours of the day, scanning the ocean surface by eye for a minimum of 40 minutes every hour;

    (2) Monitor the area where maintenance and repair work is conducted beginning at daybreak using 25x power binoculars and/or hand-held binoculars. Night vision devices must be provided as standard equipment for monitoring during low-light hours and at night;

    (3) Conduct general 360° visual monitoring during any given watch period and target scanning by the observer shall occur when alerted of a whale presence;

    (4) Alert the vessel superintendent or construction crew supervisor of visual detections within 2 mi (3.31 km) immediately;and

    (5) Record all sightings on marine mammal field sighting logs. Specifically, all data shall be entered at the time of observation, notes of activities will be kept, and a daily report prepared and attached to the daily field sighting log form. The basic reporting requirements include the following:

    • Beaufort sea state;

    • Wind speed;

    • Wind direction;

    • Temperature;

    • Precipitation;

    • Glare;

    • Percent cloud cover;

    • Number of animals;

    • Species;

    • Position;

    • Distance;

    • Behavior;

    • Direction of movement; and

    • Apparent reaction to construction activity.

    In the event that a whale is visually observed within the 2-mi (3.31-km) ZOI of a DP vessel or other construction vessel that has shown to emit noise with source level in excess of 139 dB re 1 μPa @1 m, the PSO will notify the repair/maintenance construction crew to minimize the use of thrusters until the animal has moved away, unless there are divers in the water or an ROV is deployed.

    (d) Acoustic Monitoring

    Northeast Gateway shall deploy 10 ABs within the Separation Zone of the TSS for the operational life of the Project. The ABs shall be used to detect a calling North Atlantic right whale an average of 5 nmi from each AB. The AB system shall be the primary detection mechanism that alerts the EBRV Master to the occurrence of right whales, heightens EBRV awareness, and triggers necessary mitigation actions as described above. Northeast Gateway shall conduct short-term passive acoustic monitoring to document sound levels during:

    (1) The initial operational events in the 2015-2016 winter heating season;

    (2) Regular deliveries outside the winter heating season should such deliveries occur; and

    (3) Scheduled and unscheduled maintenance and repair activities.

    Northeast Gateway shall conduct long-term monitoring of the noise environment in Massachusetts Bay in the vicinity of the NEG Port and Pipeline Lateral using marine autonomous recording units (MARUs) when there is anticipated to be more than 5 NEG shipments in a 30-day period or over 20 shipments in a 6-month period.

    The acoustic data collected shall be analyzed to document the seasonal occurrences and overall distributions of whales (primarily fin, humpback and right whales) within approximately 10 nmi of the NEG Port and shall measure and document the noise “budget” of Massachusetts Bay so as to eventually assist in determining whether or not an overall increase in noise in the Bay associated with the Project might be having a potentially negative impact on marine mammals.

    Northeast Gateway shall make all acoustic data, including data previously collected by the MARUs during prior construction, operations, and maintenance and repair activities, available to NOAA. Data storage will be the responsibility of NOAA.

    (e) Acoustic Whale Detection and Response Plan NEG Port Operations

    (1) Ten ABs that have been deployed since 2007 shall be used to continuously screen the low-frequency acoustic environment (less than 1,000 Hertz) for right whale contact calls occurring within an approximately 5-nm radius from each buoy (the AB's detection range).

    (2) Once a confirmed detection is made, the Master of any EBRVs operating in the area will be alerted immediately.

    NEG Port and Pipeline Lateral Planned and Unplanned/Emergency Repair and Maintenance Activities

    (1) If the repair/maintenance work is located outside of the detectible range of the 10 project area ABs, Northeast Gateway and Algonquin shall consult with NOAA (NMFS and SBNMS) to determine if the work to be conducted warrants the temporary installation of an additional AB(s) to help detect and provide early warnings for potential occurrence of right whales in the vicinity of the repair area.

    (2) The number of ABs installed around the activity site shall be commensurate with the type and spatial extent of maintenance/repair work required, but must be sufficient to detect vocalizing right whales within the 120-dB impact zone.

    (3) Should acoustic monitoring be deemed necessary during a planned or unplanned/emergency repair and/or maintenance event, active monitoring for right whale calls shall begin 24 hours prior to the start of activities.

    (4) Source level data from the acoustic recording units deployed in the NEG Port and/or Pipeline Lateral maintenance and repair area shall be provided to NMFS.

    Proposed Reporting Measures

    (a) Throughout NEG Port and Pipeline Lateral operations, Northeast Gateway and Algonquin shall provide a monthly Monitoring Report. The Monitoring Report shall include:

    • Both copies of the raw visual EBRV lookout sighting information of marine mammals that occurred within 2 miles of the EBRV while the vessel transits within the TSS, maneuvers within the ATBA, and/or when actively engaging in the use of thrusters, and a summary of the data collected by the look-outs over each reporting period;

    • Copies of the raw PSO sightings information on marine mammals gathered during pipeline repair or maintenance activities. This visual sighting data shall then be correlated to periods of thruster activity to provide estimates of marine mammal takes (per species/species class) that took place during each reporting period; and

    • Conclusion of any planned or unplanned/emergency repair and/or maintenance period, a report shall be submitted to NMFS summarizing the repair/maintenance activities, marine mammal sightings (both visual and acoustic), empirical source-level measurements taken during the repair work, and any mitigation measures taken.

    (b) During the maintenance and repair of NEG Port and Pipeline Lateral components, weekly status reports shall be provided to NOAA (both NMFS and SBNMS) using standardized reporting forms. The weekly reports shall include data collected for each distinct marine mammal species observed in the repair/maintenance area during the period that maintenance and repair activities were taking place. The weekly reports shall include the following information:

    • Location (in longitude and latitude coordinates), time, and the nature of the maintenance and repair activities;

    • Indication of whether a DP system was operated, and if so, the number of thrusters being used and the time and duration of DP operation;

    • Marine mammals observed in the area (number, species, age group, and initial behavior);

    • The distance of observed marine mammals from the maintenance and repair activities;

    • Changes, if any, in marine mammal behaviors during the observation;

    • A description of any mitigation measures (power-down, shutdown, etc.) implemented;

    • Weather condition (Beaufort sea state, wind speed, wind direction, ambient temperature, precipitation, and percent cloud cover etc.);

    • Condition of the observation (visibility and glare); and

    • Details of passive acoustic detections and any action taken in response to those detections.

    (d) Injured/Dead Protected Species Reporting

    In the unanticipated event that survey operations clearly cause the take of a marine mammal in a manner prohibited by the proposed IHA, such as an injury (Level A harassment), serious injury or mortality (e.g., ship-strike, gear interaction, and/or entanglement), NEG and/or Algonquin shall immediately cease activities and immediately report the incident to the Supervisor of the Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, NMFS and the Northeast Regional Stranding Coordinators. The report must include the following information:

    • Time, date, and location (latitude/longitude) of the incident;

    • The name and type of vessel involved;

    • The vessel's speed during and leading up to the incident;

    • Description of the incident;

    • Status of all sound source use in the 24 hours preceding the incident;

    • Water depth;

    • Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    • Description of marine mammal observations in the 24 hours preceding the incident;

    • Species identification or description of the animal(s) involved;

    • The fate of the animal(s); and

    • Photographs or video footage of the animal (if equipment is available).

    Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with NEG and/or Algonquin to determine what is necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Protection Act (MMPA) compliance. NEG and/or Algonquin may not resume their activities until notified by NMFS via letter, email, or telephone.

    In the event that NEG and/or Algonquin discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), NEG and/or Algonquin will immediately (i.e., within 24 hours of the discovery) report the incident to the Supervisor of the Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Northeast Stranding Coordinators. The report must include the same information identified above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with NEG and/or Algonquin to determine whether modifications in the activities are appropriate.

    In the event that NEG or Algonquin discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized (if the IHA is issued) (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), NEG and/or Algonquin shall report the incident to the Supervisor of the Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Northeast Stranding Coordinators, within 24 hours of the discovery. NEG and/or Algonquin shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. NEG and/or Algonquin can continue its operations under such a case.

    Marine Mammal Monitoring Report From Previous IHA

    Prior marine mammal monitoring during NEG Port and Pipeline Lateral operation, maintenance and repair activities and monthly marine mammal observation memorandums (NEG 2010; 2015; 2016) indicate that only a small number of marine mammals were observed during these activities. Only one NEG Port operation occurred within the dates of the current IHA (starting December 23, 2015) and only one unidentified small whale was observed at a distance of 2 nmi from the NEG vessel on January 17, 2016. No other NEG Port and Pipeline Lateral related activity occurred during this period.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). Only take by Level B harassment is anticipated as a result of NEG's operation and maintenance and repair activities. Anticipated take of marine mammals is associated with operation of dynamic positioning during the docking of the NEG vessels and positioning of maintenance and dive vessels, and by operations of certain machinery during maintenance and repair activities. The regasification process itself is an activity that does not rise to the level of taking, as the modeled source level for this activity is 108 dB. Certain species may have a behavioral reaction to the sound emitted during the activities. Hearing impairment is not anticipated. Additionally, vessel strikes are not anticipated, especially because of the speed restriction measures that are proposed that were described earlier in this document.

    The full suite of potential impacts to marine mammals was described in detail in the “Potential Effects of the Specified Activity on Marine Mammals” section found earlier in this document. The potential effects of sound from the proposed NEG Port and Pipeline Lateral operations, maintenance and repair activities might include one or more of the following: masking of natural sounds and behavioral disturbance (Richardson et al., 1995). As discussed earlier in this document, the most common impact will likely be from behavioral disturbance, including avoidance of the ensonified area or changes in speed, direction, and/or diving profile of the animal. Hearing impairment (TTS and PTS) is highly unlikely to occur based on low noise source levels from the proposed activities that would preclude marine mammals from being exposed to noise levels high enough to cause hearing impairment.

    For non-pulse sounds, such as those produced by operating DP thruster during vessel docking and supporting underwater construction and repair activities and the operations of various machineries that produces non-pulse noises, NMFS uses the 120 dB (rms) re 1 μPa isopleth to indicate the onset of Level B harassment.

    The basis for Northeast Gateway and Algonquin's “take” estimate is the number of marine mammals that would be exposed to sound levels in excess of 120 dB, which is the threshold used by NMFS for non-pulse sounds. For the NEG Port and Pipeline Lateral operations and maintenance and repair activities, the take estimates are determined by multiplying the 120-dB ensonified area by local marine mammal density estimates, and then multiplying by the estimated number of days such activities would occur during a year-long period. For the NEG Port operations, the 120-dB ensonified area is 56.8 km2 for a single visit during docking when running DP system. Although two EBRV docking with simultaneous DP system running was modeled, this situation would not occur in reality. For NEG Port and Pipeline Lateral maintenance and repair activities, modeling based on the empirical measurements showed that the distance of the 120-dB radius is expected to be 3.5 km, making a maximum 120-dB ZOI of approximately 40.7 km2.

    NEG Port and Algonquin Pipeline Lateral Activities Acoustic Footprints I. NEG Port Operations

    For the purposes of understanding the noise footprint of operations at the NEG Port, measurements taken to capture operational noise (docking, undocking, regasification, and EBRV thruster use) during the 2006 Gulf of Mexico field event were taken at the source. Measurements taken during EBRV transit were normalized to a distance of 328 ft (100 m) to serve as a basis for modeling sound propagation at the NEG Port site in Massachusetts Bay.

    Sound propagation calculations for operational activities were then completed at two positions in Massachusetts Bay to determine site-specific distances to the 120/160/180 dB isopleths:

    • Operations Position 1—Port (EBRV Operations): 70°36.261′ W. and 42°23.790′ N.; and

    • Operations Position 2—Boston TSS (EBRV Transit): 70°17.621′ W. and 42°17.539′ N.

    At each of these locations sound propagation calculations were performed to determine the noise footprint of the operation activity at each of the specified locations. Updated acoustic modeling was completed using Tetra Tech's underwater sound propagation program which utilizes a version of the publicly available Range Dependent Acoustic Model (RAM). Based on the U.S. Navy's Standard Split-Step Fourier Parabolic Equation, this modeling methodology considers range and depth along with a geo-referenced dataset to automatically retrieve the time of year information, bathymetry, and seafloor geoacoustic properties along the given propagation transects radiating from the sound source. The calculation methodology assumes that outgoing energy dominates over scattered energy, and computes the solution for the outgoing wave equation. An approximation is used to provide two-dimensional transmission loss values in range and depth, i.e., computation of the transmission loss as a function of range and depth within a given radial plane is carried out independently of neighboring radials, reflecting the assumption that sound propagation is predominantly away from the source. Transects were run along compass points at angular directions ranging from 0 to 360° in 5 degree increments. The received underwater sound levels at any location within the region of interest are computed from the 1/3-octave band source levels by subtracting the numerically modelled transmission loss at each 1/3-octave band center frequency and summing across all frequencies to obtain a broadband value. The resultant underwater sound pressure levels to the 120 dB isopleth is presented in Table 2.

    Table 2—Radii of 120-dB SPL Isopleths From NEG Port and Algonquin Pipeline Lateral Operations, Maintenance, and Repair Activities Activities Radius to
  • 120-dB zone
  • (m)
  • 120-dB
  • ensonified area
  • (km2)
  • One EBRV docking procedure with support vessel 4,250 56.8 Barge/tug (pulling & pushing)/construction vessel/barge @mid-pipeline 3,500 40.7
    II. NEG Port Maintenance and Repair

    Modeling analysis conducted for the construction of the NEG Port concluded that the only underwater noise of critical concern during NEG Port construction would be from vessel noises such as turning screws, engine noise, noise of operating machinery, and thruster use. To confirm these modeled results and better understand the noise footprint associated with construction activities at the NEG Port, field measurements were taken of various construction activities during the 2007 NEG Port and Pipeline Lateral Construction period. Measurements were taken and normalized as described to establish the “loudest” potential construction measurement event. One position within Massachusetts Bay was then used to determine site-specific distances to the 120/180 dB isopleths for NEG Port maintenance and repair activities:

    Construction Position 1. Port: 70°36.261′ W. and 42°23.790′ N.

    Sound propagation calculations were performed to determine the noise footprint of the construction activity. The results showed that the estimated distance from the loudest source involved in construction activities fell to 120 dB re 1 μPa at a distance of 3,500 m.

    III. Algonquin Pipeline Lateral Operation and Maintenance Activities

    Modeling analysis conducted during the NEG Port and Pipeline Lateral construction concluded that the only underwater noise of critical concern during such activities would be from vessel noises such as turning screws, engine noise, noise of operating machinery, and thruster use. As with construction noise at the NEG Port, to confirm modeled results and better understand the noise footprint associated with construction activities along the Pipeline Lateral, field measurements were taken of various construction activities during the 2007 NEG Port and Algonquin Pipeline Lateral construction period. Measurements were taken and normalized to establish the “loudest” potential construction measurement event. Two positions within Massachusetts Bay were then used to determine site-specific distances to the 120/160/180 dB isopleths:

    • Construction Position 2. PLEM: 70°46.755′ W. and 42°28.764′ N.; and

    • Construction Position 3. Mid-Pipeline: 70°40.842′ W. and 42°31.328′ N.

    Sound propagation calculations were performed to determine the noise footprint of the construction activity. The results of the distances to the 120-dB are shown in Table 2.

    Since the issuance of an IHA to NEG on December 22, 2015, there was only one NEG delivery at the NEG Port in January 2015. NEG expects that when the Port is under full operation, it will receive up to 65 NEG shipments per year, and would require 14 days for NEG Port maintenance and up to 40 days for planned and unplanned Algonquin Pipeline Lateral maintenance and repair.

    Marine Mammal Densities

    The density calculation methodology applied to take estimates for this application is derived from the model results produced by Roberts et al. (2016) for the east coast region. These files are available Duke University's Habitat-based Cetacean Density Models Web site: http://http://seamap.env.duke.edu/models/Duke-EC-GOM-2015/. The estimated mean monthly abundance for each species for each month was an average of each month. Monthly values were not modeled for some species (e.g. killer whale), therefore, only the single value was reported. Estimates provided by the models are based on a grid cell size of 100 km2, therefore, model grid cell values were divided by 100 to determine animals per km2. Gray seal and harbor seal densities are not provided in the Roberts et al. (2016) models. Seal densities were derived from the Strategic Environmental Research and Development Program (SERDP) using the Navy Oparea Density Estimate (NODE) model for the Northeast Opareas. (Best et al., 2012). A summary of the each species density is provided in Table 3 below.

    Table 3—Estimated Species Densities [Animals per km2] Species Mean monthly densities North Atlantic right whale 0.000838 Fin whale 0.00225 Humpback whale 0.00502 Minke whale 0.00354 Sei whale 0.000025 Long-finned Pilot whale 0.00135 Killer whale 0.0000089 Atlantic white-sided dolphin 0.0219 Bottlenose dolphin 0.0113 Common dolphin 0.0025 Risso's dolphin 0.00025 Harbor porpoise 0.0804 Gray seal 0.027 Harbor seal 0.097 Marine Mammal Take Calculation

    Based on NEG Gateway's expectations of up to 65 NEG shipments per year, and up to 14 days for NEG Port maintenance and up to 40 days for planned and unplanned Algonquin Pipeline Lateral repair, the total estimated takes in a given year is calculated based on the following equation.

    N = ANEG * D * 65 + APort * D * 14 + APipeline * D * 40

    Where N is the take number for a given species with average density of D. ANEG, APort, and APipeline are the 120-dB ZOI during EMRV vessel docking for regasification, NEG Port maintenance, and Algonquin Pipeline Lateral repair, respectively. A summary of expected takes is provided in Table 4. Since it is very likely that individual animals could be “taken” by harassment multiple times, the percentages are the upper boundary of the animal population that could be affected. The actual number of individual animals being exposed or taken would likely be less. Since no population/stock estimates for killer whale and gray seal is available, the percentage of estimated takes for these species is unknown. Nevertheless, since Massachusetts Bay represents only a small fraction of the western North Atlantic basin where these animals occur, NMFS has preliminarily determined that the takes of 10 killer whales and 30 gray seals represent a small fraction of the population and stocks of these species (Table 4). There is no danger of injury, death, or hearing impairment from the exposure to these noise levels.

    Table 4—Estimated Annual Takes of Marine Mammals From the NEG Port and Algonquin Pipeline Lateral Operations and Maintenance and Repair Activities in Massachusetts Bay Species Population/stock Number of takes %
  • Population
  • Right whale Western Atlantic 5 1.36%. Fin whale Western North Atlantic 13 0.82%. Humpback whale Gulf of Maine 30 3.59%. Sei whale Nova Scotia 1 0.04%. Minke whale Canadian East Coast 21 0.10%. Long-finned pilot whale Western North Atlantic 8 0.14%. Killer whale Western North Atlantic 1 Unknown.* Atlantic white-sided dolphin Western North Atlantic 129 0.26%. Bottlenose dolphin Western North Atlantic Southern Migratory 67 0.58%. Short-beaked common dolphin Western North Atlantic 15 0.01%. Risso's dolphin Western North Atlantic 2 0.01%. Harbor porpoise Gulf of Maine/Bay of Fundy 474 0.59%. Harbor seal Western North Atlantic 571 0.75%. Gray seal Western North Atlantic 159 Unknown.* * Killer whale and gray seal abundance information is not available.
    Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing

    On August 4, 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance). This new guidance established new thresholds for predicting auditory injury, which equates to Level A harassment under the MMPA. In the Federal Register notice (81 FR 51694), NMFS explained the approach it would take during a transition period, wherein we balance the need to consider this new best available science with the fact that some applicants have already committed time and resources to the development of analyses based on our previous guidance and have constraints that preclude the recalculation of take estimates, as well as where the action is in the agency's decision-making pipeline. In that Notice, we included a non-exhaustive list of factors that would inform the most appropriate approach for considering the new Guidance, including: The scope of effects; how far in the process the applicant has progressed; when the authorization is needed; the cost and complexity of the analysis; and the degree to which the guidance is expected to affect our analysis.

    In this case, we performed an analysis using the new Guidance to calculate potential takes of marine mammal by Level A harassment. The results show that given the brief duration of the NEG operations, NEG Port maintenance, and Algonquin Pipeline Lateral repair activities, no marine mammals would be exposed to received noise levels that would cause auditory injury.

    Analysis and Preliminary Determinations Negligible Impact

    Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, effects on habitat, and the status of the species.

    To avoid repetition, this introductory discussion of our analyses applies to all the species listed in Table 4, given that the anticipated effects of NEG Port and Pipeline Lateral operations, maintenance, and repair activities on marine mammals (taking into account the proposed mitigation) are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, they are described separately in the analysis below.

    No injuries or mortalities are anticipated to occur as a result of NEG Port and Pipeline Lateral operations, maintenance, and repair activities, and none are authorized. Additionally, animals in the area are not expected to incur hearing impairment (i.e., TTS or PTS) or non-auditory physiological effects. The takes that are anticipated and authorized are expected to be limited to short-term Level B behavioral harassment. While NEG expects that when the Port is under full operation, it will receive up to 65 NEG shipments per year, and would require 14 days for NEG Port maintenance and up to 40 days for planned and unplanned Pipeline Lateral maintenance and repair, schedules of NEG delivery would occur throughout the year, which include seasons certain marine mammals may not be present in the area.

    Effects on marine mammals are generally expected to be restricted to avoidance of a limited area around NEG's proposed activities and short-term changes in behavior, falling within the MMPA definition of “Level B harassment.” Mitigation measures, such as controlled vessel speed, dedicated marine mammal observers, and passive acoustic monitoring, will ensure that takes are within the level being analyzed. In all cases, the effects are expected to be short-term, with no lasting biological consequence.

    Of the 14 marine mammal species likely to occur in the proposed marine survey area, North Atlantic right, humpback, fin, and sei whales are listed as endangered under the ESA. These species are also designated as “depleted” under the MMPA. None of the other species that may occur in the project area are listed as threatened or endangered under the ESA or designated as depleted under the MMPA.

    The project area of the NEG and Algonquin's proposed activities is a biologically important area (BIA) for feeding for the North Atlantic right whale in February to April, humpback whale in March to December, fin whale year-round, and minke whale in March to November (LaBrecque et al., 2015). However, as stated earlier, the NEG and Algonquin's proposed action would only involve short duration of elevated noise levels. In addition, based on prior monitoring reports, on average NEG only had one NEG delivery event per year, and this trend is likely to continue. Therefore, the actual impacts to these species from the Northeast Gateway's proposed operations would likely be much less than what are analyzed here. There are no known important areas for other species within the action area.

    Regarding adverse effect to marine mammal habitat, the major potential impact would be the loss of prey due to water intake for cooling during the NEG regasification process. Under the requested water-use scenario, it is estimated that a dry-weight biomass of 916.5 kg of zooplankton per year (translates to 9.2 kg of large piscivorous fish) would be lost per year. The amount of loss is minor relative to the total biomass of the trophic level in Massachusetts Bay.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from NEG and Algonquin's proposed NEG Port and Pipeline Lateral operation, maintenance, and repair activities in Masschusetts Bay are not expected to have adversely affect the affected species or stocks through impacts on annual rates of recruitment or survival, and therefore will have a negligible impact on the affected marine mammal species or stocks.

    Small Numbers

    The requested takes represent less than 3.6 percent of all populations or stocks potentially impacted (see Table 4 in this document). These take estimates represent the percentage of each species or stock that could be taken by Level B behavioral harassment and TTS (Level B harassment). The numbers of marine mammals estimated to be taken are small proportions of the total populations of the affected species or stocks. In addition, the mitigation and monitoring measures (described previously in this document) prescribed in the IHA are expected to reduce even further any potential disturbance to marine mammals.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.

    Impact on Availability of Affected Species for Taking for Subsistence Uses

    There are no subsistence uses of marine mammals in the proposed project area and, thus, no subsistence uses impacted by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Endangered Species Act (ESA)

    Our November 18, 2013, Federal Register notice of the proposed IHA described the history and status of Endangered Species Act (ESA) compliance for the NEG NEG facility (78 FR 69049). As explained in that notice, the biological opinions for construction and operation of the facility only analyzed impacts on ESA-listed species from activities under the initial construction period and during operations, and did not take into consideration potential impacts to marine mammals that could result from the subsequent NEG Port and Pipeline Lateral maintenance and repair activities. In addition, NEG also revealed that significantly more water usage and vessel operating air emissions are needed from what was originally evaluated for the NEG Port operation. NMFS PR1 initiated consultation with NMFS Greater Atlantic Region Fisheries Office under section 7 of the ESA on the proposed issuance of an IHA to NEG under section 101(a)(5)(D) of the MMPA for the proposed activities that include increased NEG Port and Pipeline Lateral maintenance and repair and water usage for the NEG Port operations this activity. A Biological Opinion was issued on November 21, 2014, and concluded that the proposed action may adversely affect but is not likely to jeopardize the continued existence of ESA-listed right, humpback, fin, and sei whales.

    NMFS' Permits and Conservation Division has preliminarily determined that the activities described in here are the same as those analyzed in the November 21, 2014, Biological Opinion. Therefore, a new consultation is not required for issuance of this IHA.

    National Environmental Policy Act

    MARAD and the USCG released a Final EIS/Environmental Impact Report (EIR) for the proposed NEG Port and Pipeline Lateral. NMFS was a cooperating agency (as defined by the Council on Environmental Quality (40 CFR 1501.6)) in the preparation of the Draft and Final EISs. NMFS reviewed the Final EIS and adopted it on May 4, 2007. NMFS issued a separate Record of Decision for issuance of authorizations pursuant to section 101(a)(5) of the MMPA for the construction and operation of the NEG Port Facility in Massachusetts Bay.

    We have reviewed the NEG's application for a renewed IHA for ongoing activities for 2015-16 and the 2014-15 monitoring report. Based on that review, we have determined that the proposed action is very similar to that considered in the previous IHA. In addition, no significant new circumstances or information relevant to environmental concerns have been identified. Thus, we have determined preliminarily that the preparation of a new or supplemental NEPA document is not necessary.

    Proposed Incidental Harassment Authorization

    As a result of these preliminary determinations, NMFS proposes to issue an IHA to Northeast Gateway and Algonquin for activities associated with Northeast Gateway's NEG Port and Algonquin's Pipeline Lateral operations and maintenance and repair activities in the Massachusetts Bay, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided next.

    (1) This Authorization is valid from December 22, 2015, through December 21, 2016.

    (2) This Authorization is valid only for activities associated with Northeast Gateway's NEG Port and Algonquin's Pipeline Lateral operations and maintenance and repair activities in the Massachusetts Bay. The specific area of the activities is shown in Figure 2-1 of the Excelerate Energy, L.P. and Tetra Tech, Inc.'s IHA application.

    (3)(a) The species authorized for incidental harassment takings, Level B harassment only, are: Right whales (Eubalaena glacialis); fin whales (Balaenoptera physalus); humpback whales (Megaptera novaeangliae); minke whales (B. acutorostrata); sei whales (B. borealis); long-finned pilot whales (Globicephala melas); Atlantic white-sided dolphins (Lagenorhynchus acutus); bottlenose dolphins (Tursiops truncatus); short-beaked common dolphins (Delphinus delphis); Risso's dolphin (Grampus griseus); killer whales (Orcinus orca); harbor porpoises (Phocoena phocoena); harbor seals (Phoca vitulina); and gray seals (Halichoerus grypus).

    (3)(b) The authorization for taking by harassment is limited to the following acoustic sources and from the following activities:

    (i) NEG Port operations;

    (ii) NEG Port maintenance and repair; and

    (iii) Algonquin Pipeline Lateral operations and maintenance.

    (3)(c) The taking of any marine mammal in a manner prohibited under this Authorization must be reported within 24 hours of the taking to the National Marine Fisheries Service (NMFS) Greater Atlantic Regional Administrator or his designee, NMFS Headquarters Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at (301-427-8401), or her designee (301-427-8418).

    (4) Prohibitions

    (a) The taking, by incidental harassment only, is limited to the species listed under condition 3(a) above and by the numbers listed in Table 4. The taking by Level A harassment, injury or death of these species or the taking by harassment, injury or death of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this Authorization.

    (5) Mitigation

    The holder of this authorization is required to implement the following mitigation measures:

    (a) General Marine Mammal Avoidance Measures

    (i) All vessels shall utilize the International Maritime Organization (IMO)-approved Boston Traffic Separation Scheme (TSS) on their approach to and departure from the NEG Port and/or the repair/maintenance area at the earliest practicable point of transit in order to avoid the risk of whale strikes.

    (ii) Upon entering the TSS and areas where North Atlantic right whales are known to occur, including the Great South Channel Seasonal Management Area (GSC-SMA) and the Stellwagen Bank National Marine Sanctuary (SBNMS), the Energy Bridge Regasification Vessel (EBRV) shall go into “Heightened Awareness” as described below.

    (A) Prior to entering and navigating the modified TSS the Master of the vessel shall:

    (I) Consult Navigational Telex (NAVTEX), NOAA Weather Radio, the NOAA Right Whale Sighting Advisory System (SAS) or other means to obtain current right whale sighting information as well as the most recent Cornell acoustic monitoring buoy data for the potential presence of marine mammals;

    (II) Post a look-out to visually monitor for the presence of marine mammals;

    (III) Provide the U.S. Coast Guard (USCG) the required 96-hour notification of an arriving EBRV to allow the NEG Port Manager to notify Cornell of vessel arrival.

    (B) The look-out shall concentrate his/her observation efforts within the 2-mile radius zone of influence (ZOI) from the maneuvering EBRV.

    (C) If marine mammal detection was reported by NAVTEX, NOAA Weather Radio, SAS and/or an acoustic monitoring buoy, the look-out shall concentrate visual monitoring efforts towards the areas of the most recent detection.

    (D) If the look-out (or any other member of the crew) visually detects a marine mammal within the 2-mile radius ZOI of a maneuvering EBRV, he/she will take the following actions:

    (I) The Officer-of-the-Watch shall be notified immediately; who shall then relay the sighting information to the Master of the vessel to ensure action(s) can be taken to avoid physical contact with marine mammals.

    (II) The sighting shall be recorded in the sighting log by the designated look-out.

    (III) In accordance with 50 CFR 224.103(c), all vessels associated with NEG Port and Pipeline Lateral activities shall not approach closer than 500 yd (460 m) to a North Atlantic right whale and 100 yd (91 m) to other whales to the extent physically feasible given navigational constraints. In addition, when approaching and departing the project area, vessels shall be operated so as to remain at least 1 km away from any visually-detected North Atlantic right whales.

    (IV) In response to active right whale sightings and active acoustic detections, and taking into account exceptional circumstances, EBRVs, repair and maintenance vessels shall take appropriate actions to minimize the risk of striking whales. Specifically vessels shall:

    (A) Respond to active right whale sightings and/or DMAs reported on the Mandatory Ship Reporting (MSR) or SAS by concentrating monitoring efforts towards the area of most recent detection and reducing speed to 10 knots or less if the vessel is within the boundaries of a DMA (50 CFR 224.105) or within the circular area centered on an area 8 nm in radius from a sighting location;

    (B) Respond to active acoustic detections by concentrating monitoring efforts towards the area of most recent detection and reducing speed to 10 knots or less within an area 5 nm in radius centered on the detecting AB; and

    (C) Respond to additional sightings made by the designated look-outs within a 2-mile radius of the vessel by slowing the vessel to 10 knots or less and concentrating monitoring efforts towards the area of most recent sighting.

    (V) All vessels operated under NEG and Algonquin must follow the established specific speed restrictions when calling at the NEG Port. The specific speed restrictions required for all vessels (i.e., EBRVs and vessels associated with maintenance and repair) consist of the following:

    (A) Vessels shall reduce their maximum transit speed while in the TSS from 12 knots or less to 10 knots or less from March 1 to April 30 in all waters bounded by straight lines connecting the following points in the order stated below unless an emergency situation dictates for an alternate speed. This area shall hereafter be referred to as the Off Race Point Seasonal Management Area (ORP-SMA) and tracks NMFS regulations at 50 CFR 224.105:

    42°30′ N. 70°30′ W. 41°40′ N. 69°57′ W. 42°30′ N. 69°45′ W. 42°12′ N. 70°15′ W. 41°40′ N. 69°45′ W. 42°12′ N. 70°30′ W. 42°04.8′ N. 70°10′ W. 42°30′ N. 70°30′ W.

    (B) Vessels shall reduce their maximum transit speed while in the TSS to 10 knots or less unless an emergency situation dictates for an alternate speed from April 1 to July 31 in all waters bounded by straight lines connecting the following points in the order stated below. This area shall hereafter be referred to as the GSC-SMA and tracks NMFS regulations at 50 CFR 224.105:

    42°30′ N. 69°45′ W. 41°40′ N. 69°45′ W. 42°30′ N. 67°27′ W. 42°30′ N. 69°45′ W. 42°09′ N. 67°08.4′ W. 41°00′ N. 69°05′ W.

    (C) Vessels are not expected to transit the Cape Cod Bay or the Cape Cod Canal; however, in the event that transit through the Cape Cod Bay or the Cape Cod Canal is required, vessels shall reduce maximum transit speed to 10 knots or less from January 1 to May 15 in all waters in Cape Cod Bay, extending to all shorelines of Cape Cod Bay, with a northern boundary of 42°12′ N latitude and the Cape Cod Canal. This area shall hereafter be referred to as the Cape Cod Bay Seasonal Management Area (CCB-SMA).

    (D) All Vessels transiting to and from the project area shall report their activities to the mandatory reporting Section of the USCG to remain apprised of North Atlantic right whale movements within the area. All vessels entering and exiting the MSRA shall report their activities to WHALESNORTH. Vessel operators shall contact the USCG by standard procedures promulgated through the Notice to Mariner system.

    (E) All Vessels greater than or equal to 300 gross tons (GT) shall maintain a speed of 10 knots or less, unless an emergency situation requires speeds greater than 10 knots.

    (F) All Vessels less than 300 GT traveling between the shore and the project area that are not generally restricted to 10 knots will contact the Mandatory Ship Reporting (MSR) system, the USCG, or the project site before leaving shore for reports of active DMAs and/or recent right whale sightings and, consistent with navigation safety, restrict speeds to 10 knots or less within 5 miles (8 kilometers) of any sighting location, when traveling in any of the seasonal management areas (SMAs) or when traveling in any active dynamic management area (DMA).

    (b) NEG Port-Specific Operations

    (i) In addition to the general marine mammal avoidance requirements identified in (5)(a) above, vessels calling on the NEG Port must comply with the following additional requirements:

    (A) EBRVs shall travel at 10 knots maximum speed when transiting to/from the TSS or to/from the NEG Port/Pipeline Lateral area. For EBRVs, at 1.86 miles (3 km) from the NEG Port, speed will be reduced to 3 knots and to less than 1 knot at 1,640 ft (500 m) from the NEG buoys, unless an emergency situation dictates the need for an alternate speed.

    (B) EBRVs that are approaching or departing from the NEG Port and are within the ATBA5 surrounding the NEG Port, shall remain at least 1 km away from any visually-detected North Atlantic right whale and at least 100 yd (91 m) away from all other visually-detected whales unless an emergency situation requires that the vessel stay its course. During EBRV maneuvering, the Vessel Master shall designate at least one look-out to be exclusively and continuously monitoring for the presence of marine mammals at all times while the EBRV is approaching or departing from the NEG Port.

    (C) During NEG Port operations, in the event that a whale is visually observed within 1 km of the NEG Port or a confirmed acoustic detection is reported on either of the two ABs closest to the NEG Port (western-most in the TSS array), departing EBRVs shall delay their departure from the NEG Port, unless an emergency situation requires that departure is not delayed. This departure delay shall continue until either the observed whale has been visually (during daylight hours) confirmed as more than 1 km from the NEG Port or 30 minutes have passed without another confirmed detection either acoustically within the acoustic detection range of the two ABs closest to the NEG Port, or visually within 1 km from the NEG Port.

    (ii) Vessel captains shall focus on reducing dynamic positioning (DP) thruster power to the maximum extent practicable, taking into account vessel and Port safety, during the operation activities. Vessel captains will shut down thrusters whenever they are not needed.

    (c) Planned and Unplanned Maintenance and Repair Activities (i) NEG Port

    (A) The Northeast Gateway shall conduct empirical source level measurements on all noise emitting construction equipment and all vessels that are involved in maintenance/repair work.

    (B) If dynamic positioning (DP) systems are to be employed and/or activities will emit noise with a source level of 139 dB re 1 μPa at 1 m, activities shall be conducted in accordance with the requirements for DP systems listed in (5)(b)(ii).

    (C) Northeast Gateway shall provide the NMFS Headquarters Office of the Protected Resources, NMFS Northeast Region Ship Strike Coordinator, and SBNMS with a minimum of 30 days notice prior to any planned repair and/or maintenance activity. For any unplanned/emergency repair/maintenance activity, Northeast Gateway shall notify the agencies as soon as it determines that repair work must be conducted. Northeast Gateway shall continue to keep the agencies apprised of repair work plans as further details (e.g., the time, location, and nature of the repair) become available. A final notification shall be provided to agencies 72 hours prior to crews being deployed into the field.

    (ii) Pipeline Lateral

    (A) Pipeline maintenance/repair vessels less than 300 GT traveling between the shore and the maintenance/repair area that are not generally restricted to 10 knots shall contact the MSR system, the USCG, or the project site before leaving shore for reports of active DMAs and/or recent right whale sightings and, consistent with navigation safety, restrict speeds to 10 knots or less within 5 miles (8 km) of any sighting location, when travelling in any of the seasonal management areas (SMAs) as defined above.

    (B) Maintenance/repair vessels greater than 300 GT shall not exceed 10 knots, unless an emergency situation that requires speeds greater than 10 knots.

    (C) Planned maintenance and repair activities shall be restricted to the period between May 1 and November 30.

    (D) Unplanned/emergency maintenance and repair activities shall be conducted utilizing anchor-moored dive vessel whenever operationally possible.

    (E) Algonquin shall also provide the NMFS Office of the Protected Resources, NMFS Northeast Region Ship Strike Coordinator, and SBNMS with a minimum of 30-day notice prior to any planned repair and/or maintenance activity. For any unplanned/emergency repair/maintenance activity, Northeast Gateway shall notify the agencies as soon as it determines that repair work must be conducted. Algonquin shall continue to keep the agencies apprised of repair work plans as further details (e.g., the time, location, and nature of the repair) become available. A final notification shall be provided to agencies 72 hours prior to crews being deployed into the field.

    (F) If dynamic positioning (DP) systems are to be employed and/or activities will emit noise with a source level of 139 dB re 1 μPa at 1 m, activities shall be conducted in accordance with the requirements for DP systems listed in (5)(b)(ii).

    (G) In the event that a whale is visually observed within 0.5 mile (0.8 kilometers) of a repair or maintenance vessel, the vessel superintendent or on-deck supervisor shall be notified immediately. The vessel's crew shall be put on a heightened state of alert and the marine mammal shall be monitored constantly to determine if it is moving toward the repair or maintenance area.

    (H) Repair/maintenance vessel(s) must cease any movement and/or cease all activities that emit noises with source level of 139 dB re 1 μPa @1 m or higher when a right whale is sighted within or approaching at 500 yd (457 m) from the vessel. Repair and maintenance work may resume after the marine mammal is positively reconfirmed outside the established zones (500 yd (457 m)) or 30 minutes have passed without a redetection. Any vessels transiting the maintenance area, such as barges or tugs, must also maintain these separation distances.

    (I) Repair/maintenance vessel(s) must cease any movement and/or cease all activities that emit noises with source level of 139 dB re 1 μPa @1 m or higher when a marine mammal other than a right whale is sighted within or approaching at 100 yd (91 m) from the vessel. Repair and maintenance work may resume after the marine mammal is positively reconfirmed outside the established zones (100 yd (91 m)) or 30 minutes have passed without a redetection. Any vessels transiting the maintenance area, such as barges or tugs, must also maintain these separation distances.

    (J) Algonquin and associated contractors shall also comply with the following:

    (I) Operations involving excessively noisy equipment (source level exceeding 139 dB re 1μPa @1 m) shall “ramp-up” sound sources, allowing whales a chance to leave the area before sounds reach maximum levels. In addition, Northeast Gateway, Algonquin, and other associated contractors shall maintain equipment to manufacturers' specifications, including any sound-muffling devices or engine covers in order to minimize noise effects. Noisy construction equipment shall only be used as needed and equipment shall be turned off when not in operation.

    (II) Any material that has the potential to entangle marine mammals (e.g., anchor lines, cables, rope or other construction debris) shall only be deployed as needed and measures shall be taken to minimize the chance of entanglement.

    (III) For any material that has the potential to entangle marine mammals, such material shall be removed from the water immediately unless such action jeopardizes the safety of the vessel and crew as determined by the Captain of the vessel.

    (IV) In the event that a marine mammal becomes entangled, the marine mammal coordinator and/or PSO will notify NMFS (if outside the SBNMS), and SBNMS staff (if inside the SBNMS) immediately so that a rescue effort may be initiated.

    (K) All maintenance/repair activities shall be scheduled to occur between May 1 and November 30. However, in the event of unplanned/emergency repair work that cannot be scheduled during the preferred May through November work window, the following additional measures shall be followed for Pipeline Lateral maintenance and repair related activities between December and April:

    (I) Between December 1 and April 30, if on-board PSOs do not have at least 0.5-mile visibility, they shall call for a shutdown. At the time of shutdown, the use of thrusters must be minimized. If there are potential safety problems due to the shutdown, the captain will decide what operations can safely be shut down.

    (II) Prior to leaving the dock to begin transit, the barge shall contact one of the PSOs on watch to receive an update of sightings within the visual observation area. If the PSO has observed a North Atlantic right whale within 30 minutes of the transit start, the vessel shall hold for 30 minutes and again get a clearance to leave from the PSOs on board. PSOs shall assess whale activity and visual observation ability at the time of the transit request to clear the barge for release.

    (III) Transit route, destination, sea conditions and any marine mammal sightings/mitigation actions during watch shall be recorded in the log book. Any whale sightings within 1,000 m of the vessel shall result in a high alert and slow speed of 4 knots or less and a sighting within 750 m shall result in idle speed and/or ceasing all movement.

    (IV) The material barges and tugs used in repair and maintenance shall transit from the operations dock to the work sites during daylight hours when possible provided the safety of the vessels is not compromised. Should transit at night be required, the maximum speed of the tug shall be 5 knots.

    (V) All repair vessels must maintain a speed of 10 knots or less during daylight hours. All vessels shall operate at 5 knots or less at all times within 5 km of the repair area.

    (d) Acoustic Monitoring Related Activities

    (i) Vessels associated with maintaining the AB network operating as part of the mitigation/monitoring protocols shall adhere to the following speed restrictions and marine mammal monitoring requirements.

    (A) In accordance with NOAA Regulation 50 CFR 224.103 (c), all vessels associated with NEG Port activities shall not approach closer than 500 yd (460 meters) to a North Atlantic right whale.

    (B) All vessels shall obtain the latest DMA or right whale sighting information via the NAVTEX, MSR, SAS, NOAA Weather Radio, or other available means prior to operations to determine if there are right whales present in the operational area.

    (6) Monitoring (a) Vessel-Based Visual Monitoring

    (i) Vessel-based monitoring for marine mammals shall be done by trained look-outs during NEG NEG Port and Pipeline Lateral operations and maintenance and repair activities. The observers shall monitor the occurrence of marine mammals near the vessels during NEG Port and Pipeline Lateral related activities. Lookout duties include watching for and identifying marine mammals; recording their numbers, distances, and reactions to the activities; and documenting “take by harassment.”

    (ii) The vessel look-outs assigned to visually monitor for the presence of marine mammals shall be provided with the following:

    (A) Recent NAVTEX, NOAA Weather Radio, SAS and/or acoustic monitoring buoy detection data;

    (B) Binoculars to support observations;

    (C) Marine mammal detection guide sheets; and

    (D) Sighting log.

    (b) NEG NEG Port Operations

    (i) All individuals onboard the EBRVs responsible for the navigation duties and any other personnel that could be assigned to monitor for marine mammals shall receive training on marine mammal sighting/reporting and vessel strike avoidance measures.

    (ii) While an EBRV is navigating within the designated TSS, there shall be three people with look-out duties on or near the bridge of the ship including the Master, the Officer-of-the-Watch and the Helmsman-on-watch. In addition to the standard watch procedures, while the EBRV is transiting within the designated TSS, maneuvering within the Area to be Avoided (ATBA), and/or while actively engaging in the use of thrusters, an additional look-out shall be designated to exclusively and continuously monitor for marine mammals.

    (iii) All sightings of marine mammals by the designated look-out, individuals posted to navigational look-out duties and/or any other crew member while the EBRV is transiting within the TSS, maneuvering within the ATBA and/or when actively engaging in the use of thrusters, shall be immediately reported to the Officer-of-the-Watch who shall then alert the Master. The Master or Officer-of-the-Watch shall ensure the required reporting procedures are followed and the designated marine mammal look-out records all pertinent information relevant to the sighting.

    (iv) Visual sightings made by look-outs from the EBRVs shall be recorded using a standard sighting log form. Estimated locations shall be reported for each individual and/or group of individuals categorized by species when known. This data shall be entered into a database and a summary of monthly sighting activity shall be provided to NMFS. Estimates of take and copies of these log sheets shall also be included in the reports to NMFS.

    (c) Planned and Unplanned Maintenance and Repair

    (i) Two (2) qualified and NMFS-approved protected species observers (PSOs) shall be assigned to each vessel that will use dynamic positioning (DP) systems during maintenance and repair related activities. PSOs shall operate individually in designated shifts to accommodate adequate rest schedules. Additional PSOs shall be assigned to additional vessels if auto-detection buoy (AB) data indicates that sound levels exceed 120 dB re 1 µPa, further then 100 meters (328 feet) from these vessels.

    (ii) All PSOs shall receive NMFS-approved marine mammal observer training and be approved in advance by NMFS after review of their resume. All PSOs shall have direct field experience on marine mammal vessels and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico.

    (iii) PSOs (one primary and one secondary) shall be responsible for visually locating marine mammals at the ocean's surface and, to the extent possible, identifying the species. The primary PSO shall act as the identification specialist and the secondary PSO will serve as data recorder and also assist with identification. Both PSOs shall have responsibility for monitoring for the presence of marine mammals and sea turtles. Specifically PSO's shall:

    (A) Monitor at all hours of the day, scanning the ocean surface by eye for a minimum of 40 minutes every hour.

    (B) Monitor the area where maintenance and repair work is conducted beginning at daybreak using 25x power binoculars and/or hand-held binoculars. Night vision devices must be provided as standard equipment for monitoring during low-light hours and at night.

    (C) Conduct general 360° visual monitoring during any given watch period and target scanning by the observer shall occur when alerted of a whale presence.

    (D) Alert the vessel superintendent or construction crew supervisor of visual detections within 2 mi (3.31 km) immediately.

    (E) Record all sightings on marine mammal field sighting logs. Specifically, all data shall be entered at the time of observation, notes of activities will be kept, and a daily report prepared and attached to the daily field sighting log form. The basic reporting requirements include the following:

    • Beaufort sea state;

    • Wind speed;

    • Wind direction;

    • Temperature;

    • Precipitation;

    • Glare;

    • Percent cloud cover;

    • Number of animals;

    • Species;

    • Position;

    • Distance;

    • Behavior;

    • Direction of movement; and

    • Apparent reaction to construction activity.

    (iv) In the event that a whale is visually observed within the 2-mile (3.31-kilometers) zone of influence (ZOI) of a DP vessel or other construction vessel that has shown to emit noise with source level in excess of 139 dB re 1 µPa @1 m, the PSO will notify the repair/maintenance construction crew to minimize the use of thrusters until the animal has moved away, unless there are divers in the water or an ROV is deployed.

    (d) Acoustic Monitoring

    (i) Northeast Gateway shall deploy 10 ABs within the Separation Zone of the TSS for the operational life of the Project.

    (ii) The ABs shall be used to detect a calling North Atlantic right whale an average of 5 nm from each AB. The AB system shall be the primary detection mechanism that alerts the EBRV Master to the occurrence of right whales, heightens EBRV awareness, and triggers necessary mitigation actions as described in section (5) above.

    (iii) Northeast Gateway shall conduct short-term passive acoustic monitoring to document sound levels during the initial operational events in the 2015-2016 winter heating season, and during both regular deliveries outside the winter heating season should such deliveries occur, and during scheduled and unscheduled maintenance and repair activities.

    (iv) Northeast Gateway shall conduct long-term monitoring of the noise environment in Massachusetts Bay in the vicinity of the NEG Port and Pipeline Lateral using marine autonomous recording units (MARUs) when there is anticipated to be more than 5 NEG shipments in a 30-day period or over 20 shipments in a six-month period.

    (v) The acoustic data collected in 6(d)(ii) shall be analyzed to document the seasonal occurrences and overall distributions of whales (primarily fin, humpback and right whales) within approximately 10 nm of the NEG Port and shall measure and document the noise “budget” of Massachusetts Bay so as to eventually assist in determining whether or not an overall increase in noise in the Bay associated with the Project might be having a potentially negative impact on marine mammals.

    (vi) Northeast Gateway shall make all acoustic data, including data previously collected by the MARUs during prior construction, operations, and maintenance and repair activities, available to NOAA. Data storage will be the responsibility of NOAA.

    (e) Acoustic Whale Detection and Response Plan (i) NEG Port Operations

    (A) Ten (10) ABs that have been deployed since 2007 shall be used to continuously screen the low-frequency acoustic environment (less than 1,000 Hertz) for right whale contact calls occurring within an approximately 5-nm radius from each buoy (the AB's detection range).

    (B) Once a confirmed detection is made, the Master of any EBRVs operating in the area will be alerted immediately.

    (ii) NEG Port and Pipeline Lateral Planned and Unplanned/Emergency Repair and Maintenance Activities

    (A) If the repair/maintenance work is located outside of the detectible range of the 10 project area ABs, Northeast Gateway and Algonquin shall consult with NOAA (NMFS and SBNMS) to determine if the work to be conducted warrants the temporary installation of an additional AB(s) to help detect and provide early warnings for potential occurrence of right whales in the vicinity of the repair area.

    (B) The number of ABs installed around the activity site shall be commensurate with the type and spatial extent of maintenance/repair work required, but must be sufficient to detect vocalizing right whales within the 120-dB impact zone.

    (C) Should acoustic monitoring be deemed necessary during a planned or unplanned/emergency repair and/or maintenance event, active monitoring for right whale calls shall begin 24 hours prior to the start of activities.

    (D) Revised noise level data from the acoustic recording units deployed in the NEG Port and/or Pipeline Lateral maintenance and repair area shall be provided to NMFS.

    (7) Reporting

    (a) Throughout NEG Port and Pipeline Lateral operations, Northeast Gateway and Algonquin shall provide a monthly Monitoring Report. The Monitoring Report shall include:

    (i) Both copies of the raw visual EBRV lookout sighting information of marine mammals that occurred within 2 miles of the EBRV while the vessel transits within the TSS, maneuvers within the ATBA, and/or when actively engaging in the use of thrusters, and a summary of the data collected by the look-outs over each reporting period.

    (ii) Copies of the raw PSO sightings information on marine mammals gathered during pipeline repair or maintenance activities. This visual sighting data shall then be correlated to periods of thruster activity to provide estimates of marine mammal takes (per species/species class) that took place during each reporting period.

    (iii) Conclusion of any planned or unplanned/emergency repair and/or maintenance period, a report shall be submitted to NMFS summarizing the repair/maintenance activities, marine mammal sightings (both visual and acoustic), empirical source-level measurements taken during the repair work, and any mitigation measures taken.

    (b) During the maintenance and repair of NEG Port components, weekly status reports shall be provided to NOAA (both NMFS and SBNMS) using standardized reporting forms. The weekly reports shall include data collected for each distinct marine mammal species observed in the repair/maintenance area during the period that maintenance and repair activities were taking place. The weekly reports shall include the following information:

    (i) Location (in longitude and latitude coordinates), time, and the nature of the maintenance and repair activities;

    (ii) Indication of whether a DP system was operated, and if so, the number of thrusters being used and the time and duration of DP operation;

    (iii) Marine mammals observed in the area (number, species, age group, and initial behavior);

    (iv) The distance of observed marine mammals from the maintenance and repair activities;

    (v) Changes, if any, in marine mammal behaviors during the observation;

    (vi) A description of any mitigation measures (power-down, shutdown, etc.) implemented;

    (vii) Weather condition (Beaufort sea state, wind speed, wind direction, ambient temperature, precipitation, and percent cloud cover etc.);

    (viii) Condition of the observation (visibility and glare); and

    (ix) Details of passive acoustic detections and any action taken in response to those detections.

    (d) Injured/Dead Protected Species Reporting

    (i) In the unanticipated event that survey operations clearly cause the take of a marine mammal in a manner prohibited by the proposed IHA, such as an injury (Level A harassment), serious injury or mortality (e.g., ship-strike, gear interaction, and/or entanglement), NEG and/or Algonquin shall immediately cease activities and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Greater Atlantic Regional Stranding Coordinators. The report must include the following information:

    (A) Time, date, and location (latitude/longitude) of the incident;

    (B) The name and type of vessel involved;

    (C) The vessel's speed during and leading up to the incident;

    (D) Description of the incident;

    (E) Status of all sound source use in the 24 hours preceding the incident;

    (F) Water depth;

    (G) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    (H) Description of marine mammal observations in the 24 hours preceding the incident;

    (I) Species identification or description of the animal(s) involved;

    (J) The fate of the animal(s); and

    (K) Photographs or video footage of the animal (if equipment is available).

    Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with NEG and/or Algonquin to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. NEG and/or Algonquin may not resume their activities until notified by NMFS via letter, email, or telephone.

    (ii) In the event that NEG and/or Algonquin discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), NEG and/or Algonquin will immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Greater Atlantic Stranding Coordinators, within 24 hours of the discovery. The report must include the same information identified above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with NEG and/or Algonquin to determine whether modifications in the activities are appropriate.

    (iii) In the event that NEG or Algonquin discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized (if the IHA is issued) (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), NEG and/or Algonquin shall report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Greater Atlantic Stranding Coordinators, within 24 hours of the discovery. NEG and/or Algonquin shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. NEG and/or Algonquin can continue its operations under such a case.

    (8) This Authorization may be modified, suspended, or withdrawn if the holder fails to abide by the conditions prescribed herein or if NMFS determines that the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.

    (9) A copy of this Authorization and the Incidental Take Statement must be in the possession of each survey vessel operator taking marine mammals under the authority of this Incidental Harassment Authorization.

    (10) Northeast Gateway and Algonquin are required to comply with the Terms and Conditions of the Incidental Take Statement corresponding to NMFS' Biological Opinion.

    Request for Public Comments

    NMFS requests comment on our analysis, the draft authorization for an IHA, the receipt of notice for a rulemaking, and any other aspect of the Notice of Proposed IHA for Northeast Gateway and Algonquin's proposed NEG Port and Pipeline Lateral operations, maintenance, and repair activities in the Massachusetts Bay. Please include with your comments any supporting data or literature citations to help inform our final decision on Northeast Gateway and Algonquin's request for an MMPA authorization.

    Dated: November 7, 2016. Donna Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-27383 Filed 11-14-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [Docket No. 161017970-6970-01] RIN 0648-XE976 Fisheries of the Northeastern United States; Summer Flounder Fishery; 2017 and 2018 Summer Flounder Specifications AGENCY:

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

    ACTION:

    Proposed specifications; request for comments.

    SUMMARY:

    NMFS proposes revised summer flounder specifications for the 2017 and 2018 fishing years. Updated scientific information regarding the status of the summer flounder stock indicates that these proposed catch limits are necessary to constrain summer flounder harvest within scientifically sound recommendations to prevent overfishing. This action is intended to inform the public of proposed reductions for the 2017 and 2018 summer flounder fishing years.

    DATES:

    Comments must be received on or before November 30, 2016.

    ADDRESSES:

    A supplemental environmental assessment (SEA) was prepared for the specifications and describes the proposed action and other considered alternatives, and provides an analysis of the impacts of the proposed measures and alternatives. Copies of the Specifications Document, including the SEA, the Initial Regulatory Flexibility Analysis (IRFA), and the original environmental assessment for the 2016-2018 summer flounder, scup, and black sea bass specifications are available on request from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 North State Street, Dover, DE 19901. These documents are also accessible via the Internet at http://www.mafmc.org.

    You may submit comments on this document, identified by NOAA-NMFS-2016-0138, by either of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal.

    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0138,

    2. Click the “Comment Now!” icon, complete the required fields

    3. Enter or attach your comments.

    —or—

    Mail: Submit written comments to John Bullard, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA, 01950. Mark the outside of the envelope, “Comments on the Proposed Rule for Summer Flounder Specifications.”

    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 part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    FOR FURTHER INFORMATION CONTACT:

    Emily Gilbert, Fishery Policy Analyst, (978) 281-9244.

    SUPPLEMENTARY INFORMATION: Background and Proposed Specifications

    The Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission cooperatively manage the summer flounder, scup, and black sea bass fisheries. The Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) and its implementing regulations outline the Council's process for establishing specifications. Specifications in these fisheries include various catch and landing subdivisions, such as the commercial and recreational sector annual catch limits (ACLs), annual catch targets (ACTs), and sector-specific landing limits (i.e., the commercial fishery quota and recreational harvest limit). Annual specifications may be established for three year periods, and, in interim years, specifications are reviewed by the Council to ensure previously established multi-year specifications remain appropriate. The FMP also contains formulas to divide the specification catch limits into commercial and recreational fishery allocations, state-by-state quotas, and quota periods, depending on the species in question. Rulemaking for measures used to manage the recreational fisheries (minimum fish sizes, open seasons, and bag limits) for these three species occurs separately, and typically takes place in the spring of each year.

    On December 28, 2015, NMFS published a final rule implementing the Council's recommended specifications for the summer flounder, scup, and black sea bass fisheries (80 FR 80689) for fishing years 2016 through 2018. The Council intended to reconsider the specifications set for fishing years 2017 and 2018 after reviewing any updated information. Based on updated information on the status of the summer flounder stock, the Council is now recommending adjustments to the previously established summer flounder specifications for the 2017 and 2018 fishing years. An assessment update will be available next summer and notice will be provided in the Federal Register on whether the revised 2018 specifications will remain in place or be updated further based on any new information. The scup and black sea bass specifications implemented through previous rulemaking remain unchanged by this action.

    When the Council previously recommended summer flounder specifications in 2015, available scientific information indicated that the summer flounder stock size was declining and that overfishing occurred in 2014. In order to minimize disruption to the industry as much as possible, given the necessary reduction in available catch to prevent further overfishing and to increase the stock size, the Council requested its Scientific and Statistical Committee (SSC) to deviate from the standard risk policy and to phase-in the summer flounder catch reductions over the 3-year specifications cycle. The SSC complied with this request, but requested a stock assessment update in July 2016 to determine if its recommended acceptable biological catches (ABCs) remain appropriate for 2017 and 2018.

    The SSC met on July 21-22, 2016, to review the stock assessment update for summer flounder compiled by the Northeast Fisheries Science Center. This 2016 update was based on the peer-review approved model from the 2013 benchmark assessment, updated to include data through 2015. More specific information about the assessment information (e.g., biomass level, fishing mortality, etc.) can be found in section 6.0 of the SEA for this action. The assessment update noted that the consistent pattern in both underestimation of fishing mortality and overestimation of spawning stock biomass is continuing, even though catches have not substantially exceeded ABC levels. This downward trend in biomass is mainly due to below average recruitment in the last five years. As a result of this information, the assessment update recalculated the 2017 and 2018 overfishing limits (OFLs) for the stock. For 2017, the recalculated OFL is 16.76 million lb (7,600 mt) and for 2018, the recalculated OFL is 18.69 million lb (8,476 mt), representing approximately a 16-percent reduction from the previously established OFLs. To keep catch below these updated OFL estimates, the SSC recommended revisions to the previously adopted 2017 and 2018 ABCs. The SSC recommended revising the ABCs by abandoning the phased-in approach and instead following the Council's standard risk policy. The SSC cited among its reasons for departing from the previously approved phased-in approach the continual overestimation of biomass and recruitment and underestimation of fishing mortality, emphasizing that continuing to overfish in a period of consistently poor recruitment represents a substantial risk to the stock. The SSC recommended a revised 2017 ABC that is approximately 30 percent lower than both the previously established 2017 ABC and the current 2016 ABC. The SSC recommended a 2018 ABC that is 16 percent lower than the previously established 2018 ABC (Table 1).

    The Council's Summer Flounder Monitoring Committee met July 25, 2016, to discuss specification-related recommendations for the summer flounder fishery, to recommend offsets from the ACL to account for management uncertainty, and to discuss commercial management measure recommendations, as appropriate. The Monitoring Committee determined that no additional reductions were necessary to account for management uncertainty because the recreational fishery has had only minor overages of the recreational harvest limit in recent years, and the commercial landings monitoring and fishery closure system is timely enough to prevent commercial overages. As a result, the Monitoring Committee recommended that ACTs for the commercial and recreational sectors should equal their respective ACLs and made no recommended changes to any other summer flounder management measures.

    Following the SSC and Monitoring Committee meetings, the Council and the Commission's Summer Flounder, Scup, and Black Sea Bass Management Board met jointly on August 9, 2016, to consider the recommendations of the SSC, the Monitoring Committee, and public comments, and to make their specification recommendations. More complete details on the SSC, Monitoring Committee, and Council meeting deliberations can be found on the Council's Web site (www.mafmc.org). Ultimately, the Council recommended the summer flounder commercial quotas and recreational harvest limits shown in Table 1. The recommended catch limits for 2017 are nearly 30 percent lower than those previously established.

    Table 1—Comparison of Recommended Measures to Previously Established Catch and Landing Limits of Summer Flounder 2016 2017 Current Proposed Difference
  • (%)
  • 2018 Current Proposed Difference
  • (%)
  • Acceptable Biological Catch: million lb 16.26 15.86 11.30 −29 15.68 13.23 −16 Mt 7,374 7,193 5,125 7,111 5,999 Commercial Quota: million lb 8.12 7.91 5.66 −28 7.89 6.63 −16 Mt 3,685 3,590 2,567 3,581 3,006 Recreational Harvest Limit: million lb 5.42 5.28 3.77 −29 5.26 4.42 −16 Mt 2,457 2,393 1,711 2,387 2,004

    While the Board action was finalized at the August meeting, the Council's recommendations must be reviewed by NMFS to ensure that they comply with the FMP and applicable law. NMFS also must conduct notice-and-comment rulemaking to propose and implement the final specifications.

    Proposed 2017 and 2018 Summer Flounder Specifications

    Table 2 summarizes the Council's recommended summer flounder specifications that NMFS is proposing for 2017 and 2018, including the sector-specific estimated discards.

    Table 2—Proposed 2017-2018 Summer Flounder Specifications 2016 (current) million lb mt 2017 million lb mt 2018 million lb mt OFL 18.06 8,194 16.76 7,600 18.69 8,476 ABC 16.26 7,375 11.30 5,125 13.23 5,999 ABC Landings Portion 13.54 6,142 9.43 4,278 11.05 5,010 ABC Discards Portion 2.72 1,233 1.87 847 2.18 989 Commercial ACL 9.43 4,275 6.57 2,982 7.70 3,491 Commercial ACT 9.43 4,275 6.57 2,982 7.70 3,491 Projected Commercial Discards 1.30 590 0.92 415 1.07 485 Commercial Quota 8.12 3,685 5.66 2,567 6.63 3,006 Recreational ACL 6.84 3,100 4.72 2,143 5.53 2,508 Recreational ACT 6.84 3,100 4.72 2,143 5.53 2,508 Projected Recreational Discards 1.42 643 0.95 432 1.11 504 Recreational Harvest Limit 5.42 2,457 3.77 1,711 4.42 2,004

    Consistent with the summer flounder regulations, the sum of the recreational and commercial sector ACLs is equal to the ABC for each fishing year. To derive the ACLs, the sum of the sector-specific projected discards are removed from the ABCs to derive the landing allowances. For summer flounder, 60 percent of the landing allowance for each fishing year is allocated to the commercial fishery and 40 percent to the recreational fishery. Using this method ensures that each sector is accountable for its respective discards, rather than simply apportioning the ABCs by the allocation percentages to derive the sector ACLs. Although the derived ACLs are not split exactly according to the allocations specified in the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP), the landing portions of the ACLs preserve the appropriate allocation split, consistent with the FMP.

    Table 3 presents the proposed state summer flounder allocations for 2017-2018 using the commercial state quota allocations described in the FMP. Any commercial quota adjustments to account for overages will be published in the Federal Register prior to the start of the respective fishing year. The final rule for this action will include any necessary quota overage reductions for fishing year 2017.

    Table 3—2017-2018 Proposed Initial Summer Flounder State Commercial Quotas State FMP percent share 2017 Initial quota Lb Kg 2018 Initial quota Lb Kg ME 0.04756 2,692 1,221 3,152 1,430 NH 0.00046 26 18 30 14 MA 6.82046 385,988 175,081 451,998 205,023 RI 15.68298 887,542 402,582 1,039,326 471,430 CT 2.25708 127,734 57,939 149,579 67,848 NY 7.64699 432,764 196,298 506,773 229,868 NJ 16.72499 946,512 429,331 1,108,381 502,753 DE 0.01779 1,007 457 1,179 535 MD 2.0391 115,398 52,344 135,133 61,295 VA 21.31676 1,206,372 547,201 1,412,682 640,782 NC 27.44584 1,553,233 704,535 1,818,862 825,022 Total 100 5,659,266 2,567,000 6,627,096 3,006,000 Note: Kilograms are as converted from pounds and do not sum to the converted total due to rounding. Rounding of quotas results in totals slightly exceeding 100 percent.

    The Council and Commission will develop recreational management measures (e.g., minimum fish sizes, open seasons, and bag limits) for summer flounder this fall and NMFS rulemaking will occur in early spring of 2017.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

    These proposed specifications are exempt from review under Executive Order 12866.

    An IRFA was prepared by the Council, as required by section 603 of the Regulatory Flexibility Act (RFA), to examine the impacts of these proposed specifications on small business entities, if adopted. A description of the specifications, why they are being considered, and the legal basis for proposing and implementing specifications for the summer flounder fishery are contained in the preamble to this proposed rule. A copy of the detailed RFA analysis is available from NMFS or the Council (see ADDRESSES). The Council's analysis made use of quantitative approaches when possible. Where quantitative data on revenues or other business-related metrics that would provide insight to potential impacts were not available to inform the analyses, qualitative analyses were conducted. A summary of the 2017 and 2018 summer flounder specifications RFA analysis follows.

    Description of the Reasons Why Action by the Agency Is Being Considered, and a Statement of the Objectives of, and Legal Basis for, This Proposed Rule

    This action proposes management measures, including annual catch limits, for the summer flounder fishery in order to prevent overfishing and achieve optimum yield in the fishery. A complete description of the action, why it is being considered, and the legal basis for this action are contained in the specifications document, and elsewhere in the preamble to this proposed rule, and are not repeated here.

    Description and Estimate of the Number of Small Entities To Which the Proposed Rule Would Apply

    On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry and $7 million in annual gross receipts for all businesses primarily engaged in for-hire fishing activity (NAICS 11411) for Regulatory Flexibility Act (RFA) compliance purposes only (80 FR 81194, December 29, 2015). The North American Industry Classification System (NAICS) is the standard used by Federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy.

    This proposed rule affects commercial and recreational fish harvesting entities engaged in the summer flounder fishery. Individually-permitted vessels may hold permits for several fisheries, harvesting species of fish that are regulated by several different FMPs, even beyond those impacted by the proposed action. Furthermore, multiple-permitted vessels and/or permits may be owned by entities affiliated by stock ownership, common management, identity of interest, contractual relationships, or economic dependency. For the purposes of the RFA analysis, the ownership entities, not the individual vessels, are considered to be the regulated entities.

    Ownership entities are defined as those entities with common ownership personnel as listed on the permit application. Only permits with identical ownership personnel are categorized as an ownership entity. For example, if five permits have the same seven persons listed as co-owners on their permit applications, those seven persons would form one ownership entity that holds those five permits. If two of those seven owners also co-own additional vessels, that ownership arrangement would be considered a separate ownership entity for the purpose of this analysis.

    The current ownership data set used for this analysis is based on calendar year 2015 (the most recent complete year available) and contains average gross sales associated with those permits for calendar years 2013 through 2015.

    A description of the specific permits that are likely to be impacted by this action is provided below, along with a discussion of the impacted businesses, which can include multiple vessels and/or permit types.

    According to the commercial ownership database, 553 affiliate firms landed summer flounder during the 2013-2015 period, with 547 of those businesses affiliates categorized as small businesses and 6 categorized as large businesses. The ownership data for the for-hire fleet indicate that there were 411 for-hire affiliate firms generating revenues from fishing recreationally for various species during the 2013-2015 period, all of which are categorized as small businesses. Although it is not possible to derive what proportion of the overall revenues came from specific fishing activities, given the popularity of summer flounder as a recreational species, it is likely that revenues generated from summer flounder recreational fishing is important for some, if not all, of these firms.

    Description of the Projected Reporting, Record-Keeping, and Other Compliance Requirements of This Proposed Rule

    There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action.

    Federal Rules Which May Duplicate, Overlap, or Conflict With This Proposed Rule

    NMFS is not aware of any relevant Federal rules that may duplicate, overlap, or conflict with this proposed rule.

    Description of Significant Alternatives to the Proposed Action Which Accomplish the Stated Objectives of Applicable Statutes and Which Minimize Any Significant Economic Impact on Small Entities

    This action proposes to set commercial quotas and recreational harvest limits for the summer flounder fishery for the 2017 and 2018 fishing years that are consistent with the best scientific information available and the most recent catch limit recommendations of the Council's SSC. The proposed landings limits for 2017 include a commercial quota of 5.66 million lb (2,567 mt) and a recreational harvest limit of 3.77 million lb (1,711 mt). For 2018, the proposed measures include a commercial quota of 6.63 million lb (3,006 mt) and a recreational harvest limit of 4.42 million lb (2,004 mt).

    The only other alternatives considered in this document are status quo alternatives that are identical to the summer flounder landings limits implemented in December 2015. If these specifications remained in place, they would have greater positive socioeconomic impacts than the preferred alternatives. However, these alternatives were not selected as preferred given that they do not address the new scientific information regarding summer flounder stock status, and, therefore, would likely result in overfishing, which would be inconsistent with the FMP, National Standard 1 guidance under the Magnuson-Stevens Act, and the most recent advice of the Council's SSC. Because these alternatives are inconsistent with the purpose and need of this action, they are not considered further under this analysis.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 7, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2016-27410 Filed 11-14-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF039 South Atlantic Fishery Management Council; Public Meetings AGENCY:

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

    ACTION:

    Notice of public meetings of the South Atlantic Fishery Management Council.

    SUMMARY:

    The South Atlantic Fishery Management Council (Council) will hold meetings of the: Advisory Panel Selection Committee (Partially Closed Session); Law Enforcement Committee; Scientific and Statistical Committee (SSC) Selection Committee; Protected Resources Committee; Habitat Protection and Ecosystem-Based Management Committee; Southeast Data, Assessment and Review (SEDAR) Committee (Partially Closed Session); Spiny Lobster Committee; Joint Dolphin Wahoo/Snapper Grouper and Mackerel Cobia Committees; Information and Education Committee; Executive Finance Committee; Snapper Grouper Committee; Personnel Committee (Closed Session); Highly Migratory Species Committee; Mackerel Cobia Committee; Citizen Science Committee; Data Collection Committee; and a meeting of the Full Council.

    The Council will take action as necessary. The Council will also hold a formal public comment session. The Atlantic States Marine Fisheries Commission (ASMFC) will also conduct a public hearing in conjunction with the Council meeting.

    DATES:

    The Council meeting will be held from 8:30 a.m. on Monday, December 5, 2016 until 1 p.m. on Friday, December 9, 2016.

    ADDRESSES:

    Meeting address: The meeting will be held at the DoubleTree by Hilton Atlantic Beach Oceanfront, 2717 West Fort Macon Road, Atlantic Beach, NC 28512; phone: (800) 222-8733 or (252) 240-1155; fax: (252) 222-4065.

    Council address: South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N. Charleston, SC 29405.

    FOR FURTHER INFORMATION CONTACT:

    Kim Iverson, Public Information Officer, SAFMC; phone (843) 571-4366 or toll free (866) SAFMC-10; fax (843) 769-4520; email: [email protected] Meeting information is available from the Council's Web site at: http://safmc.net/meetings/council-meetings/.

    SUPPLEMENTARY INFORMATION:

    Public comment: Written comments may be directed to Gregg Waugh, Executive Director, South Atlantic Fishery Management Council (see ADDRESSES) or electronically via the Council's Web site at: https://goo.gl/forms/QAZYglsYhWIkQZNV2. The public comment form is open for use when the briefing book is posted to the Web site on the Friday, two weeks prior to the Council meeting. Comments received by close of business the Monday before the meeting (November 28, 2016) will be compiled, posted to the Web site as part of the meeting materials, and included in the administrative record. For written comments received after the Monday before the meeting (after 11/28), individuals sending the comment must use the Council's online form available from the Web site. Comments will automatically be posted to the Web site and available for Council consideration. Comments received prior to noon on Thursday, December 8, 2016 will be a part of the meeting administrative record.

    The items of discussion in the individual meeting agendas are as follows:

    Advisory Panel Selection Committee (Partially Closed Session), Monday, December 5, 2016, 8:30 a.m. Until 9:30 a.m.

    1. The Committee will review applications for the SEDAR Pool Advisory Panel and provide recommendations (Closed Session).

    2. The Committee will review options for the structure of an advisory panel for the Council's System Management Plan addressing protected areas and provide guidance and timing for the advisory panel as necessary.

    Law Enforcement Committee, Monday, December 5, 2016, 9:30 a.m. Until 10:30 a.m.

    1. The Committee will receive a report on the level of commercial logbook reporting at the time of permit renewal, discuss compliance with logbook reporting requirements, and provide recommendations as appropriate.

    2. The Committee will also follow up on items from the earlier joint meeting of the Law Enforcement Committee and Advisory panel provide recommendations as appropriate.

    SSC Selection Committee, Monday, December 5, 2016, 10:30 a.m. Until 12 p.m.

    The Committee will review the SSC Conflict of Interest Policy, the SSC Public Comment Policy, and the SSC Update on complex analysis review process. The Committee will provide guidance as needed.

    Protected Resources Committee, Monday, December 5, 2016, 1:30 p.m. Until 2:30 p.m.

    The Committee will receive an update from NOAA Fisheries' Protected Resources Office, review the Biological Opinion for Snapper Grouper, appoint a Council member to the Large Whale Take Reduction Team, and receive an update from the U.S. Fish & Wildlife Service.

    Habitat Protection and Ecosystem-Based Management Committee, Monday, December 5, 2016, 2:30 p.m. Until 5 p.m.

    1. The Committee will receive a report from the Habitat Protection and Ecosystem-Based Management Advisory Panel and provide recommendations as appropriate.

    2. The Committee will review and approve the Council's Essential Fish Habitat Policy Statements for the Fishery Ecosystem Plan II.

    3. The Committee will receive an update on the Habitat and Ecosystem Tools and Model Development, Council actions pertaining to Habitat, and a report from the Lenfest Ecosystem Task Force and proved recommendations as appropriate.

    SEDAR Committee, Tuesday, December 6, 2016, 8:30 a.m. Until 10:30 a.m. (Partially Closed)

    1. The Committee will discuss and provide recommendations for appointments for the following stock assessments: SEDAR 50 Blueline Tilefish; SEDAR 48 Black Grouper, SEDAR 56 Black Sea Bass, and the SEDAR Stock Identification and Meristics Workshop. (Closed Session)

    2. The Committee will receive updates on SEDAR projects, review the SEDAR Steering Committee Report, and assessment priorities, including SSC prioritization recommendations and a long-term assessment plan. The Committee will provide recommendations as appropriate.

    Spiny Lobster Committee, Tuesday, December 6, 2016, 10:30 a.m. Until 11:30 a.m.

    1. The Committee will receive a presentation on Spiny Lobster regulations in Florida, review recommendations from the SSC for establishing Overfishing Levels and Acceptable Biological Catch for Spiny Lobster, and provide recommendations to staff.

    2. The Committee will also receive an overview of a Discussion Document on action to restrict recreational traps in the South Atlantic Exclusive Economic Zone and provide direction to staff.

    Joint Dolphin Wahoo/Snapper Grouper/Mackerel Cobia Committees, Tuesday, December 6, 2016, 1 p.m. Until 4 p.m.

    1. The Committees will receive updates from NOAA Fisheries on commercial and recreational catches of Dolphin and Wahoo versus annual catch limits (ACLs), status of amendments, and the 2015 commercial landings for Yellowtail Snapper.

    2. The Committee will review Dolphin Wahoo Amendment 10/Snapper Grouper Amendment 44 addressing allocations of Dolphin and Yellowtail Snapper, provide direction to staff, and recommend approval of the joint amendment for public hearings.

    3. The Committees will receive an overview of draft options for a Limited Entry program for federal For-Hire Permits in the Snapper Grouper, Coastal Migratory Pelagic, and Dolphin Wahoo fisheries in the South Atlantic/Atlantic, review options, modify the document if necessary, and provide guidance as appropriate.

    Information and Education Committee, Tuesday, December 6, 2016, 4 p.m. Until 5 p.m.

    The Committee will receive a report from the Information and Education Advisory Panel meeting and provide guidance to staff.

    Executive/Finance Committee, Tuesday, December 6, 2016, 5 p.m. Until 6 p.m. and Thursday, December 8, 2016, From 4:30 p.m. Until 5:30 p.m.

    1. The Committee will receive a presentation on the Final Rule for National Standard 1 Guidelines, discuss and provide guidance to staff.

    2. The Committee will receive an overview of Electronic Reporting Project Proposals, discuss and take action as necessary.

    3. The Committee will receive an update on the status of expenditures for Calendar Year (CY) 2016; review the Draft CY 2017 Budget; review, modify, and approve the Council Follow-up and work priorities; and provide recommendations as appropriate.

    3. The Committee will discuss standards and procedures for participating in Council webinar meetings and take action as appropriate.

    Snapper Grouper Committee, Wednesday, December 7, 2016, 8 a.m. Until 4:30 p.m. and Thursday, December 8, 2016, 9 a.m. Until 10 a.m.

    1. The Committee will receive updates from NOAA Fisheries on the status of commercial and recreational catches versus quotas for species under Annual Catch Limits (ACLs) and the status of amendments currently under Secretarial review.

    2. The Committee will receive reports from the Snapper Grouper Advisory Panel meeting and the SSC meeting, discuss and provide recommendations as appropriate.

    3. The Committee will receive presentations on the efficacy of descending devices for deepwater grouper and commercial logbook discard data for red grouper, discuss and take action as appropriate.

    4. The Committee will review Snapper Grouper Amendment 41 addressing management measures for mutton snapper, modify the document as appropriate, and provide recommendations to approve/disapprove the amendment for formal Secretarial Review.

    5. The Committee will receive the Annual Review of the Vision Blueprint for the Snapper Grouper Fishery addressing long-term management needs and provide recommendations as appropriate. The Committee will also review options for the Recreational Visioning Blueprint Amendment (Vision Blueprint Regulatory Amendment 26) and the Commercial Visioning Blueprint Amendment (Vision Blueprint Regulatory Amendment 27), modify the documents as appropriate, and approve for public scoping.

    6. The Committee will receive a presentation of Red Snapper landings by County in Florida, receive an overview of management options for Red Snapper to be addressed in Snapper Grouper Amendment 43, modify the document as necessary, and provide recommendations to approve/disapprove the options paper for public scoping.

    7. The Committee will consider an emergency rule for the 2017 season of Golden Tilefish and provide guidance to staff for amendment development.

    Formal Public Comment, Wednesday, December 7, 2016, 4:30 p.m.—Public comment will be accepted on items on the Council agenda. Comment will be accepted first on items before the Council for Secretarial approval: (1) Snapper Grouper Amendment 41 (Mutton Snapper); (2) Coastal Migratory Pelagic Amendment 29 (Gulf of Mexico King Mackerel Allocations); (3) Coastal Migratory Pelagic Amendment 30 (Atlantic Cobia Fishing Year); and (4) Atlantic For-Hire Electronic Reporting Amendment. The Council Chair, based on the number of individuals wishing to comment, will determine the amount of time provided to each commenter.

    Personnel Committee, Thursday, December 8, 2016, 8 a.m. Until 9 a.m. (Closed Session)

    The Committee will conduct the Executive Director's Performance Review.

    Highly Migratory Species (HMS) Committee, Thursday, December 8, 2016, 10 a.m. Until 11 a.m.

    The Committee will receive a presentation from NOAA Fisheries HMS on draft Amendment 5b to the 2006 Consolidated Atlantic HMS Fishery Management Plan addressing management measures for Dusky Shark and provide guidance to staff.

    Mackerel Cobia Committee, Thursday, December 8, 2016, 11 a.m. Until 12 p.m.

    1. The Committees will receive status updates from NOAA Fisheries on commercial and recreational catches versus annual catch limits (ACLs) for species under ACLs and amendments currently under Secretarial review.

    2. The Committee will receive an overview of Amendment 29 to the Coastal Migratory Pelagic (CMP) Fishery Management Plan for the Gulf of Mexico and South Atlantic Region addressing allocations of Gulf Group King Mackerel, modify as necessary, and provide recommendations to approve/disapprove the amendment for formal Secretarial Review.

    3. The Committee will receive an overview of CMP Amendment 30 addressing modifications to the Fishing Year for Atlantic Cobia, review public hearing comments, modify the document as necessary, and recommend approval/disapproval of the amendment for formal Secretarial Review.

    4. The Committee will review the ASMFC's Public Information Document for the Interstate Fishery Management Plan for Cobia and provide comments and guidance as appropriate.

    Citizen Science Committee, Thursday, December 8, 2016, 1:30 p.m. Until 2:30 p.m.

    The Committee will receive a program development update on the Council's Citizen Science Program, discuss and take action as necessary.

    Data Collection Committee, Thursday, December 8, 2016, 2:30 p.m. Until 4:30 p.m.

    1. The Committee will receive an update on the status of the Bycatch Reporting Amendment and the final Standardized Bycatch Reporting Methodology (SBRM) rule from NOAA Fisheries, discuss and provide direction to staff.

    2. The Committee will receive an update on the status of voluntary commercial logbook electronic reporting, discuss and take action as necessary.

    3. The Committee will receive an update on the status of the Pilot For-Hire Electronic Reporting Project being conducted jointly between the Council and the Atlantic Coastal Cooperative Statistics Program, review and take action as necessary.

    4. The Committee will also receive a report on the status of the Headboat Electronic Reporting Program and associated outreach, an overview of the For-Hire Reporting Amendment, review the amendment and provide recommendations for approval/disapproval of the amendment for Secretarial Review.

    Public Hearing—Atlantic States Marine Fisheries Commission (ASMFC)—Public Information Document for the Interstate Fishery Management Plan (FMP) for Cobia, Thursday, December 8, 2016, 6 p.m.—The ASMFC will hold a public hearing in conjunction with the Council meeting to solicit comment on the Public Information Document addressing state management of Cobia. Stakeholders are asked to provide information about changes observed in the fishery and provide input on potential management measures as well as any additional issues that should be included in the draft FMP. The Public Information Document includes draft goals and objectives of the plan; commercial and recreational measures; coast-wide, regional, or state-by-state measures; and other issues.

    Council Session: Friday, December 9, 2016, 8:30 a.m. until 1 p.m. (Partially Closed)

    The Full Council will convene on Friday morning with a Call to Order, announcements and introductions, and approve the September 2016 meeting minutes. The Council will present the Law Enforcement Officer of the Year award and make other presentations as appropriate.

    The Council will receive a Legal Briefing on Litigation from NOAA General Counsel (if needed) during Closed Session.

    The Council will receive a report from the Snapper Grouper Committee and approve/disapprove Snapper Grouper Amendment 41 (Mutton Snapper) for Secretarial review and approve Snapper Grouper Amendment 43 (red snapper), the Recreational Visioning Amendment, and the Commercial Visioning Amendment for public scoping. The Council will consider other Committee recommendations and take action as appropriate.

    The Council will receive a report from the Mackerel Cobia Committee, approve/disapprove Coastal Migratory Pelagic Amendment 29 (Gulf of Mexico King Mackerel Allocations) and Coastal Migratory Pelagic Amendment 30 (Atlantic Cobia Fishing Year) for Secretarial review, consider other Committee recommendations, and take action as appropriate.

    The Council will receive a report from the Data Collection Committee and approve/disapprove the Atlantic For-Hire Amendment (Electronic Reporting) for Secretarial Review, consider other committee recommendations, and take action as appropriate.

    The Council will receive a report from the Joint Dolphin Wahoo/Snapper Grouper/Mackerel Cobia Committee, approve/disapprove Joint Dolphin Wahoo Amendment 10/Snapper Grouper Amendment 44 (Allocations for Dolphin and Yellowtail Snapper) for public hearings, consider other recommendations, and take action as appropriate.

    The Council will continue to receive committee reports from Information & Education, Protected Resources, Advisory Panel Selection, SSC Selection, SEDAR, Habitat and Ecosystem-Based Management, Law Enforcement, Spiny Lobster, HMS, Citizen Science, and Executive Finance Committees, review recommendations and take action as appropriate.

    The Council will receive status reports from NOAA Fisheries Southeast Office and the Southeast Fisheries Science Center; review and develop recommendations on Experimental Fishing Permits as necessary; receive agency and liaison reports; and discuss other business and upcoming meetings.

    Documents regarding these issues are available from the Council office (see ADDRESSES).

    Although non-emergency issues not contained in this agenda may come before these groups for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see ADDRESSES) 3 days prior to the meeting.

    Note:

    The times and sequence specified in this agenda are subject to change.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 9, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-27434 Filed 11-14-16; 8:45 am] BILLING CODE 3510-22-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION [Docket No.: CFPB-2016-0047] Agency Information Collection Activities: Submission for OMB Review; Comment Request AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Notice and request for comment.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Consumer Financial Protection (Bureau) is proposing a new information collection titled, “Application Forms for Financial Empowerment Partnerships.”

    DATES:

    Written comments are encouraged and must be received on or before December 15, 2016 to be assured of consideration.

    ADDRESSES:

    You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:

    Electronic: http://www.regulations.gov. Follow the instructions for submitting comments.

    OMB: Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503 or fax to (202) 395-5806. Mailed or faxed comments to OMB should be to the attention of the OMB Desk Officer for the Bureau of Consumer Financial Protection.

    Please note that comments submitted after the comment period will not be accepted. In general, all comments received will become public records, including any personal information provided. Sensitive personal information, such as account numbers or Social Security numbers, should not be included.

    FOR FURTHER INFORMATION CONTACT:

    Documentation prepared in support of this information collection request is available at www.reginfo.gov (this link becomes active on the day following publication of this notice). Select “Information Collection Review,” under “Currently under review, use the dropdown menu “Select Agency” and select “Consumer Financial Protection Bureau” (recent submissions to OMB will be at the top of the list). The same documentation is also available at http://www.regulations.gov. Requests for additional information should be directed to the Consumer Financial Protection Bureau, (Attention: PRA Office), 1700 G Street NW., Washington, DC 20552, (202) 435-9575, or email: [email protected] Please do not submit comments to this email box.

    SUPPLEMENTARY INFORMATION:

    Title of Collection: Application Forms for Financial Empowerment Partnerships.

    OMB Control Number: 3170-XXXX.

    Type of Review: New collection (Request for a new OMB Control Number).

    Affected Public: Private Sector (e.g., community-based organizations and national non-profit organizations), State, Local, or Tribal Governments, and Federal Government.

    Estimated Number of Respondents: 285.

    Estimated Total Annual Burden Hours: 1,625.

    Abstract: The Bureau's Office of Financial Empowerment (Empowerment) is responsible for developing strategies to improve the financial capability of low-income and economically vulnerable consumers, such as consumers who are unbanked or underbanked, those with thin or no credit file, and households with limited savings. To address the needs of these consumers, Empowerment has developed three initiatives that target intermediary organizations and provide tools, training, technical assistance, and other services to help them reach low-income and economically vulnerable consumers to provide them the financial empowerment tools and information that they need, when they need it, where they are. These initiatives: (1) Your Money, Your Goals, (2) Financial Coaching, and (3) Tax Time Savings all require Bureau to engage organizations to participate in our financial empowerment initiatives. The proposed information collection request consists of application forms that will be used by community-based organizations, local, State, or Federal government entities, and national non-profit organizations to indicate their desire and ability to participate in Empowerment's various initiatives. Empowerment will use the information provided in these applications to select the best qualified organizations for participation.

    Request for Comments: The Bureau issued a 60-day Federal Register notice on August, 23, 2016, (81 FR 57569), Docket Number: CFPB-2016-0042. Comments were solicited and continue to be invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Bureau, including whether the information will have practical utility; (b) The accuracy of the Bureau's estimate of the burden of the collection of information, including the validity of the methods and the assumptions used; (c) Ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record.

    Dated: November 9, 2016. Darrin A. King, Paperwork Reduction Act Officer, Bureau of Consumer Financial Protection.
    [FR Doc. 2016-27427 Filed 11-14-16; 8:45 am] BILLING CODE 4810-AM-P
    DEPARTMENT OF DEFENSE Department of the Army [Docket ID: USA-2016-HQ-0036] Privacy Act of 1974; System of Records AGENCY:

    Department of the Army, DoD.

    ACTION:

    Notice to alter a System of Records.

    SUMMARY:

    Pursuant to the Privacy Act of 1974 and Office of Management and Budget (OMB) Circular No. A-130, notice is hereby given that the Department of the Army proposes to alter a system of records, A0037-104-3 USMA, entitled “USMA Cadet Account System,” last published at 65 FR 3219, January 20, 2000. This system of records exists to enable Cadets to receive income (salary, scholarship, individual deposits, etc.) and pay for expenses (uniforms, books, a computer, activity fees, etc.) while attending the United States Military Academy (USMA) at West Point. The program is managed by the USMA Treasurer who is charged with ensuring all cadets meet their USMA financial obligations.

    This revision reflects considerable administrative changes that in sum warrant an alteration to the system of records notice. There are two significant changes: The categories of records has been updated to provide additional details on the information collected; and the applicable DoD Routine Uses have been incorporated in the notice to provide clarity for the public. There are also modifications to the system name, authorities, purpose, storage, retrievability, safeguards, notification and record access procedures, contesting record procedures, and records source categories to improve readability and update the notice to meet current departmental standards.

    DATES:

    Comments will be accepted on or before December 15, 2016. This proposed action will be effective the date following the end of the comment period unless comments are received which result in a contrary determination.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

    * Federal Rulemaking Portal: http://www.regulations.gov.

    Follow the instructions for submitting comments.

    * Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name and docket number for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Tracy Rogers, Department of the Army, Privacy Office, U.S. Army Records Management and Declassification Agency, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22325-3905 or by calling (703) 428-7499.

    SUPPLEMENTARY INFORMATION:

    The Department of the Army's notices for system of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the Federal Register and are available from the address in FOR FURTHER INFORMATION CONTACT or from the Defense Privacy, Civil Liberties, and Transparency Division Web site http://dpcld.defense.gov/.

    The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act, as amended, were submitted on October 20, 2016, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4 of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” revised November 28, 2000 (December 12, 2000 65 FR 77677).

    Dated: November 9, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. A0037-104-3 USMA System name:

    USMA Cadet Account System (January 20, 2000, 65 FR 3219)

    Changes: System Name:

    Delete entry and replace with: “United States Military Academy (USMA) Cadet Account System”.

    Categories of records in the system:

    Delete entry and replace with “Name, address, Social Security Number (SSN), cadet account number, personal bank account number, monthly deposit listings of Corps of Cadets members showing entitlements, financial statements and schedules, and activities pertaining to funds held in trust by the USMA Treasurer.”

    Authority for maintenance of the system:

    Delete entry and replace with “10 U.S.C. 3013, Secretary of Army; 10 U.S.C. 4340, Quartermaster; 10 U.S.C. 4350, Cadets: Clothing and equipment; Title 7—Fiscal Guidance, General Accounting Office Policy and Procedures Manual for Guidance of Federal Agencies; Army Regulation 210-26, United States Military Academy; and E.O. 9397 (SSN), as amended.”

    Purpose:

    Delete entry and replace with “To compute debits and credits posted against cadet account balances. Debits include charges to the cadet's account for uniforms, textbooks, computers and related supplies, academic supplies, various fees; credits include advance pay, monthly deposits from payroll, scholarships, initial deposits, interest accumulated on cadet account balances, and individual deposits.”

    Routine uses of records maintained in the system, including categories of users and the purposes of such uses:

    Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained herein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:

    Law Enforcement Routine Use. If a system of records maintained by a DoD Component to carry out its functions indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or by regulation, rule, or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the agency concerned, whether federal, state, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.

    Disclosure When Requesting Information Routine Use. A record from a system of records maintained by a DoD Component may be disclosed as a routine use to a federal, state, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to a DoD Component decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit.

    Disclosure of Requested Information Routine Use. A record from a system of records maintained by a DoD Component may be disclosed to a federal agency, in response to its request, in connection with the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.

    Congressional Inquiries Disclosure Routine Use. Disclosure from a system of records maintained by a DoD Component may be made to a congressional office from the record of an individual in response to an inquiry from the congressional office made at the request of that individual.

    Data Breach Remediation Purposes Routine Use. A record from a system of records maintained by a Component may be disclosed to appropriate agencies, entities, and persons when (1) The Component suspects or has confirmed that the security or confidentiality of the information in the system of records has been compromised; (2) the Component has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Component or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Components efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.”

    Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system: Storage:

    Delete entry and replace with “Electronic storage media and microfiche.”

    Retrievability:

    Delete entry and replace with “By Cadet's account number, full name, or SSN.”

    Safeguards:

    Delete entry and replace with “Records are maintained in office areas which are secured and accessible only to authorized personnel. Access to computerized data is restricted by use of Common Access Cards (CACs) and is accessible only by users with an authorized account. The system is maintained in a controlled facility that employs physical restrictions and safeguards such as security guards, identification badges, key cards, and locks.”

    Notification procedure:

    Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Superintendent, U.S. Military Academy, ATTN: USMA Treasurer, West Point, NY 10996-1783.

    Individual should provide full name, cadet account number, SSN, graduating class year, current address, telephone number, and signature.

    In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:

    If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).'

    If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)’ ”

    Record access procedures:

    Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the Superintendent, U.S. Military Academy, ATTN: USMA Treasurer, West Point, NY 10996-1783.

    Individual should provide full name, cadet account number, SSN, graduating class year, current address, telephone number, and signature.

    In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:

    If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).'

    If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).'

    Personal visits may be made to the Treasurer, U.S. Military Academy; individual must provide acceptable identification such as valid driver's license and information that can be verified with his/her payroll.”

    Contesting records procedures:

    Delete entry and replace with “The Army's rules for accessing records, and for contesting contents and appealing initial agency determinations are contained in 32 CFR part 505, Army Privacy Program or may be obtained from the system manager.”

    Record source categories:

    Delete entry and replace with “From the individual, Department of Army, Department of the Treasurer, and financial institutions.”

    [FR Doc. 2016-27404 Filed 11-14-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary Defense Advisory Committee on Women in the Services (DACOWITS); Notice of Federal Advisory Committee Meeting AGENCY:

    Department of Defense.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Defense (DoD) is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense Advisory Committee on Women in the Services (DACOWITS) will take place. This meeting is open to the public.

    DATES:

    Thursday, December 8, 2016, from 8:30 a.m. to 3:15 p.m.; Friday, December 9, 2016, from 8:30 a.m. to 11:30 a.m.

    ADDRESSES:

    Association of the United States Army (AUSA) Conference Center, 2425 Wilson Boulevard, Arlington, VA 22201.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Robert Bowling or DACOWITS Staff at 4800 Mark Center Drive, Suite 04J25-01, Alexandria, Virginia 22350-9000; [email protected], telephone (703) 697-2122, fax (703) 614-6233. Any updates to the agenda or any additional information can be found at http://dacowits.defense.gov/.

    SUPPLEMENTARY INFORMATION:

    Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C. Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), and Section 10(a), Public Law 92-463, as amended, notice is hereby given of a forthcoming meeting of the DACOWITS.

    The purpose of the meeting is for the Committee to receive briefings and updates relating to their current work. The Designated Federal Officer (DFO) will open the meeting and give a status update on the Committee's requests for information. This will be followed with four panel discussions on the following topics: Integrated Boxing Programs at the Military Service Academies; the Services' Retention Initiatives; the Services' Efforts to Increase Propensity; and the Services' Sexual Harassment/Sexual Assault Training. This will be followed with a public comment period. The second day of the meeting will open with an awards ceremony to recognize departing members. The Committee will then receive a briefing update on DoD's Childcare Programs and Initiatives. This will be followed by a panel discussion on the Services' Family Care Plan Policies.

    Pursuant to 41 CFR 102-3.140, and section 10(a)(3) of the Federal Advisory Committee Act of 1972, interested persons may submit a written statement for consideration by the DACOWITS. Individuals submitting a written statement must submit their statement to the point of contact listed at the address in FOR FURTHER INFORMATION CONTACT no later than 5:00 p.m., Wednesday, November 30, 2016. If a written statement is not received by Wednesday, November 30, 2016, prior to the meeting, which is the subject of this notice, then it may not be provided to or considered by the DACOWITS until its next open meeting. The DFO will review all timely submissions with the DACOWITS Chair and ensure they are provided to the members of the Committee. If members of the public are interested in making an oral statement, a written statement should be submitted. After reviewing the written comments, the Chair and the DFO will determine who of the requesting persons will be able to make an oral presentation of their issue during an open portion of this meeting or at a future meeting. Pursuant to 41 CFR 102-3.140(d), determination of who will be making an oral presentation is at the sole discretion of the Committee Chair and the DFO, and will depend on time available and if the topics are relevant to the Committee's activities. Five minutes will be allotted to persons desiring to make an oral presentation. Oral presentations by members of the public will be permitted only on Thursday, December 8, 2016 from 2:45 p.m. to 3:15 p.m. in front of the full Committee. The number of oral presentations to be made will depend on the number of requests received from members of the public.

    Pursuant to 5 U.S.C. 552b and 41 CFR 102-3.140 through 102-3.165, this meeting is open to the public, subject to the availability of space.

    Meeting Agenda Thursday, December 8, 2016, From 8:30 a.m. to 3:15 p.m. —Welcome, Introductions, Announcements —Request for Information Status Update —Panel Discussion—Integrated Boxing Programs at the Military Service Academies —Panel Discussion—Services' Retention Initiatives —Panel Discussion—Services' Efforts to Increase Propensity Panel Discussion —Panel Discussion—Services' Sexual Harassment/Sexual Assault Training —Public Comment Period —Public Dismissed Friday, December 9, 2016, From 8:30 a.m. to 11:30 a.m. —Welcome and Announcements —Awards Ceremony for Departing Members —Briefing—DoD Childcare Programs and Initiatives Update —Panel Discussion—Services' Family Care Plan Policies —Public Dismissed Dated: November 9, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-27413 Filed 11-14-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DOD-2015-OS-0133] Submission for OMB Review; Comment Request ACTION:

    Notice.

    SUMMARY:

    The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.

    DATES:

    Consideration will be given to all comments received by December 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Fred Licari, 571-372-0493.

    SUPPLEMENTARY INFORMATION:

    Title, Associated Form and OMB Number: DoD Consolidations Facility Request for Records, CAF Form 3; OMB Control Number 0704-XXXX.

    Type of Request: Existing Collection without an OMB Control Number.

    Number of Respondents: 120.

    Responses per Respondent: 1.

    Annual Responses: 120.

    Average Burden per Response: 5 minutes.

    Annual Burden Hours: 10 hours.

    Needs and Uses: The information collection requirement is necessary to ensure needed information is collected to positively identify individuals who request records regarding themselves that are maintained by the DoD Consolidated Adjudications Facility. These records will also be used in any Privacy Act appeals or related litigation. The Law Enforcement, Congressional Inquiries, Department of Justice for Litigation, National Archives and Records Administration, and Data Breach Remediation, and Routine Uses found at http://dpcld.defense.gov/Privacy/SORNsIndex/BlanketRoutineUses.aspx. The DoD Consolidated Adjudications Facility Request for Records form will also be used to refer records under the release authority of another Federal Agency.

    Affected Public: Individuals or Households.

    Frequency: On occasion.

    Respondent's Obligation: Voluntary.

    OMB Desk Officer: Ms. Jasmeet Seehra.

    Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at [email protected] Please identify the proposed information collection by DoD Desk Officer and the Docket ID number and title of the information collection.

    You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Instructions: All submissions received must include the agency name, Docket ID number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    DOD Clearance Officer: Mr. Frederick Licari.

    Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 03F09, Alexandria, VA 22350-3100.

    Dated: November 9, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-27407 Filed 11-14-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2016-ICCD-0099] Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Trends in International Mathematics and Science Study (TIMSS 2019) Field Test Recruitment and Pilot Test AGENCY:

    National Center for Education Statistics (NCES), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before December 15, 2016.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2016-ICCD-0099. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 2E-347, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact NCES Information Collections at [email protected]

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: Trends in International Mathematics and Science Study (TIMSS 2019) Field Test Recruitment and Pilot Test.

    OMB Control Number: 1850-0695.

    Type of Review: A revision of an existing information collection.

    Respondents/Affected Public: Individuals or Households.

    Total Estimated Number of Annual Responses: 8,594.

    Total Estimated Number of Annual Burden Hours: 2,190.

    Abstract: The Trends in Mathematics and Science Study (TIMSS) is an international assessment of fourth and eighth grade students' achievement in mathematics and science. Since its inception in 1995, TIMSS has continued to assess students every 4 years. The United States will participate in TIMSS 2019 to continue to monitor the progress of its students compared to that of other nations and to provide data on factors that may influence student achievement. New in 2019, TIMSS will be a technology-based assessment conducted in an electronic format. TIMSS is designed by the International Association for the Evaluation of Educational Achievement (IEA), and is conducted in the U.S. by the National Center for Education Statistics (NCES). In preparation for the TIMSS 2019 main study, in April 2017, U.S. will participate in a pilot study to assist in the development of eTIMSS and, in March through April 2018, in a field test to evaluate new assessment items and background questions. The TIMSS 2019 Main Study data collection will take place from April through May 2019. This submission is to conduct the TIMSS 2019 pilot test and to begin recruitment of schools, teachers, and students for the field test study. The pilot test data collection will begin in April 2017 and the recruitment for the field test in May 2017. Recruitment for the main study will begin in May of 2018 In May 2017, NCES will submit a request to conduct the 2018 field test and recruit schools for TIMSS 2019 Main Study.

    Dated: November 9, 2016. Kate Mullan, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2016-27394 Filed 11-14-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2016-ICCD-0127] Agency Information Collection Activities; Comment Request; Integrated Postsecondary Education Data System (IPEDS) 2016-2019 AGENCY:

    National Center for Education Statistics (NCES), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before January 17, 2017.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2016-ICCD-0127. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 2E-347, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact NCES Information Collections at [email protected]

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: Integrated Postsecondary Education Data System (IPEDS) 2016-2019.

    OMB Control Number: 1850-0582.

    Type of Review: A revision of an existing information collection.

    Respondents/Affected Public: State, Local, and Tribal Governments.

    Total Estimated Number of Annual Responses: 76,000.

    Total Estimated Number of Annual Burden Hours: 1,030,893.

    Abstract: The National Center for Education Statistics (NCES) seeks authorization from OMB to make a change to the Integrated Postsecondary Education Data System (IPEDS) data collection. Current authorization expires 08/31/2019 (OMB #1850-0582). NCES is requesting a new clearance for the 2017-18, 2018-19, and 2019-20 data collections to enable us to make a change to two of the IPEDS data collection components and to continue the IPEDS collection of postsecondary data over the next 3 years. IPEDS is a web-based data collection system designed to collect basic data from all postsecondary institutions in the United States and the other jurisdictions. IPEDS enables NCES to report on key dimensions of postsecondary education such as enrollments, degrees and other awards earned, tuition and fees, average net price, student financial aid, graduation rates, student outcomes, revenues and expenditures, faculty salaries, and staff employed. The IPEDS web-based data collection system was implemented in 2000-01, and it collects basic data from approximately 7,500 postsecondary institutions in the United States and the other jurisdictions that are eligible to participate in Title IV Federal financial aid programs. All Title IV institutions are required to respond to IPEDS (Section 490 of the Higher Education Amendments of 1992 [Pub. L. 102-325]). IPEDS allows other (non-title IV) institutions to participate on a voluntary basis. About 200 elect to respond. IPEDS data are available to the public through the College Navigator and IPEDS Data Center Web sites. This clearance package includes a number of proposed changes to the data collection.

    Dated: November 9, 2016. Kate Mullan, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2016-27426 Filed 11-14-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2016-ICCD-0126] Agency Information Collection Activities; Comment Request; Principal Follow-Up Survey (PFS 2016-17) to the National Teacher and Principal Survey (NTPS 2015-16) AGENCY:

    National Center for Education Statistics (NCES), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, ED is proposing a new information collection.

    DATES:

    Interested persons are invited to submit comments on or before January 17, 2017.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2016-ICCD-0126. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 2E-347, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact NCES Information Collections at [email protected]

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: Principal Follow-Up Survey (PFS 2016-17) to the National Teacher and Principal Survey (NTPS 2015-16).

    OMB Control Number: 1850-NEW.

    Type of Review: A new information collection.

    Respondents/Affected Public: Individuals or Households.

    Total Estimated Number of Annual Responses: 7,240.

    Total Estimated Number of Annual Burden Hours: 603.

    Abstract: This request is to conduct data collection for the 2016-17 Principal Follow-up Survey (PFS), a one-year follow up of principals who responded to the 2015-16 National Teacher and Principal Survey (NTPS). PFS is conducted by the National Center for Education Statistics (NCES), of the Institute of Education Sciences (IES), within the U.S. Department of Education (ED). The PFS has been conducted two times previously: beginning in 2008-09 as a follow up to the Schools and Staffing Survey (SASS) in 2007-08 (OMB #1850-0598 v.5) and, subsequently, as a follow-up to SASS in 2012-2013 (OMB #1850-0598 v.9). During the 2015-16 school year, NCES conducted the first NTPS (OMB #1850-0598 v.11), a redesign of SASS to improve the flexibility, efficiency, and timeliness of NCES data on the nation's K-12 schools, principals, and teachers. The 2016-17 PFS will be the first to launch from the redesigned NTPS. The PFS survey design and content remain highly consistent with earlier administrations. The 2016-17 PFS, like earlier PFS collections, will measure the one-year attrition rates of principals who leave the profession and will permit comparisons of stayers, movers, and leavers. “Stayers” are principals who remain in the same school between the NTPS year of data collection and the follow-up year; “movers” are principals who stay in the profession but change schools between the NTPS year and the follow-up year; and “leavers” are NTPS respondents who leave the principal profession between the NTPS year and the follow-up year. The data collected in the 2016-17 PFS will be combined with data collected in the 2015-16 NTPS on principal characteristics, qualifications, and perceptions of the school environment. Together, NTPS and PFS provide national data on turnover in the principal workforce, including rates of entry and attrition from principalship, sources and characteristics of newly hired principals, and characteristics and destinations of leavers. The cross-sectional repeated design of PFS allows for analyses of trends related to these topics.

    Dated: November 9, 2016. Kate Mullan, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2016-27393 Filed 11-14-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY Hydrogen and Fuel Cell Technical Advisory Committee (HTAC) AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Notice of open meeting.

    SUMMARY:

    This notice announces an open meeting of the Hydrogen and Fuel Cell Technical Advisory Committee (HTAC). The Federal Advisory Committee Act requires notice of the meeting be announced in the Federal Register.

    DATES:

    Tuesday, December 6, 2016 9:00 a.m.-5:45 p.m.

    Wednesday, December 7, 2016 9:00 a.m.-1:15 p.m.

    ADDRESSES:

    National Renewable Energy Laboratory, 901 D St SW., Suite 930, Washington, DC 20024.

    FOR FURTHER INFORMATION CONTACT:

    Email: [email protected] or at the mailing address: Erika Gupta, Designated Federal Officer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, 15013 Denver West Parkway, Golden, CO 80401.

    SUPPLEMENTARY INFORMATION:

    Purpose of the Committee: The Hydrogen and Fuel Cell Technical Advisory Committee (HTAC) was established under section 807 of the Energy Policy Act of 2005 (EPACT), Pub. L. 109-58; 119 Stat. 849.

    Purpose of the Meeting: To provide advice and recommendations to the Secretary of Energy on the program authorized by Title VIII of EPACT.

    Tentative Agenda: (updates will be posted on the web at: http://hydrogen.energy.gov/advisory_htac.html).

    • HTAC Business (including public comment period) • DOE Leadership Updates • Program and Budget Updates • Updates from Federal/State Governments and Industry • HTAC Subcommittee Updates • Open Discussion Period

    Public Participation: The meeting is open to the public. Individuals who would like to attend and/or to make oral statements during the public comment period must register no later than 5:00 p.m. on Monday, November 28, 2016 by email at [email protected] Entry to the meeting room will be restricted to those who have confirmed their attendance in advance. Please provide your name, organization, citizenship, and contact information. Anyone attending the meeting will be required to present government-issued identification. Those wishing to make a public comment are required to register. The public comment period will take place between 9:00 a.m. and 9:30 a.m. on December 6, 2016. Time allotted per speaker will depend on the number who wish to speak but will not exceed five minutes. Those not able to attend the meeting or have insufficient time to address the committee are invited to send a written statement to [email protected]

    Minutes: The minutes of the meeting will be available for public review at http://hydrogen.energy.gov/advisory_htac.html.

    Issued in Washington, DC at November 8, 2016. LaTanya R. Butler, Deputy Committee Management Officer.
    [FR Doc. 2016-27361 Filed 11-14-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Secretary of Energy Advisory Board AGENCY:

    Department of Energy.

    ACTION:

    Notice of cancellation of open meeting.

    SUMMARY:

    On November 2, 2016, the Department of Energy (DOE) published a notice of open meeting scheduled for December 13, 2016, of the Secretary of Energy Advisory Board. This notice announces the cancellation of this meeting. The meeting is being cancelled because the board will not have a quorum due to scheduling conflicts by members. The next regular meeting will be held at a date to be determined.

    DATES:

    The meeting scheduled for December 13, 2016, announced in the November 2, 2016, issue of the Federal Register (FR Doc. 2016-26419, 81 FR 212), is cancelled.

    FOR FURTHER INFORMATION CONTACT:

    Karen Gibson, Designated Federal Officer, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; [email protected]

    Issued at Washington, DC, on November 8, 2016. LaTanya R. Butler, Deputy Committee Management Officer.
    [FR Doc. 2016-27362 Filed 11-14-16; 8:45 am] BILLING CODE 6405-01-P
    DEPARTMENT OF ENERGY National Nuclear Security Administration DEPARTMENT OF STATE DEPARTMENT OF COMMERCE Amendment to Procedures Established Pursuant to the Nuclear Non-Proliferation Act of 1978 AGENCY:

    National Nuclear Security Administration, Department of Energy; Department of State, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    Section 3136 of the National Defense Authorization Act for Fiscal Year 2016 (NDAA) mandates that the Office of the Director of National Intelligence (ODNI) also be consulted with respect to each authorization under section 57b.(2) of the Atomic Energy Act of 1954, as amended (AEA), to a covered foreign country as defined in section 3136(i)(2) of the NDAA. This amendment to the Procedures Established Pursuant to the Nuclear Non-Proliferation Act of 1978 implements this consultation requirement.

    DATES:

    Effective: November 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Richard Goorevich, Senior Policy Advisor, Office of Nonproliferation and Arms Control (NPAC), National Nuclear Security Administration (NNSA), Department of Energy (DOE), 1000 Independence Avenue SW., Washington, DC 20585, [email protected], telephone 202-586-0589; or Mr. Dick Stratford, Director, Office of Nuclear Energy, Safety, and Security, Department of State (DOS), 2201 C St. NW., Room 3320, Washington, DC 20520, [email protected], telephone 202-647-4413; or Mr. Steven Clagett, Director, Nuclear and Missile Technology Division, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230, [email protected], telephone 202-482-1641.

    SUPPLEMENTARY INFORMATION:

    Background

    Section 57b.(2) of the Atomic Energy Act of 1954, as amended (AEA), is implemented through the DOE/NNSA regulations under Title 10 of the Code of Federal Regulations (CPR) Part 810 (Part 810) governing exports of unclassified nuclear technology and assistance. On February 23, 2015, DOE/NNSA published its final rule (80 FR 9359) revising Part 810. The final rule came into effect on March 25, 2015. Before the Secretary of Energy authorizes certain transfers of civil nuclear technology and assistance, DOE/NNSA is required to consult with the Nuclear Regulatory Commission (NRC), the Department of Commerce (DOC), and the Department of Defense (DoD), and obtain the concurrence of the Department of State (DOS). These reviews are accomplished in a manner consistent with Part D of the Procedures Established Pursuant to the Nuclear Non-Proliferation Act of 1978 (the “Procedures”), as published in the Federal Register on June 7, 1978 (43 FR 25326), and amended by publication in the Federal Register on May 16, 1984 (49 FR 20780), and February 19, 1991 (56 FR 6701). This amendment addresses only Section 12 of Part D of the Procedures to implement the new requirements of Section 3136 of the NDAA, which mandates that the Director, ODNI, also be consulted with respect to each authorization under section 57b. of the AEA to a covered foreign country as defined in section 3136(i)(2) of the NDAA.

    Amended Procedure

    To provide for consultation with the ODNI on applications for specific authorization under section 57b.(2) of the AEA, as implemented by DOE/NNSA regulations at 10 CFR Part 810, Section 12 of Part D of the Procedures is amended as follows:

    1. Within 10 days of receipt of an application for specific authorization for a transfer of technology controlled under 10 CFR Part 810, DOE/NNSA conducts a technical review of the application to determine whether the application is properly submitted and falls within the scope of the regulation.

    1.a. Concurrent with the internal DOE/NNSA technical review, for packages involving covered foreign countries as defined in section 3136(i)(2) of the NDAA, DOE/NNSA sends the end user, equipment, supplier information, and any other relevant information to ODNI. ODNI notifies Intelligence Community (IC) elements of the application for transfer of technology as soon as possible.

    1.b. Within 10 business days of initial notification, ODNI identifies, based on the details of the transfer application and availability, an IC point of contact (POC) to provide a response. DOE/NNSA provides ODNI with any technical reviews or assessments conducted by DOE/NNSA relevant to the technology transfer.

    1.c. Within 30 business days of receiving the end user, equipment, and supplier information from DOE/NNSA, ODNI makes its coordinated response available to: DOE/NNSA; DOS; and NRC, DOC, and DoD (collectively herein referred to as the “Consulting Agencies”).

    2. After the DOE/NNSA technical review is complete, with expected timelines of not more than 60 days for covered foreign countries and 30 days for other destinations, DOE/NNSA transmits through appropriate means the application and DOE/NNSA analysis to DoD, DOC, DOS, and NRC for review. Within 30 days after receipt, DOS and the Consulting Agencies provide their views on the application and analysis. If DOS or a Consulting Agency notifies DOE/NNSA NPAC in writing that additional information is required, NPAC will provide appropriate time for all Consulting Agencies to consider the application and a new time line will be established for reviews based on individual circumstances. Note that the U.S. Government, through DOS, requests foreign government assurances for specific authorizations, and it is the foreign government's control over how long it may take to deliver these assurances, which may lengthen the time line for interagency review beyond the expected 30 days.

    3. Within 100 days following the completion of the interagency consultations, NPAC provides the Secretary of Energy with a recommendation for action on the application, including the views of DOS, the Consulting Agencies, and ODNI, if applicable. In the event that any such agencies recommend further consideration this timeline may be extended.

    Information provided to DOE in connection with these procedures may be marked or otherwise identified as business proprietary and/or personally identifiable information and would be subject to protection in accordance with applicable law and Executive Orders. Such information would be made available within the respective agencies only to those personnel who have a need to know for the purpose of reviewing applications for exports of unclassified nuclear technology and assistance under section 57b.(2) of the Atomic Energy Act of 1954, as amended, and otherwise disclosed only with the express consent of DOE/NNSA or when such disclosure is required by law.

    Dated: November 2, 2016. Kasia Mendelsohn, Associate Deputy, Administrator, Office of Nonproliferation and Arms Control, National Nuclear Security Administration. Department of Energy. Richard J.K. Stratford, Director, Office of Nuclear Energy, Safety and Security, Bureau of International Security and Nonproliferation, Department of State. Matthew Borman, Deputy Assistant Secretary, Office of Export Administration, Bureau of lndustry and Security, Department of Commerce.
    [FR Doc. 2016-27409 Filed 11-14-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 2850-023] Hampshire Paper Company, Inc., KE Emeryville, LLC; Notice of Application for Transfer of License and Soliciting Comments, Motions To Intervene, and Protests

    On October 24, 2016, Hampshire Paper Company, Inc. (transferor) and KE Emeryville, LLC (transferee) filed an application for the transfer of license of the Emeryville Hydroelectric Project No. 2850. The project is located on the Oswegatchie River in St. Lawrence County, New York. The project does not occupy Federal lands.

    The applicants seek Commission approval to transfer the license for the Emeryville Hydroelectric Project from Hampshire Paper Company, Inc. to KE Emeryville, LLC.

    Applicants Contact: For transferor: Mr. Charles Wemyss, Hampshire Paper Company, Inc., c/o Pierce Atwood, LLP, 254 Commercial Street, Portland, ME 04101, Email: [email protected] and Mr. Christopher Howard, Pierce Atwood, LLP, Merrill's Wharf, 245 Commercial Street, Portland, ME 04101, Email: [email protected] For transferee: Mr. Frédéric Boucher, KE Emeryville, LLC, 37 Alfred A. Plourde Parkway, Suite 2, Lewiston, ME 04240, Email: [email protected] and Ms. Heather J. Haney, Kaplan Kirsch & Rockwell, 1675 Broadway, Suite 2300, Denver, CO 80202, Email: [email protected]

    FERC Contact: Patricia W. Gillis, (202) 502-8735, [email protected]

    Deadline for filing comments, motions to intervene, and protests: 30 days from the date that the Commission issues this notice. The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. The first page of any filing should include docket number P-2850-023.

    Dated: November 7, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-27381 Filed 11-14-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL17-15-000] Big Rivers Electric Corporation v. Midcontinent Independent System Operator, Inc.; Notice of Complaint

    Take notice that on November 4, 2016, pursuant to section 206 of the Federal Power Act, 16 U.S.C. 824e, and Rules 206 and 212 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206 and 385.212 (2016), Big Rivers Electric Corporation (Complainant) filed a formal complaint against Midcontinent Independent System Operator, Inc. (Respondent) alleging that Respondent's application of the relevant Open Access Transmission, Energy and Operating Reserves Markets Tariff provisions to Complainant is not just and reasonable, all as more fully explained in the complaint.

    Complainant certifies that a copy of the complaint has been served on MISO and on the Kentucky Public Service Commission.

    Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainant.

    The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    This filing is accessible on-line at http://www.ferc.gov, using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: 5:00 p.m. Eastern Time on November 24, 2016.

    Dated: November 7, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-27379 Filed 11-14-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP17-5-000] Columbia Gas Transmission, LLC; Notice of Request Under Blanket Authorization

    Take notice that on October 28, 2016, Columbia Gas Transmission, LLC (Columbia), located at 5151 San Felipe, Suite 2500, Houston, Texas 77056, filed in Docket No. CP17-5-000, a prior notice request pursuant to sections 157.205, and 157.208(b) of the Federal Energy Regulatory Commission's regulations under the Natural Gas Act (NGA), seeking authorization to abandon and construct certain natural gas facilities in Gallia, Jackson and Lawrence Counties, Ohio, all as more fully set forth in the application, which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC at [email protected] or call toll-free, (866) 208-3676 or TTY, (202) 502-8659.

    Any questions regarding the Request should be directed to Richard D. Bralow, Counsel, Columbia Gas Transmission, LLC, 700 Louisiana Street, Houston, Texas 77002, by telephone at: 832-320-5177, or by email at [email protected]

    Any person may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.

    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.

    Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenter's will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenter's will not be required to serve copies of filed documents on all other parties. However, the non-party commentary, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and ill not have the right to seek court review of the Commission's final order.

    The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (www.ferc.gov) under the “e-Filing” link. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    Dated: November 7, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-27382 Filed 11-14-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket Nos. EL17-17-000; QF11-516-001] Western Water and Power Production Limited LLC; Notice of Petition for Enforcement

    Take notice that on November 7, 2016, pursuant to section 210(h)(2)(B) of the Public Utility Regulatory Policies Act of 1978 (PURPA), Western Water and Power Production Limited LLC (Petitioner) filed a Petition for Enforcement, requesting the Federal Energy Regulatory Commission (Commission) to exercise its authority and initiate enforcement action against the New Mexico Public Regulation Commission to remedy its alleged improper implementation of PURPA, all as more fully explained in the petition.

    Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Petitioner.

    The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    This filing is accessible on-line at http://www.ferc.gov, using the “eLibrary” link and is available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: 5:00 p.m. Eastern Time on November 28, 2016.

    Dated: November 7, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-27380 Filed 11-14-16; 8:45 am] BILLING CODE 6717-01-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-0698] Information Collection Being Reviewed by the Federal Communications Commission Under Delegated Authority AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.

    DATES:

    Written PRA comments should be submitted on or before January 17, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Nicole Ongele, FCC, via email to [email protected] and to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.

    SUPPLEMENTARY INFORMATION:

    OMB Approval Number: 3060-0698.

    Title: Section 25.203(i) and 73.1030(a)(2), Radio Astronomy Coordination Zone in Puerto Rico.

    Form No: N/A.

    Type of Review: Extension of a currently approved collection.

    Respondents: Business or other for-profit, not-for-profit institutions, and State, local, or tribal Government.

    Number of Respondents and Responses: 450 respondents, 4,000 responses.

    Estimated Time per Response: 5-40 minutes (.0833 hours to .667 hours).

    Frequency of Response: On occasion reporting requirement and third party disclosure requirement.

    Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained 47 U.S.C. 154(i), 303(f), 303(r), and 309(j)(13).

    Total Annual Burden: 602 hours.

    Total Annual Cost: No cost.

    Privacy Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: There is no need for confidentiality.

    Needs and Uses: The Commission will submit this expiring information collection to the Office of Management and Budget (OMB) after this 60 day comment period to obtain the three-year clearance from them.

    On October 15, 1997, the FCC released a Report and Order, ET Docket No. 96-2, RM-8165, FCC 97-347, that established a Coordination Zone for new and modified radio facilities in various communications services that cover the islands of Puerto Rico, Desecheo, Mona, Vieques, and Culebra within the Commonwealth of Puerto Rico. The coordination zone and notification procedures enable the Arecibo Radio Astronomy Observatory to receive information needed to assess whether an applicant's proposed operations will cause harmful interference to the Arecibo Observatory's operations, which also promotes efficient resolution of coordination problems between the applicants and the Arecibo Observatory.

    Federal Communications Commission. Gloria J. Miles, Federal Register Liaison Officer, Office of the Secretary.
    [FR Doc. 2016-27331 Filed 11-14-16; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-XXXX] Information Collection Being Reviewed by the Federal Communications Commission AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.

    DATES:

    Written PRA comments should be submitted on or before January 17, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Nicole Ongele, FCC, via email [email protected] and to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.

    SUPPLEMENTARY INFORMATION:

    OMB Control Number: 3060-XXXX.

    Title: Improving Reporting for Submarine Cables and Enhanced Submarine Outage Data.

    Form Number: FCC Form 5623.

    Type of Review: New collection.

    Respondents: Business or other for-profit.

    Number of Respondents and Responses: 63 respondents; 50 responses.

    Estimated Time per Response: 2 hours.

    Frequency of Response: Recurring reporting requirement if reporting thresholds are met, we estimate each respondent will file 0.79 reports per year.

    Obligation To Respond: Mandatory. Statutory authority for this information collection is contained in 47 U.S.C. 1, 4(j), 4(o), 34-39, 151, 154(i)-(j), 3 U.S.C. 301, and Executive Order No. 10530.

    Total Annual Burden: 100 hours.

    Total Annual Cost: No Cost.

    Privacy Act Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: Outage reports filed with the Commission pursuant to part 4 are presumed confidential. The information in those filings may be shared with the Department of Homeland Security only under appropriate confidential disclosure protections. Other persons seeking disclosure must follow the procedures delineated in 47 CFR 0.457 and 0.459 of the Commission's rules for requests for and disclosure of information. The information collection discussed here does not affect the confidential treatment of information provided to the FCC through NORS reports.

    Needs and Uses: Section 151 of the Communications Act of 1934 (Act), as amended, requires the Commission to promote the safety of life and property through the use of wire and radio communications. Additionally, the Cable Landing License Act, Cable Landing License Act (47 U.S.C. 34-39), and Executive Order 10530, provide the Commission with authority to grant, withhold, condition and revoke submarine cable landing licenses. In concert, the Cable Landing License Act and Executive Order provide that the Commission may place conditions on the grant of a submarine cable landing license in order to assure just and reasonable rates and service in the operation and use of cables so licensed. “Just and reasonable service” entails assurance that the cable infrastructure will be reasonably available. Availability of submarine cables is also critically important for national security, and the economy, because submarine cables carry approximately 95 percent of international communications traffic, and are the primary means of connectivity for numerous U.S. states and territories. The data collection requires all submarine cable licensees to report outages through the network outage reporting system (NORS). The general purpose of NORS reporting is to gather sufficient information regarding disruptions to telecommunications to facilitate FCC monitoring, analysis, and investigation of the reliability and security of networks, and to identify and act on potential threats to our Nation's telecommunications infrastructure. The FCC uses this information collection to identify the duration, magnitude, root causes, contributing factors, and preventive measures taken with respect to significant outages, and to take swift remedial action as required in appropriate circumstances. The Commission also maintains an ongoing dialogue with reporting entities, as well as with the industry at large, generally regarding lessons learned from the information collection in order to foster better understanding of the root causes of significant outages, and to explore preventive measures in the future so as to mitigate the potential impact of such outages on the Nation and the American public.

    The data will provide the Commission with greater visibility into the availability and health of these networks, allowing it to better track and analyze submarine cable resiliency, and suggest or take appropriate actions when the data so indicate, i.e. before there is a significant problem. Thus, the data will ensure that submarine cable service is just and reasonable, and that critical communications carried across submarine cables continue to promote the safety of life and property, fulfilling the aforementioned statutory obligations.

    The NORS information collection (OMB Control No. 3060-0484) is administered by the FCC's Public Safety and Homeland Security Bureau (PSHSB), which maintains an Internet portal for the electronic submission of NORS reports. This electronic filing requirement entails entering the required information using Commission-approved Web-based outage report templates that are available online at the NORS Internet Web portal. The completion of these online templates results in the information being electronically entered into the Commission's NORS reporting data base in real-time.

    Federal Communications Commission. Gloria J. Miles, Federal Register Liaison Officer, Office of the Secretary.
    [FR Doc. 2016-27332 Filed 11-14-16; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL MARITIME COMMISSION Sunshine Act Meeting AGENCY HOLDING THE MEETING:

    Federal Maritime Commission.

    TIME AND DATE:

    November 17, 2016—10 a.m.

    PLACE:

    800 North Capitol Street NW., First Floor Hearing Room, Washington, DC.

    STATUS:

    The first portion of the meeting will be held in Open Session and will be streamed live at http://fmc.capitolconnection.org/; the second portion in closed session.

    MATTERS TO BE CONSIDERED:

    Open Session 1. Briefing by the Chairman on the World Shipping Summit 2. Staff Briefing on OTI License Renewals Closed Session 1. Staff Briefing on Hanjin Bankruptcy and Shipping Disruptions 2. Update on the PierPASS Third-party Audit and Extended Gate Workshop 3. Empirical Analysis of Changing Alliance Structures in the Transpacific Trade CONTACT PERSON FOR MORE INFORMATION:

    Rachel E. Dickon, Assistant Secretary, (202) 523-5725.

    Rachel E. Dickon, Assistant Secretary.
    [FR Doc. 2016-27474 Filed 11-10-16; 11:15 am] BILLING CODE 6731-AA-P
    FEDERAL RESERVE SYSTEM Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company

    The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).

    The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than November 30, 2016.

    A. Federal Reserve Bank of St. Louis (David L. Hubbard, Senior Manager) P.O. Box 442, St. Louis, Missouri 63166-2034. Comments can also be sent electronically to [email protected]:

    1. Edwin W. Orr and James S. Orr, individually as members of a family control group that also includes Edwin S. Orr and Cheryl L. Orr, all of Columbia, Missouri; to retain control of Montgomery Bancshares, Inc., Jonesburg, Missouri, and thereby retain shares of Jonesburg State Bank, Jonesburg Missouri.

    Board of Governors of the Federal Reserve System, November 9, 2016. Yao-Chin Chao, Assistant Secretary of the Board.
    [FR Doc. 2016-27412 Filed 11-14-16; 8:45 am] BILLING CODE 6210-01-P
    FEDERAL TRADE COMMISSION [File No. 151 0236] Valeant Pharmaceuticals International, Inc.; Analysis To Aid Public Comment AGENCY:

    Federal Trade Commission.

    ACTION:

    Proposed Consent Agreement.

    SUMMARY:

    The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.

    DATES:

    Comments must be received on or before December 7, 2016.

    ADDRESSES:

    Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/valeantparagonpelicanconsent online or on paper, by following the instructions in the Request for Comment part of the SUPPLEMENTARY INFORMATION section below. Write “In the Matter of Valeant Pharmaceuticals International, Inc., File No. 1510236” on your comment and file your comment online at https://ftcpublic.commentworks.com/ftc/valeantparagonpelicanconsent by following the instructions on the web-based form. If you prefer to file your comment on paper, write “In the Matter of Valeant Pharmaceuticals International, Inc., File No. 1510236” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024.

    FOR FURTHER INFORMATION CONTACT:

    Charles Harwood, FTC Northwest Regional Office, 915 Second Ave., Room 2896, Seattle, WA 98174 (206-220-4480).

    SUPPLEMENTARY INFORMATION:

    Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for November 7, 2016), on the World Wide Web, at http://www.ftc.gov/os/actions.shtm.

    You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before December 7, 2016. Write “In the Matter of Valeant Pharmaceuticals International, Inc., File No. 1510236” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site.

    Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

    If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).1 Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest.

    1 In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c), 16 CFR 4.9(c).

    Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/ftc/valeantparagonpelicanconsent by following the instructions on the web-based form. If this Notice appears at http://www.regulations.gov/#!home, you also may file a comment through that Web site.

    If you file your comment on paper, write “In the Matter of Valeant Pharmaceuticals International, Inc., File No. 1510236” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC. If possible, submit your paper comment to the Commission by courier or overnight service.

    Visit the Commission Web site at http://www.ftc.gov to read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before December 7, 2016. You can find more information, including routine uses permitted by the Privacy Act, in the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

    Analysis of Agreement Containing Consent Order To Aid Public Comment

    The Federal Trade Commission (“Commission”) has accepted for public comment an Agreement Containing Consent Order (“Consent Order”) with Valeant Pharmaceuticals International, Inc. (“Valeant”) to remedy the alleged anticompetitive effects resulting from Valeant's acquisition of Paragon Holdings I, Inc., including wholly-owned subsidiaries Paragon Vision Sciences, Inc. and CRT Technology, Inc. (“Paragon”).

    The Complaint alleges that the acquisition violated Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, by lessening competition in the markets for polymer discs, or “buttons,” used to make three different types of rigid gas permeable (“GP”) contact lenses: Orthokeratology contact lenses, large-diameter scleral contact lenses, and general vision correction contact lenses. The Consent Order would remedy the alleged violations by restoring competition in these GP button markets.

    Under the terms of the Consent Order, Valeant is required to divest Paragon in its entirety, including the assets of Pelican Products LLC (“Pelican”), a manufacturer of contact lens packaging.

    The proposed Consent Order has been placed on the public record for 30 days to solicit comments from interested persons. Comments received during this period will become part of the public record. After 30 days, the Commission will again review the proposed Consent Order and any comments received, and decide whether the Consent Order should be withdrawn, modified, or made final.

    1. The Parties

    Valeant is a Canadian conglomerate that develops and markets prescription and non-prescription pharmaceutical products. Through its subsidiary Bausch + Lomb, Valeant is a leading producer of GP buttons used to make GP contact lenses. Prior to its acquisition by Valeant in May 2015, Paragon was a United States corporation with its principal place of business in Arizona. Paragon produces GP buttons used to make GP contact lenses and also produces finished GP lenses.

    After the Paragon acquisition, Valeant also purchased Pelican, a manufacturer of contact lens packaging, and the only producer of FDA-approved vials for wet-shipping finished orthokeratology lenses. Pelican became a subsidiary of Paragon. This acquisition ensured Valeant's access to the vials, after Pelican's owner announced plans to exit the market.

    2. The Relevant Market

    Both parties engage in developing, manufacturing, and selling GP buttons in the United States. The relevant product markets in which to analyze the effects of the acquisition are the manufacture and sale of FDA-approved GP buttons for: Orthokeratology GP lenses, which are worn to reshape the cornea; large-diameter scleral GP lenses, which cover the white of the eye and are used post-surgery, for transplants, and to treat eye disease; and general vision correction GP lenses. Each type of GP lens requires a GP button with parameters unique to that lens type.

    GP lenses are used, and in some cases are medically necessary, to address a variety of vision problems, including dry eyes, abnormal curvatures of the eye, corneal disease, post-eye surgery complications, and eye trauma. Optical labs use GP buttons to make GP contact lenses to fulfill prescriptions from eye care professionals. Prescriptions typically specify a particular product and brand of button, and eye care professionals invest significant capital in fitting equipment for the brands they prescribe.

    The FDA requires that GP lenses must be made from FDA-approved GP buttons. Thus, there are no alternatives to FDA-approved GP buttons for making each of the types of GP lenses and the relevant geographic market is the United States.

    Prior to the acquisition, Valeant and Paragon independently produced buttons for all three types of GP lenses. In the market for orthokeratology GP buttons, the combination of Valeant and Paragon was a merger to monopoly. In the market for scleral GP buttons, the combined company accounted for 70-80 percent of the market. In the market for general vision correction GP buttons, the combined company's market share was approximately 65-75 percent.

    3. Effects of Acquisitions

    The acquisition likely caused significant competitive harm in the relevant markets. Specifically, the acquisition of Paragon eliminated actual, direct, and substantial competition between Valeant and Paragon in the relevant markets for GP buttons and allowed Valeant to unilaterally exercise market power. For instance, following the acquisition, Valeant increased prices in all three GP button markets.

    Prior to the acquisition, Valeant and Paragon also competed on innovation, with the incentive to develop new GP lens buttons and improve button materials by investing in research, development, and adoption. This innovation led to broader product lines, improvements to button materials, and marketing and education funding for optical labs. The acquisition also eliminated this innovation competition between Valeant and Paragon.

    4. Entry and Efficiencies

    Entry into the relevant market has not been, and would not be, timely, likely, or sufficient to deter or counteract the anticompetitive effects of the acquisition. Optical labs have limited short-term ability to switch from Valeant and Paragon, which supply the majority of their GP scleral buttons and GP general vision correction buttons, and 100 percent of their GP orthokeratology buttons. Optical labs might try to persuade eye care professionals to switch to a different material and brand, but ultimately the decision is made by the eye care professional, for whom such a change is costly and time-consuming.

    Considerable entry barriers also arise from the FDA approval process. For GP orthokeratology buttons, the FDA premarket approval process takes several years because finished orthokeratology lenses worn overnight are Class III medical devices. For GP scleral and general vision buttons, the FDA premarket notification process likely requires at least one year, as the finished lenses incorporating such buttons are Class II medical devices.

    We did not find any evidence of efficiencies that would outweigh the competitive concerns arising from the Paragon acquisition.

    5. Consent Order

    The proposed Consent Order requires Valeant to divest Paragon in its entirety no later than ten (10) days after the order date, to remedy the concerns raised by the acquisition and restore competition in the relevant markets by instituting Paragon as an independent, viable competitor to Valeant. The proposed Consent Order also requires Valeant to divest Pelican with Paragon to ensure continued access to FDA-approved vials for shipping its finished lenses.

    The proposed Consent Order requires that Valeant must divest Paragon and Pelican to Paragon Companies LLC in an upfront transaction. Paragon Companies LLC is a newly created entity owned by Joe Sicari. Mr. Sicari was the president of Paragon prior to its acquisition by Valeant in May 2015.

    The Commission may, at any time, appoint a Monitor with the power and authority to ensure that Valeant fulfills all obligations and responsibilities under the Consent Order and Divestiture Agreement.

    The Consent Order will remain in effect for ten (10) years, and contains standard compliance and reporting requirements.

    By direction of the Commission.

    Donald S. Clark, Secretary.
    [FR Doc. 2016-27440 Filed 11-14-16; 8:45 am] BILLING CODE 6750-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention [30Day-17-16AOW] Agency Forms Undergoing Paperwork Reduction Act Review

    The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.

    Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses; and (e) Assess information collection costs.

    To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to [email protected] Written comments and/or suggestions regarding the items contained in this notice should be directed to the Attention: CDC Desk Officer, Office of Management and Budget, Washington, DC 20503 or by fax to (202) 395-5806. Written comments should be received within 30 days of this notice.

    Proposed Project

    CDC I-Catalyst Program—New—Office of the Associate Director for Science, Centers for Disease Control and Prevention (CDC).

    Background and Brief Description

    The CDC Office of Technology and Innovation (OTI) within Office of the Associate Director for Science (OADS) is seeking approval for a new CDC generic clearance. OTI fosters innovative science and promotes the testing and implementation of innovative ideas that improve CDC's ability to have public health impact. To arm CDC staff with an expanded skill-set and tools to evaluate and translate their insights and ideas into solutions, CDC developed an experiential innovation curriculum called I-Catalyst based on the NSF I-Corp program. The program was created with the belief that innovation should be customer driven, be based on user research, and is something people at all levels of an organization can engage in.

    The purpose of the I-Catalyst program is to teach CDC teams a process of discovering the issues and problems faced by their customers before considerable time and money is spent on a solution that may not be used. Each participating I-Catalyst project team will present with a unique customer problem for which they have a proposed solution. Participating project teams will go through a hypothesis-testing, scientific method of discovery to gather important insights about their customers and their needs.

    Each individual collection will be a different problem for which a CDC team is designing a solution. The types of customers or stakeholders teams' interview will be detailed in each collection. For example, teams may interview government employees if the solution is intended to improve how government employees do their work. On the other hand, teams may interview individuals who work in industry and businesses if the problem is one experienced by external customers. This data collection covers qualitative information to be obtained through on-site, unstructured interviews with individuals who represent the customers or stakeholders CDC teams are attempting to serve or benefit.

    It is expected that the program will help CDC teams generate information about their customers to help them make the case for key innovation investments to advance important public health solutions and innovations. The ultimate goal of the I-Catalyst program is to give CDC staff skills to successfully transfer knowledge into value-based solutions that benefit society and broaden the agency's impact. Participation in the I-Catalyst interviews is completely voluntary. A three-year approval is requested. There is no cost to respondents other than their time.

    CDC anticipates 30 projects over the next three years. Each project team will interview their customers/stakeholders for an average of 30 minutes and maximum of 2 responses per respondent. Each team will interview approximately 50 respondents. Approximately 1500 respondents will be interviewed. Of these respondents, approximately 40% of individuals will be internal CDC/ATSDR staff and 60% will be external partners, stakeholders, or customers. Annualized burden will be 500 hours.

    Estimated Annualized Burden Hours Type of respondents Form name Number of
  • respondents
  • Number of
  • responses per respondent
  • Average
  • burden per
  • response
  • (in hrs)
  • Total burden
  • (in hrs)
  • External + Internal stakeholder/customers Sample Interview Guide 500 2 30/60 500
    Leroy A. Richardson, Chief, Information Collection Review Office, Office of Scientific Integrity, Office of the Associate Director for Science, Office of the Director, Centers for Disease Control and Prevention.
    [FR Doc. 2016-27421 Filed 11-14-16; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention [60Day-17-17CX; Docket No. CDC-2016-0108] Proposed Data Collection Submitted for Public Comment and Recommendations AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice with comment period.

    SUMMARY:

    The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed project entitled “Reframing How We Talk About Alcohol: Public Perceptions of Excessive Alcohol Use Among Multiple Audiences.” CDC will seek a one-year approval for a new information collection request to assess the public's perceptions and frames regarding alcohol use and its related harms, gain insights on the language the public uses when talking about excessive alcohol use, examine patient-provider communication about alcohol use, and evaluate the influence of other sources of information on the public's understanding of excessive alcohol use.

    DATES:

    Written comments must be received on or before January 17, 2017.

    ADDRESSES:

    You may submit comments, identified by Docket No. CDC-2016-0108, by any of the following methods:

    Federal eRulemaking portal: Regulations.gov. Follow the instructions for submitting comments.

    Mail: Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329.

    Instructions: All submissions received must include the agency name and Docket Number. All relevant comments received will be posted without change to Regulations.gov, including any personal information provided. For access to the docket to read background documents or comments received, go to Regulations.gov.

    Please note:

    All public comment should be submitted through the Federal eRulemaking portal (Regulations.gov) or by U.S. mail to the address listed above.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA requires Federal agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information, including each new proposed collection, each proposed extension of existing collection of information, and each reinstatement of previously approved information collection before submitting the collection to OMB for approval. To comply with this requirement, we are publishing this notice of a proposed data collection as described below.

    Comments are invited on: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g., permitting electronic submission of responses); and (e) Assess information collection costs. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and use technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and be able to respond to a collection of information, search data sources, and complete and review the collection of information; and to transmit or otherwise disclose the information.

    Proposed Project

    Reframing How We Talk About Alcohol: Public Perceptions of Excessive Alcohol Use and Related Harms—NEW—National Center on Birth Defects and Developmental Disabilities (NCBDD), Centers for Disease Control and Prevention (CDC).

    Background and Brief Description

    Excessive alcohol consumption leads to a variety of negative health and social consequences. Those who drink heavily have an increased risk for certain chronic diseases, such as hypertension, psychological disorders, and various forms of cancer. Excessive alcohol use also can result in societal harms, such as unintentional injuries, violence, and high economic costs.

    Fortunately effective prevention strategies are available to reduce excessive alcohol use and its related harms. However, it is difficult to craft public health messages and communication strategies to change alcohol-related attitudes and behaviors because the range of knowledge and beliefs about excessive alcohol use and its risks is not well understood. Despite the fact that public health experts recommend that alcohol screening and brief counseling be provided to adults in primary care settings, data indicate that only one of six U.S. adults reported ever discussing alcohol use with a health professional. To develop an effective, consistent messaging strategy, a deeper understanding of how the public thinks and talks about alcohol is required. The research will be used to inform the development of patient and provider materials and messages about excessive alcohol use and related harms.

    The one-year study proposes a series of individual in-depth interviews and triads (small group discussions with three participants) with 54 participants identified by contractor staff and professional recruiting firms. Data will be collected through one-time, 90-minute in-depth interviews or triads. Up to 300 individuals will be screened to obtain 54 individuals who will participate in 90-minute in-depth interviews or triads. All data will be collected only one time. Respondents who will participate in these interviews and triads will be selected purposively to inform the development of a messaging strategy. Topics addressed may include alcohol and its related harms, language used when talking about alcohol, how people talk about alcohol with their health care providers, and sources of information about alcohol.

    The information gathered through this data collection will allow CDC to develop an effective messaging strategy that reframes the way the public thinks and communicates about excessive alcohol use. Participation is voluntary, and there is no cost to respondents other than their time.

    The total estimated annualized burden hours are 132.

    Estimated Annualized Burden Hours Respondents Form name Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Average
  • burden per
  • response
  • (in hours)
  • Total burden hours
    Persons aged 21-55 Study screener 300 1 10/60 50 In-depth interviews Phase 1 (Descriptive) 9 1 1.5 14 Phase 2 (Prescriptive) 9 1 1.5 14 Triads Phase 1 (Descriptive) 18 1 1.5 27 Phase 2 (Prescriptive) 18 1 1.5 27 Total 132
    Leroy A. Richardson, Chief, Information Collection Review Office, Office of Scientific Integrity, Office of the Associate Director for Science, Office of the Director, Centers for Disease Control and Prevention.
    [FR Doc. 2016-27395 Filed 11-14-16; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services [CMS-8062-N] RIN 0938-AS70 Medicare Program; CY 2017 Inpatient Hospital Deductible and Hospital and Extended Care Services Coinsurance Amounts AGENCY:

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

    ACTION:

    Notice.

    SUMMARY:

    This notice announces the inpatient hospital deductible and the hospital and extended care services coinsurance amounts for services furnished in calendar year (CY) 2017 under Medicare's Hospital Insurance Program (Medicare Part A). The Medicare statute specifies the formulae used to determine these amounts. For CY 2017, the inpatient hospital deductible will be $1,316. The daily coinsurance amounts for CY 2017 will be: (1) $329 for the 61st through 90th day of hospitalization in a benefit period; (2) $658 for lifetime reserve days; and (3) $164.50 for the 21st through 100th day of extended care services in a skilled nursing facility in a benefit period.

    DATES:

    Effective Date: This notice is effective on January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Clare McFarland, (410) 786-6390 for general information.

    Gregory J. Savord, (410) 786-1521 for case-mix analysis.

    SUPPLEMENTARY INFORMATION: I. Background

    Section 1813 of the Social Security Act (the Act) provides for an inpatient hospital deductible to be subtracted from the amount payable by Medicare for inpatient hospital services furnished to a beneficiary. It also provides for certain coinsurance amounts to be subtracted from the amounts payable by Medicare for inpatient hospital and extended care services. Section 1813(b)(2) of the Act requires us to determine and publish each year the amount of the inpatient hospital deductible and the hospital and extended care services coinsurance amounts applicable for services furnished in the following calendar year (CY).

    II. Computing the Inpatient Hospital Deductible for CY 2017

    Section 1813(b) of the Act prescribes the method for computing the amount of the inpatient hospital deductible. The inpatient hospital deductible is an amount equal to the inpatient hospital deductible for the preceding CY, adjusted by our best estimate of the payment-weighted average of the applicable percentage increases (as defined in section 1886(b)(3)(B) of the Act) used for updating the payment rates to hospitals for discharges in the fiscal year (FY) that begins on October 1 of the same preceding CY, and adjusted to reflect changes in real case-mix. The adjustment to reflect real case-mix is determined on the basis of the most recent case-mix data available. The amount determined under this formula is rounded to the nearest multiple of $4 (or, if midway between two multiples of $4, to the next higher multiple of $4).

    Under section 1886(b)(3)(B)(i)(XX) of the Act, the percentage increase used to update the payment rates for FY 2017 for hospitals paid under the inpatient prospective payment system is the market basket percentage increase, otherwise known as the market basket update, reduced by 0.75 percentage points (see section 1886(b)(3)(B)(xii)(V) of the Act), and an adjustment based on changes in the economy-wide productivity (the multifactor productivity (MFP) adjustment) (see section 1886(b)(3)(B)(xi)(II) of the Act). Under section 1886(b)(3)(B)(viii) of the Act, for FY 2017, the applicable percentage increase for hospitals that do not submit quality data as specified by the Secretary of the Department of Health and Human Services (the Secretary) is reduced by one quarter of the market basket update. We are estimating that after accounting for those hospitals receiving the lower market basket update in the payment-weighted average update, the calculated deductible will not be affected, since the majority of hospitals submit quality data and receive the full market basket update. Section 1886(b)(3)(B)(ix) of the Act requires that any hospital that is not a meaningful electronic health record (EHR) user (as defined in section 1886(n)(3) of the Act) will have three-quarters of the market basket update reduced by 662/3 percent for FY 2016, 100 percent for FY 2017, and 100 percent for FY 2018 and each subsequent fiscal year. We are estimating that after accounting for these hospitals receiving the lower market basket update, the calculated deductible will not be affected, since the majority of hospitals are meaningful EHR users and are expected to receive the full market basket update.

    Under section 1886 of the Act, the percentage increase used to update the payment rates for FY 2017 for hospitals excluded from the inpatient prospective payment system is as follows:

    • The percentage increase for long term care hospitals is the market basket percentage increase reduced by 0.75 percentage points and the MFP adjustment (see sections 1886(m)(3)(A) and 1886(m)(4)(F) of the Act). In addition, these hospitals may also be impacted by the quality reporting adjustments and the site-neutral payment rates (see sections 1886(m)(5) and 1886(m)(6) of the Act).

    • The percentage increase for inpatient rehabilitation facilities is the market basket percentage increase reduced by 0.75 percentage points and the MFP adjustment (see sections 1886(j)(3)(C) and 1886(j)(3)(D)(v) of the Act). In addition, these hospitals may also be impacted by the quality reporting adjustments (see section 1886(j)(7) of the Act).

    • The percentage increase used to update the payment rate for inpatient psychiatric facilities is the market basket percentage increase reduced by 0.2 percentage points and the MFP adjustment (see sections 1886(s)(2)(A)(i), 1886(s)(2)(A)(ii), and 1886(s)(3)(E) of the Act). In addition, these hospitals may also be impacted by the quality reporting adjustments (see section 1886(s)(4) of the Act).

    • The percentage increase for other types of hospitals excluded from the inpatient hospital prospective payment system (cancer hospitals, children's hospitals, and hospitals located outside the 50 States, the District of Columbia, and Puerto Rico) is the market basket percentage increase (see section 1886(b)(3)(B)(ii)(VIII) of the Act).

    The Inpatient Prospective Payment System market basket percentage increase for FY 2017 is 2.7 percent and the MFP adjustment is −0.3 percentage point, as announced in the final rule that appeared in the Federal Register on August 22, 2016 entitled, “Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System and Fiscal Year 2017 Rates” (81 FR 56762). Therefore, the percentage increase for hospitals paid under the inpatient prospective payment system that submit quality data and are meaningful EHR users is 1.65 percent (that is, the FY 2017 market basket update of 2.7 percent less the MFP adjustment of 0.3 percentage point and less 0.75 percentage point). The average payment percentage increase for hospitals excluded from the inpatient prospective payment system is 2.0 percent. This average includes long term care hospitals, inpatient rehabilitation facilities, and other hospitals excluded from the inpatient hospital prospective payment system. Weighting these percentages in accordance with payment volume, our best estimate of the payment-weighted average of the increases in the payment rates for FY 2017 is 1.70 percent.

    To develop the adjustment to reflect changes in real case-mix, we first calculated an average case-mix for each hospital that reflects the relative costliness of that hospital's mix of cases compared to those of other hospitals. We then computed the change in average case-mix for hospitals paid under the Medicare prospective payment system in FY 2016 compared to FY 2015. (We excluded from this calculation hospitals whose payments are not based on the inpatient prospective payment system because their payments are based on alternate prospective payment systems or reasonable costs.) We used Medicare bills from prospective payment hospitals that we received as of July 2016. These bills represent a total of about 7.4 million Medicare discharges for FY 2016 and provide the most recent case-mix data available at this time. Based on these bills, the change in average case-mix in FY 2016 is 2.61 percent. Based on these bills and past experience, we expect the overall case mix change to be 2.7 percent as the year progresses and more FY 2016 data become available.

    Section 1813 of the Act requires that the inpatient hospital deductible be adjusted only by that portion of the case-mix change that is determined to be real. Real case-mix is that portion of case-mix that is due to changes in the mix of cases in the hospital and not due to coding optimization. Over the past several years, we have seen case mix increases of about 0.5 percent per year. (In some years there were larger increases in case mix due to much lower discharges for that year.) For 2016, we expect the increase in real case mix to continue to be 0.5 percent. Most of the observed FY 2016 case mix increase is likely due to artifacts of the implementation of ICD-10 which affects the calculated case mix level, but does not measure the actual increase in real case mix. Therefore, we expect that much of the change in average case-mix will not be real and estimate that this real change will be 0.5 percent.

    Thus as stated above, the estimate of the payment-weighted average of the applicable percentage increases used for updating the payment rates is 1.70 percent, and the real case-mix adjustment factor for the deductible is 0.5 percent. Therefore, using the statutory formula as stated in section 1813(b) of the Act, we calculate the inpatient hospital deductible for services furnished in CY 2017 to be $1,316. This deductible amount is determined by multiplying $1,288 (the inpatient hospital deductible for CY 2016 (81 FR 56762)) by the payment-weighted average increase in the payment rates of 1.017 multiplied by the increase in real case-mix of 1.005, which equals $1,316.45 and is rounded to $1,316.

    III. Computing the Inpatient Hospital and Extended Care Services Coinsurance Amounts for CY 2017

    The coinsurance amounts provided for in section 1813 of the Act are defined as fixed percentages of the inpatient hospital deductible for services furnished in the same CY. The increase in the deductible generates increases in the coinsurance amounts. For inpatient hospital and extended care services furnished in CY 2017, in accordance with the fixed percentages defined in the law, the daily coinsurance for the 61st through 90th day of hospitalization in a benefit period will be $329 (one-fourth of the inpatient hospital deductible as stated in section 1813(a)(1)(A) of the Act); the daily coinsurance for lifetime reserve days will be $658 (one-half of the inpatient hospital deductible as stated in section 1813(a)(1)(B) of the Act); and the daily coinsurance for the 21st through 100th day of extended care services in a skilled nursing facility in a benefit period will be $164.50 (one-eighth of the inpatient hospital deductible as stated in section 1813(a)(3) of the Act).

    IV. Cost to Medicare Beneficiaries

    Table 1 below summarizes the deductible and coinsurance amounts for CYs 2016 and 2017, as well as the number of each that is estimated to be paid.

    Table 1—Part A Deductible and Coinsurance Amounts for Calendar Years 2016 and 2017 Type of Cost Sharing Value 2016 2017 Number paid
  • (in millions)
  • 2016 2017
    Inpatient hospital deductible $1288 $1316 7.15 7.26 Daily coinsurance for 61st-90th Day 322 329 1.77 1.80 Daily coinsurance for lifetime reserve days 644 658 0.87 0.88 SNF coinsurance 161 164.50 40.56 41.83

    The estimated total increase in costs to beneficiaries is about $740 million (rounded to the nearest $10 million) due to: (1) The increase in the deductible and coinsurance amounts; and (2) the increase in the number of deductibles and daily coinsurance amounts paid. We determine the increase in cost to beneficiaries by calculating the difference between the 2016 and 2017 deductible and coinsurance amounts multiplied by the estimated increase in the number of deductible and coinsurance amounts paid.

    V. Waiver of Proposed Notice and Comment Period

    Section 1813(b)(2) of the Act requires publication of the inpatient hospital deductible and all coinsurance amounts—the hospital and extended care services coinsurance amounts—between September 1 and September 15 of the year preceding the year to which they will apply. These amounts are determined according to the statute as discussed above. As has been our custom, we use general notices, rather than notice and comment rulemaking procedures, to make the announcements. In doing so, we acknowledge that under the Administrative Procedure Act (APA), interpretive rules, general statements of policy, and rules of agency organization, procedure, or practice are excepted from the requirements of notice and comment rulemaking.

    We considered publishing a proposed notice to provide a period for public comment. However, we may waive that procedure if we find good cause that prior notice and comment are impracticable, unnecessary, or contrary to the public interest. We find that the procedure for notice and comment is unnecessary here, because the formulae used to calculate the inpatient hospital deductible and hospital and extended care services coinsurance amounts are statutorily directed, and we can exercise no discretion in following the formulae. Moreover, the statute establishes the time period for which the deductible and coinsurance amounts will apply and delaying publication would be contrary to the public interest. Therefore, we find good cause to waive publication of a proposed notice and solicitation of public comments.

    VI. Collection of Information Requirements

    This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

    VII. Regulatory Impact Analysis A. Statement of Need

    Section 1813(b)(2) of the Act requires the Secretary to publish, between September 1 and September 15 of each year, the amounts of the inpatient hospital deductible and hospital and extended care services coinsurance applicable for services furnished in the following CY.

    B. Overall Impact

    We have examined the impact of this notice as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C., Part I, Ch. 8).

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major notices with economically significant effects ($100 million or more in any 1 year). As stated in section IV of this notice, we estimate that the total increase in costs to beneficiaries associated with this notice is about $740 million due to: (1) The increase in the deductible and coinsurance amounts; and (2) the increase in the number of deductibles and daily coinsurance amounts paid. As a result, this notice is economically significant under section 3(f)(1) of Executive Order 12866 and is a major action under the Congressional Review Act. In accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.

    The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.5 million to $38.5 million in any 1 year (for details, see the Small Business Administration's Web site at http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf). Individuals and states are not included in the definition of a small entity. As discussed above, this annual notice announces the inpatient hospital deductible and the hospital and extended care services coinsurance amounts for services furnished in CY 2017 under Medicare's Hospital Insurance Program (Medicare Part A). As a result, we are not preparing an analysis for the RFA because the Secretary has determined that this notice will not have a significant economic impact on a substantial number of small entities.

    In addition, section 1102(b) of the Social Security Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. As discussed above, we are not preparing an analysis for section 1102(b) of the Act because the Secretary has determined that this notice will not have a significant impact on the operations of a substantial number of small rural hospitals.

    Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. For 2016, that threshold accounting for inflation is approximately $146 million. This notice does not impose mandates that will have a consequential effect of $146 million or more on state, local, or tribal governments or on the private sector.

    Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. Since this notice does not impose any costs on state or local governments, preempt state law, or have Federalism implications, the requirements of Executive Order 13132 are not applicable.

    Dated: September 23, 2016. Andrew M. Slavitt, Acting Administrator, Centers for Medicare & Medicaid Services. Dated: November 8, 2016. Sylvia M. Burwell, Secretary, Department of Health and Human Services.
    [FR Doc. 2016-27389 Filed 11-10-16; 4:15 pm] BILLING CODE 4120-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services [CMS-8064-N] RIN 0938-AS72 Medicare Program; Medicare Part B Monthly Actuarial Rates, Premium Rate, and Annual Deductible Beginning January 1, 2017 AGENCY:

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

    ACTION:

    Notice.

    SUMMARY:

    This notice announces the monthly actuarial rates for aged (age 65 and over) and disabled (under age 65) beneficiaries enrolled in Part B of the Medicare Supplementary Medical Insurance (SMI) program beginning January 1, 2017. In addition, this notice announces the monthly premium for aged and disabled beneficiaries, the deductible for 2017, and the income-related monthly adjustment amounts to be paid by beneficiaries with modified adjusted gross income above certain threshold amounts. The monthly actuarial rates for 2017 are $261.90 for aged enrollees and $254.20 for disabled enrollees. The standard monthly Part B premium rate for all enrollees for 2017 is $134.00, which is equal to 50 percent of the monthly actuarial rate for aged enrollees (or approximately 25 percent of the expected average total cost of Part B coverage for aged enrollees) plus $3.00. (The 2016 standard premium rate was $121.80, which includes the $3.00 repayment amount.) The Part B deductible for 2017 is $183.00 for all Part B beneficiaries. If a beneficiary has to pay an income-related monthly adjustment, they will have to pay a total monthly premium of about 35, 50, 65, or 80 percent of the total cost of Part B coverage plus $4.20, $6.00, $7.80, or $9.60.

    DATES:

    Effective Date: January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    M. Kent Clemens, (410) 786-6391.

    SUPPLEMENTARY INFORMATION: I. Background

    Part B is the voluntary portion of the Medicare program that pays all or part of the costs for physicians' services, outpatient hospital services, certain home health services, services furnished by rural health clinics, ambulatory surgical centers, comprehensive outpatient rehabilitation facilities, and certain other medical and health services not covered by Medicare Part A, Hospital Insurance. Medicare Part B is available to individuals who are entitled to Medicare Part A, as well as to U.S. residents who have attained age 65 and are citizens, and aliens who were lawfully admitted for permanent residence and have resided in the United States for 5 consecutive years. Part B requires enrollment and payment of monthly premiums, as described in 42 CFR part 407, subpart B, and part 408, respectively. The premiums paid by (or on behalf of) all enrollees fund approximately one-fourth of the total incurred costs, and transfers from the general fund of the Treasury pay approximately three-fourths of these costs.

    The Secretary of the Department of Health and Human Services (the Secretary) is required by section 1839 of the Social Security Act (the Act) to announce the Part B monthly actuarial rates for aged and disabled beneficiaries as well as the monthly Part B premium. The Part B annual deductible is included because its determination is directly linked to the aged actuarial rate.

    The monthly actuarial rates for aged and disabled enrollees are used to determine the correct amount of general revenue financing per beneficiary each month. These amounts, according to actuarial estimates, will equal, respectively, one-half of the expected average monthly cost of Part B for each aged enrollee (age 65 or over) and one-half of the expected average monthly cost of Part B for each disabled enrollee (under age 65).

    The Part B deductible to be paid by enrollees is also announced. Prior to the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108-173), the Part B deductible was set in statute. After setting the 2005 deductible amount at $110, section 629 of the MMA (amending section 1833(b) of the Act) requires that the Part B deductible be indexed beginning in 2006. The inflation factor to be used each year is the annual percentage increase in the Part B actuarial rate for enrollees age 65 and over. Specifically, the 2017 Part B deductible is calculated by multiplying the 2016 deductible by the ratio of the 2017 aged actuarial rate to the 2016 aged actuarial rate. The amount determined under this formula is then rounded to the nearest $1.

    The monthly Part B premium rate to be paid by aged and disabled enrollees is also announced. (Although the costs to the program per disabled enrollee are different than for the aged, the statute provides that they pay the same premium amount.) Beginning with the passage of section 203 of the Social Security Amendments of 1972 (Pub. L. 92-603), the premium rate, which was determined on a fiscal year basis, was limited to the lesser of the actuarial rate for aged enrollees, or the current monthly premium rate increased by the same percentage as the most recent general increase in monthly Title II social security benefits.

    However, the passage of section 124 of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) (Pub. L. 97-248) suspended this premium determination process. Section 124 of TEFRA changed the premium basis to 50 percent of the monthly actuarial rate for aged enrollees (that is, 25 percent of program costs for aged enrollees). Section 606 of the Social Security Amendments of 1983 (Pub. L. 98-21), section 2302 of the Deficit Reduction Act of 1984 (DEFRA 84) (Pub. L. 98-369), section 9313 of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA 85) (Pub. L. 99-272), section 4080 of the Omnibus Budget Reconciliation Act of 1987 (OBRA 87) (Pub. L. 100-203), and section 6301 of the Omnibus Budget Reconciliation Act of 1989 (OBRA 89) (Pub. L. 101-239) extended the provision that the premium be based on 50 percent of the monthly actuarial rate for aged enrollees (that is, 25 percent of program costs for aged enrollees). This extension expired at the end of 1990.

    The premium rate for 1991 through 1995 was legislated by section 1839(e)(1)(B) of the Act, as added by section 4301 of the Omnibus Budget Reconciliation Act of 1990 (OBRA 90) (Pub. L. 101-508). In January 1996, the premium determination basis would have reverted to the method established by the 1972 Social Security Act Amendments. However, section 13571 of the Omnibus Budget Reconciliation Act of 1993 (OBRA 93) (Pub. L. 103-66) changed the premium basis to 50 percent of the monthly actuarial rate for aged enrollees (that is, 25 percent of program costs for aged enrollees) for 1996 through 1998.

    Section 4571 of the Balanced Budget Act of 1997 (BBA) (Pub. L. 105-33) permanently extended the provision that the premium be based on 50 percent of the monthly actuarial rate for aged enrollees (that is, 25 percent of program costs for aged enrollees).

    The BBA included a further provision affecting the calculation of the Part B actuarial rates and premiums for 1998 through 2003. Section 4611 of the BBA modified the home health benefit payable under Part A for individuals enrolled in Part B. Under this section, beginning in 1998, expenditures for home health services not considered “post-institutional” are payable under Part B rather than Part A. However, section 4611(e)(1) of the BBA required that there be a transition from 1998 through 2002 for the aggregate amount of the expenditures transferred from Part A to Part B. Section 4611(e)(2) of the BBA also provided a specific yearly proportion for the transferred funds. The proportions were 1/6 for 1998, 1/3 for 1999, 1/2 for 2000, 2/3 for 2001, and 5/6 for 2002. For the purpose of determining the correct amount of financing from general revenues of the Federal Government, it was necessary to include only these transitional amounts in the monthly actuarial rates for both aged and disabled enrollees, rather than the total cost of the home health services being transferred.

    Section 4611(e)(3) of the BBA also specified, for the purpose of determining the premium, that the monthly actuarial rate for enrollees age 65 and over be computed as though the transition would occur for 1998 through 2003 and that 1/7 of the cost be transferred in 1998, 2/7 in 1999, 3/7 in 2000, 4/7 in 2001, 5/7 in 2002, and 6/7 in 2003. Therefore, the transition period for incorporating this home health transfer into the premium was 7 years while the transition period for including these services in the actuarial rate was 6 years.

    Section 811 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Pub. L. 108-173, also known as the Medicare Modernization Act, or MMA), which amended section 1839 of the Act, requires that, starting on January 1, 2007, the Part B premium a beneficiary pays each month be based on their annual income. Specifically, if a beneficiary's “modified adjusted gross income” is greater than the legislated threshold amounts (for 2017, $85,000 for a beneficiary filing an individual income tax return, and $170,000 for a beneficiary filing a joint tax return) the beneficiary is responsible for a larger portion of the estimated total cost of Part B benefit coverage. In addition to the standard 25 percent premium, these beneficiaries now have to pay an income-related monthly adjustment amount. The MMA made no change to the actuarial rate calculation, and the standard premium, which will continue to be paid by beneficiaries whose modified adjusted gross income is below the applicable thresholds, still represents 25 percent of the estimated total cost to the program of Part B coverage for an aged enrollee. However, depending on income and tax filing status, a beneficiary can now be responsible for 35, 50, 65, or 80 percent of the estimated total cost of Part B coverage, rather than 25 percent. (For 2018 and subsequent years, the income thresholds are lower for the two highest income ranges, as a result of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) (Pub. L. 114-10).) The end result of the higher premium is that the Part B premium subsidy is reduced and less general revenue financing is required for beneficiaries with higher income because they are paying a larger share of the total cost with their premium. That is, the premium subsidy continues to be approximately 75 percent for beneficiaries with income below the applicable income thresholds, but will be reduced for beneficiaries with income above these thresholds. The MMA specified that there be a 5-year transition to full implementation of this provision. However, section 5111 of the Deficit Reduction Act of 2005 (DRA) (Pub. L. 109-171) modified the transition to a 3-year period.

    Section 4732(c) of the BBA added section 1933(c) of the Act, which required the Secretary to allocate money from the Part B trust fund to the state Medicaid programs for the purpose of providing Medicare Part B premium assistance from 1998 through 2002 for the low-income Medicaid beneficiaries who qualify under section 1933 of the Act. This allocation, while not a benefit expenditure, was an expenditure of the trust fund and was included in calculating the Part B actuarial rates through 2002. For 2003 through 2015, the expenditure was made from the trust fund because the allocation was temporarily extended. However, because the extension occurred after the financing was determined, the allocation was not included in the calculation of the financing rates for these years. Section 211 of MACRA permanently extended this expenditure, which is included in the calculation of the Part B actuarial rates for 2016 and subsequent years.

    Another provision affecting the calculation of the Part B premium is section 1839(f) of the Act, as amended by section 211 of the Medicare Catastrophic Coverage Act of 1988 (MCCA 88) (Pub. L. 100-360). (The Medicare Catastrophic Coverage Repeal Act of 1989 (Pub. L. 101-234) did not repeal the revisions to section 1839(f) of the Act made by MCCA 88.) Section 1839(f) of the Act, referred to as the “hold-harmless” provision, provides that if an individual is entitled to benefits under section 202 or 223 of the Act (the Old-Age and Survivors Insurance Benefit and the Disability Insurance Benefit, respectively) and has the Part B premium deducted from these benefit payments, the premium increase will be reduced, if necessary, to avoid causing a decrease in the individual's net monthly payment. This decrease in payment occurs if the increase in the individual's social security benefit due to the cost-of-living adjustment under section 215(i) of the Act is less than the increase in the premium. Specifically, the reduction in the premium amount applies if the individual is entitled to benefits under section 202 or 223 of the Act for November and December of a particular year and the individual's Part B premiums for December and the following January are deducted from the respective month's section 202 or 223 benefits. The “hold-harmless” provision does not apply to beneficiaries who are required to pay an income-related monthly adjustment amount.

    A check for benefits under section 202 or 223 of the Act is received in the month following the month for which the benefits are due. The Part B premium that is deducted from a particular check is the Part B payment for the month in which the check is received. Therefore, a benefit check for November is not received until December, but has December's Part B premium deducted from it.

    Generally, if a beneficiary qualifies for hold-harmless protection, the reduced premium for the individual for that January and for each of the succeeding 11 months is the greater of either—

    • The monthly premium for January reduced as necessary to make the December monthly benefits, after the deduction of the Part B premium for January, at least equal to the preceding November's monthly benefits, after the deduction of the Part B premium for December; or

    • The monthly premium for that individual for that December.

    In determining the premium limitations under section 1839(f) of the Act, the monthly benefits to which an individual is entitled under section 202 or 223 of the Act do not include retroactive adjustments or payments and deductions on account of work. Also, once the monthly premium amount is established under section 1839(f) of the Act, it will not be changed during the year even if there are retroactive adjustments or payments and deductions on account of work that apply to the individual's monthly benefits.

    Individuals who have enrolled in Part B late or who have re-enrolled after the termination of a coverage period are subject to an increased premium under section 1839(b) of the Act. The increase is a percentage of the premium and is based on the new premium rate before any reductions under section 1839(f) of the Act are made.

    Section 1839 of the Act, as amended by section 601(a) of the Bipartisan Budget Act of 2015 (Pub. L. 114-74), specified that the 2016 actuarial rate for enrollees age 65 and older be determined as if the hold-harmless provision did not apply. The premium revenue that was lost by using the resulting lower premium (excluding the foregone income-related premium revenue) was replaced by a transfer of general revenue from the Treasury, which will be repaid over time to the general fund.

    Starting in 2016, in order to repay the balance due (which includes the transfer amount and the foregone income-related premium revenue), the Part B premium otherwise determined will be increased by $3.00. These repayment amounts will be added to the Part B premium otherwise determined each year and paid back to the general fund of the Treasury and will continue until the balance due is paid back.

    High-income enrollees pay an additional $1.20, $3.00, $4.80, or $6.60 as part of the income-related monthly adjustment amount (IRMAA) premium dollars, which reduce (dollar for dollar) the amount of general revenue received by Part B from the general fund of the Treasury. Because of this general revenue offset, the repayment IRMAA premium dollars are not included in the direct repayments made to the general fund of the Treasury from Part B in order to avoid a double repayment. (Only the $3.00 monthly repayment amounts are included in the direct repayments).

    These repayment amounts will continue until the total amount collected is equal to the beginning balance due. (In the final year of the repayment, the additional amounts may be modified in order to avoid an overpayment.) The repayment amounts (excluding the repayment amounts for high-income enrollees) are subject to the hold harmless provision. The beginning balance due was $9,066,409,000, consisting of $1,625,761,000 in forgone income-related premium revenue plus a transfer amount of $7,440,648,000. It is estimated that $701,088,000 will have been collected for repayment to the general fund by the end of 2016.

    II. Provisions of the Notice A. Notice of Medicare Part B Monthly Actuarial Rates, Monthly Premium Rates, and Annual Deductible

    The Medicare Part B monthly actuarial rates applicable for 2017 are $261.90 for enrollees age 65 and over and $254.20 for disabled enrollees under age 65. In section II.B. of this notice, we present the actuarial assumptions and bases from which these rates are derived. The Part B standard monthly premium rate for all enrollees for 2017 is $134.00.

    Section 1839 of the Act requires the Secretary to determine the monthly actuarial rates, including an appropriate amount for a contingency margin, and the Part B premium each year. For 2017, the Secretary made the determination that a 13 percent target reserve ratio by the end of 2017 is appropriate and reasonable to balance both the level of premium increase necessary for the incurred expenditures and the reserve ratio. With the selected target reserve ratio, the Part B premium in 2017 is a 10 percent increase from 2016.

    The following are the 2017 Part B monthly premium rates to be paid by (or on behalf of) beneficiaries who file an individual tax return (including those who are single, head of household, qualifying widow(er) with dependent child, or married filing separately who lived apart from their spouse for the entire taxable year), or a joint tax return.

    Beneficiaries who file an individual tax return with income: Beneficiaries who file a joint tax return with income: Income-related
  • monthly
  • adjustment
  • amount
  • Total monthly
  • premium
  • amount
  • Less than or equal to $85,000 Less than or equal to $170,000 $0.00 $134.00 Greater than $85,000 and less than or equal to $107,000 Greater than $170,000 and less than or equal to $214,000 53.50 187.50 Greater than $107,000 and less than or equal to $160,000 Greater than $214,000 and less than or equal to $320,000 133.90 267.90 Greater than $160,000 and less than or equal to $214,000 Greater than $320,000 and less than or equal to $428,000 214.30 348.30 Greater than $214,000 Greater than $428,000 294.60 428.60

    In addition, the monthly premium rates to be paid by (or on behalf of) beneficiaries who are married and lived with their spouse at any time during the taxable year, but file a separate tax return from their spouse, are as follows:

    Beneficiaries who are married and lived with their spouse at any time during the year, but file a separate tax return from their spouse: Income-related
  • monthly
  • adjustment
  • amount
  • Total monthly
  • premium
  • amount
  • Less than or equal to $85,000 $0.00 $134.00 Greater than $85,000 and less than or equal to $129,000 214.30 348.30 Greater than $129,000 294.60 428.60

    The Part B annual deductible for 2017 is $183.00 for all beneficiaries.

    B. Statement of Actuarial Assumptions and Bases Employed in Determining the Monthly Actuarial Rates and the Monthly Premium Rate for Part B Beginning January 2017

    Except where noted, the actuarial assumptions and bases used to determine the monthly actuarial rates and the monthly premium rates for Part B are established by the Centers for Medicare & Medicaid Services Office of the Actuary. The estimates underlying these determinations are prepared by actuaries meeting the qualification standards and following the actuarial standards of practice established by the Actuarial Standards Board.

    1. Actuarial Status of the Part B Account in the Supplementary Medical Insurance Trust Fund

    Under section 1839 of the Act, the starting point for determining the standard monthly premium is the amount that would be necessary to finance Part B on an incurred basis. This is the amount of income that would be sufficient to pay for services furnished during that year (including associated administrative costs) even though payment for some of these services will not be made until after the close of the year. The portion of income required to cover benefits not paid until after the close of the year is added to the trust fund and used when needed.

    The premium rates are established prospectively and are, therefore, subject to projection error. Additionally, legislation enacted after the financing was established, but effective for the period in which the financing is set, may affect program costs. As a result, the income to the program may not equal incurred costs. Therefore, trust fund assets must be maintained at a level that is adequate to cover an appropriate degree of variation between actual and projected costs, and the amount of incurred, but unpaid, expenses. Numerous factors determine what level of assets is appropriate to cover variation between actual and projected costs. The three most important of these factors are the: (1) Difference from prior years between the actual performance of the program and estimates made at the time financing was established; (2) likelihood and potential magnitude of expenditure changes resulting from enactment of legislation affecting Part B costs in a year subsequent to the establishment of financing for that year; and (3) expected relationship between incurred and cash expenditures. These factors are analyzed on an ongoing basis, as the trends can vary over time.

    Table 1 summarizes the estimated actuarial status of the trust fund as of the end of the financing period for 2015 and 2016.

    Table 1—Estimated Actuarial Status of the Part B Account in the Supplementary Medical Insurance Trust Fund as of the End of the Financing Period Financing period ending Assets
  • ($ in millions)
  • Liabilities
  • ($ in millions)
  • Assets less liabilities
  • ($ in millions)
  • December 31, 2015 68,157 24,712 43,445 December 31, 2016 85,169 26,487 58,682
    2. Monthly Actuarial Rate for Enrollees Age 65 and Older

    The monthly actuarial rate for enrollees age 65 and older is one-half of the sum of monthly amounts for: (1) The projected cost of benefits; and (2) administrative expenses for each enrollee age 65 and older, after adjustments to this sum to allow for interest earnings on assets in the trust fund and an adequate contingency margin. The contingency margin is an amount appropriate to provide for possible variation between actual and projected costs and to amortize any surplus assets or unfunded liabilities.

    The monthly actuarial rate for enrollees age 65 and older for 2017 is determined by first establishing per-enrollee cost by type of service from program data through 2016 and then projecting these costs for subsequent years. The projection factors used for financing periods from January 1, 2014 through December 31, 2017 are shown in Table 2.

    As indicated in Table 3, the projected per-enrollee amount required to pay for one-half of the total of benefits and administrative costs for enrollees age 65 and over for 2017 is $238.61. Based on current estimates, the assets associated with the aged Medicare beneficiaries at the end of 2016 are not sufficient to cover the amount of incurred, but unpaid, expenses and to provide for a significant degree of variation between actual and projected costs. Thus, a positive contingency margin is needed. The monthly actuarial rate of $261.90 provides an adjustment of $25.07 for a contingency margin and −$1.78 for interest earnings.

    The contingency margin for 2017 is affected by several factors. As noted previously, for most Part B beneficiaries the hold-harmless provision prevents their benefits under Section 202 or 223 of the Act from decreasing as a result of an increase in the Part B premium. For 2016, social security benefits received no cost-of-living adjustment and therefore the majority of Part B enrollees were held harmless and paid a premium of $104.90, rather than the 2016 premium of $121.80. On October 18, 2016, the Social Security Administration announced that the increase in the benefits under Section 202 and 223 of the Act will be 0.3 percent for 2017. As a result, the average 2017 social security benefit increase will be about $4.00 and the average 2017 premium paid by Part B enrollees who are held harmless will be about $109.00. Consequently, a minority of Part B enrollees will pay (or have paid on their behalf) a larger-than-normal premium, resulting from an increased contingency margin. The Part B premium of $134.00 for 2017 will be paid by (or on behalf of) approximately 30 percent of beneficiaries (those not subject to the hold-harmless provision). (As noted previously, individuals with higher incomes would not be held harmless and would pay a 2017 premium that is higher than $134.00.)

    Two other factors affect the contingency margin for 2017. Starting in 2011, manufacturers and importers of brand-name prescription drugs have paid a fee that is allocated to the Part B account of the SMI trust. For 2017, the total of these brand-name drug fees is estimated to be $3.9 billion. The contingency margin has been reduced to account for this additional revenue.

    Another factor impacting the contingency margin comes from the requirement that certain payment incentives, to encourage the development and use of health information technology (HIT) by Medicare physicians, are to be excluded from the premium determination. HIT positive incentive payments or penalties will be directly offset through transfers with the general fund of the Treasury. The monthly actuarial rate includes an adjustment of −$0.13 for HIT incentive payments in 2017.

    The traditional goal for the Part B reserve has been that assets minus liabilities at the end of a year should represent between 15 and 20 percent of the following year's total incurred expenditures. To accomplish this goal, a 17 percent reserve ratio has been the normal target used to calculate the Part B premium. The Secretary, who determines the Part B premium each year under section 1839 of the Act, directed the Office of the Actuary to use a target reserve ratio for the Part B premium determination of 13 percent by the end of 2017. This targets a 2017 reserve ratio that is lower than the reserve ratio expected for the end of 2016. The Office of the Actuary has estimated that a target reserve ratio of 14 percent is the minimally financially adequate level for the Part B premium determination. The target reserve ratio of 13 percent is below this level resulting in a non-trivial risk of Part B income and trust fund assets being inadequate to cover Part B costs, which would occur if experience is significantly worse than current estimates. Financing rates in future years will likely need to be increased to restore the contingency reserve to an adequate level.

    The actuarial rate of $261.90 per month for aged beneficiaries, as announced in this notice for 2017, reflects that combined effect of the factors previously described and the projected assumptions listed in Table 2.

    3. Monthly Actuarial Rate for Disabled Enrollees

    Disabled enrollees are those persons under age 65 who are enrolled in Part B because of entitlement to Social Security disability benefits for more than 24 months or because of entitlement to Medicare under the end-stage renal disease (ESRD) program. Projected monthly costs for disabled enrollees (other than those with ESRD) are prepared in a fashion parallel to the projection for the aged using appropriate actuarial assumptions (see Table 2). Costs for the ESRD program are projected differently because of the different nature of services offered by the program.

    As shown in Table 4, the projected per-enrollee amount required to pay for one-half of the total of benefits and administrative costs for disabled enrollees for 2017 is $285.21. The monthly actuarial rate of $254.20 also provides an adjustment of −$2.67 for interest earnings and −$28.34 for a contingency margin, reflecting the same factors described previously for the aged actuarial rate at magnitudes appropriate to the disabled rate determination. Based on current estimates, the assets associated with the disabled Medicare beneficiaries at the end of 2016 are more-than sufficient to cover the amount of incurred, but unpaid, expenses and to provide for a significant degree of variation between actual and projected costs. Thus, a negative contingency margin is needed to decrease assets to an appropriate level.

    The actuarial rate of $254.20 per month for disabled beneficiaries, as announced in this notice for 2017, reflects the combined net effect of the factors described previously for aged beneficiaries and the projection assumptions listed in Table 2.

    4. Sensitivity Testing

    Several factors contribute to uncertainty about future trends in medical care costs. It is appropriate to test the adequacy of the rates using alternative cost growth rate assumptions. The results of those assumptions are shown in Table 5. One set represents increases that are higher and, therefore, more pessimistic than the current estimate. The other set represents increases that are lower and, therefore, more optimistic than the current estimate. The values for the alternative assumptions were determined from a statistical analysis of the historical variation in the respective increase factors.

    As indicated in Table 5, the monthly actuarial rates would result in an excess of assets over liabilities of $45,497 million by the end of December 2017 under the cost growth rate assumptions shown in Table 2 and assuming that the provisions of current law are fully implemented. This amounts to 13.7 percent of the estimated total incurred expenditures for the following year.

    Assumptions that are somewhat more pessimistic (and that therefore test the adequacy of the assets to accommodate projection errors) produce a surplus of −$1,387 million by the end of December 2017 under current law, which amounts to −0.4 percent of the estimated total incurred expenditures for the following year. Under fairly optimistic assumptions, the monthly actuarial rates would result in a surplus of $89,869 million by the end of December 2017, or 31.0 percent of the estimated total incurred expenditures for the following year.

    The sensitivity analysis indicates that the premium and general revenue financing established for 2017, together with existing Part B account assets would not be adequate to cover estimated Part B costs for 2017 under current law if actual costs prove to be somewhat greater than expected.

    5. Premium Rates and Deductible

    As determined in accordance with section 1839 of the Act, listed are the 2017 Part B monthly premium rates to be paid by beneficiaries who file an individual tax return (including those who are single, head of household, qualifying widow(er) with dependent child, or married filing separately who lived apart from their spouse for the entire taxable year), or a joint tax return.

    Beneficiaries who file an individual tax return with income: Beneficiaries who file a joint tax return with income: Income-related
  • monthly
  • adjustment
  • amount
  • Total monthly
  • premium
  • amount
  • Less than or equal to $85,000 Less than or equal to $170,000 $0.00 $134.00 Greater than $85,000 and less than or equal to $107,000 Greater than $170,000 and less than or equal to $214,000 53.50 187.50 Greater than $107,000 and less than or equal to $160,000 Greater than $214,000 and less than or equal to $320,000 133.90 267.90 Greater than $160,000 and less than or equal to $214,000 Greater than $320,000 and less than or equal to $428,000 214.30 348.30 Greater than $214,000 Greater than $428,000 294.60 428.60

    In addition, the monthly premium rates to be paid by beneficiaries who are married and lived with their spouse at any time during the taxable year, but file a separate tax return from their spouse, are listed as follows:

    Beneficiaries who are married and lived with their spouse at any time during the year, but file a separate tax return from their spouse: Income-related
  • monthly
  • adjustment
  • amount
  • Total monthly
  • premium
  • amount
  • Less than or equal to $85,000 $0.00 $134.00 Greater than $85,000 and less than or equal to $129,000 214.30 348.30 Greater than $129,000 294.60 428.60
    Table 2—Projection Factors 1 12-Month Periods Ending December 31 of 2014-2017 [In percent] Calendar year Physicians' services Fees 2 Residual 3 Durable
  • medical
  • equipment
  • Carrier
  • lab 4
  • Other
  • carrier
  • services 5
  • Outpatient
  • hospital
  • Home
  • health
  • agency
  • Hospital
  • lab 6
  • Other
  • intermediary
  • services 7
  • Managed
  • care
  • Aged: 2014 0.5 0.6 −14.3 6.5 2.7 12.6 −0.6 −29.1 4.5 6.4 2015 −0.4 0.6 6.7 2.6 4.4 6.8 −1.4 2.4 5.0 2.1 2016 −0.4 0.1 −5.1 −1.6 6.3 5.4 0.4 3.1 4.4 3.7 2017 0.4 1.2 0.6 5.8 2.8 7.5 2.1 2.9 5.3 4.8 Disabled: 2014 0.5 1.9 −11.0 13.6 4.2 13.6 −1.3 −35.9 7.3 9.4 2015 −0.4 0.6 7.6 6.6 6.7 7.0 −1.0 0.6 9.9 1.4 2016 −0.4 0.8 −4.6 −12.9 6.7 5.5 0.5 4.4 8.7 4.5 2017 0.4 1.2 0.5 5.8 3.1 7.4 2.4 2.8 5.4 4.8 1 All values for services other than managed care are per fee-for-service enrollee. Managed care values are per managed care enrollee. 2 As recognized for payment under the program. 3 Increase in the number of services received per enrollee and greater relative use of more expensive services. 4 Includes services paid under the lab fee schedule furnished in the physician's office or an independent lab. 5 Includes physician-administered drugs, ambulatory surgical center facility costs, ambulance services, parenteral and enteral drug costs, supplies, etc. 6 Includes services paid under the lab fee schedule furnished in the outpatient department of a hospital. 7 Includes services furnished in dialysis facilities, rural health clinics, federally qualified health centers, rehabilitation, and psychiatric hospitals, etc.
    Table 3—Derivation of Monthly Actuarial Rate for Enrollees Age 65 and Over for Financing Periods Ending December 31, 2014 Through December 31, 2017 [in dollars] CY 2014 CY 2015 CY 2016 CY 2017 Covered services (at level recognized): Physician fee schedule 76.97 75.48 74.34 74.57 Durable medical equipment 6.07 6.34 5.95 5.90 Carrier lab 1 4.36 4.38 4.26 4.45 Other carrier services 2 22.05 22.53 23.66 24.01 Outpatient hospital 41.35 43.20 45.00 47.78 Home health 9.70 9.36 9.28 9.36 Hospital lab 3 2.25 2.25 2.29 2.33 Other intermediary services 4 16.79 17.25 17.80 18.51 Managed care 73.65 78.38 83.02 88.95 Total services 253.19 259.17 265.59 275.85 Cost sharing: Deductible −5.63 −5.64 −6.36 −7.00 Coinsurance −28.18 −28.02 −28.14 −28.48 Sequestration of benefits −4.39 −4.51 −4.62 −4.81 HIT payment incentives −2.38 −1.08 −0.59 −0.13 Total benefits 212.61 219.92 225.88 235.42 Administrative expenses 3.24 2.82 3.00 3.19 Incurred expenditures 215.84 222.74 228.88 238.61 Value of interest −1.93 −1.86 −1.75 −1.78 Contingency margin for projection error and to amortize the surplus or deficit −4.11 −11.08 10.47 25.07 Monthly actuarial rate 209.80 209.80 237.60 261.90 1 Includes services paid under the lab fee schedule furnished in the physician's office or an independent lab. 2 Includes physician-administered drugs, ambulatory surgical center facility costs, ambulance services, parenteral and enteral drug costs, supplies, etc. 3 Includes services paid under the lab fee schedule furnished in the outpatient department of a hospital. 4 Includes services furnished in dialysis facilities, rural health clinics, federally qualified health centers, rehabilitation and psychiatric hospitals, etc. Table 4—Derivation of Monthly Actuarial Rate for Disabled Enrollees for Financing Periods Ending December 31, 2014 Through December 31, 2017 [in dollars] CY 2014 CY 2015 CY 2016 CY 2017 Covered services (at level recognized): Physician fee schedule 83.44 81.07 79.87 79.59 Durable medical equipment 11.96 12.44 11.65 11.48 Carrier lab 1 7.18 7.41 6.34 6.58 Other carrier services 2 25.33 25.70 26.56 26.83 Outpatient hospital 59.58 61.51 63.56 66.98 Home health 8.28 7.92 7.79 7.82 Hospital lab 3 2.85 2.79 2.86 2.89 Other intermediary services 4 44.96 45.19 46.82 48.21 Managed care 65.16 72.59 79.66 87.19 Total services 308.74 316.61 325.13 337.55 Cost sharing: Deductible −5.29 −5.30 −5.97 −6.57 Coinsurance −43.12 −42.78 −43.11 −43.70 Sequestration of benefits −5.20 −5.37 −5.52 −5.74 HIT payment incentives −2.55 −1.14 −0.63 −0.14 Total benefits 252.57 262.02 269.91 281.40 Administrative expenses 3.84 3.36 3.58 3.81 Incurred expenditures 256.41 265.38 273.49 285.21 Value of interest −2.49 −2.22 −2.25 −2.67 Contingency margin for projection error and to amortize the surplus or deficit −35.02 −8.36 11.36 −28.34 Monthly actuarial rate 218.90 254.80 282.60 254.20 1 Includes services paid under the lab fee schedule furnished in the physician's office or an independent lab. 2 Includes physician-administered drugs, ambulatory surgical center facility costs, ambulance services, parenteral and enteral drug costs, supplies, etc. 3 Includes services paid under the lab fee schedule furnished in the outpatient department of a hospital. 4 Includes services furnished in dialysis facilities, rural health clinics, federally qualified health centers, rehabilitation and psychiatric hospitals, etc. Table 5—Actuarial Status of the Part B Account in the SMI Trust Fund Under Three Sets of Assumptions for Financing Periods Through December 31, 2017 As of December 31, 2015 2016 2017 Actuarial status (in $ millions): Assets 68,157 85,169 73,296 Liabilities 24,712 26,487 27,798 Assets less liabilities 43,445 58,682 45,497 Ratio (in percent) 1 14.7 18.6 13.7 Low cost projection: Actuarial status (in $ millions): Assets 68,157 100,826 116,438 Liabilities 24,712 24,748 26,569 Assets less liabilities 43,445 76,078 89,869 Ratio (in percent) 1 15.7 26.6 31.0 High cost projection: Actuarial status (in $ millions): Assets 68,157 69,173 27,830 Liabilities 24,712 28,265 29,217 Assets less liabilities 43,445 40,908 −1,387 Ratio (in percent) 1 13.9 11.8 −0.4 1 Ratio of assets less liabilities at the end of the year to the total incurred expenditures during the following year, expressed as a percent. III. Collection of Information Requirements

    This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

    IV. Regulatory Impact Analysis A. Statement of Need

    Section 1839 of the Act requires us to annually announce (that is by September 30th of each year) the Part B monthly actuarial rates for aged and disabled beneficiaries as well as the monthly Part B premium. We also announce the Part B annual deductible because its determination is directly linked to the aged actuarial rate.

    B. Overall Impact

    We have examined the impacts of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995, Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), and the Congressional Review Act (5 U.S.C. 804(2)).

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major notices with economically significant effects ($100 million or more in any 1 year). For 2017 approximately 70 percent of Part B enrollees will be held harmless from the full increase in the Part B premium but will pay a small increase in their Part B premium. However, all Part B enrollees will experience a deductible that increases from $166 in 2016 to $183 in 2017. In addition, the standard Part B premium rate and the Part B income-related premium rates are higher than the respective amounts for 2016. All of these changes together have an annual effect on the economy of $100 million or more. As a result, this notice is economically significant under section 3(f)(1) of Executive Order 12866 and is a major action as defined under the Congressional Review Act (5 U.S.C. 804(2)).

    As discussed earlier, this notice announces that the monthly actuarial rates applicable for 2017 are $261.90 for enrollees age 65 and over and $254.20 for disabled enrollees under age 65. It also announces the 2017 monthly Part B premium rates to be paid by beneficiaries who file an individual tax return (including those who are single, head of household, qualifying widow(er) with a dependent child, or married filing separately who lived apart from their spouse for the entire taxable year), or a joint tax return.

    Beneficiaries who file an individual tax return with income: Beneficiaries who file a joint tax return with income: Income-related
  • monthly
  • adjustment
  • amount
  • Total
  • monthly
  • premium
  • amount
  • Less than or equal to $85,000 Less than or equal to $170,000 $0.00 $134.00 Greater than $85,000 and less than or equal to $107,000 Greater than $170,000 and less than or equal to $214,000 53.50 187.50 Greater than $107,000 and less than or equal to $160,000 Greater than $214,000 and less than or equal to $320,000 133.90 267.90 Greater than $160,000 and less than or equal to $214,000 Greater than $320,000 and less than or equal to $428,000 214.30 348.30 Greater than $214,000 Greater than $428,000 294.60 428.60

    In addition, the monthly premium rates to be paid by beneficiaries who are married and lived with their spouse at any time during the taxable year, but file a separate tax return from their spouse, are also announced and listed in the following chart:

    Beneficiaries who are married and lived with their spouse at any time during the year, but file a separate tax return from their spouse: Income-related
  • monthly
  • adjustment
  • amount
  • Total
  • monthly
  • premium
  • amount
  • Less than or equal to $85,000 $0.00 $134.00 Greater than $85,000 and less than or equal to $129,000 214.30 348.30 Greater than $129,000 294.60 428.60

    The RFA requires agencies to analyze options for regulatory relief of small businesses, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Individuals and states are not included in the definition of a small entity. This notice announces the monthly actuarial rates for aged (age 65 and over) and disabled (under 65) beneficiaries enrolled in Part B of the Medicare SMI program beginning January 1, 2017. Also, this notice announces the monthly premium for aged and disabled beneficiaries as well as the income-related monthly adjustment amounts to be paid by beneficiaries with modified adjusted gross income above certain threshold amounts. As a result, we are not preparing an analysis for the RFA because the Secretary has determined that this notice will not have a significant economic impact on a substantial number of small entities.

    In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. As we discussed previously, we are not preparing an analysis for section 1102(b) of the Act because the Secretary has determined that this notice will not have a significant effect on a substantial number of small rural hospitals.

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1-year of $100 million in 1995 dollars, updated annually for inflation. In 2016, that threshold is approximately $146 million. Part B enrollees who are also enrolled in Medicaid have their monthly Part B premiums paid by Medicaid. The 2017 premium increase is estimated to be a cost to each state Medicaid program that is less than the threshold. This notice does not impose mandates that will have a consequential effect of the threshold amount or more on state, local, or tribal governments or on the private sector.

    Executive Order 13132 establishes certain requirements that an agency must meet when it publishes a proposed rule (and subsequent final rule) that imposes substantial direct compliance costs on state and local governments, preempts state law, or otherwise has Federalism implications. We have determined that this notice does not significantly affect the rights, roles, and responsibilities of states. Accordingly, the requirements of Executive Order 13132 do not apply to this notice.

    In accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.

    V. Waiver of Proposed Notice

    The Medicare statute requires the publication of the monthly actuarial rates and the Part B premium amounts in September. We ordinarily use general notices, rather than notice and comment rulemaking procedures, to make such announcements. In doing so, we note that, under the Administrative Procedure Act, interpretive rules, general statements of policy, and rules of agency organization, procedure, or practice are excepted from the requirements of notice and comment rulemaking.

    We considered publishing a proposed notice to provide a period for public comment. However, we may waive that procedure if we find, for good cause, that prior notice and comment are impracticable, unnecessary, or contrary to the public interest. The statute establishes the time period for which the premium rates will apply, and delaying publication of the Part B premium rate such that it would not be published before that time would be contrary to the public interest. Moreover, we find that notice and comment are unnecessary because the formulas used to calculate the Part B premiums are statutorily directed. Therefore, we find good cause to waive publication of a proposed notice and solicitation of public comments.

    Dated: November 8, 2016. Andrew M. Slavitt, Acting Administrator, Centers for Medicare & Medicaid Services. Dated: November 8, 2016. Sylvia M. Burwell, Secretary, Department of Health and Human Services.
    [FR Doc. 2016-27425 Filed 11-10-16; 4:15 pm] BILLING CODE 4120-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services [CMS-8063-N] RIN 0938-AS71 Medicare Program; CY 2017 Part A Premiums for the Uninsured Aged and for Certain Disabled Individuals Who Have Exhausted Other Entitlement AGENCY:

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

    ACTION:

    Notice.

    SUMMARY:

    This annual notice announces Medicare's Hospital Insurance (Part A) premium for uninsured enrollees in calendar year (CY) 2017. This premium is paid by enrollees age 65 and over who are not otherwise eligible for benefits under Medicare Part A (hereafter known as the “uninsured aged”) and by certain disabled individuals who have exhausted other entitlement. The monthly Part A premium for the 12 months beginning January 1, 2017, for these individuals will be $413. The premium for certain other individuals as described in this notice will be $227.

    DATES:

    Effective Date: This notice is effective on January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Clare McFarland, (410) 786-6390.

    SUPPLEMENTARY INFORMATION: I. Background

    Section 1818 of the Social Security Act (the Act) provides for voluntary enrollment in the Medicare Hospital Insurance Program (Medicare Part A), subject to payment of a monthly premium, of certain persons aged 65 and older who are uninsured under the Old-Age, Survivors, and Disability Insurance (OASDI) program or the Railroad Retirement Act and do not otherwise meet the requirements for entitlement to Medicare Part A. These “uninsured aged” individuals are uninsured under the OASDI program or the Railroad Retirement Act, because they do not have 40 quarters of coverage under Title II of the Act (or are/were not married to someone who did). (Persons insured under the OASDI program or the Railroad Retirement Act and certain others do not have to pay premiums for Medicare Part A.)

    Section 1818A of the Act provides for voluntary enrollment in Medicare Part A, subject to payment of a monthly premium for certain disabled individuals who have exhausted other entitlement. These are individuals who were entitled to coverage due to a disabling impairment under section 226(b) of the Act, but who are no longer entitled to disability benefits and free Medicare Part A coverage because they have gone back to work and their earnings exceed the statutorily defined “substantial gainful activity” amount (section 223(d)(4) of the Act).

    Section 1818A(d)(2) of the Act specifies that the provisions relating to premiums under section 1818(d) through section 1818(f) of the Act for the aged will also apply to certain disabled individuals as described above.

    Section 1818(d)(1) of the Act requires us to estimate, on an average per capita basis, the amount to be paid from the Federal Hospital Insurance Trust Fund for services incurred in the upcoming calendar year (CY) (including the associated administrative costs) on behalf of individuals aged 65 and over who will be entitled to benefits under Medicare Part A. We must then determine the monthly actuarial rate for the following year (the per capita amount estimated above divided by 12) and publish the dollar amount for the monthly premium in the succeeding CY. If the premium is not a multiple of $1, the premium is rounded to the nearest multiple of $1 (or, if it is a multiple of 50 cents but not of $1, it is rounded to the next highest $1).

    Section 13508 of the Omnibus Budget Reconciliation Act of 1993 (Pub. L. 103-66) amended section 1818(d) of the Act to provide for a reduction in the premium amount for certain voluntary enrollees (section 1818 and section 1818A of the Act). The reduction applies to an individual who is eligible to buy into the Medicare Part A program and who, as of the last day of the previous month:

    • Had at least 30 quarters of coverage under Title II of the Act;

    • Was married, and had been married for the previous 1-year period, to a person who had at least 30 quarters of coverage;

    • Had been married to a person for at least 1 year at the time of the person's death if, at the time of death, the person had at least 30 quarters of coverage; or

    • Is divorced from a person and had been married to the person for at least 10 years at the time of the divorce if, at the time of the divorce, the person had at least 30 quarters of coverage.

    Section 1818(d)(4)(A) of the Act specifies that the premium that these individuals will pay for CY 2017 will be equal to the premium for uninsured aged enrollees reduced by 45 percent.

    II. Monthly Premium Amount for CY 2017

    The monthly premium for the uninsured aged and certain disabled individuals who have exhausted other entitlement for the 12 months beginning January 1, 2017, is $413.

    The monthly premium for the individuals eligible under section 1818(d)(4)(B) of the Act, and therefore, subject to the 45 percent reduction in the monthly premium, is $227.

    III. Monthly Premium Rate Calculation

    As discussed in section I of this notice, the monthly Medicare Part A premium is equal to the estimated monthly actuarial rate for CY 2017 rounded to the nearest multiple of $1 and equals one-twelfth of the average per capita amount, which is determined by projecting the number of Medicare Part A enrollees aged 65 years and over as well as the benefits and administrative costs that will be incurred on their behalf.

    The steps involved in projecting these future costs to the Federal Hospital Insurance Trust Fund are:

    • Establishing the present cost of services furnished to beneficiaries, by type of service, to serve as a projection base;

    • Projecting increases in payment amounts for each of the service types; and

    • Projecting increases in administrative costs.

    We base our projections for CY 2017 on—(1) current historical data; and (2) projection assumptions derived from current law and the Mid-Session Review of the President's Fiscal Year 2017 Budget.

    We estimate that in CY 2017, 48,634,512 people aged 65 years and over will be entitled to (enrolled in) benefits (without premium payment) and that they will incur about $240.891 billion in benefits and related administrative costs. Thus, the estimated monthly average per capita amount is $412.76 and the monthly premium is $413. Subsequently, the full monthly premium reduced by 45 percent is $227.

    IV. Costs to Beneficiaries

    The CY 2017 premium of $413 is approximately 0.5 percent higher than the CY 2016 premium of $411. We estimate that approximately 654,000 enrollees will voluntarily enroll in Medicare Part A, by paying the full premium. Note that states pay Part A premiums for persons who are enrolled in the Qualified Medicare Beneficiary Program (a Medicaid program which helps certain low-income individuals with Medicare premium and cost-sharing liability). Furthermore, the CY 2017 reduced premium of $227 is approximately 0.5 percent higher than the CY 2016 premium of $226. We estimate an additional 67,000 enrollees will pay the reduced premium. Therefore, we estimate that the total aggregate cost to enrollees paying these premiums in CY 2017, compared to the amount that they paid in CY 2016, will be about $17 million.

    V. Waiver of Proposed Notice and Comment Period

    We use general notices, rather than notice and comment rulemaking procedures, to make announcements such as this premium notice. In doing so, we acknowledge that, under the Administrative Procedure Act (APA), interpretive rules, general statements of policy, and rules of agency organization, procedure, or practice are excepted from the requirements of notice and comment rulemaking. The agency may also waive notice and comment if there is “good cause,” as defined by the statute. We considered publishing a proposed notice to provide a period for public comment. However, under the APA, we may waive that procedure if we find good cause that prior notice and comment are impracticable, unnecessary, or contrary to the public interest.

    We are not using notice and comment rulemaking in this notification of Medicare Part A premiums for CY 2017 as that procedure is unnecessary because of the lack of discretion in the statutory formula that is used to calculate the premium and the solely ministerial function that this notice serves. The APA permits agencies to waive notice and comment rulemaking when notice and public comment thereon are unnecessary. On this basis, we waive publication of a proposed notice and a solicitation of public comments.

    VI. Collection of Information Requirements

    This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

    VII. Regulatory Impact Analysis A. Statement of Need

    Section 1818(d) of the Act requires the Secretary of the Department of Health and Human Services (the Secretary) during September of each year to determine and publish the amount to be paid, on an average per capita basis, from the Federal Hospital Insurance Trust Fund for services incurred in the impending CY (including the associated administrative costs) on behalf of individuals aged 65 and over who will be entitled to benefits under Medicare Part A.

    B. Overall Impact

    We have examined the impact of this notice as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. Part I, Ch. 8).

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major notices with economically significant effects ($100 million or more in any 1 year). As stated in section IV of this notice, we estimate that the overall effect of the changes in the Part A premium will be a cost to voluntary enrollees (section 1818 and section 1818A of the Act) of about $17 million. As a result, this notice is non-economically significant under section 3(f)(1) of Executive Order 12866 and is not a major action under the Congressional Review Act. In accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.

    The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.5 million to $38.5 million in any 1 year (for details, see the Small Business Administration's Web site at http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf).

    Individuals and states are not included in the definition of a small entity. As discussed above, this annual notice announces Medicare's Hospital Insurance (Part A) premium for uninsured enrollees in CY 2017. As a result, we are not preparing an analysis for the RFA because the Secretary has determined that this notice will not have a significant economic impact on a substantial number of small entities.

    In addition, section 1102(b) of the Social Security Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. As discussed above, we are not preparing an analysis for section 1102(b) of the Act, because the Secretary has determined that this notice will not have a significant impact on the operations of a substantial number of small rural hospitals.

    Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2016, that threshold is approximately $146 million. This notice does not impose mandates that will have a consequential effect of $146 million or more on state, local, or tribal governments or on the private sector.

    Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. Since this notice does not impose any costs on state or local governments, the requirements of Executive Order 13132 are not applicable.

    Dated: September 23, 2016. Andrew M. Slavitt, Acting Administrator, Centers for Medicare & Medicaid Services. Dated: November 8, 2016. Sylvia M. Burwell, Secretary, Department of Health and Human Services.
    [FR Doc. 2016-27388 Filed 11-10-16; 4:15 pm] BILLING CODE 4120-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-N-1311] Paul S. Singh: Debarment Order AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The U.S. Food and Drug Administration (FDA or Agency) is issuing an order under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) permanently debarring Paul S. Singh from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that Dr. Singh was convicted of a felony under Federal law for conduct relating to the regulation of a drug product under the FD&C Act. Dr. Singh was given notice of the proposed permanent debarment and an opportunity to request a hearing within the timeframe prescribed by regulation. Dr. Singh failed to request a hearing. Dr. Singh's failure to request a hearing constitutes a waiver of his right to a hearing concerning this action.

    DATES:

    This order is effective November 15, 2016.

    ADDRESSES:

    Submit applications for special termination of debarment to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Kenny Shade, Division of Enforcement, Office of Enforcement and Import Operations, Office of Regulatory Affairs (ELEM-4144), Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 301-796-4640.

    SUPPLEMENTARY INFORMATION: I. Background

    Section 306(a)(2)(B) of the FD&C Act (21 U.S.C. 335a(a)(2)(B)) requires debarment of an individual if FDA finds that the individual has been convicted of a felony under Federal law for conduct relating to the regulation of any drug product under the FD&C Act. On July 31, 2015, the U.S. District Court for the Eastern District of California entered judgment against Dr. Singh for one count of mail fraud, in violation of 18 U.S.C. 1341.

    FDA's finding that the debarment is appropriate is based on the felony conviction referenced herein. The factual basis for this conviction is as follows: Dr. Singh was the President and Secretary of Paul S. Singh, DO, Inc., and provided obstetric and gynecological services to women. Beginning on or about May 2008, and continuing to at least on or about June 2012, within the Eastern District of California and elsewhere, Dr. Singh devised a scheme and artifice to defraud health care benefit programs, patients, and others of money and property by means of materially false and fraudulent pretenses, representations, and promises.

    During the time period described, Dr. Singh provided his patients forms of birth control, including the insertion of an intrauterine device (“IUD”). IUDs are regulated by FDA. At the relevant time, FDA had only approved one IUD, which used copper as its active ingredient, the ParaGard T-380A IUD. ParaGard T-380A was sold only by its manufacturer and was not available on third-party Web sites.

    The insertion of a non-FDA approved copper IUD risks a patient's health and safety. Dr. Singh knew of this risk and knew that inserting a non-FDA approved copper IUD was prohibited by FDA. Despite this, Dr. Singh obtained non-FDA approved copper IUDs by purchasing them on the Internet and inserted them in his patients. Dr. Singh failed to inform his patients that he had inserted a non-FDA approved copper IUD, and none of his patients consented to the insertion of one. On or about August 17, 2010, FDA agents met with Dr. Singh and warned him that he could not insert non-FDA approved copper IUDs, and he agreed that he would stop doing so. Notwithstanding this warning, Dr. Singh continued to insert non-FDA approved copper IUDs in his patients and falsely claimed to his patients that he was inserting FDA-approved copper IUDs.

    Dr. Singh billed at least 10 different health care benefit programs for payment for the insertion of non-FDA approved copper IUDs in his patients. In submitting these claims, Dr. Singh knowingly misrepresented the type of IUD he had inserted. Dr. Singh caused the U.S. mails to be used to carry out an essential part of his scheme. At all relevant times, Dr. Singh acted with the intent to defraud. As a result of Dr. Singh's conduct, he made false claims of over $83,000 to health care benefit programs, his patients, and others.

    As a result of this conviction, FDA sent Dr. Singh by certified mail on August 17, 2016, a notice proposing to permanently debar him from providing services in any capacity to a person that has an approved or pending drug product application. The proposal was based on a finding, under section 306(a)(2)(B) of the FD&C Act, that Dr. Singh was convicted of a felony under Federal law for conduct relating to the regulation of a drug product under the FD&C Act. FDA determined that Dr. Singh's felony conviction was related to the regulation of drug products because the conduct underlying his conviction undermined FDA's regulatory oversight over drug products marketed in the United States—it involved using and misrepresenting as approved unapproved IUDs that presented health risks to patients. The proposal also offered Dr. Singh an opportunity to request a hearing, providing him 30 days from the date of receipt of the letter in which to file the request, and advised him that failure to request a hearing constituted a waiver of the opportunity for a hearing and of any contentions concerning this action. The proposal was received on August 23, 2016. Dr. Singh did not request a hearing and has, therefore, waived his opportunity for a hearing and any contentions concerning his debarment (21 CFR part 12).

    II. Findings and Order

    Therefore, the Director, Office of Enforcement and Import Operations, Office of Regulatory Affairs, under sections 306(a)(2)(B) of the FD&C Act, under authority delegated to him (Staff Manual Guide 1410.35), finds that Paul S. Singh has been convicted of a felony under Federal law for conduct relating to the regulation of a drug product under the FD&C Act. Section 306(c)(2)(A)(ii) of the FD&C Act requires that Dr. Singh's debarment be permanent.

    As a result of the foregoing finding, Paul S. Singh is permanently debarred from providing services in any capacity to a person with an approved or pending drug product application under sections 505, 512, or 802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351 of the Public Health Service Act (42 U.S.C. 262), effective (see DATES) (see sections 201(dd) (21 U.S.C. 321(dd)), 306(c)(1)(B), and 306(c)(2)(A)(ii) of the FD&C Act). Any person with an approved or pending drug product application who knowingly employs or retains as a consultant or contractor, or otherwise uses the services of Paul S. Singh, in any capacity during his debarment, will be subject to civil money penalties (section 307(a)(6) of the FD&C Act (21 U.S.C. 335b(a)(6))). If Dr. Singh provides services in any capacity to a person with an approved or pending drug product application during his period of debarment he will be subject to civil money penalties (section 307(a)(7) of the FD&C Act). In addition, FDA will not accept or review any abbreviated new drug applications from Paul S. Singh during his period of debarment (section 306(c)(1)(B) of the FD&C Act).

    Any application by Dr. Singh for special termination of debarment under section 306(d)(4) of the FD&C Act should be identified with Docket No. FDA-2016-N-1311 and sent to the Division of Dockets Management (see ADDRESSES). All such submissions are to be filed in four copies. The public availability of information in these submissions is governed by 21 CFR 10.20.

    Publicly available submissions will be placed in the docket, and will be viewable at http://www.regulations.gov or at the Division of Dockets Management (see ADDRESSES) between 9 a.m. and 4 p.m., Monday through Friday.

    Dated: November 9, 2016. Armando Zamora, Deputy Director, Office of Enforcement and Import Operations, Office of Regulatory Affairs.
    [FR Doc. 2016-27418 Filed 11-14-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-N-3710] Agency Information Collection Activities; Proposed Collection; Comment Request; Evaluation of the Food and Drug Administration's Education at the Point of Sale Campaign AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish a notice in the Federal Register concerning each proposed collection of information, and to allow 60 days for public comment in response to the notice. This notice solicits comments on the creation of a cohort of cigarette smoking adults between the ages of 25 and 54 for the evaluation of FDA's point of sale tobacco education campaign.

    DATES:

    Submit either electronic or written comments on the collection of information by January 17, 2017.

    ADDRESSES:

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on http://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2016-N-3710 for “Agency Information Collection Activities; Proposed Collection; Comment Request; Evaluation of the Food and Drug Administration's Education at the Point of Sale Campaign.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on http://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    FDA PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, MD 20852, [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information before submitting the collection to OMB for approval. To comply with this requirement, FDA is publishing notice of the proposed collection of information set forth in this document.

    With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, 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 respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.

    Evaluation of FDA's Point-of-Sale Public Education Campaign OMB Control Number—0910-NEW

    The 2009 Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) (Pub. L. 111-31) amends the Federal Food, Drug, and Cosmetic Act (the FD&C Act) to grant FDA authority to regulate the manufacture, marketing, and distribution of tobacco products to protect public health and to reduce tobacco use by minors. Section 1003(d)(2)(D) of the FD&C Act (21 U.S.C. 393(d)(2)(D)) supports the development and implementation of FDA public education campaigns related to tobacco use. Accordingly, FDA is currently developing and implementing a tobacco education intervention at the point of sale to reduce the public health burden of tobacco use. The campaign features advertisements intended to encourage future quit attempts among current smokers in stores that sell tobacco products.

    In support of the provisions of the Tobacco Control Act that require FDA to protect the public health, FDA requests OMB approval to collect information to evaluate the effectiveness of the point of sale tobacco education campaign. Data from this outcome evaluation study will be used to examine statistical associations between exposure to the campaign and specific outcomes of interest, which include awareness of the campaign and its messaging, campaign-related attitudes, beliefs and risk perceptions, motivation to quit smoking, self-efficacy for quitting, and increased intention to quit.

    Evaluation is an essential organizational practice in public health and a systematic way to account for and improve public health actions. Comprehensive evaluation of FDA's public education campaigns will be used to document whether the intended audience is aware of and understands campaign messages, and whether campaign exposure influences campaign-related attitudes, beliefs and risk perceptions, motivation to quit smoking, self-efficacy for quitting, and increased intention to quit. All of the information collected is integral to that evaluation.

    Evaluation of the Point of Sale Campaign. This outcome evaluation study will consist of three longitudinal data collection periods each lasting 3-4 months at 4 month intervals between data collection periods, with the first survey (Wave 1) occurring 3 months after campaign launch. Information will be collected from adult smokers, ages 25 to 54, about awareness of and exposure to campaign advertisements, tobacco use, and knowledge, attitudes, and beliefs related to tobacco use. Information will be collected on demographic variables including age, sex, race/ethnicity, and primary language. Participants will also be offered the option to download a smartphone application that will track their exposure to the campaign, and that will ask them to respond to a brief survey about every six months over the 18 month study period.

    FDA's media contractor has identified 52 potential counties for the campaign. From this list, FDA's evaluation contractor will randomly select 36 counties to be included in the evaluation. Of these, 24 counties will receive the intervention, while 12 counties will not receive it (control counties).

    Data will be collected from a longitudinal cohort that will consist of an entirely new sample of adult cigarette smokers. Addresses will be randomly selected from a predetermined list of U.S. counties and merged with household data on age and demographic characteristics commonly associated with smoking status in order to identify households that are likely to contain one or more adult smokers between the ages of 25 and 54. Pre-paid pre-addressed paper screening surveys will be mailed to approximately 71,875 (23,958 annualized) households that meet this criteria. For the purpose of calculating maximum burden, we assume that all 71,875 (23,958 annualized) households will be screened in one of two ways: (1) When an adult member of the household completes and returns the 10-minute screener they received by mail, or (2) during a 10 minute in-person screening interview conducted by trained field interviewers who visit all the addresses that do not return the screener. At 10 minutes per screening, the maximum potential burden hours for the mail screener is 12,219 (4,073 annualized).

    Accounting for nonresponse, we estimate that the mail and in-person screenings will result in 5,750 (1,917 annualized) adults who meet criteria for participation and complete the full Wave 1 survey. The Wave 1 survey will be completed during an in-person visit to the home, either as a stand-alone visit (for households that returned the mail screener) or immediately after the in-person screening is completed (for households that did not return the mail screener). We estimate that the Wave 1 survey will take 40 minutes to complete, resulting in 3,853 (1,284 annualized) burden hours. Adjusting for loss to follow-up between waves, we anticipate that 4,600 (1,533 annualized) participants will complete the Wave 2 survey, which will take 40 minutes and result in 3,082 (1,027 annualized) burden hours, and that 3,772 (1,257 annualized) participants will complete the Wave 3 survey, which will take 40 minutes and result in 2,527 (842 annualized) burden hours. Both the Wave 2 and 3 surveys will also be administered in person by trained interviewers. The total burden hours for all three in-person surveys will be 9,462 (3,154 annualized).

    We anticipate that approximately 2/3 of the participants (3,833 people [1,278 annualized]) who complete the Wave 1 survey will download a smartphone application that will deliver additional surveys to them starting one month after the end of the first data collection. These participants will complete 3 surveys lasting 5 minutes each (every 6 months over the course of 18 months), resulting in 307 (102 annualized) burden hours per app-based survey and 921 (307 annualized) burden hours total for all of the app-based surveys. The total burden hours for the screener, 3 in-person surveys, and 3 app-based surveys is 22,600 (7,533 annualized).

    Table 1—Estimated Annual Reporting Burden 1 Type of respondent Activity No. of
  • respondents
  • No. of
  • responses per
  • respondent
  • Total
  • annual
  • responses
  • Average burden per response Total hours
    Households Screener 23,958 1 23,958 0.17 (10 minutes) 4,073 Adults smokers ages 25 to 54 Wave 1 questionnaire (Current smokers) 1,917 1 1,917 0.67 (40 minutes) 1,284 Wave 2 questionnaire 1,533 1 1,533 0.67 (40 minutes) 1,027 Wave 3 questionnaire 1,257 1 1,257 0.67 (40 minutes) 842 Study participants (opt in) App-based survey 1,278 3 3,834 0.08 (5 minutes) 307 Totals 32,499 7,533 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
    Dated: November 8, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-27330 Filed 11-14-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-N-1162] Louis Daniel Smith: Debarment Order AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The U.S. Food and Drug Administration (FDA or Agency) is issuing an order under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) permanently debarring Louis Daniel Smith from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that Mr. Smith was convicted of felonies under Federal law for conduct relating to the development or approval, including the process for development or approval, of a drug product, or otherwise relating to the regulation of a drug product under the FD&C Act. Mr. Smith was given notice of the proposed permanent debarment and an opportunity to request a hearing within the timeframe prescribed by regulation. Mr. Smith failed to respond. Mr. Smith's failure to respond constitutes a waiver of his right to a hearing concerning this action.

    DATES:

    This order is effective November 15, 2016.

    ADDRESSES:

    Submit applications for special termination of debarment to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Kenny Shade, Division of Enforcement, Office of Enforcement and Import Operations, Office of Regulatory Affairs (ELEM-4144), Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 301-796-4640.

    SUPPLEMENTARY INFORMATION: I. Background

    Section 306(a)(2)(A) of the FD&C Act (21 U.S.C. 335a(a)(2)(A)) requires debarment of an individual if FDA finds that the individual has been convicted of a felony under Federal law for conduct relating to the development or approval, including the process for development or approval, of any drug product. Section 306(a)(2)(B) of the FD&C Act requires debarment of an individual if FDA finds that the individual has been convicted of a felony under Federal law for conduct otherwise relating to the regulation of any drug product under the FD&C Act.

    On October 27, 2015, the U.S. District Court for the Eastern District of Washington entered judgment against Mr. Smith for one count of conspiracy, in violation of 18 U.S.C. 371, three counts of introducing misbranded drugs into interstate commerce with intent to defraud or mislead, in violation of section 301(a) of the FD&C Act (21 U.S.C. 331(a)), which according to section 303(a)(2) of the FD&C Act (21 U.S.C. 333(a)(2)) constitutes a felony, and one count of smuggling in violation of 18 U.S.C. 545.

    The factual basis for this conviction is as follows: Mr. Smith was a managing member of PGL International, LLC (PGL), and served as the director of PGL's operations. PGL is a Nevada corporation, which marketed and sold various health-related products, including Miracle Mineral Solution (MMS), a mixture of sodium chlorite and water. Sodium chlorite is an industrial chemical used as a pesticide and for hydraulic fracking and wastewater treatment. Sodium chlorite cannot be sold for human consumption and suppliers of the chemical include a warning sheet stating that it can cause potentially fatal side effects if swallowed. Mr. Smith obtained chemicals needed to manufacture the misbranded drug MMS without revealing to regulators and suppliers the true purpose of the chemicals; used those chemicals to manufacture the misbranded drug MMS in a facility that was not disclosed to regulators; offered the misbranded drug MMS for sale on Web sites Mr. Smith had established; and sold that drug in interstate commerce.

    From on or about September 11, 2004, to at least on or about July 16, 2012, in the Eastern District of Washington and elsewhere, Mr. Smith introduced, delivered for introduction into interstate commerce, and caused the introduction and delivery for introduction into interstate commerce, with the intent to defraud or mislead, misbranded drugs. In addition, he knowingly defrauded the United States and also impeded the lawful government functions of FDA, specifically, FDA's duty to protect the health and safety of the public by, among other things, ensuring that drugs marketed in the United States are safe and effective for their intended uses and are manufactured in establishments that are registered with FDA, and that the labeling of such drugs bears true and accurate information.

    As a result of this conviction, FDA sent Mr. Smith by certified mail on August 5, 2016, a notice proposing to permanently debar him from providing services in any capacity to a person that has an approved or pending drug product application. The proposal was based on a finding, under section 306(a)(2) of the FD&C Act, that Mr. Smith was convicted of felonies under Federal law for conduct relating to the development or approval, including the process for development or approval, of a drug product, or conduct otherwise relating to the regulation of a drug product under the FD&C Act. The proposal also offered Mr. Smith an opportunity to request a hearing, providing him 30 days from the date of receipt of the letter in which to file the request, and advised him that failure to request a hearing constituted a waiver of the opportunity for a hearing and of any contentions concerning this action. Mr. Smith received the proposal on August 8, 2016. Mr. Smith did not request a hearing and has, therefore, waived his opportunity for a hearing and any contentions concerning his debarment (21 CFR part 12).

    II. Findings and Order

    Therefore, the Director, Office of Enforcement and Import Operations, Office of Regulatory Affairs, under section 306(a)(2) of the FD&C Act, under authority delegated to him (Staff Manual Guide 1410.35), finds that Louis Daniel Smith has been convicted of felonies under Federal law for conduct relating to the development or approval, including the process for development or approval, of a drug product, or conduct otherwise relating to the regulation of a drug product under the FD&C Act.

    As a result of the foregoing finding, Louis Daniel Smith is permanently debarred from providing services in any capacity to a person with an approved or pending drug product application under sections 505, 512, or 802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351 of the Public Health Service Act (42 U.S.C. 262), effective (see DATES) (see section 201(dd) (21 U.S.C. 321(dd)), 306(c)(1)(B), and 306(c)(2)(A)(ii) of the FD&C Act). Any person with an approved or pending drug product application who knowingly employs or retains as a consultant or contractor, or otherwise uses the services of Louis Daniel Smith, in any capacity during his debarment, will be subject to civil money penalties (section 307(a)(6) of the FD&C Act (21 U.S.C. 335b(a)(6))). If Mr. Smith provides services in any capacity to a person with an approved or pending drug product application during his period of debarment he will be subject to civil money penalties (section 307(a)(7) of the FD&C Act). In addition, FDA will not accept or review any abbreviated new drug applications from Mr. Smith during his period of debarment (section 306(c)(1)(B) of the FD&C Act).

    Any application by Mr. Smith for special termination of debarment under section 306(d)(4) of the FD&C Act should be identified with Docket No. FDA-2016-N-1162 and sent to the Division of Dockets Management (see ADDRESSES). All such submissions are to be filed in four copies. The public availability of information in these submissions is governed by 21 CFR 10.20.

    Publicly available submissions will be placed in the docket, and will be viewable at http://www.regulations.gov or at the Division of Dockets Management (see ADDRESSES) between 9 a.m. and 4 p.m., Monday through Friday.

    Dated: November 9, 2016. Armando Zamora, Deputy Director, Office of Enforcement and Import Operations, Office of Regulatory Affairs.
    [FR Doc. 2016-27417 Filed 11-14-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Federal Financial Participation in State Assistance Expenditures; Federal Matching Shares for Medicaid, the Children's Health Insurance Program, and Aid to Needy Aged, Blind, or Disabled Persons for October 1, 2017 Through September 30, 2018 AGENCY:

    Office of the Secretary, DHHS.

    ACTION:

    Notice.

    SUMMARY:

    The Federal Medical Assistance Percentages (FMAP), Enhanced Federal Medical Assistance Percentages (eFMAP), and disaster-recovery FMAP adjustments for Fiscal Year 2018 have been calculated pursuant to the Social Security Act (the Act). These percentages will be effective from October 1, 2017 through September 30, 2018. This notice announces the calculated FMAP rates, in accordance with sections 1101(a)(8) and 1905(b) of the Act, that the U.S. Department of Health and Human Services (HHS) will use in determining the amount of federal matching for state medical assistance (Medicaid), Temporary Assistance for Needy Families (TANF) Contingency Funds, Child Support Enforcement collections, Child Care Mandatory and Matching Funds of the Child Care and Development Fund, Title IV-E Foster Care Maintenance payments, Adoption Assistance payments and Guardianship Assistance payments, and the eFMAP rates for the Children's Health Insurance Program (CHIP) expenditures. Table 1 gives figures for each of the 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. This notice reminds states of available disaster-recovery FMAP adjustments for qualifying states, and adjustments available for states meeting requirements for negative growth in total state personal income. At this time, no states qualify for such adjustments.

    This notice also contains the increased eFMAPs for CHIP as authorized under the Patient Protection and Affordable Care Act (Affordable Care Act) for fiscal years 2016 through 2019 (October 1, 2015 through September 30, 2019).

    Programs under title XIX of the Act exist in each jurisdiction. Programs under titles I, X, and XIV operate only in Guam and the Virgin Islands. The percentages in this notice apply to state expenditures for most medical assistance and child health assistance, and assistance payments for certain social services. The Act provides separately for federal matching of administrative costs.

    Sections 1905(b) and 1101(a)(8)(B) of the Social Security Act (the Act) require the Secretary of HHS to publish the FMAP rates each year. The Secretary calculates the percentages, using formulas in sections 1905(b) and 1101(a)(8), and calculations by the Department of Commerce of average income per person in each state and for the Nation as a whole. The percentages must fall within the upper and lower limits specified in section 1905(b) of the Act. The percentages for the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands are specified in statute, and thus are not based on the statutory formula that determines the percentages for the 50 states.

    Federal Medical Assistance Percentage (FMAP)

    Section 1905(b) of the Act specifies the formula for calculating FMAPs as follows:

    “ “Federal medical assistance percentage” for any state shall be 100 per centum less the state percentage; and the state percentage shall be that percentage which bears the same ratio to 45 per centum as the square of the per capita income of such state bears to the square of the per capita income of the continental United States (including Alaska) and Hawaii; except that (1) the Federal medical assistance percentage shall in no case be less than 50 per centum or more than 83 per centum, (2) the Federal medical assistance percentage for Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa shall be 55 percent. . .”.

    Section 4725(b) of the Balanced Budget Act of 1997 amended section 1905(b) to provide that the FMAP for the District of Columbia for purposes of titles XIX and XXI shall be 70 percent. For the District of Columbia, we note under Table 1 that other rates may apply in certain other programs. In addition, we note the rate that applies for Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands in certain other programs pursuant to section 1118 of the Act. The rates for the States, District of Columbia and the territories are displayed in Table 1, Column 1.

    Section 1905(y) of the Act, as added by section 2001 of the Patient Protection and Affordable Care Act of 2010 (”Affordable Care Act”), provides for a significant increase in the FMAP for medical assistance expenditures for individuals determined eligible under the new adult group in the state and who will be considered to be “newly eligible” in 2014, as defined in section 1905(y)(2)(A) of the Act. This newly eligible FMAP is 100 percent for Calendar Years 2014, 2015, and 2016, gradually declining to 90 percent in 2020 where it remains indefinitely. In addition, section 1905(z) of the Act, as added by section 10201 of the Affordable Care Act, provides that states that had expanded substantial coverage to low-income parents and nonpregnant adults without children prior to the enactment of the Affordable Care Act, referred to as “expansion states,” shall receive an enhanced FMAP beginning in 2014 for medical assistance expenditures for nonpregnant childless adults who may be required to enroll in benchmark coverage. These provisions are discussed in more detail in the Medicaid Eligibility proposed rule published on August 17, 2011 (76 FR 51172) and the final rule published on March 23, 2012 (77 FR 17143). This notice is not intended to set forth the newly eligible or expansion state FMAP rates.

    Other Adjustments to the FMAP

    For purposes of Title XIX (Medicaid) of the Social Security Act, the Federal Medical Assistance Percentage (FMAP), defined in section 1905(b) of the Social Security Act, for each state beginning with fiscal year 2006 is subject to an adjustment pursuant to section 614 of the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA), Public Law 111-3. Section 614 of CHIPRA stipulates that a state's FMAP under Title XIX (Medicaid) must be adjusted in two situations.

    In the first situation, if a state experiences positive growth in total personal income and an employer in that state has made a significantly disproportionate contribution to a pension or insurance fund, the state's FMAP must be adjusted. Employer pension and insurance fund contributions are significantly disproportionate if the increase in contributions exceeds 25 percent of the increase in total personal income in that state. A Federal Register Notice with comment period was issued on June 7, 2010 (75 FR 32182) announcing the methodology for calculating this adjustment; a final notice was issued on October 15, 2010 (75 FR 63480).

    A second situation arises if a state experiences negative growth in total personal income. Beginning with Fiscal Year 2006, section 614(b)(3) of CHIPRA specifies that certain employer pension or insurance fund contributions shall be disregarded when computing the per capita income used to calculate the FMAP for states with negative growth in total personal income. In that instance, for the purposes of calculating the FMAP, for a calendar year in which a state's total personal income has declined, the portion of an employer pension and insurance fund contribution that exceeds 125 percent of the amount of the employer contribution in the previous calendar year shall be disregarded.

    We request that states follow the same methodology to determine potential FMAP adjustments for negative growth in total personal income that HHS employs to make adjustments to the FMAP for states experiencing significantly disproportionate pension or insurance contributions. See also the information described in the January 21, 2014 Federal Register notice (79 FR 3385).

    This notice does not contain an FY 2018 adjustment for a major statewide disaster for any state because no state's FMAP decreased by at least three percentage points from FY 2017 to FY 2018.

    Enhanced Federal Medical Assistance Percentage (eFMAP) for CHIP

    Section 2105(b) of the Act specifies the formula for calculating the eFMAP rates as follows:

    The “enhanced FMAP”, for a state for a fiscal year, is equal to the Federal medical assistance percentage (as defined in the first sentence of section 1905(b)) for the state increased by a number of percentage points equal to 30 percent of the number of percentage points by which (1) such Federal medical assistance percentage for the state, is less than (2) 100 percent; but in no case shall the enhanced FMAP for a state exceed 85 percent.

    In addition, Section 2105(b) of the Social Security Act, as amended by Section 2101 of the Affordable Care Act, increases the eFMAP for states by 23 percentage points:

    . . . during the period that begins on October 1, 2015, and ends on September 30, 2019, the enhanced FMAP determined for a state for a fiscal year (or for any portion of a fiscal year occurring during such period) shall be increased by 23 percentage points, but in no case shall exceed 100 percent.

    The eFMAP rates are used in the Children's Health Insurance Program under Title XXI, and in the Medicaid program for certain children for expenditures for medical assistance described in sections 1905(u)(2) and 1905(u)(3) of the Act. There is no specific requirement to publish the eFMAP rates. We include them in this notice for the convenience of the states, and display both the normal eFMAP rates (Table 1, Column 2) and the Affordable Care Act's increased eFMAP rates (Table 1, Column 3) for comparison.

    EFFECTIVE DATES:

    The percentages listed in Table 1 will be effective for each of the four quarter-year periods beginning October 1, 2017 and ending September 30, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Thomas Musco or Rose Chu, Office of Health Policy, Office of the Assistant Secretary for Planning and Evaluation, Room 447D-Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201, (202) 690-6870.

    (Catalog of Federal Domestic Assistance Program Nos. 93.558: TANF Contingency Funds; 93.563: Child Support Enforcement; 93.596: Child Care Mandatory and Matching Funds of the Child Care and Development Fund; 93.658: Foster Care Title IV-E; 93.659: Adoption Assistance; 93.090 Guardianship Assistance; 93.769: Ticket-to-Work and Work Incentives Improvement Act (TWWIIA) Demonstrations to Maintain Independence and Employment; 93.778: Medical Assistance Program; 93.767: Children's Health Insurance Program) Dated: November 8, 2016. Sylvia M. Burwell, Secretary, Department of Health and Human Services. Table 1—Federal Medical Assistance Percentages and Enhanced Federal Medical Assistance Percentages, Effective October 1, 2017-September 30, 2018 [Fiscal Year 2018] State Federal
  • medical
  • assistance
  • percentages
  • Enhanced
  • federal
  • medical
  • assistance
  • percentages
  • Enhanced
  • federal
  • medical
  • assistance
  • percentages
  • with ACA 23
  • Pt increase ***
  • Alabama 71.44 80.01 100.00 Alaska 50.00 65.00 88.00 American Samoa * 55.00 68.50 91.50 Arizona 69.89 78.92 100.00 Arkansas 70.87 79.61 100.00 California 50.00 65.00 88.00 Colorado 50.00 65.00 88.00 Connecticut 50.00 65.00 88.00 Delaware 56.43 69.50 92.50 District of Columbia ** 70.00 79.00 100.00 Florida 61.79 73.25 96.25 Georgia 68.50 77.95 100.00 Guam * 55.00 68.50 91.50 Hawaii 54.78 68.35 91.35 Idaho 71.17 79.82 100.00 Illinois 50.74 65.52 88.52 Indiana 65.59 75.91 98.91 Iowa 58.48 70.94 93.94 Kansas 54.74 68.32 91.32 Kentucky 71.17 79.82 100.00 Louisiana 63.69 74.58 97.58 Maine 64.34 75.04 98.04 Maryland 50.00 65.00 88.00 Massachusetts 50.00 65.00 88.00 Michigan 64.78 75.35 98.35 Minnesota 50.00 65.00 88.00 Mississippi 75.65 82.96 100.00 Missouri 64.61 75.23 98.23 Montana 65.38 75.77 98.77 Nebraska 52.55 66.79 89.79 Nevada 65.75 76.03 99.03 New Hampshire 50.00 65.00 88.00 New Jersey 50.00 65.00 88.00 New Mexico 72.16 80.51 100.00 New York 50.00 65.00 88.00 North Carolina 67.61 77.33 100.00 North Dakota 50.00 65.00 88.00 Northern Mariana Islands * 55.00 68.50 91.50 Ohio 62.78 73.95 96.95 Oklahoma 58.57 71.00 94.00 Oregon 63.62 74.53 97.53 Pennsylvania 51.82 66.27 89.27 Puerto Rico * 55.00 68.50 91.50 Rhode Island 51.45 66.02 89.02 South Carolina 71.58 80.11 100.00 South Dakota 55.34 68.74 91.74 Tennessee 65.82 76.07 99.07 Texas 56.88 69.82 92.82 Utah 70.26 78.18 100.00 Vermont 53.47 67.43 90.43 Virgin Islands * 55.00 68.50 91.50 Virginia 50.00 65.00 88.00 Washington 50.00 65.00 88.00 West Virginia 73.24 81.27 100.00 Wisconsin 58.77 71.14 94.14 Wyoming 50.00 65.00 88.00 * For purposes of section 1118 of the Social Security Act, the percentage used under titles I, X, XIV, and XVI will be 75 per centum. ** The values for the District of Columbia in the table were set for the state plan under titles XIX and XXI and for capitation payments and DSH allotments under those titles. For other purposes, the percentage for DC is 50.00, unless otherwise specified by law. *** Section 2101(a) of the Affordable Care Act amended Section 2105(b) of the Social Security Act to increase the enhanced FMAP for states by 23 percentage points, but not to exceed 100 percent, for the period that begins on October 1, 2015 and ends on September 30, 2019 (fiscal years 2016 through 2019).
    [FR Doc. 2016-27424 Filed 11-14-16; 8:45 am] BILLING CODE 4150-05-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health National Institute of Allergy and Infectious Diseases; Notice of Closed Meetings

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.

    The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    Name of Committee: National Institute of Allergy and Infectious Diseases Special Emphasis Panel; NIH Support for Conferences and Scientific Meetings (Parent R13/U13).

    Date: December 5-8, 2016.

    Time: 8:30 a.m. to 1:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, 5601 Fishers Lane, Rockville, MD 20892 (Virtual Meeting).

    Contact Person: Audrey O. Lau, MD, Scientific Review Officer, Scientific Review Program, DEA/NIAID/NIH/DHHS, 5601 Fishers Lane, MSC-9823, Rockville, MD 20852, 240-669-2081.

    Name of Committee: National Institute of Allergy and Infectious Diseases Special Emphasis Panel; Immunity in Neonates and Infants (U01).

    Date: December 6-8, 2016.

    Time: 8:00 a.m. to 1:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: The William F. Bolger Center, 9600 Newbridge Drive, Potomac, MD 20854.

    Contact Person: Nancy Vazquez-Maldonado, Ph.D., Scientific Review Officer, Scientific Review Program, Division of Extramural Activities, Room 3F52B, National Institutes of Health/NIAID, 5601 Fishers Lane, MSC 9834, Bethesda, MD 20892-9834, (240) 669-5044, [email protected]

    (Catalogue of Federal Domestic Assistance Program Nos. 93.855, Allergy, Immunology, and Transplantation Research; 93.856, Microbiology and Infectious Diseases Research, National Institutes of Health, HHS)
    Dated: November 7, 2016. Natasha M. Copeland, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2016-27340 Filed 11-14-16; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health National Institute of Neurological Disorders and Stroke; Notice of Closed Meetings

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.

    The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    Name of Committee: National Institute of Neurological Disorders and Stroke Initial Review Group; R21: Rapid Assessment of Zika Virus (ZIKV) Complications.

    Date: December 1, 2016.

    Time: 8:00 a.m. to 3:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852 (Telephone Conference Call).

    Contact Person: Ana Olariu, Ph.D., Scientific Review Officer, Scientific Review Branch, NINDS/NIH/DHHS, Neuroscience Center, 6001 Executive Blvd., Suite 3204, MSC 9529, Bethesda, MD 20892-9529, (301) 496-9223, [email protected]

    Name of Committee: National Institute of Neurological Disorders and Stroke, Initial Review Group, Review Proposals on Parkinsonism Biomarkers.

    Date: December 5, 2016.

    Time: 8:30 a.m. to 6:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852 (Telephone Conference Call).

    Contact Person: Joel Saydoff, Ph.D., Scientific Review Officer, Scientific Review Branch, NINDS/NIH/DHHS, Neuroscience Center, 6001 Executive Blvd., Suite 3204, MSC 9529, Bethesda, MD 20892-9529, (301) 496-9223, [email protected]

    Name of Committee: National Institute of Neurological Disorders and Stroke, Initial Review Group, Udall CWOW Planning Grant.

    Date: December 13, 2016.

    Time: 11:00 a.m. to 1:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852 (Telephone Conference Call).

    Contact Person: Birgit Neuhuber, Ph.D., Scientific Review Officer, Scientific Review Branch, NINDS/NIH/DHHS, Neuroscience Center, 6001 Executive Blvd., Suite 3204, MSC 9529, Bethesda, MD 20892-9529, [email protected]

    (Catalogue of Federal Domestic Assistance Program Nos. 93.853, Clinical Research Related to Neurological Disorders; 93.854, Biological Basis Research in the Neurosciences, National Institutes of Health, HHS)
    Dated: November 8, 2016. Sylvia L. Neal, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2016-27342 Filed 11-14-16; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health Center For Scientific Review; Notice of Closed Meeting

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.

    The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    Name of Committee: Center for Scientific Review Special Emphasis Panel RFA-TW-16-002: Fogarty Global Health Training Program.

    Date: November 17, 2016.

    Time: 3:00 p.m. to 5:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892, (Telephone Conference Call).

    Contact Person: Robert Freund, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5216, MSC 7852, Bethesda, MD 20892, 301-435-1050, [email protected]

    This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.

    (Catalogue of Federal Domestic Assistance Program Nos. 93.306, Comparative Medicine; 93.333, Clinical Research, 93.306, 93.333, 93.337, 93.393-93.396, 93.837-93.844, 93.846-93.878, 93.892, 93.893, National Institutes of Health, HHS)
    Dated: November 8, 2016. Natasha M. Copeland, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2016-27336 Filed 11-14-16; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health National Institute of Mental Health; Notice of Closed Meetings

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.

    The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    Name of Committee: National Institute of Mental Health Special Emphasis Panel; Clinical Trials to Test the Effectiveness of Treatment, Preventive, and Services Interventions.

    Date: November 30, 2016.

    Time: 11:30 a.m. to 2:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, 6100 Executive Boulevard, Rockville, MD 20852, (Telephone Conference Call).

    Contact Person: Karen Gavin-Evans, Ph.D., Scientific Review Officer, Division of Extramural Activities, National Institute of Mental Health, NIH Neuroscience Center, 6001 Executive Boulevard, Room 6153, MSC 9606, Bethesda, MD 20892, 301-451-2356, [email protected]

    Time: 8:30 a.m. to 5:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: Hyatt Regency Bethesda, One Bethesda Metro Center, 7400 Wisconsin Avenue, Bethesda, MD 20814.

    Contact Person: David I. Sommers, Ph.D., Scientific Review Officer, Division of Extramural Activities, National Institute of Mental Health, National Institutes of Health, 6001 Executive Blvd., Room 6154, MSC 9606, Bethesda, MD 20892-9606, 301-443-7861, [email protected]

    Name of Committee: National Institute of Mental Health Special Emphasis Panel, NIMH Fellowship and Dissertation Research Review Teleconference.

    Date: December 1, 2016.

    Time: 1:00 p.m. to 4:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852, (Telephone Conference Call).

    Contact Person: Vinod Charles, Ph.D., Scientific Review Officer, Division of Extramural Activities, National Institute of Mental Health, NIH Neuroscience Center, 6001 Executive Blvd., Room 6151, MSC 9606, Bethesda, MD 20892-9606, 301-443-1606, [email protected]

    Time: 12:00 p.m. to 5:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852, (Telephone Conference Call).

    Contact Person: David W. Miller, Ph.D., Scientific Review Officer, Division of Extramural Activities, National Institute of Mental Health, NIH Neuroscience Center, 6001 Executive BLVD, Room 6140, MSC 9608, Bethesda, MD 20892-9608, 301-443-9734, [email protected]

    (Catalogue of Federal Domestic Assistance Program No. 93.242, Mental Health Research Grants, National Institutes of Health, HHS)
    Dated: November 8, 2016. Michelle Trout, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2016-27341 Filed 11-14-16; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health Government-Owned Inventions; Availability for Licensing AGENCY:

    National Institutes of Health, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 209 and 37 CFR part 404 to achieve expeditious commercialization of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.

    FOR FURTHER INFORMATION CONTACT:

    Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the National Heart, Lung and Blood Institute, Office of Technology Transfer and Development, National Institutes of Health, 31 Center Drive Room 4A29, MSC2479, Bethesda, MD 20892-2479; telephone: 301-402-5579. A signed Confidential Disclosure Agreement may be required to receive copies of the patent applications.

    SUPPLEMENTARY INFORMATION:

    Technology descriptions follow.

    Immortalized Stria Vascularis Cell Line SV-k1 Description of Technology

    Available for nonexclusive licensing for research uses is the cell line, SV-k1, derived from the Organ of Corti. The line was developed from the stria vascularis, an organ localized on the lateral wall of the cochlea, adjacent to the Organ of Corti, containing cell populations specialized in the production of an endolymph very rich in K+ characteristic of the mammalian inner ear. SV-k1 cells express a set of biomarkers completely different of those expressed by OC-k3 cells (See notice for E-012-2017/0 published contemporaneously herewith), and are not sensitive to ototoxic drugs.

    Potential Commercial Applications

    • Research

    • Hearing research

    Development Stage

    • Materials

    Inventors Gilda Mabel Canseco de Kalinec and Federico Kalinec (both of NIDCD). Publications 1. Espreafico, EM et al., “Localization of Myosin-V in the Centrosome” (1998) Proc Nat'l Acad Sci USA 95(15):8636-8641, 1998. 2. Gratton MA et al., “Strial marginal cells play a role in basement membrane homeostasis: In vitro and in vivo evidence.” Hear Res 163:27-36, 2002. 3. Park, C., et al., “HEl-OC1 Cells as a Model for Investigating Prestin Function.” (2016) Hear Res 335:9-17. Intellectual Property

    HHS Reference No. E-013-2017/0—Research Material.

    Licensing Contact

    Michael Shmilovich, Esq, CLP; 301-435-5019; [email protected]

    Dated: November 7, 2016. Michael Shmilovich, National Heart, Lung and Blood Institute, Office of Technology Transfer and Development, National Institutes of Health.
    [FR Doc. 2016-27337 Filed 11-14-16; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health National Heart, Lung, and Blood Institute; Notice of Closed Meeting

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.

    The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    Name of Committee: National Heart, Lung, and Blood Institute Special Emphasis Panel; Grant Review for NHLBI K Award Recipients.

    Date: December 7, 2016.

    Time: 12:00 p.m. to 4:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, 6701 Rockledge Drive, Room 7202, Bethesda, MD 20892 (Telephone Conference Call).

    Contact Person: Melissa E. Nagelin, Ph.D., Scientific Review Officer, Office of Scientific Review/DERA, National Heart, Lung, and Blood Institute, 6701 Rockledge Drive, Room 7202, Bethesda, MD 20892, 301-435-0297, [email protected].

    (Catalogue of Federal Domestic Assistance Program Nos. 93.233, National Center for Sleep Disorders Research; 93.837, Heart and Vascular Diseases Research; 93.838, Lung Diseases Research; 93.839, Blood Diseases and Resources Research, National Institutes of Health, HHS)
    Dated: November 8, 2016. Michelle Trout, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2016-27339 Filed 11-14-16; 8:45 am] BILLING CODE 4140-01-P
    ADVISORY COUNCIL ON HISTORIC PRESERVATION Notice of Advisory Council on Historic Preservation Quarterly Business Meeting AGENCY:

    Advisory Council on Historic Preservation.

    ACTION:

    Notice of Advisory Council on Historic Preservation quarterly business meeting.

    SUMMARY:

    Notice is hereby given that the Advisory Council on Historic Preservation (ACHP) will hold its next quarterly meeting on Thursday, December 1, 2016. The meeting will be held in Room SR325 at the Russell Senate Office Building at Constitution and Delaware Avenues NE., Washington, DC, starting at 8:30 a.m. EST.

    DATES:

    The quarterly meeting will take place on Thursday, December 1, 2016, starting at 8:30 a.m.

    ADDRESSES:

    The meeting will be held in Room SR325 at the Russell Senate Office Building at Constitution and Delaware Avenues NE., Washington, DC.

    FOR FURTHER INFORMATION CONTACT:

    Cindy Bienvenue, 202-517-0202, [email protected]

    SUPPLEMENTARY INFORMATION:

    The Advisory Council on Historic Preservation (ACHP) is an independent federal agency that promotes the preservation, enhancement, and sustainable use of our nation's diverse historic resources, and advises the President and the Congress on national historic preservation policy. The goal of the National Historic Preservation Act (NHPA), which established the ACHP in 1966, is to have federal agencies act as responsible stewards of our nation's resources when their actions affect historic properties. The ACHP is the only entity with the legal responsibility to encourage federal agencies to factor historic preservation into federal project requirements. For more information on the ACHP, please visit our Web site at www.achp.gov.

    The agenda for the upcoming quarterly meeting of the ACHP is the following:

    I. Chairman's Welcome II. Swearing-In Ceremony III. Transition IV. Section 106 Issues A. Small Federal Handles and Tribal Consultation Issues B. Broadband on Federal Property C. Proposed Exemption for Railroad Rights-of-Way Under the Fixing America's Surface Transportation (FAST) Act V. ACHP Native American Affairs Committee Activities VI. Historic Preservation Policy and Programs A. Building a More Inclusive Preservation Program 1. Youth Initiatives 2. ACHP Policy Statement on Diversity and Inclusiveness B. Preservation50 and the ACHP Public Policy Initiative C. Policy Statement on Historic Preservation and Community Revitalization D. White House Council on Climate Preparedness and Resilience E. Historic Preservation Legislation in the 114th Congress 1. Historic Preservation Fund Reauthorization and ACHP Amendments 2. FY 2017 Interior Appropriations 3. National Defense Authorization Act and Other Bills VII. New Business VIII. Adjourn

    The meetings of the ACHP are open to the public. If you need special accommodations due to a disability, please contact Cindy Bienvenue, 202-517-0202 or [email protected], at least seven (7) days prior to the meeting.

    Authority:

    54 U.S.C. 304102.

    Dated: November 9, 2016. Javier E. Marques, Associate General Counsel.
    [FR Doc. 2016-27386 Filed 11-14-16; 8:45 am] BILLING CODE 4310-K6-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard [Docket No. USCG-2016-0262] Collection of Information Under Review by Office of Management and Budget; OMB Control Number: 1625-0066 AGENCY:

    Coast Guard, DHS.

    ACTION:

    Thirty-day notice requesting comments.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting approval for reinstatement with change of the following collection of information: 1625-0066, Vessel and Facility Response Plans (Domestic and International), and Additional Response Requirements for Prince William Sound, Alaska. Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.

    DATES:

    Comments must reach the Coast Guard and OIRA on or before December 15, 2016.

    ADDRESSES:

    You may submit comments identified by Coast Guard docket number [USCG-2016-0262] to the Coast Guard using the Federal eRulemaking Portal at http://www.regulations.gov. Alternatively, you may submit comments to OIRA using one of the following means:

    (1) Email: [email protected]

    (2) Mail: OIRA, 725 17th Street NW., Washington, DC 20503, attention Desk Officer for the Coast Guard.

    (3) Fax: 202-395-6566. To ensure your comments are received in a timely manner, mark the fax, attention Desk Officer for the Coast Guard.

    A copy of the ICR is available through the docket on the Internet at http://www.regulations.gov. Additionally, copies are available from: Commandant (CG-612), Attn: Paperwork Reduction Act Manager, U.S. Coast Guard, 2703 Martin Luther King Jr. Ave. SE., Stop 7710, Washington, DC 20593-7710.

    FOR FURTHER INFORMATION CONTACT:

    Contact Mr. Anthony Smith, Office of Information Management, telephone 202-475-3532, or fax 202-372-8405, for questions on these documents.

    SUPPLEMENTARY INFORMATION: Public Participation and Request for Comments

    This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection. The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.

    We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2016-0262], and must be received by December 15, 2016.

    Submitting Comments

    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. Documents mentioned in this notice, 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.

    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).

    OIRA posts its decisions on ICRs online at http://www.reginfo.gov/public/do/PRAMain after the comment period for each ICR. An OMB Notice of Action on each ICR will become available via a hyperlink in the OMB Control Number: 1625-0066.

    Previous Request for Comments

    This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (81 FR 28089, May 9, 2016) required by 44 U.S.C. 3506(c)(2). That Notice elicited no comments. Accordingly, no changes have been made to the Collections.

    Information Collection Request

    Title: Vessel and Facility Response Plans (Domestic and International), and Additional Response Requirements for Prince William Sound.

    OMB Control Number: 1625-0066

    Summary: The Oil Pollution Act of 1990 (OPA 90) required the development of Vessel and Facility Response Plans to minimize the impact of oil spills. OPA 90 also required additional response requirements for Prince William Sound. Shipboard Oil Pollution Emergency Plans and Shipboard Marine Pollution Emergency Plans are required of other vessels to minimize impacts of oil spills.

    Need: This information is needed to ensure that vessels and facilities are prepared to respond in event of a spill incident. The information will be reviewed by the Coast Guard to assess the effectiveness of the response plan.

    Forms: CG-6083, Application for Approval/Revision of Vessel Pollution Response Plans and Vessel Response Plan (VRP) Express Search Tool.

    Respondents: Owners and operators of vessels and facilities.

    Frequency: On occasion.

    Hour Burden Estimate: The estimated burden has decreased from 136,460 hours to 75,395 hours a year. The decrease in burden is primarily due to a decrease in the estimated annual number of Facility Response Plan (FRP) respondents.

    Authority: The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended.

    Dated: October 27, 2016. Brian P. Burns, U. S. Coast Guard, Deputy Chief Information Officer.
    [FR Doc. 2016-27432 Filed 11-14-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service [FWS-R5-R-2016-N101; FXRS85510553RGO-XXX-FF05R04000] Final Long Range Transportation Plan for U.S. Fish and Wildlife Service Lands in the Northeast Region AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Notice of availability; final long range transportation plan.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), announce the availability of the final long range transportation plan (LRTP). The Final LRTP outlines a strategy for improving and maintaining transportation assets that provide access to Service-managed lands in the Northeast Region (Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, and West Virginia) over the next 20 years.

    ADDRESSES:

    You may view or obtain copies of the final plan by any of the following methods. You may also request a hard copy or a CD-ROM.

    Agency Web site: Download a copy of the document at http://www.fws.gov/northeast/refuges/roads/pdf/northeast-region-long-range-transportation-plan.pdf.

    Email: Send requests to [email protected], and include “Region 5 Final LRTP” in the subject line of your email.

    U.S. Mail: Carl Melberg, Acting Regional Transportation Coordinator, Northeast Region, U.S. Fish and Wildlife Service, 300 Westgate Center Drive, Hadley, Massachusetts 01035.

    Facsimile: Attention: Carl Melberg, 413-253-8468.

    In-Person Viewing or Pickup: Call 413-253-8586 to make an appointment (necessary for view/pickup only) during regular business hours at Northeast Region, U.S. Fish and Wildlife Service, 300 Westgate Center Drive, Hadley, Massachusetts 01035.

    FOR FURTHER INFORMATION CONTACT:

    Carl Melberg, Acting Regional Transportation Coordinator, 413-253-8586 (phone); [email protected] (email).

    SUPPLEMENTARY INFORMATION: Introduction

    With this notice, we make the Final LRTP for the Northeast Region of the Service available for public review. Notice of availability and request for comments on the Draft LRTP was published in the Federal Register (FR00002485) on March 7, 2016. Comments received were evaluated and incorporated, as applicable, into this Final LRTP. The Final LRTP outlines a strategy for improving and maintaining transportation assets that provide access to Service-managed lands in the Northeast Region in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, and West Virginia.

    Background

    This final report also includes changes made in reference to the Federal multi-year transportation funding legislation. The Fixing America's Surface Transportation Act (FAST ACT) was signed in December 2015, and replaces the 2012 Moving Ahead for Progress in the 21st Century Act (MAP-21). Both require all Federal land management agencies to conduct long range transportation planning in a manner that is consistent with metropolitan planning organization and State departments of transportation planning. This LRTP was initiated within the Service to achieve the following:

    • Establish a structure for sound transportation planning and decision-making.

    • Establish a vision, mission, goals, and objectives for transportation planning in the Service's Northeast Region.

    • Implement coordinated and cooperative transportation partnerships in an effort to improve the Service's transportation infrastructure.

    • Integrate transportation planning and funding for wildlife refuges and fish hatcheries into existing and future Service management plans and strategies e.g., comprehensive conservation plans and comprehensive hatchery management plans.

    • Increase awareness of Alternative Transportation Systems and associated benefits.

    • Develop best management practices for transportation improvements on Service lands.

    • Serve as a pilot project for the implementation of a Regional-level transportation planning process within the Service.

    LRTP Mission, Goals, and Objectives

    Through a collaborative effort, the National Wildlife Refuge System (Refuge System) and the Fish and Aquatic Conservation programs, in cooperation with the Planning Group and the Division of Refuge Field Support within the Service's Northeast Region, have contributed to defining the mission, goals, and objectives presented in this document. The resulting mission, goals, and objectives are intended to provide a systematic approach to guide the process for evaluating and selecting transportation improvements for the Service lands in the Northeast Region. These guiding principles have shaped the development, conclusions, and recommendations of this LRTP.

    Mission

    To support the Service's mission by connecting people to fish, wildlife, and their habitats through strategic implementation of transportation programs.

    Goals and Objectives

    This long range transportation plan has six categories of goals: Coordinated Opportunities; Asset Management; Safety; Environmental; Access, Mobility, and Connectivity; and Visitor Experience. Under each goal, we present distinct objectives that move us to the goal.

    1. Coordinated Opportunities: The program will seek joint transportation opportunities that support the Service mission, maximize the utility of Service resources, and provide mutual benefits to the Service and external partners.

    Objectives:

    • Identify and increase key internal and external partnerships at the national, regional, and unit levels.

    • Maximize leveraged opportunities by identifying and pursuing funding for projects of mutual interest and benefit.

    • Develop best practices for external engagement that illustrates success in forming and nurturing coalitions and partnerships that support the Service's mission.

    • Coordinate within Service programs, including the Refuge System, Ecological Services, Migratory Birds, and Fish and Aquatic Conservation during the development of Regional long-range and project-level plans.

    2. Asset Management: The program will operate and maintain a functional, financially sustainable and resilient transportation network to satisfy current and future land management needs in the face of a changing climate.

    Objectives:

    • Use asset management principles to maintain important infrastructure at an appropriate condition level.

    • Prioritize work programs through the project selection process detailed in this plan or an adaptation thereof.

    • Evaluate life cycle costs when considering new assets to determine long-term financial sustainability.

    • Consider the impacts of climate change in the planning and management of transportation assets.

    3. Safety: The program's network will provide a superior level of safety for all users and all modes of transportation to and within Service lands.

    Objectives:

    • Identify safety issue `hot-spots' within the Service's transportation system with the Safety Analysis Toolkit.

    • Implement appropriate safety countermeasures to resolve safety issues and reduce the frequency and severity of crashes (also with the Safety Analysis Toolkit).

    • Address wildlife-vehicle collisions with design solutions (Environmental Enhancements).

    • Use cooperation and communication among the “4E's” of safety, including: Engineering, education, enforcement, and emergency medical services.

    4. Environmental: Transportation infrastructure will be landscape appropriate and play a key role in the improvement of environmental conditions in and around Service lands.

    Objectives:

    • Follow the Roadway Design Guidelines for best practices in design, planning, management, maintenance, and construction of transportation assets.

    • Reduce greenhouse gas emissions and air pollutants by increasing transportation options and use of alternative fuels.

    • Protect wildlife corridors, reduce habitat fragmentation, and enhance terrestrial and aquatic organism passage on and adjacent to Service lands to conserve fish, wildlife, and plant populations.

    5. Access, Mobility, and Connectivity: The program will ensure that units open to public visitation have adequate transportation options for all users including underserved, underrepresented, and mobility-limited populations.

    Objectives:

    • Offer a wide range of transportation modes and linkages for onsite and offsite access.

    • Provide a clear way for finding information both on and off Service lands.

    • Through the Urban Wildlife Conservation Program, integrate Service transportation facilities with local community transportation systems in a way that encourages local visitation and provides economic benefits to partner and gateway communities.

    • Through coordinated planning, provide context-appropriate transportation facilities that address the specific needs of local visitor groups and respect the natural setting of the refuge or hatchery.

    • Address congestion issues to and within Service units.

    6. Visitor Experience: The program will enhance the visitation experience through improvement and investment in the transportation network.

    Objectives:

    • Integrate interpretation, education, and resource stewardship principles into the transportation experience.

    • Evaluate the feasibility of alternative transportation systems at all stations and implement where appropriate.

    • Encourage connections with existing and planned public and private transportation services.

    • Design infrastructures in such a way that highlights the landscape and not the transportation facility.

    Comments

    We solicited comments on the Draft LRTP from March 7 to April 7, 2016 (FR00002485). During the comment period, we received two written responses. Comments received were evaluated and incorporated, as applicable, into this Final LRTP.

    Changes to the Final LRTP

    After considering the comments we received on the Draft LRTP, we have updated the report to highlight partnership opportunities at the Potomac River National Wildlife Refuge Complex. This final report also includes changes made in referencing the Federal multi-year transportation funding legislation. The FAST Act was signed in December 2015, and replaces the MAP-21.

    Next Steps

    We will document the Final LRTP, which will be published in the Federal Register.

    Dated: August 9, 2016. Deborah Rocque, Acting Regional Director, Northeast Region.
    [FR Doc. 2016-27442 Filed 11-14-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Bureau of Land Management [LLWY-957000-17-L13100000-PP0000] Filing of Plats of Survey, Wyoming AGENCY:

    Bureau of Land Management, Interior.

    ACTION:

    Notice.

    SUMMARY:

    The Bureau of Land Management (BLM) is scheduled to file plats of survey thirty (30) calendar days from the date of this publication in the BLM Wyoming State Office, Cheyenne, Wyoming. The surveys were executed at the request of the Bureau of Land Management, the U.S. Forest Service and the National Park Service and are necessary for the management of these lands. The lands surveyed are:

    The plat and field notes representing the dependent resurvey of a portion of the west boundary, Tracts 37, 38 and 40, portions of Tract 41, and portions of the subdivisional lines, and the survey of the subdivision of section 27, Township 13 North, Range 101 West, Sixth Principal Meridian, Wyoming, Group No. 937, was accepted November 8, 2016.

    The plat and field notes representing the dependent resurvey of portions of the west and north boundaries, and portions of the subdivisional lines, and the survey of the subdivision of section 6, Township 26 North, Range 71 West, Sixth Principal Meridian, Wyoming, Group No. 941, was accepted November 8, 2016.

    The plat and field notes representing the dependent resurvey of portions of Tracts 37 and 38, and portions of the subdivisional lines, and the survey of the subdivision of sections 12, 26 and 27, Township 26 North, Range 72 West, Sixth Principal Meridian, Wyoming, Group No. 942, was accepted November 8, 2016.

    The plat and field notes representing the dependent resurvey of portions of the west boundary and subdivisional lines, the survey of the subdivision of section 18, and the survey of the meanders of portions of the left bank of Belle Fourche River, Township 53 North, Range 65 West, Sixth Principal Meridian, Wyoming, Group No. 945, was accepted November 8, 2016.

    The plat and field notes representing the dependent resurvey of portions of the subdivisional lines and the survey of the subdivision of sections 12 and 13, Township 53 North, Range 66 West, Sixth Principal Meridian, Wyoming, Group No. 945, was accepted November 8, 2016.

    FOR FURTHER INFORMATION CONTACT:

    WY957, Bureau of Land Management, 5353 Yellowstone Road, P.O. Box 1828, Cheyenne, Wyoming 82003.

    SUPPLEMENTARY INFORMATION:

    A person or party who wishes to protest against any of the above surveys must file a written notice within thirty (30) calendar days from the date of this publication with the Wyoming State Director, Bureau of Land Management, at the above address, stating that they wish to protest. A statement of reasons for the protest may be filed with the notice of protest and must be filed with the Wyoming State Director within thirty (30) calendar days after the protest is filed. If a protest against the survey is received prior to the date of official filing, the filing will be stayed pending consideration of the protest. A plat will not be officially filed until the day after all protests have been dismissed or otherwise resolved. Before including your address, phone number, email address, or other personal identifying information in your protest, you should be aware that your entire protest—including your personal identifying information—may be made publicly available at any time. While you can ask us to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

    Copies of the preceding described plats and field notes are available to the public at a cost of $4.20 per plat and $.13 per page of field notes.

    Dated: November 8, 2016. John P. Lee, Chief Cadastral Surveyor, Division of Support Services.
    [FR Doc. 2016-27445 Filed 11-14-16; 8:45 am] BILLING CODE 4310-22-P
    DEPARTMENT OF JUSTICE Antitrust Division Notice Pursuant to the National Cooperative Research and Production Act of 1993—ASTM International Standards

    Notice is hereby given that, on September 12, 2016, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (“the Act”), ASTM International (“ASTM”) has filed written notifications simultaneously with the Attorney General and the Federal Trade Commission disclosing additions or changes to its standards development activities. The notifications were filed for the purpose of extending the Act's provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances. Specifically, ASTM has provided an updated list of current, ongoing ASTM standards activities originating between May 2016 and September 2016 designated as Work Items. A complete list of ASTM Work Items, along with a description of each, is available at http://www.astm.org.

    On September 15, 2004, ASTM filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the Federal Register pursuant to Section 6(b) of the Act on November 10, 2004 (69 FR 65226).

    The last notification with the Attorney General was filed on May 18, 2016. A notice was filed in the Federal Register on June 21, 2016 (81 FR 40352).

    Patricia A. Brink, Director of Civil Enforcement, Antitrust Division.
    [FR Doc. 2016-27405 Filed 11-14-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF JUSTICE Antitrust Division Notice Pursuant to the National Cooperative Research and Production Act of 1993—Cooperative Research Group on Energy Storage System Evaluation and Safety II

    Notice is hereby given that, on September 21, 2016, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (“the Act”), Southwest Research Institute—Cooperative Research Group on Energy Storage System Evaluation and Safety II (“EssES-II”) has filed written notifications simultaneously with the Attorney General and the Federal Trade Commission disclosing (1) the identities of the parties to the venture and (2) the nature and objectives of the venture. The notifications were filed for the purpose of invoking the Act's provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances.

    Pursuant to Section 6(b) of the Act, the identities of the parties to the venture are: Allison Transmission, Inc., Indianapolis, IN; BAE Systems, Johnson City, NY; Deere & Company, Moline, IL; Tata Motors European Technical Centre (TMETC), London, United Kingdom; and Underwriters Laboratories, Inc., Northbrook, IL. The general area of EssES-II's planned activity is to develop detailed cell level data on current or near market technology across a diverse number of manufacturers to allow a relative comparison between available technologies. The program will provide performance, life, abuse and consistency of manufacturing test data for member-selected systems in a private, independent third party laboratory format (non-governmental). This will provide members with the data required to assess the pertinent performance characteristics of various battery topologies, chemistries and manufacturers to assist in the selection of cells for a vehicular or stationary energy storage system. Additionally, the level of data and the detail in which it is provided will be sufficient to aid in the development of models, pack integration work and thermal management strategy development.

    Patricia A. Brink, Director of Civil Enforcement, Antitrust Division.
    [FR Doc. 2016-27406 Filed 11-14-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF JUSTICE Antitrust Division Notice Pursuant to the National Cooperative Research and Production Act of 1993—Vendor Security Alliance

    Notice is hereby given that, on October 19, 2016, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (“the Act”), Vendor Security Alliance (“VSA”) has filed written notifications simultaneously with the Attorney General and the Federal Trade Commission disclosing (1) the identities of the parties to the venture and (2) the nature and objectives of the venture. The notifications were filed for the purpose of invoking the Act's provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances.

    Pursuant to Section 6(b) of the Act, the identities of the parties to the venture are: Airbnb, Inc., San Francisco, CA; Atlassian Pty Ltd., Sydney, NSW, Australia; Docker, Inc.; San Francisco, CA; Dropbox, Inc., San Francisco, CA; GoDaddy.com, LLC, Scottsdale, AZ; Palantir Technologies, Inc., Palo Alto, CA; Square, Inc., San Francisco, CA; Twitter, Inc., San Francisco, CA; and Uber Technologies, Inc., San Francisco, CA.

    The general area of VSA's planned activity is: Improving Internet security and streamlining vendor security compliance by developing a standardized way for companies to assess cybersecurity practices.

    Patricia A. Brink, Director of Civil Enforcement, Antitrust Division.
    [FR Doc. 2016-27402 Filed 11-14-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF JUSTICE Office of Justice Programs [OJP (NIJ) Docket No. 1729] Baseline Specifications for Law Enforcement Service Pistols With Security Technology AGENCY:

    National Institute of Justice, Justice.

    ACTION:

    Notice.

    SUMMARY:

    The National Institute of Justice (NIJ) announces the publication of Baseline Specifications for Law Enforcement Service Pistols with Security Technology, which defines baseline specifications for law enforcement service pistols with additional technology to enhance the security of the firearms, found here: http://nij.gov/topics/technology/firearms/pages/welcome.aspx.

    FOR FURTHER INFORMATION CONTACT:

    Mark Greene, Office of Science and Technology, National Institute of Justice, 810 7th Street NW., Washington, DC 20531; telephone number: (202) 598-9412; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    On April 29, 2016, the U.S. Departments of Justice (DOJ), Homeland Security (DHS), and Defense (DoD) submitted a joint report to the President outlining a strategy to expedite deployment of gun safety technology, found here: https://www.whitehouse.gov/sites/default/files/docs/final_report-smart_gun_report.pdf.

    The report was published in response to Presidential Memorandum, Promoting Smart Gun Technology, found here: https://www.whitehouse.gov/the-press-office/2016/01/05/memorandum-promoting-smart-gun-technology. The report described the potential benefits of advanced gun safety technology, but noted that additional work was required before this technology is ready for widespread adoption by law enforcement agencies. In particular, the report stressed the importance of integrating this technology into a firearm's design without compromising the reliability, durability, and accuracy that officers expect from their service weapons.

    To address these issues, the report called on law enforcement agencies to develop “baseline specifications,” which would outline the agencies' operational requirements for any firearms equipped with gun safety technology. By developing baseline specifications, federal, state, and municipal law enforcement agencies can make clear to private manufacturers what they expect from this technology.

    DOJ and DHS recently assembled a working group of experts in firearms technology to identify operational needs and prepare a draft document that defines generic baseline specifications for law enforcement service pistols with additional technology to enhance the security of firearms. The additional security specifications that may be addressed by smart gun technology are distinguished from more familiar firearm safety mechanisms. The distinction between safety and security can be nuanced, and the additional security specifications may also function as safety features under certain circumstances. However, this distinction forms the basis of the use of the different terminology. The working group was led by NIJ and was comprised of subject matter experts from various federal law enforcement agencies. The pistols defined by this document are semi-automatic, recoil-operated, magazine-fed, striker-fired, and fire 9 mm Luger or .40 S&W ammunition. The information detailed in this document is informed in part by specifications enumerated in recent handgun solicitations by the Federal Bureau of Investigation (FBI) and Immigration and Customs Enforcement (ICE), which are publicly available on FedBizOpps (http://www.fbo.gov) under solicitation numbers RFP-OSCU-DSU1503 and HSCEMS-16-R-00003, respectively.

    NIJ published a Federal Register notice (https://www.federalregister.gov/d/2016-16759) on July 15, 2016, seeking feedback from the public on the draft document that defined generic baseline specifications for law enforcement service pistols with additional technology to enhance the security of the firearms. The 60-day public comment period closed on September 13, 2016. The working group made revisions to the draft document, and the final version of the document, Baseline Specifications for Law Enforcement Service Pistols with Security Technology, is published here: http://nij.gov/topics/technology/firearms/pages/welcome.aspx.

    Nancy Rodriguez, Director, National Institute of Justice.
    [FR Doc. 2016-27387 Filed 11-14-16; 8:45 am] BILLING CODE 4410-18-P
    DEPARTMENT OF LABOR Mine Safety and Health Administration [OMB Control No. 1219-0003] Proposed Extension of Information Collection; Radiation Sampling and Exposure Records (Pertains to Underground Metal and Nonmetal Mines) AGENCY:

    Mine Safety and Health Administration, Labor.

    ACTION:

    Request for public comments.

    SUMMARY:

    The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to assure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments on the information collection for Radiation Sampling and Exposure Records (pertains to underground metal and nonmetal mines).

    DATES:

    All comments must be received on or before January 17, 2017.

    ADDRESSES:

    Comments concerning the information collection requirements of this notice may be sent by any of the methods listed below.

    Federal E-Rulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments for docket number MSHA-2016-0038.

    Regular Mail: Send comments to USDOL-MSHA, Office of Standards, Regulations, and Variances, 201 12th Street South, Suite 4E401, Arlington, VA 22202-5452.

    Hand Delivery: USDOL-Mine Safety and Health Administration, 201 12th Street South, Suite 4E401, Arlington, VA 22202-5452. Sign in at the receptionist's desk on the 4th floor via the East elevator.

    FOR FURTHER INFORMATION CONTACT:

    Sheila McConnell, Director, Office of Standards, Regulations, and Variances, MSHA, at [email protected] (email); 202-693-9440 (voice); or 202-693-9441 (facsimile).

    SUPPLEMENTARY INFORMATION: I. Background

    Under the authority of Section 103 of the Federal Mine Safety and Health Act of 1977, MSHA is required to issue regulations requiring operators to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under any applicable mandatory health or safety standard promulgated under this Act.

    Airborne radon and radon daughters exist in every uranium mine and in several other underground mining commodities. Radon is radioactive gas. It diffuses into the underground mine atmosphere through the rock and the ground water. Radon decays in a series of steps into other radioactive elements, which are solids, called radon daughters. Radon and radon daughters are invisible and odorless. Decay of radon and its daughters results in emissions of alpha energy.

    Medical doctors and scientists have associated high radon daughter exposures with lung cancer. The health hazard arises from breathing air contaminated with radon daughters which are in turn deposited in the lungs. The lung tissues are sensitive to alpha radioactivity.

    The amounts of airborne radon daughters to which most miners can be exposed with no adverse effects have been established and are expressed as working levels (WL). The current MSHA standard is a maximum personal exposure of 4 working level months (WLM) per year.

    Excess lung cancer in uranium miners, just as coal workers' pneumoconiosis, silicosis, and other debilitating occupational diseases, has been recognized for many years. Thus, an adequate base of accurate exposure level data is essential to control miners' exposures and permit an evaluation of the effectiveness of existing regulations.

    The standard at 30 CFR 57.5037 established the procedures to be used by the mine operator in sampling mine air for the presence and concentrations of radon daughters. Operators are required to conduct weekly sampling where concentrations of radon daughters exceed 0.3 WL. Sampling is required bi-weekly where uranium mines have readings of 0.1 WL to 0.3 WL and every 3 months in non-uranium underground mines where the readings are 0.1 WL to 0.3 WL. Mine operators are required to keep records of all mandatory samplings. Records must include the sample date, location, and results, and must be retained at the mine site or nearest mine office for at least 2 years.

    The standard at 30 CFR 57.5040 requires mine operators to calculate and record individual exposures to radon daughters on MSHA Form 4000-9 “Record of Individual Exposure to Radon Daughters.” The calculations are based on the results of the weekly sampling required by 30 CFR 57.5037. Records must be maintained by the operator and submitted to MSHA annually.

    II. Desired Focus of Comments

    MSHA is soliciting comments concerning the proposed information collection related to Radiation Sampling and Exposure Records (pertains to underground metal and nonmetal mines).

    • MSHA is particularly interested in comments that:

    • Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;

    • Evaluate the accuracy of MSHA's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

    • Suggest methods to enhance the quality, utility, and clarity of the information to be collected; and

    • Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

    The information collection request will be available on http://www.regulations.gov. MSHA cautions the commenter against providing any information in the submission that should not be publicly disclosed. Full comments, including personal information provided, will be made available on www.regulations.gov and www.reginfo.gov.

    The public may also examine publicly available documents at USDOL-Mine Safety and Health Administration, 201 12th South, Suite 4E401, Arlington, VA 22202-5452. Sign in at the receptionist's desk on the 4th floor via the East elevator.

    Questions about the information collection requirements may be directed to the person listed in the FOR FURTHER INFORMATION section of this notice.

    III. Current Actions

    This request for collection of information contains provisions for Radiation Sampling and Exposure Records (pertains to underground metal and nonmetal mines). MSHA has updated the data with respect to the number of respondents, responses, burden hours, and burden costs supporting this information collection request.

    Type of Review: Extension, without change, of a currently approved collection.

    Agency: Mine Safety and Health Administration.

    OMB Number: 1219-0003.

    Affected Public: Business or other for-profit.

    Number of Respondents: 5.

    Frequency: Weekly.

    Number of Responses: 505.

    Annual Burden Hours: 502 hours.

    Annual Respondent or Recordkeeper Cost: $17,433.

    MSHA Forms: MSHA Form 4000-9, Record of Individual Exposure to Radon Daughters.

    Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.

    Sheila McConnell, Certifying Officer.
    [FR Doc. 2016-27343 Filed 11-14-16; 8:45 am] BILLING CODE 4510-43-P
    DEPARTMENT OF LABOR Occupational Safety and Health Administration [Docket No. OSHA-2006-0028] MET Laboratories, Inc.: Application for Expansion of Recognition and Proposed Modification to the NRTL Program's List of Appropriate Test Standards AGENCY:

    Occupational Safety and Health Administration (OSHA), Labor.

    ACTION:

    Notice.

    SUMMARY:

    In this notice, OSHA announces the application of MET Laboratories, Inc. for expansion of its recognition as a Nationally Recognized Testing Laboratory (NRTL) and presents the Agency's preliminary finding to grant the application. Additionally, OSHA proposed to add a new test standing to the NRTL Program's List of Appropriate Test Standards.

    DATES:

    Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before November 30, 2016.

    ADDRESSES:

    Submit comments by any of the following methods:

    1. Electronically: Submit comments and attachments electronically at http://www.regulations.gov, which is the Federal eRulemaking Portal. Follow the instructions online for making electronic submissions.

    2. Facsimile: If submissions, including attachments, are not longer than 10 pages, commenters may fax them to the OSHA Docket Office at (202) 693-1648.

    3. Regular or express mail, hand delivery, or messenger (courier) service: Submit comments, requests, and any attachments to the OSHA Docket Office, Docket No. OSHA-2006-0028, Technical Data Center, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-3653, Washington, DC 20210; telephone: (202) 693-2350 (TTY number: (877) 889-5627). Note that security procedures may result in significant delays in receiving comments and other written materials by regular mail. Contact the OSHA Docket Office for information about security procedures concerning delivery of materials by express mail, hand delivery, or messenger service. The hours of operation for the OSHA Docket Office are 8:15 a.m.-4:45 p.m., e.t.

    4. Instructions: All submissions must include the Agency name and the OSHA docket number (OSHA-2006-0028). OSHA places comments and other materials, including any personal information, in the public docket without revision, and these materials will be available online at http://www.regulations.gov. Therefore, the Agency cautions commenters about submitting statements they do not want made available to the public, or submitting comments that contain personal information (either about themselves or others) such as Social Security numbers, birth dates, and medical data.

    5. Docket: To read or download submissions or other material in the docket, go to http://www.regulations.gov or the OSHA Docket Office at the address above. All documents in the docket are listed in the http://www.regulations.gov index; however, some information (e.g., copyrighted material) is not publicly available to read or download through the Web site. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Contact the OSHA Docket Office for assistance in locating docket submissions.

    6. Extension of comment period: Submit requests for an extension of the comment period on or before November 30, 2016 to the Office of Technical Programs and Coordination Activities, Directorate of Technical Support and Emergency Management, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-3655, Washington, DC 20210, or by fax to (202) 693-1644.

    FOR FURTHER INFORMATION CONTACT:

    Information regarding this notice is available from the following sources:

    Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office of Communications, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-3647, Washington, DC 20210; telephone: (202) 693-1999; email: [email protected]

    General and technical information: Contact Mr. Kevin Robinson, Director, Office of Technical Programs and Coordination Activities, Directorate of Technical Support and Emergency Management, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-3655, Washington, DC 20210; phone: (202) 693-2110 or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Notice of the Application for Expansion

    The Occupational Safety and Health Administration is providing notice that MET Laboratories, Inc. (MET), is applying for expansion of its current recognition as an NRTL. MET requests the addition of five test standards to its NRTL scope of recognition.

    OSHA recognition of an NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition. Each NRTL's scope of recognition includes (1) the type of products the NRTL may test, with each type specified by its applicable test standard; and (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope. Recognition is not a delegation or grant of government authority; however, recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.

    The Agency processes applications by an NRTL for initial recognition and for an expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the Agency publish two notices in the Federal Register in processing an application. In the first notice, OSHA announces the application and provides its preliminary finding. In the second notice, the Agency provides its final decision on the application. These notices set forth the NRTL's scope of recognition or modifications of that scope. OSHA maintains an informational Web page for each NRTL, including MET, which details the NRTL's scope of recognition. These pages are available from the OSHA Web site at http://www.osha.gov/dts/otpca/nrtl/index.html.

    MET currently has one facility (site) recognized by OSHA for product testing and certification, with its headquarters located at: MET Laboratories, Inc., 914 West Patapsco Avenue, Baltimore, Maryland 21230. A complete list of MET's scope of recognition is available at https://www.osha.gov/dts/otpca/nrtl/met.html.

    II. General Background on the Application

    MET submitted five applications, four dated July 7, 2015 (OSHA-2006-0028-0026), (OSHA-2006-0028-0027), (OSHA-2006-0028-0028), (OSHA-2006-0028-0029) and one dated August 4, 2015 (OSHA-2006-0028-0025), to expand its recognition to include five additional test standards. OSHA staff performed a detailed analysis of the application packet and reviewed other pertinent information. OSHA did not perform any on-site reviews in relation to this application.

    Table 1 below lists the appropriate test standards found in MET's application for expansion for testing and certification of products under the NRTL Program.

    Table 1—Proposed List of Appropriate Test Standards for Inclusion in MET's NRTL Scope of Recognition Test standard Test standard title UL 62368-1 Audio/Video, Information and Communication Technology Equipment—Part 1: Safety Requirements. UL 60079-0 Explosive Atmospheres—Part 0: Equipment—General Requirements. UL 60079-2 * Explosive Atmospheres—Part 2: Equipment Protection by Pressurized Enclosure “p”. UL 60079-11 Explosive Atmospheres—Part 11: Equipment Protection by Intrinsic Safety “i”. UL 60079-15 Explosive Atmospheres—Part 15: Equipment Protection by Type of Protection “n”. * Represents the standard that OSHA proposes to add to the NRTL Program's List of Appropriate Test Standards. III. Proposal To Add New Test Standard to the NRTL Program's List of Appropriate Test Standards

    Periodically, OSHA will propose to add new test standards to the NRTL list of appropriate test standards following an evaluation of the test standard document. To qualify as an appropriate test standard, the Agency evaluates the document to (1) verify it represents a product category for which OSHA requires certification by an NRTL, (2) verify the document represents an end product and not a component, and (3) verify the document defines safety test specifications (not installation or operational performance specifications). OSHA becomes aware of new test standards through various avenues. For example, OSHA may become aware of new test standards by: (1) Monitoring notifications issued by certain SDOs; (2) reviewing applications by NRTLs or applicants seeking recognition to include a new test standard in their scopes of recognition; and (3) obtaining notification from manufacturers, manufacturing organizations, government agencies, or other parties. OSHA may determine to include a new test standard in the list, for example, if the test standard is for a particular type of product that another test standard also covers or it covers a type of product that no standard previously covered.

    In this notice, OSHA proposes to add a new test standard to the NRTL Program's List of Appropriate Test Standards. Table 1, below, lists the test standard that is new to the NRTL Program. OSHA preliminarily determined that this test standard is an appropriate test standard and proposes to include it in the NRTL Program's List of Appropriate Test Standards. OSHA seeks public comment on this preliminary determination.

    Table 1—Test Standards OSHA Is Proposing To Add To the NRTL Program's List of Appropriate Test Standards Test standard Test standard title UL 60079-2 Explosive Atmospheres—Part 2: Equipment Protection by Pressurized Enclosure “p”. IV. Preliminary Findings on the Application

    MET submitted an acceptable application for expansion of its scope of recognition. OSHA's review of the application file, and pertinent documentation, indicate that MET can meet the requirements prescribed by 29 CFR 1910.7 for expanding its recognition to include the addition of these five test standards for NRTL testing and certification listed above. This preliminary finding does not constitute an interim or temporary approval of MET's application.

    OSHA welcomes public comment as to whether MET meets the requirements of 29 CFR 1910.7 for expansion of its recognition as an NRTL. Comments should consist of pertinent written documents and exhibits. Commenters needing more time to comment must submit a request in writing, stating the reasons for the request. Commenters must submit the written request for an extension by the due date for comments. OSHA will limit any extension to 10 days unless the requester justifies a longer period. OSHA may deny a request for an extension if the request is not adequately justified. To obtain or review copies of the exhibits identified in this notice, as well as comments submitted to the docket, contact the Docket Office, Room N-2625, Occupational Safety and Health Administration, U.S. Department of Labor, at the above address. These materials also are available online at http://www.regulations.gov under Docket No. OSHA-2006-0028.

    OSHA staff will review all comments to the docket submitted in a timely manner and, after addressing the issues raised by these comments, will recommend to the Assistant Secretary for Occupational Safety and Health whether to grant MET's application for expansion of its scope of recognition. The Assistant Secretary will make the final decision on granting the application. In making this decision, the Assistant Secretary may undertake other proceedings prescribed in Appendix A to 29 CFR 1910.7.

    OSHA will publish a public notice of its final decision in the Federal Register.

    Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1910.7.

    Signed at Washington, DC, on November 7, 2016. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health.
    [FR Doc. 2016-27356 Filed 11-14-16; 8:45 am] BILLING CODE 4510-26-P
    NATIONAL CREDIT UNION ADMINISTRATION Sunshine Act: Notice of Agency Meeting TIME AND DATE:

    10:00 a.m., Thursday, November 17, 2016.

    PLACE:

    Board Room, 7th Floor, Room 7047, 1775 Duke Street (All visitors must use Diagonal Road Entrance), Alexandria, VA 22314-3428.

    STATUS:

    Open.

    MATTERS TO BE CONSIDERED:

    1. Share Insurance Fund Quarterly Report.

    2. NCUA's Rules and Regulations, Community Development Revolving Loan Fund.

    3. 2017/2018 Operating Budget.

    4. Board Briefing, 2017 Overhead Transfer Rate.

    5. Board Briefing, Share Insurance Fund Equity Ratio Projections and 2017 Premium Range.

    FOR FURTHER INFORMATION CONTACT:

    Gerard Poliquin, Secretary of the Board, Telephone: 703-518-6304.

    Gerard Poliquin, Secretary of the Board.
    [FR Doc. 2016-27543 Filed 11-10-16; 4:15 pm] BILLING CODE 7535-01-P
    NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES Meetings of Humanities Panel AGENCY:

    National Endowment for the Humanities.

    ACTION:

    Notice of meetings.

    SUMMARY:

    The National Endowment for the Humanities will hold fourteen meetings of the Humanities Panel, a federal advisory committee, during December, 2016. The purpose of the meetings is for panel review, discussion, evaluation, and recommendation of applications for financial assistance under the National Foundation on the Arts and Humanities Act of 1965.

    DATES:

    See Supplementary Information section for meeting dates. The meetings will open at 8:30 a.m. and will adjourn by 5:00 p.m. on the dates specified below.

    ADDRESSES:

    The meetings will be held at the National Endowment for the Humanities at Constitution Center at 400 7th Street SW., Washington, DC 20506, unless otherwise indicated.

    FOR FURTHER INFORMATION CONTACT:

    Elizabeth Voyatzis, Committee Management Officer, 400 7th Street SW., Room 4060, Washington, DC 20506; (202)606-8322; [email protected]

    SUPPLEMENTARY INFORMATION:

    Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.), notice is hereby given of the following meetings:

    1. Date: December 1, 2016.

    This meeting will discuss applications on the subject of World Studies II: Modern Era, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.

    2. Date: December 1, 2016.

    This meeting will discuss applications for the Humanities Connections grant program, submitted to the Division of Education Programs.

    3. Date: December 1, 2016.

    Address: The Library of Congress, Jefferson Building, 10 First Street SE., Washington, DC 20540.

    This meeting will discuss applications for Kluge Fellowships, submitted to the Division of Research Programs.

    4. Date: December 2, 2016.

    This meeting will discuss applications for the Humanities Connections grant program, submitted to the Division of Education Programs.

    5. Date: December 2, 2016.

    Address: The Library of Congress, Jefferson Building, 10 First Street SE., Washington, DC 20540.

    This meeting will discuss applications for Kluge Fellowships, submitted to the Division of Research Programs.

    6. Date: December 2, 2016

    This meeting will discuss applications on the subject of Linguistics, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.

    7. Date: December 5, 2016.

    This meeting will discuss applications for the Humanities Connections grant program, submitted to the Division of Education Programs.

    8. Date: December 6, 2016.

    This meeting will discuss applications for the Humanities Connections grant program, submitted to the Division of Education Programs.

    9. Date: December 6, 2016.

    This meeting will discuss applications for Fellowship Programs at Independent Research Institutions, submitted to the Division of Research Programs.

    10. Date: December 7, 2016.

    This meeting will discuss applications for the Humanities Connections grant program, submitted to the Division of Education Programs.

    11. Date: December 12, 2016.

    This meeting will discuss applications to the Dialogues on the Experience of War grant program, submitted to the Division of Education Programs.

    12. Date: December 13, 2016.

    This meeting will discuss applications to the Dialogues on the Experience of War grant program, submitted to the Division of Education Programs.

    13. Date: December 14, 2016.

    This meeting will discuss applications to the Dialogues on the Experience of War grant program, submitted to the Division of Education Programs.

    14. Date: December 15, 2016.

    This meeting will discuss applications to the Dialogues on the Experience of War grant program, submitted to the Division of Education Programs.

    Because these meetings will include review of personal and/or proprietary financial and commercial information given in confidence to the agency by grant applicants, the meetings will be closed to the public pursuant to sections 552b(c)(4) and 552b(c)(6) of Title 5, U.S.C., as amended. The Committee Management Officer, Elizabeth Voyatzis, has made this determination pursuant to the authority granted her by the Chairman's Delegation of Authority to Close Advisory Committee Meetings dated April 15, 2016.

    Dated: November 8, 2016. Elizabeth Voyatzis, Committee Management Officer.
    [FR Doc. 2016-27420 Filed 11-14-16; 8:45 am] BILLING CODE 7536-01-P
    NATIONAL TRANSPORTATION SAFETY BOARD Sunshine Act Meeting Investigation Presentation TIME AND DATE:

    9:30 a.m., Tuesday, November 15, 2016.

    PLACE:

    NTSB Conference Center, 429 L'Enfant Plaza SW., Washington, DC 20594.

    STATUS:

    The one item is open to the public.

    STAFF PRESENTATION:

    Briefs on Two Midair Collisions—July 7, 2015, accident involving a Cessna 150M and a Lockheed Martin F-16CM near Moncks Corner, South Carolina (ERA15MA259A/B); and August 16, 2015, accident involving a Cessna 172M and a North American Rockwell NA265-60SC Sabreliner near San Diego, California (WPR15MA243A/B); Safety Recommendation Report; and Safety Alert—Preventing Midair Collisions: Don't Depend on Vision Alone.

    TIME AND DATE:

    1:30 p.m., Tuesday, November 15, 2016.

    PLACE:

    NTSB Conference Center, 429 L'Enfant Plaza SW., Washington, DC 20594.

    STATUS:

    The one item is open to the public.

    MATTER TO BE CONSIDERED:

    8737A Highway Accident Report: Amphibious Passenger Vehicle DUCK 6 Lane Crossover Collision With Motorcoach on State Route 99, Aurora Bridge, Seattle, Washington, September 24, 2015 (HWY15MH011)

    NEWS MEDIA CONTACT:

    Telephone: (202) 314-6100.

    The press and public may enter the NTSB Conference Center one hour prior to the meeting for set up and seating.

    Individuals requesting specific accommodations should contact Rochelle Hall at (202) 314-6305 or by email at [email protected] by Wednesday, November 10, 2016.

    The public may view the meeting via a live or archived webcast by accessing a link under “News & Events” on the NTSB home page at www.ntsb.gov.

    Schedule updates, including weather-related cancellations, are also available at www.ntsb.gov.

    FOR MORE INFORMATION CONTACT:

    Candi Bing at (202) 314-6403 or by email at [email protected]

    FOR MEDIA INFORMATION CONTACT:

    Terry Williams at (202) 314-6100 or by email at [email protected], or Peter Knudson at (202) 314-6100 or by email at [email protected] for the aviation item.

    Terry Williams at (202) 314-6100 or by email at [email protected], or Keith Holloway at (202) 314-6100 or by email at [email protected] for the highway item.

    Wednesday, November 9, 2016. Candi R. Bing, Federal Register Liaison Officer.
    [FR Doc. 2016-27477 Filed 11-10-16; 11:15 am] BILLING CODE 7533-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79269; File No. SR-BatsBYX-2016-29] Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing of a Proposed Rule Change in Connection With the Proposed Corporate Transaction Involving Bats Global Markets, Inc. and CBOE Holdings, Inc. November 8, 2016.

    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),1 and Rule 19b-4 thereunder,2 notice is hereby given that on November 2, 2016, Bats BYX Exchange, Inc. (the “Exchange” or “BYX”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II and III below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.

    1 15 U.S.C. 78s(b)(1).

    2 17 CFR 240.19b-4.

    I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change

    The Exchange filed a proposal in connection with the proposed corporate transaction (the “Transaction”), as described in more detail below, involving its ultimate parent company, Bats Global Markets, Inc. (“BGM”), CBOE Holdings, Inc. (“CBOE Holdings”), and two wholly owned subsidiaries of CBOE Holdings, CBOE Corporation and CBOE V, LLC (“CBOE V”). CBOE Holdings is the parent company of Chicago Board Options Exchange, Incorporated (“CBOE”) and C2 Options Exchange, Incorporated (“C2”), each a national securities exchange registered with the Commission pursuant to Section 6(a) of the Act,3 and CBOE Futures Exchange, LLC (“CBOE Futures,” and together with CBOE and C2, the “CBOE Exchanges”), a national securities exchange that lists or trades security-futures products notice-registered with the Commission pursuant to Section 6(g) of the Act.4

    3 15 U.S.C. 78f(a).

    4 15 U.S.C. 78f(g).

    Upon completion of the mergers described below that effectuate the Transaction (the “Closing”), the business of BGM will be carried on by CBOE V. CBOE V, rather than BGM, will be the direct parent company of Bats Global Markets Holdings, Inc. (“BGM Holdings”), which is the direct parent company of the Exchange. As a result, CBOE Holdings will become the ultimate parent company of BGM Holdings and of the Exchange.

    To effectuate the Transaction, the Exchange seeks to obtain the Commission's approval of: (i) the resolutions of BGM's board of directors (the “BGM Board”) waiving certain provisions of the Amended and Restated Certificate of Incorporation of BGM (the “BGM Charter”) and making certain related determinations regarding CBOE Holdings and the impact of the Transaction on the Exchange (the “Resolutions”); (ii) the CBOE Holdings Second Amended and Restated Certificate of Incorporation (the “CBOE Holdings Charter”) and the CBOE Holdings Third Amended and Restated Bylaws (the “CBOE Holdings Bylaws”); (iii) the Certificate of Formation of CBOE V (the “CBOE V Certificate”) and the Limited Liability Company Operating Agreement of CBOE V (the “CBOE V Operating Agreement”); (iv) the proposed amendments to the Amended and Restated Certificate of Incorporation of BGM Holdings (the “BGM Holdings Charter”); (v) the proposed amendments to the Fourth Amended and Restated Bylaws of the Exchange (the “Exchange Bylaws”); and (vi) the proposed amendments to BYX Rules 2.3 and 2.10 (the “Exchange Rules”).

    The text of the proposed rule change is available at the Exchange's Web site at www.batstrading.com, at the principal office of the Exchange, and at the Commission's Public Reference Room.

    II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.

    Self-Regulatory Organization's Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change 1. Purpose

    The Exchange submits this Proposed Rule Change to seek the Commission's approval of the organizational and governance documents of the Exchange and its current and proposed future parent companies, and related actions that are necessary in connection with the Closing of the Transaction, as described below.

    Other than as described herein and set forth in Exhibits 5A through 5H, the Exchange will continue to conduct its regulated activities (including operating and regulating its market and members) in the manner currently conducted, and will not make any changes to its regulated activities in connection with the Transaction. Except as set forth in this Proposed Rule Change, the Exchange is not proposing any amendments to its trading and regulatory rules at this time. If the Exchange determines to make any such changes, it will seek the approval of the Commission to the extent required by the Act, and the Commission's rules thereunder, and the Rules of the Exchange.

    1. Current Corporate Structures

    The Exchange, Bats BZX Exchange, Inc. (“BZX”), Bats EDGX Exchange, Inc. (“EDGX”) and Bats EDGA Exchange, Inc. (“EDGA,” and together with the Exchange, BZX and EDGX, the “Bats Exchanges”) are each Delaware corporations that are national securities exchanges registered with the Commission pursuant to Section 6(a) of the Act.5

    5 15 U.S.C. 78f(a).

    The Exchange and BZX are each direct, wholly owned subsidiaries of BGM Holdings, a Delaware corporation that is a direct, wholly owned subsidiary of BGM. In addition to certain other subsidiaries not registered with the Commission in any capacity, BGM Holdings also owns 100 percent of the equity interest in Bats Trading, Inc. (“Bats Trading”), a Delaware corporation that is a broker-dealer registered with the Commission that provides routing services outbound from, and in certain instances inbound to, each Bats Exchange. EDGX and EDGA are direct, wholly owned subsidiaries of Direct Edge LLC, a Delaware limited liability company that is a direct, wholly owned subsidiary of BGM. BGM, a Delaware corporation, is a publicly traded company listed on BZX.

    CBOE Holdings, a Delaware corporation, is a publicly traded company listed on The NASDAQ Stock Market. CBOE Holdings owns 100 percent of the equity interest in the CBOE Exchanges.

    In contemplation of the Transaction, CBOE Holdings formed two additional entities, CBOE Corporation, a Delaware corporation, and CBOE V, a Delaware limited liability company, each of which are direct, wholly owned subsidiaries of CBOE Holdings. Each of CBOE Corporation and CBOE V currently have no material assets or conduct any operations.

    2. The Transaction

    On September 25, 2016, BGM, CBOE Holdings, CBOE Corporation and CBOE V entered into an Agreement and Plan of Merger (the “Merger Agreement”). Pursuant to and subject to the terms of the Merger Agreement, at the Closing, among other things:

    (i) CBOE Corporation will be merged with and into BGM, whereupon the separate existence of CBOE Corporation will cease and BGM will be the surviving company (the “Merger”);

    (ii) by virtue of the Merger and without any action required on the part of BGM, CBOE Corporation or any holder of BGM or CBOE Corporation stock, each share of BGM common stock (whether voting or non-voting) issued and outstanding (with the exception of shares owned by CBOE Holdings, BGM or any of their respective subsidiaries and certain shares held by persons that are entitled to and properly demand appraisal rights) will be converted into the right to receive a particular number of shares of CBOE Holdings and/or cash, at the election of the holder of such share of BGM common stock (the “Merger Consideration”), and each share of CBOE Corporation issued and outstanding will be converted into one share of BGM, such that BGM will become a wholly owned subsidiary of CBOE Holdings; and

    (iii) immediately following the Merger, BGM will be merged with and into CBOE V, whereupon the separate existence of BGM will cease and CBOE V will be the surviving company (the “Subsequent Merger”).

    Upon the Closing, the BGM Holdings Charter, the Exchange Bylaws and the Exchange Rules will be amended to take into account the post-Closing corporate structure, described below.

    3. Post-Closing Corporate Structure

    As a result of the Transaction, BGM will cease to exist and the business of BGM will be carried on by CBOE V, which is a wholly owned subsidiary of CBOE Holdings.6 CBOE V will own 100 percent of the equity interest in BGM Holdings and Direct Edge LLC. BGM Holdings will continue to own 100 percent of the equity interest in the Exchange, BZX, Bats Trading, and certain other subsidiaries not registered with the Commission in any capacity.7 Direct Edge LLC will continue to own 100 percent of the equity interest in EDGX and EDGA.

    6 In connection with the Transaction, CBOE Holdings agreed in the Merger Agreement to take all requisite actions so, as of the Closing, the CBOE Holdings Board will include three individuals designated by BGM who (1) are serving as BGM directors immediately prior to the Closing and (2) comply with the policies (including clarifications of the policies provided to BGM) of the Nominating and Governance Committee of the CBOE Holdings Board as in effect on the date of the Merger Agreement and previously provided to BGM (each of whom will be appointed to the CBOE Holdings Board as of the Closing). The CBOE Holdings Board currently consists of 14 directors. The Exchange expects three current CBOE Holdings directors to resign effective prior to the Closing and the remaining CBOE Holdings directors to fill those vacancies with the three BGM directors designated by BGM.

    7 As described above, the Transaction will result in a change of ownership of Bats Trading, which is a member of the Financial Industry Regulatory Authority, Inc. (“FINRA”). The Exchange understands that, pursuant to NASD Rule 1017, Bats Trading is seeking approval for this change of ownership from FINRA.

    4. Ownership and Voting Limitations of BGM; Resolutions

    The BGM Charter provides that (i) no Person,8 either alone or together with its Related Persons,9 may own, directly or indirectly, of record or beneficially, shares constituting more than 40 percent of any class of its capital stock, and no Exchange Member, either alone or together with its Related Persons, may own, directly or indirectly, of record or beneficially, shares constituting more than 20 percent of any class of its capital stock (collectively, the “BGM Ownership Limitation”); and (ii) subject to certain exceptions, no Person, either alone or together with its Related Persons, at any time, may, directly, indirectly or pursuant to any of various arrangements, vote or cause the voting of shares or give any consent or proxy with respect to shares representing more than 20 percent of the voting power of its then issued and outstanding capital stock (the “BGM Voting Limitation”).10 Purported transfers that would result in a violation of the BGM Ownership Limitation are not recognized by BGM to the extent of any ownership in excess of the BGM Ownership Limitation, and purported voting or voting arrangements in violation of the BGM Voting Limitation are not honored by BGM to the extent of any voting in excess of the limitation.11

    8 The BGM Charter generally defines a “Person” as a natural person, partnership, corporation, limited liability company, entity, government, or political subdivision, agency or instrumentality of a government. See BGM Charter, Art. FIFTH, para. (a)(i).

    9 The BGM Charter generally defines a “Related Person” as, with respect to any Person, (i) any “affiliate” of such Person (as defined in Rule 12b-2 under the Act); (ii) any other Person with which such first Person has any agreement, arrangement or understanding (whether or not in writing) to act together for the purpose of acquiring, voting, holding or disposing of shares of the capital stock of BGM; (iii) in the case of a Person that is a company, corporation or similar entity, any executive officer (as defined under Rule 3b-7 under the Act) or director of such Person and, in the case of a Person that is a partnership or limited liability company, any general partner, managing member or manager of such Person, as applicable; (iv) in the case of any Person that is a registered broker or dealer that has been admitted to membership in any of the Bats Exchanges (for purposes of this definition of “Related Person,” each such national securities exchange shall be referred to generally as an “Exchange” and any member of such Exchange, an “Exchange Member”), any Person that is associated with the Exchange Member (as determined using the definition of “person associated with a member” as defined under Section 3(a)(21) of the Act); (v) in the case of a Person that is a natural person and Exchange Member, any broker or dealer that is also an Exchange Member with which such Person is associated; (vi) in the case of a Person that is a natural person, any relative or spouse of such Person, or any relative of such spouse who has the same home as such Person or who is a director or officer of BGM or any of its parents or subsidiaries; (vii) in the case of a Person that is an executive officer (as defined under Rule 3b-7 under the Act) or a director of a company, corporation or similar entity, such company, corporation or entity, as applicable; and (viii) in the case of a Person that is a general partner, managing member or manager of a partnership or limited liability company, such partnership or limited liability company, as applicable. See BGM Charter, Art. FIFTH, para. (a)(ii).

    10See BGM Charter, Art. FIFTH, para. (b).

    11See BGM Charter, Art. FIFTH, para. (d).

    However, the BGM Charter provides that each of the BGM Ownership Limitation and the BGM Voting Limitation may be waived (except with respect to Exchange Members and their Related Persons) pursuant to a resolution duly adopted by the BGM Board if, in connection with taking such action, the BGM Board states in such resolution that it is the determination of the BGM Board that the waiver:

    • will not impair the ability of each Bats Exchange to carry out its functions and responsibilities as an “exchange” under the Act and the rules and regulations promulgated thereunder;

    • is otherwise in the best interests of BGM, its stockholders, and each Bats Exchange;

    • will not impair the ability of the Commission to enforce the Act and the rules and regulations promulgated thereunder; and

    • shall not be effective until it is filed with and approved by the Commission.12

    12See BGM Charter, Art. FIFTH, para. (b)(ii)(B).

    In granting such a waiver, the BGM Board has the discretion to impose on the Person and its Related Persons, such conditions and restrictions that it deems necessary, appropriate or desirable in furtherance of the objectives of the Act and the rules and regulations promulgated thereunder, and the governance of each Bats Exchange.13

    13Id.

    In addition, notwithstanding the above, the BGM Charter provides14 that in any case where a Person, either alone or with its Related Persons, would own or vote more than the BGM Ownership Limitation or BGM Voting Limitation, respectively, upon consummation of any proposed sale, assignment or transfer of BGM's capital stock, such a transaction will not become effective until the BGM Board determines, by resolution, that such Person and its Related Persons are not subject to any “statutory disqualification,” as defined in Section 3(a)(39) of the Act.15

    14See BGM Charter, Art. FIFTH, para. (b)(iii).

    15 15 U.S.C. 78c(a)(39).

    As described above, as a result of the Merger (and prior to its separate existence ceasing as a result of the Subsequent Merger), BGM will become a wholly owned subsidiary of CBOE Holdings, such that CBOE Holdings will possess ownership and voting rights in BGM in excess of the Ownership Limitation and the Voting Limitation. In addition, as a result of the Subsequent Merger, BGM will merge with and into CBOE V, terminating the BGM Charter and becoming an entity whose ownership and voting is held entirely by CBOE Holdings, in excess of the BGM Ownership Limitation and the BGM Voting Limitation that would otherwise apply.

    The BGM Board therefore determined that in order to effect the Transaction, a waiver of the BGM Ownership Limitation and the BGM Voting Limitation with respect to CBOE Holdings would be required. To do so, the BGM Board adopted the Resolutions, attached as Exhibit 5A, making certain determinations with respect to CBOE Holdings and the Transaction that are necessary to waive the BGM Ownership Limitation and BGM Voting Limitation. Specifically, the BGM Board determined that:

    • the acquisition of the proposed ownership by CBOE Holdings in BGM will not impair the ability of each Bats Exchange to carry out its functions and responsibilities as an “exchange” under the Act and the rules and regulations promulgated thereunder, is otherwise in the best interests of BGM, its stockholders and the Bats Exchanges, and will not impair the ability of the Commission to enforce the Act and the rules and regulations promulgated thereunder;

    • the acquisition or exercise of the proposed voting rights by CBOE Holdings in BGM will not impair the ability of each Bats Exchange to carry out its functions and responsibilities as an “exchange” under the Act and the rules and regulations promulgated thereunder, is otherwise in the best interests of BGM, its stockholders and the Bats Exchanges, and will not impair the ability of the Commission to enforce the Act and the rules and regulations promulgated thereunder;

    • neither CBOE Holdings nor any of its Related Persons is subject to “statutory disqualification” within the meaning of Section 3(a)(39) of the Act;16 and

    16Id.

    • neither CBOE Holdings nor any of its Related Persons is an Exchange Member.17

    17 In addition, the Resolutions contain a determination that the execution and delivery of the Merger Agreement by CBOE Holdings constituted notice of CBOE Holdings' intention to acquire ownership and voting rights in excess of the BGM Ownership Limitation and BGM Voting Limitation, respectively, in writing and not less than 45 days before the Closing. See BGM Charter, Art. FIFTH, para. (b)(iv). The Exchange notes that Art. FIFTH, para. (c)(i) of the BGM Charter further requires that any Person that, either alone or together with its Related Persons, owns, directly or indirectly (whether by acquisition or by a change in the number of shares outstanding), of record or beneficially, five percent or more of the then outstanding shares of capital stock of BGM must immediately upon acquiring knowledge of its ownership of five percent or more give written notice of such ownership to the BGM Board. The Merger Agreement provides that the Merger Agreement constitutes such notice with respect to certain voting agreements entered into concurrently with the Merger Agreement. See Merger Agreement, Section 5.21.

    The Exchange has reviewed such Resolutions and requests that the Commission approve such Resolutions. The Exchange believes that the Commission should approve the Resolutions, as the Transaction will not impair the ability of any Bats Exchange to carry out its functions and responsibilities as an “exchange” under the Act and the rules and regulations promulgated thereunder, or the ability of the Commission to enforce the Act and the rules and regulations promulgated thereunder. The Bats Exchanges will continue to operate and regulate their markets and members as they have done prior to the Transaction. Thus, each Bats Exchange will continue to enforce the Act, the Commission's rules thereunder, and each Exchange's own rules, in the manner it does today. Further, the Commission will continue to have plenary regulatory authority over the Bats Exchanges, as is currently the case with these entities.

    The Exchange also notes that the Resolutions reflect the determination by the BGM Board that the Transaction and CBOE Holdings' resulting ownership and voting rights in BGM following the Merger, and CBOE V's ownership and voting rights following the Subsequent Merger, are otherwise in the best interests of BGM, its stockholders and the Bats Exchanges. The Bats Exchanges will be ultimately held by an entity, CBOE Holdings, that already owns other national securities exchanges and is subject to governance documents that similarly restrict concentration of ownership and voting rights.

    As described in more detail below, the Exchange is also requesting approval of the adoption of the CBOE Holdings Charter and the CBOE Holdings Bylaws. The CBOE Holdings Charter includes a number of provisions relating to the Commission's regulatory oversight that have a similar effect as those in the BGM Charter, including the BGM Ownership Limitation and the BGM Voting Limitation. Therefore, notwithstanding the Resolutions and the Transaction, provisions similar (and, in some cases, more stringent) to the BGM Ownership Limitation and the BGM Voting Limitation will remain in place with respect to potential future transactions involving the ultimate parent company of the Bats Exchanges. This means that the Exchange ownership structure will continue to provide the Commission with appropriate oversight tools to ensure that the Commission will have the ability to enforce the Act with respect to the Exchange, its direct and indirect parent companies, and its directors, officers, employees and agents to the extent they are involved in the activities of the Exchange, and protect the independence of the Exchange's self-regulatory activities.

    The Exchange therefore requests that the Commission approve the Resolutions, attached as Exhibit 5A.

    5. CBOE Holdings Charter and CBOE Holdings Bylaws

    CBOE Holdings currently holds a direct ownership interest in the CBOE Exchanges. The Commission has previously approved the CBOE Holdings Charter and the CBOE Holdings Bylaws (collectively, the “CBOE Holdings Organizational Documents”), attached as Exhibits 5B and 5C, respectively. 18

    18See Securities Exchange Act Release No. 62158 (May 24, 2010), 75 FR 30082 (May 28, 2010) (SR-CBOE-2008-88). The CBOE Organizational Documents have been subsequently amended from time to time pursuant to proposed rule changes that were filed with the Commission for immediate effectiveness. See, e.g., Securities Exchange Act Release No. 76282 (October 27, 2015), 80 FR 67464 (November 2, 2015) (SR-CBOE-2015-092).

    In connection with the Transaction, upon the Closing, CBOE Holdings will become the indirect owner (through CBOE V and BGM Holdings) of the Exchange, BZX and Bats Trading (and certain other subsidiaries not registered with the Commission in any capacity), and the indirect owner (through CBOE V and Direct Edge LLC) of EDGA and EDGX.

    The CBOE Holdings Organizational Documents include various provisions relating to any “Regulated Securities Exchange Subsidiary,” which is defined as any national securities exchange controlled, directly or indirectly, by CBOE Holdings. Upon the Closing, the Exchange will be covered by the definition of Regulated Securities Exchange Subsidiary for purposes of the CBOE Holdings Organizational Documents. As a result, no amendments to the CBOE Holdings Organizational Documents will be necessary to reflect CBOE Holdings' indirect ownership of the Exchange.

    The Exchange believes that the CBOE Holdings Organizational Documents will protect and maintain the integrity of the self-regulatory functions of the Exchange and facilitate the ability of the Exchange and the Commission to carry out their regulatory and oversight obligations under the Act, as the CBOE Organizational Documents do with respect to the CBOE Exchanges.

    In addition, the CBOE Organizational Documents contain provisions, including those with respect to the following, that are similar to those contained in the BGM Charter and BGM's Amended and Restated Bylaws (the “BGM Bylaws”), which the Commission has previously found to be consistent with the Act: 19

    19See Securities Exchange Act Release No. 77464 (March 29, 2016), 81 FR 19252 (April 4, 2016) (File Nos. SR-BATS-2016-10, SR-BYX-2016-02, SR-EDGX-2016-04, and SR-EDGA-2016-01).

    Ownership and Voting Limitations. Similar to the BGM Voting Limitation and the BGM Ownership Limitation contained in the BGM Charter, the CBOE Holdings Charter limits the extent of ownership and voting rights which certain persons may possess or exercise.20 Like the BGM Charter, the CBOE Holdings Charter similarly prohibits any Person, 21 together with its Related Persons,22 from exercising voting rights with respect to more than 20 percent of the then outstanding votes entitled to be cast on such matter.23 However, with respect to ownership limitations, the CBOE Holdings Charter contains a more stringent threshold than contained in the BGM Charter. Under the CBOE Holdings Charter, no Person, together with its Related Persons, is permitted at any time to beneficially own directly or indirectly shares of stock of CBOE Holdings representing in the aggregate more than 20 percent of the then outstanding shares of stock of CBOE Holdings.24 In contrast, the BGM Ownership Limitation only applies a 20 percent threshold to any Exchange Member together with its Related Persons, while applying a 40 percent threshold to any other Person together with its Related Persons. As a result, the CBOE Holdings Charter should be at least as effective as the BGM Charter at preventing any stockholder from exercising undue control over the operation of the Exchange.

    20Compare CBOE Holdings Charter, Art. SIXTH with BGM Charter, Art. FIFTH.

    21 “Person” mean an individual, partnership (general or limited), joint stock company, corporation, limited liability company, trust or unincorporated organization, or any governmental entity or agency or political subdivision thereof. See CBOE Holdings Charter, Art. FIFTH, para. (a)(iv).

    22 “Related Person” is defined in the CBOE Holdings Charter in a manner substantially the same as it is defined in the BGM Charter. See supra note 9; CBOE Holdings Charter, Art. FIFTH, para. (a)(vi).

    23See CBOE Holdings Charter, Art. SIXTH, para. (a).

    24See CBOE Holdings Charter, Art. SIXTH, para. (b).

    Independence and Non-Interference. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that for so long as CBOE Holdings controls, directly or indirectly, a Regulated Securities Exchange Subsidiary, each officer, director and employee of CBOE Holdings must give due regard to the preservation of the independence of the self-regulatory function of the Regulated Securities Exchange Subsidiaries and may not take any actions that he or she knows or reasonably should have known would interfere with the effectuation of any decisions by the board of directors of any Regulated Securities Exchange Subsidiary relating to such Regulated Securities Exchange Subsidiary's regulatory functions (including disciplinary matters) or that would adversely affect the ability of the Regulated Securities Exchange Subsidiary to carry out such Regulated Securities Exchange Subsidiary's responsibilities under the Act.25

    25Compare CBOE Holdings Charter, Art. SIXTEENTH, para. (c) with BGM Bylaws, Section 12.01.

    Confidentiality. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that, to the fullest extent permitted by applicable law, all confidential information pertaining to the self-regulatory function of Regulated Securities Exchange Subsidiaries contained in the books and records of any Regulated Securities Exchange Subsidiary that shall come into the possession of the CBOE Holdings must be retained in confidence by CBOE Holdings and its officers, directors, employees and agents and must not be used for any commercial purposes.26

    26Compare CBOE Holdings Charter, Art. FIFTEENTH with BGM Bylaws, Section 12.02.

    Books and Records. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that, for so long as CBOE Holdings directly or indirectly controls any Regulated Securities Exchange Subsidiary, the books, records, premises, officers, directors and employees of CBOE Holdings shall be deemed to be the books, records, premises, officers, directors and employees of the Regulated Securities Exchange Subsidiary for purposes of and subject to oversight pursuant to the Act, but only to the extent that such books, records, premises, officers, directors and employees of the Corporation relate to the business of such Regulated Securities Exchange Subsidiary.27

    27Compare CBOE Holdings Charter, Art. FIFTEENTH with BGM Bylaws, Section 12.03.

    Compliance with Securities Laws; Cooperation with the Commission. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that CBOE Holdings shall comply with the federal securities laws and the rules and regulations thereunder and shall cooperate with the Commission, and each Regulated Securities Exchange Subsidiary pursuant to and to the extent of its regulatory authority, and shall take reasonable steps necessary to cause its agents to cooperate with the Commission and, where applicable, the Regulated Securities Exchange Subsidiaries pursuant to their regulatory authority, with respect to such agents' activities related to the Regulated Securities Exchange Subsidiaries.28

    28Compare CBOE Holdings Charter, Art. SIXTEENTH, para. (a) with BGM Bylaws, Section 12.04.

    Consent to Jurisdiction. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that CBOE Holdings, its directors, officers, agents and employees, irrevocably submit to the jurisdiction of the U.S. federal courts, the Commission, and the Regulated Securities Exchange Subsidiaries, for the purposes of any suit, action or proceeding pursuant to U.S. federal securities laws or the rules or regulations thereunder, commenced or initiated by the Commission arising out of, or relating to, the Regulated Securities Exchange Subsidiaries' activities.29

    29Compare CBOE Holdings Charter, Art. FOURTEENTH with BGM Bylaws, Section 12.05.

    Amendments. Similar to provisions contained in the BGM Charter and BGM Bylaws, the CBOE Organizational Documents provide that for so long as CBOE Holdings controls, directly or indirectly, Regulated Securities Exchange, before any amendment to or repeal of the CBOE Holdings Charter or CBOE Holdings Bylaws may be effective, such amendment or repeal must be submitted to the board of directors of each such exchange, and if the amendment or repeal is required to be filed with, or filed with and approved by the Commission, then such change shall not be effective until filed with, or filed with and approved by, the Commission, as the case may be.30

    30Compare CBOE Holdings Charter, Arts. ELEVENTH, TWELFTH and CBOE Holdings Bylaws, Section 10.2 with BGM Charter, Art. FOURTEENTH and BGM Bylaws, Article XI.

    As stated above, the Exchange believes that the foregoing provisions will assist the Exchange in fulfilling its self-regulatory obligations and in administering and complying with the requirements of the Act.

    6. CBOE V Certificate and CBOE V Operating Agreement

    Effective as of the Closing of the Transaction, CBOE V will hold direct ownership of (i) BGM Holdings, which will continue to hold direct ownership of the Exchange, BZX and Bats Trading (and certain other subsidiaries not registered with the Commission in any capacity) and (ii) Direct Edge LLC, which will continue to hold direct ownership of EDGX and EDGA. However, unlike BGM currently, CBOE V will not be the ultimate holding company under the post-Closing corporate structure, but rather will be an intermediate holding company owned by CBOE Holdings. The Exchange believes that the CBOE V Operating Agreement contains provisions relating to its indirect ownership of one or more national securities exchanges, including such exchanges' regulatory functions and Commission oversight, that are appropriate for an intermediate holding company in the ownership chain of a national securities exchange. Many of the provisions of the CBOE V Operating Agreement relating to these matters are similar to the organizational documents of BGM Holdings, which currently is, and following the Subsequent Merger will be, similarly situated as an intermediate holding company of the Exchange. The Commission has previously found the BGM Holdings certificate of incorporation and bylaws to be consistent with the Act.31

    31See Securities Exchange Act Release No. 71375 (January 23, 2014), 79 FR 4771 (January 29, 2014) (SR-BATS-2013-059; SR-BYX-2013-039).

    Although CBOE V will not carry out any regulatory functions, the Exchange notes that its activities with respect to the operation of the Bats Exchanges must be consistent with, and must not interfere with, the self-regulatory obligations of each Bats Exchange. The CBOE V Operating Agreement therefore includes certain provisions that are designed to maintain the independence of the Bats Exchanges' self-regulatory functions, enable the Bats Exchanges to operate in a manner that complies with the federal securities laws, including the objectives of Sections 6(b) 32 and 19(g) 33 of the Act, and facilitate the ability of each Bats Exchange and the Commission to fulfill their respective regulatory and oversight obligations under the Act.

    32 15 U.S.C. 78f(b).

    33 15 U.S.C. 78s(g).

    a. CBOE V Certificate of Formation

    The CBOE V Certificate, attached as Exhibit 5D, includes the following provisions required under Delaware law: (i) the full name of CBOE V as “CBOE V, LLC”, and (ii) the name and address of CBOE V's registered office in the State of Delaware and the name of CBOE V's registered agent at such address.34 In addition, the CBOE V Certificate contains a provision providing that CBOE V shall indemnify members of its board of directors and certain other persons, subject to certain conditions.

    34 Delaware Limited Liability Company Act, Section 18-201.

    As the Exchange believes is customary for limited liability companies formed in the State of Delaware, other substantive provisions governing the ownership, operation and management of CBOE V are set forth in the CBOE V Operating Agreement, discussed below.

    b. CBOE V Operating Agreement

    With respect to ownership and control of CBOE V, the CBOE V Operating Agreement, attached as Exhibit 5E, specifically provides that CBOE V's sole member is CBOE Holdings, until the CBOE V Operating Agreement is amended (subject to Commission approval, as described below).35 Further, for so long as CBOE V controls, directly or indirectly, a subsidiary that is registered with the Commission as a national securities exchange (an “Exchange Subsidiary”), CBOE Holdings may not sell, assign, transfer, convey, gift, exchange or otherwise dispose of any or all of its member interest in CBOE V, except pursuant to an amendment to the CBOE V Operating Agreement that is filed with and approved by the Commission.36 These restrictions are designed to ensure that any change to the ownership or control of any Exchange Subsidiary, including without limitation the Bats Exchanges, may only occur through a change in the ownership or control of CBOE Holdings. As such, any purported change of such ownership or control (unless pursuant to a Commission-approved change of ownership of CBOE V) would need to comply with the CBOE Holdings Charter and CBOE Holdings Bylaws, including the ownership and voting limitations discussed above (or a Commission-approved waiver therefrom).

    35See CBOE V Operating Agreement, Section 1.1.

    36See CBOE V Operating Agreement, Section 5.1.

    The CBOE V Operating Agreement also contains several provisions designed to protect the independence of the self-regulatory functions of the Bats Exchanges. The CBOE V Operating Agreement requires that, for so long as CBOE V, directly or indirectly, controls any Exchange Subsidiary, CBOE Holdings, as the sole member of CBOE V, and officers, employees and agents of CBOE V must give due regard to the preservation of independence of the self-regulatory functions of such Exchange Subsidiary, as well as to its obligations to investors and the general public, and not interfere with the effectuation of any decisions by the board of directors of an Exchange Subsidiary relating to its regulatory functions (including disciplinary matters) or which would interfere with the ability of such Exchange Subsidiary to carry out its responsibilities under the Act.37

    37See CBOE V Operating Agreement, Section 10.1(a).

    The CBOE V Operating Agreement also would require that CBOE V comply with the U.S. federal securities laws and rules and regulations thereunder and cooperate with the Commission and each Exchange Subsidiary, as applicable, pursuant to and to the extent of their respective regulatory authority.38 Further, CBOE V's officers, directors, employees and agents shall be deemed to agree to (i) comply with the U.S. federal securities laws and the rules and regulations thereunder; and (ii) cooperate with the Commission and each Exchange Subsidiary in respect of the Commission's oversight responsibilities regarding such Exchange Subsidiary and the self-regulatory functions and responsibilities of the Exchange Subsidiaries, and CBOE V will take reasonable steps to cause its officers, employees and agents to so cooperate.39

    38See CBOE V Operating Agreement, Section 10.2(a).

    39Id.

    Furthermore, to the fullest extent permitted by law, CBOE V and its officers, directors, employees and agents will be deemed to irrevocably submit to the jurisdiction of the U.S. federal courts, the Commission, and each Exchange Subsidiary, as applicable, for purposes of any suit, action, or proceeding pursuant to the U.S. federal securities laws or the rules or regulations thereunder arising out of, or relating to, the activities of such Exchange Subsidiary.40

    40See CBOE V Operating Agreement, Section 10.3(a).

    The proposed CBOE V Operating Agreement also contains a number of provisions designed to ensure that the Exchange will have sufficient access to the books and records of CBOE V as they relate to any Exchange Subsidiary. Pursuant to the CBOE V Operating Agreement, to the extent they are related to the operation or administration of an Exchange Subsidiary, the books, records, premises, officers, agents, and employees of CBOE V are deemed to be the books, records, premises, officers, agents and employees of such Exchange Subsidiary for the purposes of, and subject to oversight pursuant to, the Act.41 In addition, for as long as CBOE V controls, directly or indirectly, an Exchange Subsidiary, CBOE V's books and records shall be subject at all times to inspection and copying by the Commission and the applicable Exchange Subsidiary, provided that such books and records are related to the operation or administration of an Exchange Subsidiary.42

    41See CBOE V Operating Agreement, Section 8.4(b).

    42Id.

    The proposed CBOE V Operating Agreement also provides that, to the fullest extent permitted by law, all books and records of any Exchange Subsidiary reflecting confidential information pertaining to the self-regulatory function of such Exchange Subsidiary (including disciplinary matters, trading data, trading practices and audit information) that comes into the possession of CBOE V, shall be retained in confidence by CBOE V, CBOE V's officers, employees and agents and CBOE Holdings, and not used for any non-regulatory purposes.43 The proposed CBOE V Operating Agreement provides, however, that the foregoing shall not limit or impede the rights of the Commission or an Exchange Subsidiary to access and examine such confidential information pursuant to the U.S. federal securities laws and the rules and regulations thereunder, or limit or impede the ability of CBOE Holdings or any of CBOE V's officers, employees or agents to disclose such confidential information to the Commission or an Exchange Subsidiary.44

    43See CBOE V Operating Agreement, Section 8.4(a).

    44Id.

    In addition, the CBOE V Operating Agreement provides that for so long as CBOE V controls, directly or indirectly, any Exchange Subsidiary, before any amendment to or repeal of any provision of the CBOE V Operating Agreement will be effective, those changes must be submitted to the board of directors of each Exchange Subsidiary, and if the same must be filed with, or filed with and approved by, the Commission before the changes may be effective under Section 19 of the Act 45 and the rules promulgated thereunder, then the proposed changes shall not be effective until filed with, or filed with and approved by, the Commission, as the case may be.46

    45 15 U.S.C. 78s.

    46See CBOE V Operating Agreement, Section 11.2.

    7. BGM Holdings Charter

    The BGM Holdings Charter currently provides that the sole stockholder of BGM Holdings is BGM. However, as a result of the Transaction, CBOE V will become the sole stockholder of BGM Holdings. The Exchange proposes to amend the BGM Holdings Charter to reflect this change, as set forth in Exhibit 5F.

    8. Bylaws of the Exchange

    In connection with the Transaction, the Exchange proposes to amend and restate its Fourth Amended and Restated Bylaws and adopt the amended Exchange Bylaws as its Fifth Amended and Restated Bylaws, attached as Exhibit 5G. Specifically, the Exchange proposes to (i) expand the prohibition contained in Section 2 of Article XI of the Exchange Bylaws; and (ii) add a definition of “Trading Permit Holder” to Article I.

    Currently, Section 2 of Article XI of the Exchange Bylaws prohibits directors of BGM or BGM Holdings who are not also directors, officers, staff, counsel or advisors of the Exchange from participating in any meetings of the Exchange's board of directors (or any committee thereof) pertaining to the self-regulatory function of the Exchange (including disciplinary matters). This provision refers to BGM and BGM Holdings because they are currently the only direct and indirect owners of the Exchange. However, following the Transaction, the Exchange will be owned indirectly by CBOE V and CBOE Holdings (in addition to its direct ownership by BGM Holdings). Therefore, the Exchange is proposing to remove the reference to BGM and insert references to CBOE V and CBOE Holdings, so that CBOE V and CBOE Holdings will both be covered by this prohibition. The Exchange believes that this amendment will protect the independence of the Exchange's self-regulatory activities.

    In addition, as noted above, the CBOE Holdings Charter currently prohibits certain persons from owning or exercising voting rights over certain percentages of ownership of CBOE Holdings. The CBOE Holdings Charter permits the board of directors of CBOE Holdings to waive the limitation on the exercise of voting rights in excess of 20 percent of the then outstanding votes entitled to be cast on such matter only if, among other things, “for so long as [CBOE Holdings] directly or indirectly controls any Regulated Securities Exchange Subsidiary, neither such Person nor any of its Related Persons is a `Trading Permit Holder' (as defined in the Bylaws of any Regulated Securities Exchange Subsidiary as they may be amended from time to time).” 47

    47See CBOE Holdings Charter, Art. SIXTH, para. (a)(ii)(C).

    The Exchange does not issue “trading permits,” but admits members. The Exchange believes the provisions of the CBOE Holdings Charter that refer to Trading Permit Holders of its Regulated Securities Exchange Subsidiaries should apply equally to members of the Exchange once it becomes a Regulated Securities Exchange Subsidiary of CBOE Holdings. As a result, the Exchange proposes to add clause (ff) to Article I of the Exchange Bylaws, providing that “ ‘Trading Permit Holder' shall have the same meaning as Exchange Member.” This will ensure that the Exchange's members will be considered Trading Permit Holders of a Regulated Securities Exchange Subsidiary for purposes of the CBOE Holdings Charter.

    9. Exchange Rules a. Exchange Rule 2.3—Member Eligibility

    Pursuant to Exchange Rule 2.3, in order to be eligible for membership in the Exchange, a registered broker or dealer is currently required to be a member of at least one other national securities association or national securities exchange. However, membership in the Exchange's affiliated national securities exchanges, BZX, EDGA or EDGX, is not sufficient for purposes of eligibility for Exchange membership. The Exchange adopted this because the Bats Exchanges have historically not functioned as the designated examining authority for any of its members, and the Exchange wanted to be sure that any member would be appropriately supervised by another national securities association or national securities exchange that has the capacity to function as the member's designated examining authority.

    As a result of the Transaction, the Exchange will additionally become affiliated with the CBOE Exchanges. As with the Bats Exchanges, C2 does not currently serve as the designated examination authority for any of its members. CBOE, however, does act as the designated examining authority for certain of its members. Therefore, the Exchange proposes to amend Exchange Rule 2.3 to specify that a registered broker or dealer will be eligible for membership only if it is a member of a national securities association or national securities exchange other than or in addition to the following affiliates of the Exchange: BZX, EDGA, EDGX and C2.

    In addition, to ensure there is no confusion with respect to the possibility that a broker or dealer could qualify for membership in the Exchange based solely on membership in CBOE Futures or any other national securities exchange notice-registered with the Commission pursuant to Section 6(g) of the Act 48 that lists or trades security-futures products, the Exchange proposes to also specify that eligibility for membership requires membership in a national securities association registered pursuant to Section 15A of the Act or a national securities exchange registered with the Commission pursuant to Section 6(a) of the Act, so as to exclude a national securities exchange registered solely under Section 6(g) of the Act. The proposed amendments to Exchange Rule 2.3 are set forth in Exhibit 5H.

    48 15 U.S.C. 78f(g).

    b. Exchange Rule 2.10—No Affiliation Between Exchange and any Member

    Exchange Rule 2.10 provides that, without prior approval of the Commission, neither the Exchange, nor any of its affiliates, shall directly or indirectly acquire or maintain an ownership interest in a member of the Exchange. This restriction is intended to address potential conflicts of interest that could result from affiliation between the Exchange and a member. Notwithstanding this general restriction, Exchange Rule 2.10 provides that it does not prohibit a member or its affiliate from acquiring or holding an equity interest in BGM that is permitted by the ownership and voting limitations contained in the BGM Charter and the BGM Bylaws. In addition, Exchange Rule 2.10 states that it does not prohibit a member from being or becoming an affiliate of the Exchange, or an affiliate of any affiliate of the Exchange, solely by reason of such member or any officer, director, manager, managing member, partner or affiliate of such member being or becoming either (a) a Director of the Exchange pursuant to the Bylaws of the Exchange, or (b) a Director of the Exchange serving on the Board of Directors of BGM. The Exchange proposes to replace the references to BGM in Rule 2.10 with references to CBOE Holdings to reflect the fact that following the Transaction, CBOE Holdings will replace BGM as the ultimate parent holding company of the Exchange. In addition to these changes, the Exchange proposes to replace all references in Rule 2.10 to “By-Laws” with “Bylaws” in order to maintain consistency with the actual documents referred to and EDGA and EDGX Rules 2.10. The proposed amendments to Exchange Rule 2.10 are set forth in Exhibit 5H.

    2. Statutory Basis

    The Exchange believes that the Proposed Rule Change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.49 In particular, the proposal is consistent with Section 6(b)(1) of the Act 50 in that it enables the Exchange to be so organized as to have the capacity to be able to carry out the purposes of the Act and to comply, and to enforce compliance by its members and persons associated with its members, with the provisions of the Act, the rules and regulations thereunder, and the Rules of the Exchange.

    49 15 U.S.C. 78f(b).

    50 15 U.S.C. 78f(b)(1).

    The Proposed Rule Change is designed to enable the Exchange to continue to have the authority and ability to effectively fulfill its self-regulatory duties pursuant to the Act and the rules promulgated thereunder. In particular, the Proposed Rule Change includes in the CBOE Holdings Charter and CBOE Holdings Bylaws, like the BGM Charter and BGM Bylaws, various provisions intended to protect and maintain the integrity of the self-regulatory functions of the Exchange upon Closing. For example, the CBOE Holdings Charter, as described above, is drafted to preserve the independence of the Exchange's self-regulatory function and carry out its regulatory responsibilities under the Act. In addition, the CBOE Holdings Charter imposes limitations similar to the BGM Ownership Limitation and BGM Voting Limitation to preclude undue influence over or interference with the Exchange's self-regulatory functions and fulfillment of its regulatory duties under the Act.

    Moreover, notwithstanding the Proposed Rule Change, including the change to the indirect ownership of the Exchange, the Commission will continue to have regulatory authority over the Exchange, as is currently the case, as well as jurisdiction over the Exchange's direct and indirect parent companies with respect to activities related to the Exchange.51 As a result, the Proposed Rule Change will facilitate an ownership structure that will provide the Commission with appropriate oversight tools to ensure that the Commission will have the ability to enforce the Act with respect to the Exchange, its direct and indirect parent companies and their directors, officers, employees and agents to the extent they are involved in the activities of the Exchange.

    51See, e.g., CBOE Holdings Charter, Art. FOURTEENTH; CBOE V Operating Agreement, Section 10.3; BGM Holdings Bylaws, Section 7.3.

    The Exchange also believes that the Proposed Rule Change furthers the objectives of Section 6(b)(5) of the Act 52 because the Proposed Rule Change would be consistent with and facilitate a governance and regulatory structure that is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to, and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest.

    52 15 U.S.C. 78f(b)(5).

    In addition, as discussed further in the Exchange's Statement on Burden on Competition below, the Exchange expects that the Transaction will foster further innovation while facilitating efficient, transparent and well-regulated markets for issuers and investors, removing impediments to, and perfecting the mechanism of a free and open market and a national market system. The Transaction will benefit investors and the securities market as a whole by, among other things, enhancing competition among securities venues and reducing costs.

    Furthermore, the Exchange is not proposing any significant changes to its existing operational and trading structure in connection with the change in ownership; the Exchange will operate in essentially the same manner upon Closing as it operates today. Therefore, the Exchange believes that it will continue to satisfy the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange. The changes that the Exchange is proposing to the Exchange Rules are designed to reflect the prospective affiliation with CBOE Holdings and the CBOE Exchanges. The Exchange believes that the proposed change to its Rules is consistent with the requirements of the Act and the rules and regulations thereunder.

    B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the Proposed Rule Change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Indeed, the Exchange believes that the Proposed Rule Change will enhance competition among trading venues, as the Exchange believes that the Transaction will result in various synergies and efficiencies. For example, the Transaction will allow the Bats Exchanges and the CBOE Exchanges to utilize a single technology platform, which the Exchange expects will reduce Bats Exchanges' and the CBOE Exchanges' combined costs, creating the opportunity to further reduce costs to their respective members and other constituents. The potential use of a single technology platform may also reduce investors' costs of connecting to and using the Bats Exchanges and the CBOE Exchanges, including through the combination of data centers and market data services. Combining the expertise of the CBOE Exchanges' personnel with the expertise of the Bats Exchanges' personnel will also facilitate ongoing innovation, including through new product creation and platform improvements.

    The Exchange notes that the Bats Exchanges and the CBOE Exchanges generally operate with different business models, target different customer bases and primarily focus on different asset classes, limiting any concern that the Transaction could burden competition. Therefore, the Exchange expects that the Transaction will benefit investors, issuers, shareholders and the market as a whole. The Exchange will continue to conduct regulated activities (including operating and regulating its market and members) of the type it currently conducts, but will be able to do so in a more efficient manner to the benefit of its members. These efficiencies will pass through to the benefit of investors and issuers, promoting further efficiencies, competition and capital formation, placing no burden on competition not necessary or appropriate in furtherance of the Act.

    Furthermore, the Exchange's conclusion that the Proposed Rule Change would not result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act is consistent with the Commission's prior conclusions about similar combinations involving multiple exchanges in a single corporate family.53

    53See, e.g., Securities Exchange Act Release Nos. 71375 (January 23, 2014), 79 FR 4771 (January 29, 2014) (SR-BATS-2013-059; SR-BYX-2013-039); 66071 (December 29, 2011), 77 FR 521 (January 5, 2012) (SR-CBOE-2011-107 and SR-NSX-2011-14); 58324 (August 7, 2008), 73 FR 46936 (August 12, 2008) (SR-BSE-2008-02; SR-BSE-2008-23; SR-BSE-2008-25; SR-BSECC-2008-01); 53382 (February 27, 2006), 71 FR 11251 (March 6, 2006) (SR-NYSE-2005-77).

    C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others

    The Exchange has not solicited or received written comments on the Proposed Rule Change.

    III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

    Within 45 days of the date of publication of this notice in the Federal Register or within such longer period (i) as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the Exchange consents, the Commission will: (a) By order approve or disapprove such proposed rule change, or (b) institute proceedings to determine whether the proposed rule change should be disapproved.

    IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:

    Electronic Comments

    • Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or

    • Send an email to [email protected] Please include File Number SR-BatsBYX-2016-29 on the subject line.

    Paper Comments

    • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

    All submissions should refer to File Number SR-BatsBYX-2016-29. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-BatsBYX-2016-29, and should be submitted on or before December 6, 2016.

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.54

    Brent J. Fields, Secretary.

    54 17 CFR 200.30-3(a)(12).

    [FR Doc. 2016-27374 Filed 11-14-16; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79266; File No. SR-BatsBZX-2016-68] Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing of a Proposed Rule Change in Connection With the Proposed Corporate Transaction Involving Bats Global Markets, Inc. and CBOE Holdings, Inc. November 8, 2016.

    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),1 and Rule 19b-4 thereunder,2 notice is hereby given that on November 2, 2016, Bats BZX Exchange, Inc. (the “Exchange” or “BZX”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II and III below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.

    1 15 U.S.C. 78s(b)(1).

    2 17 CFR 240.19b-4.

    I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change

    The Exchange filed a proposed rule change (the “Proposed Rule Change”) in connection with the proposed corporate transaction (the “Transaction”), as described in more detail below, involving its ultimate parent company, Bats Global Markets, Inc. (“BGM”), CBOE Holdings, Inc. (“CBOE Holdings”), and two wholly owned subsidiaries of CBOE Holdings, CBOE Corporation and CBOE V, LLC (“CBOE V”). CBOE Holdings is the parent company of Chicago Board Options Exchange, Incorporated (“CBOE”) and C2 Options Exchange, Incorporated (“C2”), each a national securities exchange registered with the Commission pursuant to Section 6(a) of the Act,3 and CBOE Futures Exchange, LLC (“CBOE Futures,” and together with CBOE and C2, the “CBOE Exchanges”), a national securities exchange that lists or trades security-futures products notice-registered with the Commission pursuant to Section 6(g) of the Act.4

    3 15 U.S.C. 78f(a).

    4 15 U.S.C. 78f(g).

    Upon completion of the mergers described below that effectuate the Transaction (the “Closing”), the business of BGM will be carried on by CBOE V. CBOE V, rather than BGM, will be the direct parent company of Bats Global Markets Holdings, Inc. (“BGM Holdings”), which is the direct parent company of the Exchange. As a result, CBOE Holdings will become the ultimate parent company of BGM Holdings and of the Exchange.

    To effectuate the Transaction, the Exchange seeks to obtain the Commission's approval of: (i) The resolutions of BGM's board of directors (the “BGM Board”) waiving certain provisions of the Amended and Restated Certificate of Incorporation of BGM (the “BGM Charter”) and making certain related determinations regarding CBOE Holdings and the impact of the Transaction on the Exchange (the “Resolutions”); (ii) the CBOE Holdings Second Amended and Restated Certificate of Incorporation (the “CBOE Holdings Charter”) and the CBOE Holdings Third Amended and Restated Bylaws (the “CBOE Holdings Bylaws”); (iii) the Certificate of Formation of CBOE V (the “CBOE V Certificate”) and the Limited Liability Company Operating Agreement of CBOE V (the “CBOE V Operating Agreement”); (iv) the proposed amendments to the Amended and Restated Certificate of Incorporation of BGM Holdings (the “BGM Holdings Charter”); (v) the proposed amendments to the Fourth Amended and Restated Bylaws of the Exchange (the “Exchange Bylaws”); and (vi) the proposed amendments to BZX Rules 2.3 and 2.10 (the “Exchange Rules”).

    The text of the proposed rule change is available at the Exchange's Web site at www.batstrading.com, at the principal office of the Exchange, and at the Commission's Public Reference Room.

    II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.

    A. Self-Regulatory Organization's Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change 1. Purpose

    The Exchange submits this Proposed Rule Change to seek the Commission's approval of the organizational and governance documents of the Exchange and its current and proposed future parent companies, and related actions that are necessary in connection with the Closing of the Transaction, as described below.

    Other than as described herein and set forth in Exhibits 5A through 5H, the Exchange will continue to conduct its regulated activities (including operating and regulating its market and members) in the manner currently conducted, and will not make any changes to its regulated activities in connection with the Transaction. Except as set forth in this Proposed Rule Change, the Exchange is not proposing any amendments to its trading and regulatory rules at this time. If the Exchange determines to make any such changes, it will seek the approval of the Commission to the extent required by the Act, and the Commission's rules thereunder, and the Rules of the Exchange.

    1. Current Corporate Structures

    The Exchange, Bats BYX Exchange, Inc. (“BYX”), Bats EDGX Exchange, Inc. (“EDGX”) and Bats EDGA Exchange, Inc. (“EDGA,” and together with the Exchange, BYX and EDGX, the “Bats Exchanges”) are each Delaware corporations that are national securities exchanges registered with the Commission pursuant to Section 6(a) of the Act.5

    5 15 U.S.C. 78f(a).

    The Exchange and BYX are each direct, wholly owned subsidiaries of BGM Holdings, a Delaware corporation that is a direct, wholly owned subsidiary of BGM. In addition to certain other subsidiaries not registered with the Commission in any capacity, BGM Holdings also owns 100 percent of the equity interest in Bats Trading, Inc. (“Bats Trading”), a Delaware corporation that is a broker-dealer registered with the Commission that provides routing services outbound from, and in certain instances inbound to, each Bats Exchange. EDGX and EDGA are direct, wholly owned subsidiaries of Direct Edge LLC, a Delaware limited liability company that is a direct, wholly owned subsidiary of BGM. BGM, a Delaware corporation, is a publicly traded company listed on the Exchange.

    CBOE Holdings, a Delaware corporation, is a publicly traded company listed on The NASDAQ Stock Market. CBOE Holdings owns 100 percent of the equity interest in the CBOE Exchanges.

    In contemplation of the Transaction, CBOE Holdings formed two additional entities, CBOE Corporation, a Delaware corporation, and CBOE V, a Delaware limited liability company, each of which are direct, wholly owned subsidiaries of CBOE Holdings. Each of CBOE Corporation and CBOE V currently have no material assets or conduct any operations.

    2. The Transaction

    On September 25, 2016, BGM, CBOE Holdings, CBOE Corporation and CBOE V entered into an Agreement and Plan of Merger (the “Merger Agreement”). Pursuant to and subject to the terms of the Merger Agreement, at the Closing, among other things:

    (i) CBOE Corporation will be merged with and into BGM, whereupon the separate existence of CBOE Corporation will cease and BGM will be the surviving company (the “Merger”);

    (ii) by virtue of the Merger and without any action required on the part of BGM, CBOE Corporation or any holder of BGM or CBOE Corporation stock, each share of BGM common stock (whether voting or non-voting) issued and outstanding (with the exception of shares owned by CBOE Holdings, BGM or any of their respective subsidiaries and certain shares held by persons that are entitled to and properly demand appraisal rights) will be converted into the right to receive a particular number of shares of CBOE Holdings and/or cash, at the election of the holder of such share of BGM common stock (the “Merger Consideration”), and each share of CBOE Corporation issued and outstanding will be converted into one share of BGM, such that BGM will become a wholly owned subsidiary of CBOE Holdings; and

    (iii) immediately following the Merger, BGM will be merged with and into CBOE V, whereupon the separate existence of BGM will cease and CBOE V will be the surviving company (the “Subsequent Merger”).

    Upon the Closing, the BGM Holdings Charter, the Exchange Bylaws and the Exchange Rules will be amended to take into account the post-Closing corporate structure, described below.

    3. Post-Closing Corporate Structure

    As a result of the Transaction, BGM will cease to exist and the business of BGM will be carried on by CBOE V, which is a wholly owned subsidiary of CBOE Holdings.6 CBOE V will own 100 percent of the equity interest in BGM Holdings and Direct Edge LLC. BGM Holdings will continue to own 100 percent of the equity interest in the Exchange, BYX, Bats Trading, and certain other subsidiaries not registered with the Commission in any capacity.7 Direct Edge LLC will continue to own 100 percent of the equity interest in EDGX and EDGA.

    6 In connection with the Transaction, CBOE Holdings agreed in the Merger Agreement to take all requisite actions so, as of the Closing, the CBOE Holdings Board will include three individuals designated by BGM who (1) are serving as BGM directors immediately prior to the Closing and (2) comply with the policies (including clarifications of the policies provided to BGM) of the Nominating and Governance Committee of the CBOE Holdings Board as in effect on the date of the Merger Agreement and previously provided to BGM (each of whom will be appointed to the CBOE Holdings Board as of the Closing). The CBOE Holdings Board currently consists of 14 directors. The Exchange expects three current CBOE Holdings directors to resign effective prior to the Closing and the remaining CBOE Holdings directors to fill those vacancies with the three BGM directors designated by BGM.

    7 As described above, the Transaction will result in a change of ownership of Bats Trading, which is a member of the Financial Industry Regulatory Authority, Inc. (“FINRA”). The Exchange understands that, pursuant to NASD Rule 1017, Bats Trading is seeking approval for this change of ownership from FINRA.

    4. Ownership and Voting Limitations of BGM; Resolutions

    The BGM Charter provides that (i) no Person,8 either alone or together with its Related Persons,9 may own, directly or indirectly, of record or beneficially, shares constituting more than 40 percent of any class of its capital stock, and no Exchange Member, either alone or together with its Related Persons, may own, directly or indirectly, of record or beneficially, shares constituting more than 20 percent of any class of its capital stock (collectively, the “BGM Ownership Limitation”); and (ii) subject to certain exceptions, no Person, either alone or together with its Related Persons, at any time, may, directly, indirectly or pursuant to any of various arrangements, vote or cause the voting of shares or give any consent or proxy with respect to shares representing more than 20 percent of the voting power of its then issued and outstanding capital stock (the “BGM Voting Limitation”).10 Purported transfers that would result in a violation of the BGM Ownership Limitation are not recognized by BGM to the extent of any ownership in excess of the BGM Ownership Limitation, and purported voting or voting arrangements in violation of the BGM Voting Limitation are not honored by BGM to the extent of any voting in excess of the limitation.11

    8 The BGM Charter generally defines a “Person” as a natural person, partnership, corporation, limited liability company, entity, government, or political subdivision, agency or instrumentality of a government. See BGM Charter, Art. FIFTH, para. (a)(i).

    9 The BGM Charter generally defines a “Related Person” as, with respect to any Person, (i) any “affiliate” of such Person (as defined in Rule 12b-2 under the Act); (ii) any other Person with which such first Person has any agreement, arrangement or understanding (whether or not in writing) to act together for the purpose of acquiring, voting, holding or disposing of shares of the capital stock of BGM; (iii) in the case of a Person that is a company, corporation or similar entity, any executive officer (as defined under Rule 3b-7 under the Act) or director of such Person and, in the case of a Person that is a partnership or limited liability company, any general partner, managing member or manager of such Person, as applicable; (iv) in the case of any Person that is a registered broker or dealer that has been admitted to membership in any of the Bats Exchanges (for purposes of this definition of “Related Person,” each such national securities exchange shall be referred to generally as an “Exchange” and any member of such Exchange, an “Exchange Member”), any Person that is associated with the Exchange Member (as determined using the definition of “person associated with a member” as defined under Section 3(a)(21) of the Act); (v) in the case of a Person that is a natural person and Exchange Member, any broker or dealer that is also an Exchange Member with which such Person is associated; (vi) in the case of a Person that is a natural person, any relative or spouse of such Person, or any relative of such spouse who has the same home as such Person or who is a director or officer of BGM or any of its parents or subsidiaries; (vii) in the case of a Person that is an executive officer (as defined under Rule 3b-7 under the Act) or a director of a company, corporation or similar entity, such company, corporation or entity, as applicable; and (viii) in the case of a Person that is a general partner, managing member or manager of a partnership or limited liability company, such partnership or limited liability company, as applicable. See BGM Charter, Art. FIFTH, para. (a)(ii).

    10See BGM Charter, Art. FIFTH, para. (b).

    11See BGM Charter, Art. FIFTH, para. (d).

    However, the BGM Charter provides that each of the BGM Ownership Limitation and the BGM Voting Limitation may be waived (except with respect to Exchange Members and their Related Persons) pursuant to a resolution duly adopted by the BGM Board if, in connection with taking such action, the BGM Board states in such resolution that it is the determination of the BGM Board that the waiver:

    • Will not impair the ability of each Bats Exchange to carry out its functions and responsibilities as an “exchange” under the Act and the rules and regulations promulgated thereunder;

    • is otherwise in the best interests of BGM, its stockholders, and each Bats Exchange;

    • will not impair the ability of the Commission to enforce the Act and the rules and regulations promulgated thereunder; and

    • shall not be effective until it is filed with and approved by the Commission.12

    12See BGM Charter, Art. FIFTH, para. (b)(ii)(B).

    In granting such a waiver, the BGM Board has the discretion to impose on the Person and its Related Persons, such conditions and restrictions that it deems necessary, appropriate or desirable in furtherance of the objectives of the Act and the rules and regulations promulgated thereunder, and the governance of each Bats Exchange.13

    13Id.

    In addition, notwithstanding the above, the BGM Charter provides 14 that in any case where a Person, either alone or with its Related Persons, would own or vote more than the BGM Ownership Limitation or BGM Voting Limitation, respectively, upon consummation of any proposed sale, assignment or transfer of BGM's capital stock, such a transaction will not become effective until the BGM Board determines, by resolution, that such Person and its Related Persons are not subject to any “statutory disqualification,” as defined in Section 3(a)(39) of the Act.15

    14See BGM Charter, Art. FIFTH, para. (b)(iii).

    15 15 U.S.C. 78c(a)(39).

    As described above, as a result of the Merger (and prior to its separate existence ceasing as a result of the Subsequent Merger), BGM will become a wholly owned subsidiary of CBOE Holdings, such that CBOE Holdings will possess ownership and voting rights in BGM in excess of the Ownership Limitation and the Voting Limitation. In addition, as a result of the Subsequent Merger, BGM will merge with and into CBOE V, terminating the BGM Charter and becoming an entity whose ownership and voting is held entirely by CBOE Holdings, in excess of the BGM Ownership Limitation and the BGM Voting Limitation that would otherwise apply.

    The BGM Board therefore determined that in order to effect the Transaction, a waiver of the BGM Ownership Limitation and the BGM Voting Limitation with respect to CBOE Holdings would be required. To do so, the BGM Board adopted the Resolutions, attached as Exhibit 5A, making certain determinations with respect to CBOE Holdings and the Transaction that are necessary to waive the BGM Ownership Limitation and BGM Voting Limitation. Specifically, the BGM Board determined that:

    • The acquisition of the proposed ownership by CBOE Holdings in BGM will not impair the ability of each Bats Exchange to carry out its functions and responsibilities as an “exchange” under the Act and the rules and regulations promulgated thereunder, is otherwise in the best interests of BGM, its stockholders and the Bats Exchanges, and will not impair the ability of the Commission to enforce the Act and the rules and regulations promulgated thereunder;

    • the acquisition or exercise of the proposed voting rights by CBOE Holdings in BGM will not impair the ability of each Bats Exchange to carry out its functions and responsibilities as an “exchange” under the Act and the rules and regulations promulgated thereunder, is otherwise in the best interests of BGM, its stockholders and the Bats Exchanges, and will not impair the ability of the Commission to enforce the Act and the rules and regulations promulgated thereunder;

    • neither CBOE Holdings nor any of its Related Persons is subject to “statutory disqualification” within the meaning of Section 3(a)(39) of the Act; 16 and

    16Id.

    • neither CBOE Holdings nor any of its Related Persons is an Exchange Member.17

    17 In addition, the Resolutions contain a determination that the execution and delivery of the Merger Agreement by CBOE Holdings constituted notice of CBOE Holdings' intention to acquire ownership and voting rights in excess of the BGM Ownership Limitation and BGM Voting Limitation, respectively, in writing and not less than 45 days before the Closing. See BGM Charter, Art. FIFTH, para. (b)(iv). The Exchange notes that Art. FIFTH, para. (c)(i) of the BGM Charter further requires that any Person that, either alone or together with its Related Persons, owns, directly or indirectly (whether by acquisition or by a change in the number of shares outstanding), of record or beneficially, five percent or more of the then outstanding shares of capital stock of BGM must immediately upon acquiring knowledge of its ownership of five percent or more give written notice of such ownership to the BGM Board. The Merger Agreement provides that the Merger Agreement constitutes such notice with respect to certain voting agreements entered into concurrently with the Merger Agreement. See Merger Agreement, Section 5.21.

    The Exchange has reviewed such Resolutions and requests that the Commission approve such Resolutions. The Exchange believes that the Commission should approve the Resolutions, as the Transaction will not impair the ability of any Bats Exchange to carry out its functions and responsibilities as an “exchange” under the Act and the rules and regulations promulgated thereunder, or the ability of the Commission to enforce the Act and the rules and regulations promulgated thereunder. The Bats Exchanges will continue to operate and regulate their markets and members as they have done prior to the Transaction. Thus, each Bats Exchange will continue to enforce the Act, the Commission's rules thereunder, and each Exchange's own rules, in the manner it does today. Further, the Commission will continue to have plenary regulatory authority over the Bats Exchanges, as is currently the case with these entities.

    The Exchange also notes that the Resolutions reflect the determination by the BGM Board that the Transaction and CBOE Holdings' resulting ownership and voting rights in BGM following the Merger, and CBOE V's ownership and voting rights following the Subsequent Merger, are otherwise in the best interests of BGM, its stockholders and the Bats Exchanges. The Bats Exchanges will be ultimately held by an entity, CBOE Holdings, that already owns other national securities exchanges and is subject to governance documents that similarly restrict concentration of ownership and voting rights.

    As described in more detail below, the Exchange is also requesting approval of the adoption of the CBOE Holdings Charter and the CBOE Holdings Bylaws. The CBOE Holdings Charter includes a number of provisions relating to the Commission's regulatory oversight that have a similar effect as those in the BGM Charter, including the BGM Ownership Limitation and the BGM Voting Limitation. Therefore, notwithstanding the Resolutions and the Transaction, provisions similar (and, in some cases, more stringent) to the BGM Ownership Limitation and the BGM Voting Limitation will remain in place with respect to potential future transactions involving the ultimate parent company of the Bats Exchanges. This means that the Exchange ownership structure will continue to provide the Commission with appropriate oversight tools to ensure that the Commission will have the ability to enforce the Act with respect to the Exchange, its direct and indirect parent companies, and its directors, officers, employees and agents to the extent they are involved in the activities of the Exchange, and protect the independence of the Exchange's self-regulatory activities.

    The Exchange therefore requests that the Commission approve the Resolutions, attached as Exhibit 5A.

    5. CBOE Holdings Charter and CBOE Holdings Bylaws

    CBOE Holdings currently holds a direct ownership interest in the CBOE Exchanges. The Commission has previously approved the CBOE Holdings Charter and the CBOE Holdings Bylaws (collectively, the “CBOE Holdings Organizational Documents”), attached as Exhibits 5B and 5C, respectively.18

    18See Securities Exchange Act Release No. 62158 (May 24, 2010), 75 FR 30082 (May 28, 2010) (SR-CBOE-2008-88). The CBOE Organizational Documents have been subsequently amended from time to time pursuant to proposed rule changes that were filed with the Commission for immediate effectiveness. See, e.g., Securities Exchange Act Release No. 76282 (October 27, 2015), 80 FR 67464 (November 2, 2015) (SR-CBOE-2015-092).

    In connection with the Transaction, upon the Closing, CBOE Holdings will become the indirect owner (through CBOE V and BGM Holdings) of the Exchange, BYX and Bats Trading (and certain other subsidiaries not registered with the Commission in any capacity), and the indirect owner (through CBOE V and Direct Edge LLC) of EDGA and EDGX.

    The CBOE Holdings Organizational Documents include various provisions relating to any “Regulated Securities Exchange Subsidiary,” which is defined as any national securities exchange controlled, directly or indirectly, by CBOE Holdings. Upon the Closing, the Exchange will be covered by the definition of Regulated Securities Exchange Subsidiary for purposes of the CBOE Holdings Organizational Documents. As a result, no amendments to the CBOE Holdings Organizational Documents will be necessary to reflect CBOE Holdings' indirect ownership of the Exchange.

    The Exchange believes that the CBOE Holdings Organizational Documents will protect and maintain the integrity of the self-regulatory functions of the Exchange and facilitate the ability of the Exchange and the Commission to carry out their regulatory and oversight obligations under the Act, as the CBOE Organizational Documents do with respect to the CBOE Exchanges.

    In addition, the CBOE Organizational Documents contain provisions, including those with respect to the following, that are similar to those contained in the BGM Charter and BGM's Amended and Restated Bylaws (the “BGM Bylaws”), which the Commission has previously found to be consistent with the Act: 19

    19See Securities Exchange Act Release No. 77464 (March 29, 2016), 81 FR 19252 (April 4, 2016) (File Nos. SR-BATS-2016-10, SR-BYX-2016-02, SR-EDGX-2016-04, and SR-EDGA-2016-01).

    Ownership and Voting Limitations. Similar to the BGM Voting Limitation and the BGM Ownership Limitation contained in the BGM Charter, the CBOE Holdings Charter limits the extent of ownership and voting rights which certain persons may possess or exercise.20 Like the BGM Charter, the CBOE Holdings Charter similarly prohibits any Person,21 together with its Related Persons,22 from exercising voting rights with respect to more than 20 percent of the then outstanding votes entitled to be cast on such matter.23 However, with respect to ownership limitations, the CBOE Holdings Charter contains a more stringent threshold than contained in the BGM Charter. Under the CBOE Holdings Charter, no Person, together with its Related Persons, is permitted at any time to beneficially own directly or indirectly shares of stock of CBOE Holdings representing in the aggregate more than 20 percent of the then outstanding shares of stock of CBOE Holdings.24 In contrast, the BGM Ownership Limitation only applies a 20 percent threshold to any Exchange Member together with its Related Persons, while applying a 40 percent threshold to any other Person together with its Related Persons. As a result, the CBOE Holdings Charter should be at least as effective as the BGM Charter at preventing any stockholder from exercising undue control over the operation of the Exchange.

    20Compare CBOE Holdings Charter, Art. SIXTH with BGM Charter, Art. FIFTH.

    21 “Person” mean an individual, partnership (general or limited), joint stock company, corporation, limited liability company, trust or unincorporated organization, or any governmental entity or agency or political subdivision thereof. See CBOE Holdings Charter, Art. FIFTH, para. (a)(iv).

    22 “Related Person” is defined in the CBOE Holdings Charter in a manner substantially the same as it is defined in the BGM Charter. See supra note 9; CBOE Holdings Charter, Art. FIFTH, para. (a)(vi).

    23See CBOE Holdings Charter, Art. SIXTH, para. (a).

    24See CBOE Holdings Charter, Art. SIXTH, para. (b).

    Independence and Non-Interference. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that for so long as CBOE Holdings controls, directly or indirectly, a Regulated Securities Exchange Subsidiary, each officer, director and employee of CBOE Holdings must give due regard to the preservation of the independence of the self-regulatory function of the Regulated Securities Exchange Subsidiaries and may not take any actions that he or she knows or reasonably should have known would interfere with the effectuation of any decisions by the board of directors of any Regulated Securities Exchange Subsidiary relating to such Regulated Securities Exchange Subsidiary's regulatory functions (including disciplinary matters) or that would adversely affect the ability of the Regulated Securities Exchange Subsidiary to carry out such Regulated Securities Exchange Subsidiary's responsibilities under the Act.25

    25Compare CBOE Holdings Charter, Art. SIXTEENTH, para. (c) with BGM Bylaws, Section 12.01.

    Confidentiality. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that, to the fullest extent permitted by applicable law, all confidential information pertaining to the self-regulatory function of Regulated Securities Exchange Subsidiaries contained in the books and records of any Regulated Securities Exchange Subsidiary that shall come into the possession of the CBOE Holdings must be retained in confidence by CBOE Holdings and its officers, directors, employees and agents and must not be used for any commercial purposes.26

    26Compare CBOE Holdings Charter, Art. FIFTEENTH with BGM Bylaws, Section 12.02.

    Books and Records. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that, for so long as CBOE Holdings directly or indirectly controls any Regulated Securities Exchange Subsidiary, the books, records, premises, officers, directors and employees of CBOE Holdings shall be deemed to be the books, records, premises, officers, directors and employees of the Regulated Securities Exchange Subsidiary for purposes of and subject to oversight pursuant to the Act, but only to the extent that such books, records, premises, officers, directors and employees of the Corporation relate to the business of such Regulated Securities Exchange Subsidiary.27

    27Compare CBOE Holdings Charter, Art. FIFTEENTH with BGM Bylaws, Section 12.03.

    Compliance With Securities Laws; Cooperation With the Commission. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that CBOE Holdings shall comply with the federal securities laws and the rules and regulations thereunder and shall cooperate with the Commission, and each Regulated Securities Exchange Subsidiary pursuant to and to the extent of its regulatory authority, and shall take reasonable steps necessary to cause its agents to cooperate with the Commission and, where applicable, the Regulated Securities Exchange Subsidiaries pursuant to their regulatory authority, with respect to such agents' activities related to the Regulated Securities Exchange Subsidiaries.28

    28Compare CBOE Holdings Charter, Art. SIXTEENTH, para. (a) with BGM Bylaws, Section 12.04.

    Consent to Jurisdiction. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that CBOE Holdings, its directors, officers, agents and employees, irrevocably submit to the jurisdiction of the U.S. federal courts, the Commission, and the Regulated Securities Exchange Subsidiaries, for the purposes of any suit, action or proceeding pursuant to U.S. federal securities laws or the rules or regulations thereunder, commenced or initiated by the Commission arising out of, or relating to, the Regulated Securities Exchange Subsidiaries' activities.29

    29Compare CBOE Holdings Charter, Art. FOURTEENTH with BGM Bylaws, Section 12.05.

    Amendments. Similar to provisions contained in the BGM Charter and BGM Bylaws, the CBOE Organizational Documents provide that for so long as CBOE Holdings controls, directly or indirectly, Regulated Securities Exchange, before any amendment to or repeal of the CBOE Holdings Charter or CBOE Holdings Bylaws may be effective, such amendment or repeal must be submitted to the board of directors of each such exchange, and if the amendment or repeal is required to be filed with, or filed with and approved by the Commission, then such change shall not be effective until filed with, or filed with and approved by, the Commission, as the case may be.30

    30Compare CBOE Holdings Charter, Arts. ELEVENTH, TWELFTH and CBOE Holdings Bylaws, Section 10.2 with BGM Charter, Art. FOURTEENTH and BGM Bylaws, Article XI.

    As stated above, the Exchange believes that the foregoing provisions will assist the Exchange in fulfilling its self-regulatory obligations and in administering and complying with the requirements of the Act. 6. CBOE V Certificate and CBOE V Operating Agreement

    Effective as of the Closing of the Transaction, CBOE V will hold direct ownership of (i) BGM Holdings, which will continue to hold direct ownership of the Exchange, BYX and Bats Trading (and certain other subsidiaries not registered with the Commission in any capacity) and (ii) Direct Edge LLC, which will continue to hold direct ownership of EDGX and EDGA. However, unlike BGM currently, CBOE V will not be the ultimate holding company under the post-Closing corporate structure, but rather will be an intermediate holding company owned by CBOE Holdings. The Exchange believes that the CBOE V Operating Agreement contains provisions relating to its indirect ownership of one or more national securities exchanges, including such exchanges' regulatory functions and Commission oversight, that are appropriate for an intermediate holding company in the ownership chain of a national securities exchange. Many of the provisions of the CBOE V Operating Agreement relating to these matters are similar to the organizational documents of BGM Holdings, which currently is, and following the Subsequent Merger will be, similarly situated as an intermediate holding company of the Exchange. The Commission has previously found the BGM Holdings certificate of incorporation and bylaws to be consistent with the Act.31

    31See Securities Exchange Act Release No. 71375 (January 23, 2014), 79 FR 4771 (January 29, 2014) (SR-BATS-2013-059; SR-BYX-2013-039).

    Although CBOE V will not carry out any regulatory functions, the Exchange notes that its activities with respect to the operation of the Bats Exchanges must be consistent with, and must not interfere with, the self-regulatory obligations of each Bats Exchange. The CBOE V Operating Agreement therefore includes certain provisions that are designed to maintain the independence of the Bats Exchanges' self-regulatory functions, enable the Bats Exchanges to operate in a manner that complies with the federal securities laws, including the objectives of Sections 6(b) 32 and 19(g) 33 of the Act, and facilitate the ability of each Bats Exchange and the Commission to fulfill their respective regulatory and oversight obligations under the Act.

    32 15 U.S.C. 78f(b).

    33 15 U.S.C. 78s(g).

    a. CBOE V Certificate of Formation

    The CBOE V Certificate, attached as Exhibit 5D, includes the following provisions required under Delaware law: (i) The full name of CBOE V as “CBOE V, LLC”, and (ii) the name and address of CBOE V's registered office in the State of Delaware and the name of CBOE V's registered agent at such address.34 In addition, the CBOE V Certificate contains a provision providing that CBOE V shall indemnify members of its board of directors and certain other persons, subject to certain conditions.

    34 Delaware Limited Liability Company Act, Section 18-201.

    As the Exchange believes is customary for limited liability companies formed in the State of Delaware, other substantive provisions governing the ownership, operation and management of CBOE V are set forth in the CBOE V Operating Agreement, discussed below.

    b. CBOE V Operating Agreement

    With respect to ownership and control of CBOE V, the CBOE V Operating Agreement, attached as Exhibit 5E, specifically provides that CBOE V's sole member is CBOE Holdings, until the CBOE V Operating Agreement is amended (subject to Commission approval, as described below).35 Further, for so long as CBOE V controls, directly or indirectly, a subsidiary that is registered with the Commission as a national securities exchange (an “Exchange Subsidiary”), CBOE Holdings may not sell, assign, transfer, convey, gift, exchange or otherwise dispose of any or all of its member interest in CBOE V, except pursuant to an amendment to the CBOE V Operating Agreement that is filed with and approved by the Commission.36 These restrictions are designed to ensure that any change to the ownership or control of any Exchange Subsidiary, including without limitation the Bats Exchanges, may only occur through a change in the ownership or control of CBOE Holdings. As such, any purported change of such ownership or control (unless pursuant to a Commission-approved change of ownership of CBOE V) would need to comply with the CBOE Holdings Charter and CBOE Holdings Bylaws, including the ownership and voting limitations discussed above (or a Commission-approved waiver therefrom).

    35See CBOE V Operating Agreement, Section 1.1.

    36See CBOE V Operating Agreement, Section 5.1.

    The CBOE V Operating Agreement also contains several provisions designed to protect the independence of the self-regulatory functions of the Bats Exchanges. The CBOE V Operating Agreement requires that, for so long as CBOE V, directly or indirectly, controls any Exchange Subsidiary, CBOE Holdings, as the sole member of CBOE V, and officers, employees and agents of CBOE V must give due regard to the preservation of independence of the self-regulatory functions of such Exchange Subsidiary, as well as to its obligations to investors and the general public, and not interfere with the effectuation of any decisions by the board of directors of an Exchange Subsidiary relating to its regulatory functions (including disciplinary matters) or which would interfere with the ability of such Exchange Subsidiary to carry out its responsibilities under the Act.37

    37See CBOE V Operating Agreement, Section 10.1(a).

    The CBOE V Operating Agreement also would require that CBOE V comply with the U.S. federal securities laws and rules and regulations thereunder and cooperate with the Commission and each Exchange Subsidiary, as applicable, pursuant to and to the extent of their respective regulatory authority.38 Further, CBOE V's officers, directors, employees and agents shall be deemed to agree to (i) comply with the U.S. federal securities laws and the rules and regulations thereunder; and (ii) cooperate with the Commission and each Exchange Subsidiary in respect of the Commission's oversight responsibilities regarding such Exchange Subsidiary and the self-regulatory functions and responsibilities of the Exchange Subsidiaries, and CBOE V will take reasonable steps to cause its officers, employees and agents to so cooperate.39

    38See CBOE V Operating Agreement, Section 10.2(a).

    39Id.

    Furthermore, to the fullest extent permitted by law, CBOE V and its officers, directors, employees and agents will be deemed to irrevocably submit to the jurisdiction of the U.S. federal courts, the Commission, and each Exchange Subsidiary, as applicable, for purposes of any suit, action, or proceeding pursuant to the U.S. federal securities laws or the rules or regulations thereunder arising out of, or relating to, the activities of such Exchange Subsidiary.40

    40See CBOE V Operating Agreement, Section 10.3(a).

    The proposed CBOE V Operating Agreement also contains a number of provisions designed to ensure that the Exchange will have sufficient access to the books and records of CBOE V as they relate to any Exchange Subsidiary. Pursuant to the CBOE V Operating Agreement, to the extent they are related to the operation or administration of an Exchange Subsidiary, the books, records, premises, officers, agents, and employees of CBOE V are deemed to be the books, records, premises, officers, agents and employees of such Exchange Subsidiary for the purposes of, and subject to oversight pursuant to, the Act.41 In addition, for as long as CBOE V controls, directly or indirectly, an Exchange Subsidiary, CBOE V's books and records shall be subject at all times to inspection and copying by the Commission and the applicable Exchange Subsidiary, provided that such books and records are related to the operation or administration of an Exchange Subsidiary.42

    41See CBOE V Operating Agreement, Section 8.4(b).

    42Id.

    The proposed CBOE V Operating Agreement also provides that, to the fullest extent permitted by law, all books and records of any Exchange Subsidiary reflecting confidential information pertaining to the self-regulatory function of such Exchange Subsidiary (including disciplinary matters, trading data, trading practices and audit information) that comes into the possession of CBOE V, shall be retained in confidence by CBOE V, CBOE V's officers, employees and agents and CBOE Holdings, and not used for any non-regulatory purposes.43 The proposed CBOE V Operating Agreement provides, however, that the foregoing shall not limit or impede the rights of the Commission or an Exchange Subsidiary to access and examine such confidential information pursuant to the U.S. federal securities laws and the rules and regulations thereunder, or limit or impede the ability of CBOE Holdings or any of CBOE V's officers, employees or agents to disclose such confidential information to the Commission or an Exchange Subsidiary.44

    43See CBOE V Operating Agreement, Section 8.4(a).

    44Id.

    In addition, the CBOE V Operating Agreement provides that for so long as CBOE V controls, directly or indirectly, any Exchange Subsidiary, before any amendment to or repeal of any provision of the CBOE V Operating Agreement will be effective, those changes must be submitted to the board of directors of each Exchange Subsidiary, and if the same must be filed with, or filed with and approved by, the Commission before the changes may be effective under Section 19 of the Act 45 and the rules promulgated thereunder, then the proposed changes shall not be effective until filed with, or filed with and approved by, the Commission, as the case may be.46

    45 15 U.S.C. 78s.

    46See CBOE V Operating Agreement, Section 11.2.

    7. BGM Holdings Charter

    The BGM Holdings Charter currently provides that the sole stockholder of BGM Holdings is BGM. However, as a result of the Transaction, CBOE V will become the sole stockholder of BGM Holdings. The Exchange proposes to amend the BGM Holdings Charter to reflect this change, as set forth in Exhibit 5F.

    8. Bylaws of the Exchange

    In connection with the Transaction, the Exchange proposes to amend and restate its Fourth Amended and Restated Bylaws and adopt the amended Exchange Bylaws as its Fifth Amended and Restated Bylaws, attached as Exhibit 5G. Specifically, the Exchange proposes to (i) expand the prohibition contained in Section 2 of Article XI of the Exchange Bylaws; and (ii) add a definition of “Trading Permit Holder” to Article I.

    Currently, Section 2 of Article XI of the Exchange Bylaws prohibits directors of BGM or BGM Holdings who are not also directors, officers, staff, counsel or advisors of the Exchange from participating in any meetings of the Exchange's board of directors (or any committee thereof) pertaining to the self-regulatory function of the Exchange (including disciplinary matters). This provision refers to BGM and BGM Holdings because they are currently the only direct and indirect owners of the Exchange. However, following the Transaction, the Exchange will be owned indirectly by CBOE V and CBOE Holdings (in addition to its direct ownership by BGM Holdings). Therefore, the Exchange is proposing to remove the reference to BGM and insert references to CBOE V and CBOE Holdings, so that CBOE V and CBOE Holdings will both be covered by this prohibition. The Exchange believes that this amendment will protect the independence of the Exchange's self-regulatory activities.

    In addition, as noted above, the CBOE Holdings Charter currently prohibits certain persons from owning or exercising voting rights over certain percentages of ownership of CBOE Holdings. The CBOE Holdings Charter permits the board of directors of CBOE Holdings to waive the limitation on the exercise of voting rights in excess of 20 percent of the then outstanding votes entitled to be cast on such matter only if, among other things, “for so long as [CBOE Holdings] directly or indirectly controls any Regulated Securities Exchange Subsidiary, neither such Person nor any of its Related Persons is a `Trading Permit Holder' (as defined in the Bylaws of any Regulated Securities Exchange Subsidiary as they may be amended from time to time).” 47

    47See CBOE Holdings Charter, Art. SIXTH, para. (a)(ii)(C).

    The Exchange does not issue “trading permits,” but admits members. The Exchange believes the provisions of the CBOE Holdings Charter that refer to Trading Permit Holders of its Regulated Securities Exchange Subsidiaries should apply equally to members of the Exchange once it becomes a Regulated Securities Exchange Subsidiary of CBOE Holdings. As a result, the Exchange proposes to add clause (ff) to Article I of the Exchange Bylaws, providing that “ ‘Trading Permit Holder' shall have the same meaning as Exchange Member.” This will ensure that the Exchange's members will be considered Trading Permit Holders of a Regulated Securities Exchange Subsidiary for purposes of the CBOE Holdings Charter.

    9. Exchange Rules a. Exchange Rule 2.3—Member Eligibility

    Pursuant to Exchange Rule 2.3, in order to be eligible for membership in the Exchange, a registered broker or dealer is currently required to be a member of at least one other national securities association or national securities exchange. However, membership in the Exchange's affiliated national securities exchanges, BYX, EDGA or EDGX, is not sufficient for purposes of eligibility for Exchange membership. The Exchange adopted this because the Bats Exchanges have historically not functioned as the designated examining authority for any of its members, and the Exchange wanted to be sure that any member would be appropriately supervised by another national securities association or national securities exchange that has the capacity to function as the member's designated examining authority.

    As a result of the Transaction, the Exchange will additionally become affiliated with the CBOE Exchanges. As with the Bats Exchanges, C2 does not currently serve as the designated examination authority for any of its members. CBOE, however, does act as the designated examining authority for certain of its members. Therefore, the Exchange proposes to amend Exchange Rule 2.3 to specify that a registered broker or dealer will be eligible for membership only if it is a member of a national securities association or national securities exchange other than or in addition to the following affiliates of the Exchange: BYX, EDGA, EDGX and C2.

    In addition, to ensure there is no confusion with respect to the possibility that a broker or dealer could qualify for membership in the Exchange based solely on membership in CBOE Futures or any other national securities exchange notice-registered with the Commission pursuant to Section 6(g) of the Act 48 that lists or trades security-futures products, the Exchange proposes to also specify that eligibility for membership requires membership in a national securities association registered pursuant to Section 15A of the Act or a national securities exchange registered with the Commission pursuant to Section 6(a) of the Act, so as to exclude a national securities exchange registered solely under Section 6(g) of the Act. The proposed amendments to Exchange Rule 2.3 are set forth in Exhibit 5H.

    48 15 U.S.C. 78f(g).

    b. Exchange Rule 2.10—No Affiliation Between Exchange and any Member

    Exchange Rule 2.10 provides that, without prior approval of the Commission, neither the Exchange, nor any of its affiliates, shall directly or indirectly acquire or maintain an ownership interest in a member of the Exchange. This restriction is intended to address potential conflicts of interest that could result from affiliation between the Exchange and a member. Notwithstanding this general restriction, Exchange Rule 2.10 provides that it does not prohibit a member or its affiliate from acquiring or holding an equity interest in BGM that is permitted by the ownership and voting limitations contained in the BGM Charter and the BGM Bylaws. In addition, Exchange Rule 2.10 states that it does not prohibit a member from being or becoming an affiliate of the Exchange, or an affiliate of any affiliate of the Exchange, solely by reason of such member or any officer, director, manager, managing member, partner or affiliate of such member being or becoming either (a) a Director of the Exchange pursuant to the Bylaws of the Exchange, or (b) a Director of the Exchange serving on the Board of Directors of BGM. The Exchange proposes to replace the references to BGM in Rule 2.10 with references to CBOE Holdings to reflect the fact that following the Transaction, CBOE Holdings will replace BGM as the ultimate parent holding company of the Exchange. In addition to these changes, the Exchange proposes to replace all references in Rule 2.10 to “By-Laws” with “Bylaws” in order to maintain consistency with the actual documents referred to and EDGA and EDGX Rules 2.10. The proposed amendments to Exchange Rule 2.10 are set forth in Exhibit 5H.

    2. Statutory Basis

    The Exchange believes that the Proposed Rule Change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.49 In particular, the proposal is consistent with Section 6(b)(1) of the Act 50 in that it enables the Exchange to be so organized as to have the capacity to be able to carry out the purposes of the Act and to comply, and to enforce compliance by its members and persons associated with its members, with the provisions of the Act, the rules and regulations thereunder, and the Rules of the Exchange.

    49 15 U.S.C. 78f(b).

    50 15 U.S.C. 78f(b)(1).

    The Proposed Rule Change is designed to enable the Exchange to continue to have the authority and ability to effectively fulfill its self-regulatory duties pursuant to the Act and the rules promulgated thereunder. In particular, the Proposed Rule Change includes in the CBOE Holdings Charter and CBOE Holdings Bylaws, like the BGM Charter and BGM Bylaws, various provisions intended to protect and maintain the integrity of the self-regulatory functions of the Exchange upon Closing. For example, the CBOE Holdings Charter, as described above, is drafted to preserve the independence of the Exchange's self-regulatory function and carry out its regulatory responsibilities under the Act. In addition, the CBOE Holdings Charter imposes limitations similar to the BGM Ownership Limitation and BGM Voting Limitation to preclude undue influence over or interference with the Exchange's self-regulatory functions and fulfillment of its regulatory duties under the Act.

    Moreover, notwithstanding the Proposed Rule Change, including the change to the indirect ownership of the Exchange, the Commission will continue to have regulatory authority over the Exchange, as is currently the case, as well as jurisdiction over the Exchange's direct and indirect parent companies with respect to activities related to the Exchange.51 As a result, the Proposed Rule Change will facilitate an ownership structure that will provide the Commission with appropriate oversight tools to ensure that the Commission will have the ability to enforce the Act with respect to the Exchange, its direct and indirect parent companies and their directors, officers, employees and agents to the extent they are involved in the activities of the Exchange.

    51See, e.g., CBOE Holdings Charter, Art. FOURTEENTH; CBOE V Operating Agreement, Section 10.3; BGM Holdings Bylaws, Section 7.3.

    The Exchange also believes that the Proposed Rule Change furthers the objectives of Section 6(b)(5) of the Act 52 because the Proposed Rule Change would be consistent with and facilitate a governance and regulatory structure that is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to, and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest.

    52 15 U.S.C. 78f(b)(5).

    In addition, as discussed further in the Exchange's Statement on Burden on Competition below, the Exchange expects that the Transaction will foster further innovation while facilitating efficient, transparent and well-regulated markets for issuers and investors, removing impediments to, and perfecting the mechanism of a free and open market and a national market system. The Transaction will benefit investors and the securities market as a whole by, among other things, enhancing competition among securities venues and reducing costs.

    Furthermore, the Exchange is not proposing any significant changes to its existing operational and trading structure in connection with the change in ownership; the Exchange will operate in essentially the same manner upon Closing as it operates today. Therefore, the Exchange believes that it will continue to satisfy the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange. The changes that the Exchange is proposing to the Exchange Rules are designed to reflect the prospective affiliation with CBOE Holdings and the CBOE Exchanges. The Exchange believes that the proposed change to its Rules is consistent with the requirements of the Act and the rules and regulations thereunder.

    B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the Proposed Rule Change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Indeed, the Exchange believes that the Proposed Rule Change will enhance competition among trading venues, as the Exchange believes that the Transaction will result in various synergies and efficiencies. For example, the Transaction will allow the Bats Exchanges and the CBOE Exchanges to utilize a single technology platform, which the Exchange expects will reduce Bats Exchanges' and the CBOE Exchanges' combined costs, creating the opportunity to further reduce costs to their respective members and other constituents. The potential use of a single technology platform may also reduce investors' costs of connecting to and using the Bats Exchanges and the CBOE Exchanges, including through the combination of data centers and market data services. Combining the expertise of the CBOE Exchanges' personnel with the expertise of the Bats Exchanges' personnel will also facilitate ongoing innovation, including through new product creation and platform improvements.

    The Exchange notes that the Bats Exchanges and the CBOE Exchanges generally operate with different business models, target different customer bases and primarily focus on different asset classes, limiting any concern that the Transaction could burden competition. Therefore, the Exchange expects that the Transaction will benefit investors, issuers, shareholders and the market as a whole. The Exchange will continue to conduct regulated activities (including operating and regulating its market and members) of the type it currently conducts, but will be able to do so in a more efficient manner to the benefit of its members. These efficiencies will pass through to the benefit of investors and issuers, promoting further efficiencies, competition and capital formation, placing no burden on competition not necessary or appropriate in furtherance of the Act.

    Furthermore, the Exchange's conclusion that the Proposed Rule Change would not result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act is consistent with the Commission's prior conclusions about similar combinations involving multiple exchanges in a single corporate family.53

    53See, e.g., Securities Exchange Act Release Nos. 71375 (January 23, 2014), 79 FR 4771 (January 29, 2014) (SR-BATS-2013-059; SR-BYX-2013-039); 66071 (December 29, 2011), 77 FR 521 (January 5, 2012) (SR-CBOE-2011-107 and SR-NSX-2011-14); 58324 (August 7, 2008), 73 FR 46936 (August 12, 2008) (SR-BSE-2008-02; SR-BSE-2008-23; SR-BSE-2008-25; SR-BSECC-2008-01); 53382 (February 27, 2006), 71 FR 11251 (March 6, 2006) (SR-NYSE-2005-77).

    C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others

    The Exchange has not solicited or received written comments on the Proposed Rule Change.

    III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

    Within 45 days of the date of publication of this notice in the Federal Register or within such longer period (i) as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the Exchange consents, the Commission will: (a) By order approve or disapprove such proposed rule change, or (b) institute proceedings to determine whether the proposed rule change should be disapproved.

    IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:

    Electronic Comments

    • Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or

    • Send an email to [email protected] Please include File Number SR-BatsBZX-2016-68 on the subject line.

    Paper Comments

    • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

    All submissions should refer to File Number SR-BatsBZX-2016-68. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-BatsBZX-2016-68, and should be submitted on or before December 6, 2016.

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.54

    54 17 CFR 200.30-3(a)(12).

    Brent J. Fields, Secretary.
    [FR Doc. 2016-27371 Filed 11-14-16; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79260; File No. SR-BX-2016-055] Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Cease and Desist Authority Rules November 8, 2016

    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder,2 notice is hereby given that on October 28, 2016, NASDAQ BX, Inc. (“BX” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.

    1 15 U.S.C. 78s(b)(1).

    2 17 CFR 240.19b-4.

    I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change

    The Exchange proposes to adopt Rules 9556 and 9800, which were previously adopted as a pilot the term of which has since expired, and to make related changes to the 9100, 9200, 9300, 9550, and 9800 Rule Series.

    The text of the proposed rule change is available on the Exchange's Web site at http://nasdaqomxbx.cchwallstreet.com/, at the principal office of the Exchange, and at the Commission's Public Reference Room.

    II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.

    A. Self-Regulatory Organization's Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change 1. Purpose

    The Exchange is proposing to adopt new Rules 9556 and 9800, which were previously adopted as a pilot the term of which has since expired, and to make related changes to the 9100, 9200, 9300, 9550, and 9800 Rule Series. In May 2003, the Commission approved, on a pilot basis, a rule change to adopt NASD Rules 9556 and 9800 that gave NASD, now known as FINRA, authority to issue temporary cease and desist orders and made explicit NASD's ability to impose permanent cease and desist orders as a remedy in disciplinary cases.3 Because NASD was, and now FINRA is, the Exchange's regulatory services provider and administers the Exchange's disciplinary program under contract, the Exchange seeks to maintain comparability between its disciplinary procedure rules and those of NASD and now FINRA. As a consequence, the Exchange adopted Rules 9556 and 9800 to mirror the then-FINRA rules to operate as a pilot in conjunction with the related FINRA pilot.4

    3See Securities Exchange Act Release No. 47925 (May 23, 2003) (File No. SR-NASD-98-80), 68 FR 33548 (June 4, 2003). See also Securities Exchange Act Release No. 51860 (June 16, 2005), 70 FR 36427 (June 23, 2005) (SR-NASD-2005-061) (extending the pilot to June 23, 2007 and making non-substantive changes); and Securities Exchange Act Release No. 55819 (May 25, 2007), 72 FR 30895 (June 4, 2007) (SR-NASD-2007-033) (extending the pilot to June 23, 2009 and making non-substantive changes).

    4See Securities Exchange Act Release No. 59154 (December 23, 2008), 73 FR 80468 (December 31, 2008) (SR-BSE-2008-48).

    On June 23, 2009, the Exchange's Rule 9556 and 9800 pilot programs expired, at which time those rules and certain references thereto became obsolete, notwithstanding that they remained in the rulebook. The FINRA pilot program, however, continued and was approved on July 14, 2009 on a permanent basis.5

    5 Securities Exchange Act Release No. 60306 (July 14, 2009), 74 FR 36292 (July 22, 2009) (SR-FINRA-2009-035). The Exchange notes that FINRA, in its rule change proposal to make its pilot program permanent, noted that it had used the authority under Rules 9556 and 9800 sparingly. Id. at 36293.

    Neither the Exchange nor FINRA, acting on behalf of the Exchange pursuant to agreement, have [sic] used the cease and desist authority under Rules 9556 and 9800 during the time that the rules were effective. Nonetheless, the Exchange believes that, in addition to maintaining similar disciplinary rules, adoption of Rules 9556 and 9800 is important to the Exchange's disciplinary program. The authority under these rules will provide the Exchange and FINRA, operating on behalf of the Exchange, with a mechanism to take appropriate remedial action against a member or an associated person that has engaged (or is engaging) in violative conduct that could cause continuing harm to the investing public if not addressed expeditiously, such as dissipation or conversion of assets. It must be emphasized, however, that the cease and desist provisions contain numerous procedural protections for respondents to ensure that the proceedings are fair. Consequently, the Exchange believes that adoption of these rules is important to its regulatory program, notwithstanding that it anticipates exercising the authority provided by the rules sparingly.

    The Exchange is proposing to delete Rules 9556 and 9800 (and related references in other rules 6 ) because the pilot period for these rules has expired rendering them void, and adopt new Rules 9556 and 9800 (and related references in other rules) 7 based on FINRA's analogous cease and desist rules, which include amendments to the former BX cease and desist rules to reflect changes that FINRA has made to its cease and desist rules in 2011 and 2015 after they were made permanent.8 The Exchange is also proposing to amend other Rules under the 9000 Series to incorporate changes that FINRA made to its analogous rules in 2015, as discussed below. These proposed changes include significant amendments made by FINRA to not only its Rules 9556 and 9800, but also to its 9100, 9200, 9300, 9550, and 9800 Rule Series in 2015. Unless otherwise noted, BX is adopting the FINRA Rules with only minor changes to reflect the Exchange's committee structure and rules,9 as described below.

    6 The Exchange is deleting text from related provisions of Rules 8310, IM-8310-3(c)(1), 9120(r), 9241(c), 9290, 9311(b), 9312(b), and 9360 that also expired on June 23, 2009 and is inserting new text identical to what was deleted.

    7 As a consequence of the expiration of the pilot rendering the existing related rule text void, in certain cases the Exchange is deleting the void text and reinserting identical rule text thereafter so the text may have effect once again. For example, the Exchange is deleting Rule 8310(a)(6), concerning imposition of a temporary or permanent cease and desist order, and adopting a new Rule 8310(a)(6) identical to what was deleted.

    8 In 2013, FINRA consolidated the publication standards for expedited proceeding decisions, including under FINRA Rule 9556, in FINRA Rule 8313(a)(3) and consequently amended FINRA Rule 9556 to remove paragraph (h) “Notice to Membership” from the rule. See Securities Exchange Act Release No. 69825 (June 21, 2013), 78 FR 38771 (June 27, 2013) (SR-FINRA-2013-018). The Exchange did not have such a provision in its Rule 9556. The Exchange's disclosure obligations are provided under IM-8310-3, including the Exchange's disclosure obligations related to expedited proceedings. See IM-8310-3(c).

    9 The Exchange is replacing references to FINRA and FINRA staff with references to the Exchange and Exchange staff, which are the appropriate analogous parties at BX. The Exchange is also replacing FINRA text that states “Chief Executive Officer or such other senior officer as the Chief Executive Officer may designate” with “Chief Regulatory Officer,” which is the Exchange officer vested with the authority described under the rules. For example, old Rules 9556(a) and 9860 vested authority with the Chief Regulatory Officer to authorize notice and initiation of proceedings, respectively, whereas the analogous FINRA rules authorize its Chief Executive Officer or such other senior officer as the Chief Executive Officer may designate instead. Last, the Exchange is adding clarifying language to Rule 9810 to make it clear that initiation of a proceeding must not only be authorized by FINRA's Chief Executive Officer or such other senior officer as the Chief Executive Officer may designate, but also BX's Chief Regulatory Officer. As a practical matter, the Chief Regulatory Officer must agree that such a proceeding should be brought pursuant to BX rules.

    2011 FINRA Rule Changes

    In 2011, FINRA amended Rules 9552(b), 9553(b), 9554(b), 9555(b), and 9556(b), all of which concern service of notice.10 Each of these rules concern [sic] the process followed when a person or entity subject to FINRA's jurisdiction fail [sic] to comply with various requirements under its rules. FINRA amended the rule provisions noted above to allow notice of failure to comply with a temporary or permanent cease and desist order to be served on counsel representing the member or person, or other person authorized to represent others under FINRA Rule 9141,11 when counsel or other person authorized to represent others under FINRA Rule 9141 agrees to accept service for the member or person.

    10 Securities Exchange Act Release No. 60306 (January 4, 2012), 77 FR 1524 (January 10, 2012) (SR-FINRA-2011-044). FINRA also amended other rules in the FINRA Rule 9000 Series not addressed in this filing. Id.

    11 FINRA Rule 9141, entitled “Appearance and Practice; Notice of Appearance,” provides, among other things, what is permissible in terms of representation before an Adjudicator. Exchange Rule 9141 is consistent with FINRA Rule 9141.

    2015 FINRA Rule Changes

    In 2015, FINRA made significant changes to its temporary and permanent cease and desist rules.12 FINRA lowered the evidentiary standard to obtain a temporary cease and desist order, adopted a new expedited proceedings [sic] to address situations involving repeated violations of temporary or permanent cease and desist orders, and made a series of rule amendments to the temporary cease and desist order rules under FINRA Rule Series 9800, the expedited proceedings rules under FINRA Rule Series 9550,13 and FINRA's Code of Procedure (FINRA Rule Series 9000) that harmonize service provisions in temporary cease and desist proceedings and expedited proceedings, ease administrative burdens in temporary cease and desist proceedings, and clarify the process by which permanent cease and desist orders may be imposed.

    12 Securities Exchange Act Release No. 75629 (August 6, 2015), 80 FR 48379 (August 12, 2015) (SR-FINRA-2015-019).

    13 FINRA amended its Rule 9551 “Failure to Comply with Public Communications Standards.” BX does not have such a rule (BX Rule 9551 is held in reserve) and is thus not incorporating those changes. In a related change, the Exchange is also amending its Rule 9559 to delete the references to Rule 9551, which were erroneously included in the rule.

    (i) Evidentiary Standard for Imposing a Temporary Cease and Desist Order

    FINRA amended FINRA Rule 9840(a)(1) to change the evidentiary standard applied by Hearing Panels in issuing a temporary cease and desist order. Specifically, FINRA changed the standard for issuing a temporary cease and desist order from “by a preponderance of the evidence that the alleged violation specified in the notice has occurred” to a “showing of a likelihood of success on the merits.” FINRA noted that it believed that the “preponderance of the evidence” standard set too high an evidentiary threshold for this critical investor-protection tool, and noted that it is the identical standard for proving a violation in the underlying disciplinary proceeding that must be pursued at the same time.14 Thus, to obtain a temporary cease and desist order—and thereby prevent the likely and significant dissipation or conversion of assets or other significant harm to investors—FINRA's prosecuting department had to make an evidentiary presentation in the temporary cease and desist proceeding that is similar in extent to its evidentiary presentation in the subsequent underlying disciplinary proceeding, but in an expedited manner.

    14See Securities Exchange Act Release No. 75333 (June 30, 2015), 80 FR 38783 (July 7, 2015) (Notice of Filing File No. SR-FINRA-2015-019) at 38784.

    FINRA also made a corresponding amendment to FINRA Rule 9840(a)(2). Prior to the amendment, FINRA Rule 9840(a)(2) provided that a temporary cease and desist order shall be imposed if the Hearing Panel finds that the violative conduct or continuation thereof is likely to result in significant dissipation or conversion of assets or other significant harm to investors prior to the completion of the underlying proceeding. The 2015 rule change modified this requirement to apply to the “alleged” violative conduct or continuation thereof, to be consistent with the proposed change to the evidentiary standard.

    (ii) Failures To Comply With Temporary Cease and Desist Orders and Permanent Cease and Desist Orders (FINRA Rule 9556)

    FINRA also made amendments to FINRA Rule 9556, which sets forth expedited procedures for enforcing violations of FINRA-issued temporary and permanent cease and desist orders. FINRA was concerned that their [sic] existing expedited procedures may permit cease and desist orders to be circumvented without any real threat of a sanction.15 Thus, FINRA amended FINRA Rule 9556 to adopt a new paragraph (h) to permit its staff (with prior authorization from FINRA's Chief Executive Officer or other designated senior officer) to institute a new kind of expedited proceeding if the subject of a temporary or permanent cease and desist order fails to comply with that order and has previously been served with a notice under Rule 9556(a) for failure to comply with any provision of the same temporary or permanent cease and desist order. FINRA adopted the change to prevent a respondent from abusing the existing process by repeatedly violating a cease and desist order and curing that violation before the effective date of any FINRA Rule 9556 notice,16 without being subject to the immediate sanctions or review by the Office of Hearing Officers for a prolonged period. FINRA noted in its filing that the new FINRA Rule 9556(h) proceeding differs from other FINRA Rule 9556 expedited proceedings in other respects that reflect the response that FINRA believes is warranted for situations involving repeated violations of temporary or permanent cease and desist orders.17 These differences include the following:

    15Id. at 38785.

    16 Under the then-current FINRA Rule 9556, if a member or person failed to comply with a temporary or permanent cease and desist order, FINRA staff (with prior authorization from FINRA's Chief Executive Officer or other designated senior officer) may have issued a notice stating that the failure to comply within seven days will result in a suspension or cancellation of membership or a suspension or bar from associating with any member and also would have stated what the respondent must do to avoid such action.

    17See supra note 14 at 38785.

    • A FINRA Rule 9556(h) proceeding could be initiated only if the respondent has previously been served, under FINRA Rule 9556(a), with a notice for failing to comply with any provision of the same temporary or permanent cease and desist order;

    • FINRA's prosecuting department would initiate a FINRA Rule 9556(h) proceeding by filing a petition with FINRA's Office of Hearing Officers (and serving the respondent) that seeks the imposition of sanctions for the violation (rather than issuing a notice to the respondent);

    • FINRA's prosecuting department would seek the imposition of any fitting sanction at the outset of the FINRA Rule 9556(h) proceeding (in contrast to other FINRA Rule 9556 expedited proceedings, where the recipient of a notice is not subject to the imposition of any fitting sanction unless such recipient opts for a hearing);

    • a hearing is required in a FINRA Rule 9556(h) proceeding;

    • the hearing for a FINRA Rule 9556(h) proceeding must be held in a condensed time frame (ten business days after a respondent is served the petition, versus other Rule 9556 proceedings which require a respondent to request a hearing within seven business days after service of a notice instituting a proceeding and require hearings to be held within 14 days after a request for a hearing is filed); 18

    18See FINRA Rule 9559(f)(2) and (3); FINRA Rule 9556(e).

    • a FINRA Rule 9556(h) proceeding is presided over by a Hearing Officer,19 rather than a Hearing Panel; 20 and

    19 As defined by FINRA Rule 9120(r).

    20 As defined by FINRA Rule 9120(s). See FINRA Rule 9559(d)(1) and (2) for a description of the appointment and authority [sic] of a Hearing Officer and/or Hearing Panel in expedited proceedings.

    • the Hearing Officer may issue default decisions in FINRA Rule 9556(h) proceedings.21

    21See FINRA Rule 9559(m)(2).

    Under amended FINRA Rule 9556(h)(4), the FINRA department that filed the petition can withdraw it without prejudice and shall be permitted to refile a petition based on allegations concerning the same facts and circumstances that are set forth in the withdrawn petition. FINRA noted that this provision provides it the flexibility to withdraw the petition where, for instance, the respondent evidences a good faith intent to comply with the temporary or permanent cease and desist order without the need to adjudicate the petition, while preserving FINRA's right to refile the petition if the respondent fails to do so.22

    22See supra note 14 at 38785.

    (iii) Service Provisions in Temporary Cease and Desist Proceedings and Expedited Proceedings

    FINRA also made the rules that govern service of documents in temporary cease and desist proceedings and the eight different types of expedited proceedings under the Rule 9550 Series more consistent.23 Prior to the changes, some provisions of these rules explicitly addressed service by facsimile and on counsel, while some did not. FINRA's amendments explicitly allow service by facsimile and on counsel across all temporary cease and desist and expedited proceedings, noting that doing so removed unnecessary burdens and inefficiencies. FINRA also amended its rules to permit service by email for all temporary cease and desist proceedings and expedited proceedings. FINRA noted that email service would allow parties to receive information quickly, which is particularly important in these types of proceedings, considering the short time frames involved.24 As part of the changes allowing service by email, FINRA also now requires duplicate service through some other means such as overnight courier or personal delivery and made changes to its Rule 9550 Series to reflect this requirement.

    23 The Exchange notes that in SR-FINRA-2015-019 FINRA replaced references to “contact questionnaires” with reference to the “FINRA Contact System,” FINRA's proprietary system that facilitates member firm reporting of key contacts to FINRA. Exchange members are required to use the FINRA Contact System to report to the Exchange all contact information required by the Exchange and update its required contact information promptly. See Rule 1160. Under the FINRA Rule 9550 Series, the rules cite Article 4, Section III of the FINRA By-Laws as the authority pursuant to which its members have an obligation to report required contact information to it via the FINRA Contact System, whereas the Exchange's authority is pursuant to Rule 1160, as noted above. Thus, the Exchange is instead referencing Rule 1160 in the Rule 9550 Series as the authority pursuant to which members have the reporting obligation.

    24See supra note 14 at 38785-6.

    (iv) Clarifying FINRA's Authority To Impose Permanent Cease and Desist Orders

    FINRA clarified its rules concerning the process for imposing permanent cease and desist orders in disciplinary proceedings. FINRA noted that when it obtained the authority to impose temporary cease and desist orders, it also obtained the authority to impose permanent cease and desist orders.25 Thus, the clarifying changes were procedural in nature and did not reflect any change to FINRA's prior representations concerning the context in which it would seek permanent cease and desist orders.

    25See supra note 14 at 38786.

    (v) Administrative Changes to Temporary Cease and Desist Proceedings

    FINRA also expanded the pool of persons eligible to serve on hearing panels to include those who may serve on hearing panels for disciplinary matters, as provided under FINRA Rules 9231(b) and 9559(d)(2).26 Specifically, FINRA amended its Rule 9820 to provide that the potential panelists for the Hearing Panels that preside over temporary cease and desist proceedings to [sic] include persons who currently serve or previously served on a District Committee; 27 previously served on the National Adjudicatory Council; 28 previously served on a disciplinary subcommittee of the National Adjudicatory Council or the National Business Conduct Committee;29 previously served as a member of the Board of Directors of FINRA Regulation or of the Board of Governors of FINRA; or currently serve or previously served on a committee appointed or approved by the Board of Governors of FINRA, but do not serve currently on the National Adjudicatory Council or as a member of the Board of Directors of FINRA Regulation or of the Board of Governors of FINRA. The amendment to FINRA Rule 9820 also required that each panelist be associated with a member of FINRA or retired therefrom. FINRA noted that, while its Office of Hearing Officers has presided over only a limited number of temporary cease and desist proceedings, those experiences have revealed that the narrowly circumscribed set of potential panelists can impede the recruitment of Hearing Panel members, especially considering that the expedited nature of temporary cease and desist proceedings will already preclude many from being able to serve.30 FINRA also noted that it had concerns that the small pool of potential panelists will often make it difficult to recruit hearing panelists who can serve on both the temporary cease and desist proceeding and the subsequent underlying disciplinary proceeding, as well as any related expedited proceeding under FINRA Rule 9556.31

    26 FINRA harmonized the categories of individuals eligible for appointment as a Hearing Panelist under FINRA Rule 9820 with FINRA Rule 9231(b) (providing that each panelist shall be associated with a member of FINRA or retired therefrom and that the pool of panelists for disciplinary proceedings includes current or previous members of District Committees, former members of the National Adjudicatory Council, past members of disciplinary subcommittees of the National Adjudicatory Council or the National Business Conduct Committee, past members of the Board of Directors of FINRA Regulation or past members of the Board of Governors of FINRA, and current or previous members of committees appointed or approved by the Board of Governors of FINRA); FINRA Rule 9559(d)(2) (providing for the same pool for FINRA Rule 9556 expedited proceedings).

    27 As defined by FINRA Rule 9120(g).

    28See By-Laws of FINRA Regulation, Inc., Article V, National Adjudicatory Council.

    29 The predecessor to the FINRA National Adjudicatory Council.

    30See supra note 14 at 38786.

    31Id.

    The Exchange is proposing to, likewise, expand the categories of individuals eligible to participate as Hearing Panelists. Like FINRA, the Exchange is harmonizing the categories of eligible individuals with the criteria under Rules 9231(b) and 9559(d)(2).32 Thus, the Exchange is allowing the Chief Hearing Officer to select as a Panelist pursuant to proposed Rule 9820(a) a person who: previously served on the Exchange Review Council; 33 previously served on a disciplinary subcommittee of the Exchange Review Council, including a Subcommittee, an Extended Proceeding Committee,34 or their predecessor subcommittees; previously served as a Director, or as a Governor of the Exchange prior to its acquisition by The NASDAQ OMX Group, Inc., but does not serve currently in that position; or is a FINRA Panelist approved by the Exchange Board at least annually, including a member of FINRA's Market Regulation Committee or a person who previously served on the Market Regulation Committee not earlier than four years before the date the complaint was served upon the Respondent who was the first served Respondent in the disciplinary proceeding for which the Hearing Panel or the Extended Hearing Panel is being appointed, or from other sources the Board deems appropriate given the responsibilities of Panelists.

    32 Like FINRA's Rule 9559(d)(2), Rule 9559(d)(2) provides for the same pool for Rule 9556 expedited proceedings) [sic]. Supra note 26.

    33See By-Laws of NASDAQ BX, Inc., Article VII, Exchange Review Council.

    34 As defined by Rule 9120(n).

    FINRA's proposed changes also eased other administrative burdens created by the shortened time frame of a temporary cease and desist proceeding. Those proposed changes were aimed at improving Hearing Panels' and parties' ability to prepare for hearings and giving Hearing Officers some needed flexibility. For example, under FINRA Rule 9830(a) prior to the 2015 amendments a Hearing Officer was not able to extend a hearing date in a temporary cease and desist proceeding unless all parties consented to the extension. The requirement to obtain the parties' consent was problematic in instances whereby the Office of Hearing Officers, rather than one of the parties, had a need for an extension, such as when it encounters difficulty in quickly appointing a Hearing Panel. To address this problem, FINRA amended its Rule 9830(a) to allow hearing deadlines to be extended by the Chief Hearing Officer or Deputy Chief Hearing Officer for good cause shown.

    FINRA also made similar amendments to the process by which extensions are obtained to the deadlines for issuing decisions in temporary cease and desist proceedings and responding to requests to modify, set aside, limit, or suspend a temporary cease and desist order. Before the amendments to FINRA Rule 9840(a), the Hearing Panel's deadline for issuing its written decision could not be extended, even where there was good cause, without the consent of the parties. Likewise, prior to amending FINRA Rule 9850, a Hearing Panel's deadline for responding to an application to have a temporary cease and desist order modified, set aside, limited, or suspended could not be extended, even where there was a good cause, without the consent of the Parties. To allow a Hearing Panel some flexibility where there is a need for additional time to prepare its decision or respond to a FINRA Rule 9850 request (e.g., when a member of the Hearing Panel becomes ill, where the temporary cease and desist proceeding is highly complex), FINRA amended FINRA Rules 9840(a) and 9850 to permit the deadlines for issuing decisions and responding to FINRA Rule 9850 applications to be extended by the Chief Hearing Officer or Deputy Chief Hearing Officer for good cause shown.

    To further address the burdens created by the short time frame of temporary cease and desist proceedings, FINRA amended its rules to: (i) Require FINRA's prosecuting department to file a memorandum of points and authorities with the notice initiating a temporary cease and desist proceeding; and (ii) permit the Hearing Officer to order a party to furnish to all other parties and the Hearing Panel such information as deemed appropriate, including any or all of the pre-hearing submissions described in FINRA Rule 9242(a). FINRA noted that requiring its prosecuting department to file a memorandum of points and authorities at the initiation of the proceeding provides more context to the allegations and set [sic] forth legal authorities on which the notice seeking a temporary cease and desist order is premised.35 FINRA believed that the change would, in turn, facilitate a more efficient process and improve the quality of the hearing through more thorough preparation, which are the same goals of the pre-hearing processes in FINRA disciplinary proceedings. FINRA also noted that requiring the filing of a memorandum of points and authorities at the initiation of a temporary cease and desist proceeding also enhances disclosure of the prosecuting department's allegations, which would inure to the benefit of the respondents and further increases the fairness of the proceeding.36 Last, FINRA noted that all of these objectives are served by authorizing Hearing Officers to order a party to furnish other pre-hearing submissions.37

    35See supra note 14 at 38787.

    36Id.

    37Id.

    FINRA also proposed Rule 9840(e), which is a delivery requirement that requires a member firm that is the subject of a temporary cease and desist order to provide a copy of the order to its associated persons, within one business day of receiving it. Considering the significant nature of the harm that a temporary cease and desist order is aimed at stopping, FINRA believed that there is a heightened need to ensure that the persons who may act on behalf of the member firm are made aware of the contents of a temporary cease and desist order imposed against the member firm and the delivery requirement furthers that goal.38

    38 Similarly, FINRA made related amendments to FINRA Rules 9269, 9270, and 9840 to require that the Office of Hearing Officers, the Department of Enforcement, the Department of Market Regulation, or the General Counsel, as appropriate, disseminate default decisions, orders of acceptance of settlement, and temporary cease and desist orders to each member of FINRA with which a respondent is associated. FINRA noted that these dissemination requirements are intended to ensure that a respondent's member firm is made aware of the disciplinary history of its associated persons, regardless of the specific disciplinary procedure involved. See supra note 14 at 38787, n. 15. FINRA also noted that the amendments are consistent with other FINRA Rules that already require the Office of Hearing Officers, the National Adjudicatory Council, or the Board of Governors of FINRA to provide copies of a decision issued by a Hearing Panel, an Extended Hearing Panel, the National Adjudicatory Council, or the Board of Governors of FINRA to each member firm with which a respondent is associated. Id.; see also FINRA Rules 9268(d), 9349(c), 9351(e). The Exchange is adopting these amendments to Rules 9269, 9270, and 9840.

    FINRA's rule change clarified the following additional three issues: (1) How settlements may be approved in temporary cease and desist proceedings; (2) which Hearing Panel has jurisdiction to preside over applications filed under FINRA Rule 9850 to modify, set aside, limit or suspend temporary cease and desist orders that are filed after a Hearing Panel has already been appointed in the underlying disciplinary proceeding; and (3) whether temporary and permanent cease and desist orders imposed against a firm also apply to successors of that firm.

    With respect to the first issue, new FINRA Rule 9810(c) established that, if the parties agree to the terms of a proposed temporary cease and desist order, the Hearing Officer has the authority to approve and issue the order. On the second issue, amended FINRA Rule 9850 provided that the Hearing Panel that presided over the temporary cease and desist order proceeding shall retain jurisdiction to review a FINRA Rule 9850 application unless at the time the application is filed a Hearing Panel has already been appointed in the underlying disciplinary proceeding commenced under FINRA Rule 9211, in which case the Hearing Panel appointed in the disciplinary proceeding has jurisdiction. As to the third issue, amended FINRA Rule 9840(b) and new Rule 9291(a) established that when a temporary or permanent cease and desist order is imposed against a member firm, it also applies to any successor of the member firm.

    Finally, FINRA amended certain provisions of FINRA Rule 9120. FINRA amended FINRA Rule 9120(s), “Hearing Panel,” to include an Adjudicator that is constituted under Rule 9231 to conduct a disciplinary proceeding governed by the Rule 9800 Series. The Exchange is adopting this amendment in its Rule 9120(s).

    FINRA also amended FINRA Rule 9120(t), “Interested Staff,” to: (1) Insert “or petition” under paragraph (2)(A) of the rule, thus expanding the definition to include FINRA staff that filed a petition in a proceeding under the Rule 9520 Series or Rule 9550 Series; and (2) include a new paragraph (4) to list FINRA staff that are defined as Interested Staff in a proceeding under the FINRA Rule 9800 Series. The Exchange is also adopting the amendment to its Rule 9120(t) “Interested Staff,” but is expanding the definition to also include BX Regulation employees who directly participated in the authorization of the notice that initiates a temporary cease and desist proceeding, or directly participated in an examination, investigation, prosecution, or litigation related to a specific temporary cease and desist proceeding, under new paragraphs (t)(4)(C) and (D) of the rule.

    FINRA also amended FINRA Rule 9120(w), “Panelists,” to include references to Panelists in the Rule 9550 Series, and the Rule 9800 Series within the definition provided by the rule. The Exchange is adopting this amendment in Rule 9120(z). FINRA also amended Rule 9120(z) “Respondent” to define a Respondent in a proceeding governed by the Rule 9800 Series to mean a FINRA member or associated person that has been served a notice initiating a cease and desist proceeding. The Exchange is adopting this amendment in Rule 9120(bb) “Respondent.”

    The Exchange believes that the changes made by FINRA in 2011 and 2015, as described above, improve the cease and desist authority as well as the service provisions. Consequently, the Exchange is proposing to adopt the changes, as described above, as its own.

    Other Non-Substantive Changes

    The Exchange is also proposing to make other non-substantive changes to its rules to correct misuse of the word “FINRA,” which were introduced erroneously when the Exchange adopted the rules. Specifically, the Exchange is proposing to amend Rule 9555(g) to remove reference to FINRA and replace it with reference to the Exchange to make clear that it is BX's departments that should be contacted. The Exchange is also replacing references to FINRA's rules under new Rule 9810 with references to analogous rules of BX. Specifically, BX is replacing reference to FINRA Rule 2010 with reference to Equity Rule 2110, reference to FINRA Rule 2020 with reference to Equity Rule 2120, and FINRA Rule 4330 with reference to Equity Rule 2150.39 The Exchange is also replacing the word “FINRA” with “Exchange” in adopting Rule 9840(d) to make it clear that the rule applies to BX members. Last, the Exchange is proposing not to include the word “FINRA” prior to “Rule 9211” in adopting Rule 9850 to make it clear that the rule referenced is BX's rule, not FINRA's.

    39 BX notes that the BX rules cited in new Rule 9810 are the same as those that were cited under old Rule 9810(a). BX further notes that under FINRA Rule 9810(a), FINRA cites to FINRA Rules 2010, 2020, and 4330. BX is replacing reference to the FINRA rules with reference to BX's analogous Equity Rules 2110, 2120 and 2150, as was the case in old Equity Rule 9810(a). While the provisions of Equity Rules 2110 and 2120 closely mirror FINRA Rules 2010 and 2020, Equity Rule 2150 is significantly different than FINRA Rule 4330. FINRA Rule 4330 concerns the permissible use of customers' margin securities while Equity Rule 2150 requires a member and persons associated with a member to comply with FINRA's Rule 2150. FINRA Rule 2150 is titled “Improper Use of Customers' Securities or Funds; Prohibition Against Guarantees and Sharing in Accounts” and, among other things, prohibits members or persons associated with a member from making improper use of a customer's securities or funds, guaranteeing a customer against loss in connection with any securities transaction or in any securities account of such customer, and setting forth what is permissible in terms of sharing in profits and losses in a customer account. BX believes that Equity Rule 2150 is the appropriate rule cite under new Rule 9810(a) for purposes of alleged violations concerning misuse or conversion of customer assets.

    2. Statutory Basis

    The Exchange believes that its proposal is consistent with Section 6(b) of the Act,40 in general, and furthers the objectives of Section 6(b)(5) of the Act,41 in particular, in that it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general to protect investors and the public interest.

    40 15 U.S.C. 78f(b).

    41 15 U.S.C. 78f(b)(5).

    The Exchange also believes that the proposed rule is consistent with Section 6(b)(6) of the Act,42 which requires the rules of an exchange provide that its members be appropriately disciplined for violations of the Act as well as the rules and regulations thereunder, or the rules of the Exchange, by expulsion, suspension, limitation of activities, functions, and operations, fine, censure, being suspended or barred from being associated with a member, or any other fitting sanction.

    42 15 U.S.C. 78f(b)(6).

    The Exchange believes that the proposed rule change is consistent with these provisions because the proposed changes are based on the cease and desist authority that FINRA has adopted, which the Exchange believes furthers the objectives of the Act by providing it with ability to stop violative conduct that is likely to cause dissipation or conversion of assets or other significant harm to investors, and on other changes to its related rules that clarify, harmonize, and improve its disciplinary process.

    The proposed rule change will improve the Exchange's capacity to enforce compliance with applicable laws and rules by its members and persons associated with members and improving [sic] the Exchange's capability to prevent fraudulent and manipulative acts and practices. Thus, this authority is a vitally important tool to have to protect market participants.

    The Exchange acknowledges that, when used, the cease and desist authority proposed herein would significantly impact a respondent. The Exchange, however, notes that the proposed rules incorporate numerous procedural protections for respondents to ensure that the proceedings initiated under these rules are fair, including notice and an opportunity to be heard before a neutral tribunal. Moreover, the Exchange anticipates using the authority provided by these rules sparingly.

    B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The changes are being proposed to provide an important regulatory tool to the Exchange and FINRA, acting on its behalf, which will protect investors when violative conduct is being taken by a member or person associated with a member, and time is of the essence to prevent harm, or further harm, to investors.

    The proposed change does not impose a burden on competition among participants or other venues because it will only be used in circumstances where investor harm is imminent or is occurring. Thus, to the extent a burden on competition results from use of the authority provided by the proposed rules, such burden is necessary to protect investors, which is consistent with the purposes of the Act.

    C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

    III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

    Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act 43 and subparagraph (f)(6) of Rule 19b-4 thereunder.44

    43 15 U.S.C. 78s(b)(3)(A)(iii).

    44 17 CFR 240.19b-4(f)(6).

    The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative upon filing. The Exchange has stated that it is requesting this waiver so that the Exchange could apply, at the earliest time possible, the authority to issue temporary cease and desist orders and explicit authority to impose permanent cease and desist orders as a remedy in disciplinary cases. The Exchange explained that although it does not anticipate that it will be necessary to use this authority, when its cease and desist authority is needed, the Exchange must be able to move swiftly to prevent or stop investor harm. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because this waiver will enable the Exchange to utilize the temporary or permanent cease and desist authority described herein without delay in the unlikely event that circumstances arise that warrant its use. For this reason, the Commission hereby waives the 30-day operative delay and designates the proposed rule change as operative upon filing.45

    45 For purposes only of waiving the 30-day operative delay, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f).

    At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.

    IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:

    Electronic Comments

    • Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or

    • Send an email to [email protected] Please include File Number SR-BX-2016-055 on the subject line.

    Paper Comments

    • Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

    All submissions should refer to File Number SR-BX-2016-055. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-BX-2016-055, and should be submitted on or December 6, 2016.

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.46

    46 17 CFR 200.30-3(a)(12).

    Brent J. Fields, Secretary.
    [FR Doc. 2016-27365 Filed 11-14-16; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79264; File No. SR-BatsEDGX-2016-60] Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing of a Proposed Rule Change in Connection With the Proposed Corporate Transaction Involving Bats Global Markets, Inc. and CBOE Holdings, Inc. November 8, 2016.

    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),1 and Rule 19b-4 thereunder,2 notice is hereby given that on November 2, 2016, Bats EDGX Exchange, Inc. (the “Exchange” or “EDGX”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II and III below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.

    1 15 U.S.C. 78s(b)(1).

    2 17 CFR 240.19b-4.

    I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change

    The Exchange filed a proposed rule change (the “Proposed Rule Change”) in connection with the proposed corporate transaction (the “Transaction”), as described in more detail below, involving its ultimate parent company, Bats Global Markets, Inc. (“BGM”), CBOE Holdings, Inc. (“CBOE Holdings”), and two wholly owned subsidiaries of CBOE Holdings, CBOE Corporation and CBOE V, LLC (“CBOE V”). CBOE Holdings is the parent company of Chicago Board Options Exchange, Incorporated (“CBOE”) and C2 Options Exchange, Incorporated (“C2”), each a national securities exchange registered with the Commission pursuant to Section 6(a) of the Act,3 and CBOE Futures Exchange, LLC (“CBOE Futures,” and together with CBOE and C2, the “CBOE Exchanges”), a national securities exchange that lists or trades security-futures products notice-registered with the Commission pursuant to Section 6(g) of the Act.4

    3 15 U.S.C. 78f(a).

    4 15 U.S.C. 78f(g).

    Upon completion of the mergers described below that effectuate the Transaction (the “Closing”), the business of BGM will be carried on by CBOE V. CBOE V, rather than BGM, will be the direct parent company of Direct Edge LLC (“Direct Edge”), which is the direct parent company of the Exchange. As a result, CBOE Holdings will become the ultimate parent company of Direct Edge and of the Exchange.

    To effectuate the Transaction, the Exchange seeks to obtain the Commission's approval of: (i) The resolutions of BGM's board of directors (the “BGM Board”) waiving certain provisions of the Amended and Restated Certificate of Incorporation of BGM (the “BGM Charter”) and making certain related determinations regarding CBOE Holdings and the impact of the Transaction on the Exchange (the “Resolutions”); (ii) the CBOE Holdings Second Amended and Restated Certificate of Incorporation (the “CBOE Holdings Charter”) and the CBOE Holdings Third Amended and Restated Bylaws (the “CBOE Holdings Bylaws”); (iii) the Certificate of Formation of CBOE V (the “CBOE V Certificate”) and the Limited Liability Company Operating Agreement of CBOE V (the “CBOE V Operating Agreement”); (iv) the proposed amendments to the Amended and Restated Limited Liability Company Operating Agreement of Direct Edge (the “Direct Edge Operating Agreement”); (v) the proposed amendments to the Fifth Amended and Restated Bylaws of the Exchange (the “Exchange Bylaws”); and (vi) the proposed amendments to EDGX Rules 2.3, 2.10 and 2.12 (the “Exchange Rules”).

    The text of the proposed rule change is available at the Exchange's Web site at www.batstrading.com, at the principal office of the Exchange, and at the Commission's Public Reference Room.

    II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.

    A. Self-Regulatory Organization's Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change 1. Purpose

    The Exchange submits this Proposed Rule Change to seek the Commission's approval of the organizational and governance documents of the Exchange and its current and proposed future parent companies, and related actions that are necessary in connection with the Closing of the Transaction, as described below.

    Other than as described herein and set forth in Exhibits 5A through 5H, the Exchange will continue to conduct its regulated activities (including operating and regulating its market and members) in the manner currently conducted, and will not make any changes to its regulated activities in connection with the Transaction. Except as set forth in this Proposed Rule Change, the Exchange is not proposing any amendments to its trading and regulatory rules at this time. If the Exchange determines to make any such changes, it will seek the approval of the Commission to the extent required by the Act, and the Commission's rules thereunder, and the Rules of the Exchange.

    1. Current Corporate Structures

    The Exchange, Bats BZX Exchange, Inc. (“BZX”), Bats BYX Exchange, Inc. (“BYX”) and Bats EDGA Exchange, Inc. (“EDGA,” and together with the Exchange, BZX and BYX, the “Bats Exchanges”) are each Delaware corporations that are national securities exchanges registered with the Commission pursuant to Section 6(a) of the Act.5

    5 15 U.S.C. 78f(a).

    The Exchange and EDGA are each direct, wholly owned subsidiaries of Direct Edge, a Delaware limited liability company that is a direct, wholly owned subsidiary of BGM. BZX and BYX are direct, wholly owned subsidiaries of Bats Global Markets Holdings, Inc. (“BGM Holdings”), a Delaware corporation that is a direct, wholly owned subsidiary of BGM. In addition to certain other subsidiaries not registered with the Commission in any capacity, BGM Holdings also owns 100 percent of the equity interest in Bats Trading, Inc. (“Bats Trading”), a Delaware corporation that is a broker-dealer registered with the Commission that provides routing services outbound from, and in certain instances inbound to, each Bats Exchange. BGM, a Delaware corporation, is a publicly traded company listed on BZX.

    CBOE Holdings, a Delaware corporation, is a publicly traded company listed on The NASDAQ Stock Market. CBOE Holdings owns 100 percent of the equity interest in the CBOE Exchanges.

    In contemplation of the Transaction, CBOE Holdings formed two additional entities, CBOE Corporation, a Delaware corporation, and CBOE V, a Delaware limited liability company, each of which are direct, wholly owned subsidiaries of CBOE Holdings. Each of CBOE Corporation and CBOE V currently have no material assets or conduct any operations.

    2. The Transaction

    On September 25, 2016, BGM, CBOE Holdings, CBOE Corporation and CBOE V entered into an Agreement and Plan of Merger (the “Merger Agreement”). Pursuant to and subject to the terms of the Merger Agreement, at the Closing, among other things:

    (i) CBOE Corporation will be merged with and into BGM, whereupon the separate existence of CBOE Corporation will cease and BGM will be the surviving company (the “Merger”);

    (ii) by virtue of the Merger and without any action required on the part of BGM, CBOE Corporation or any holder of BGM or CBOE Corporation stock, each share of BGM common stock (whether voting or non-voting) issued and outstanding (with the exception of shares owned by CBOE Holdings, BGM or any of their respective subsidiaries and certain shares held by persons that are entitled to and properly demand appraisal rights) will be converted into the right to receive a particular number of shares of CBOE Holdings and/or cash, at the election of the holder of such share of BGM common stock (the “Merger Consideration”), and each share of CBOE Corporation issued and outstanding will be converted into one share of BGM, such that BGM will become a wholly owned subsidiary of CBOE Holdings; and

    (iii) immediately following the Merger, BGM will be merged with and into CBOE V, whereupon the separate existence of BGM will cease and CBOE V will be the surviving company (the “Subsequent Merger”).

    Upon the Closing, the Direct Edge Operating Agreement, the Exchange Bylaws and the Exchange Rules will be amended to take into account the post-Closing corporate structure, described below.

    3. Post-Closing Corporate Structure

    As a result of the Transaction, BGM will cease to exist and the business of BGM will be carried on by CBOE V, which is a wholly owned subsidiary of CBOE Holdings.6 CBOE V will own 100 percent of the equity interest in Direct Edge and BGM Holdings. Direct Edge will continue to own 100 percent of the equity interest in the Exchange and EDGA. BGM Holdings will continue to own 100 percent of the equity interest in BZX, BYX, Bats Trading, and certain other subsidiaries not registered with the Commission in any capacity.7

    6 In connection with the Transaction, CBOE Holdings agreed in the Merger Agreement to take all requisite actions so, as of the Closing, the CBOE Holdings Board will include three individuals designated by BGM who (1) are serving as BGM directors immediately prior to the Closing and (2) comply with the policies (including clarifications of the policies provided to BGM) of the Nominating and Governance Committee of the CBOE Holdings Board as in effect on the date of the Merger Agreement and previously provided to BGM (each of whom will be appointed to the CBOE Holdings Board as of the Closing). The CBOE Holdings Board currently consists of 14 directors. The Exchange expects three current CBOE Holdings directors to resign effective prior to the Closing and the remaining CBOE Holdings directors to fill those vacancies with the three BGM directors designated by BGM.

    7 As described above, the Transaction will result in a change of ownership of Bats Trading, which is a member of the Financial Industry Regulatory Authority, Inc. (“FINRA”). The Exchange understands that, pursuant to NASD Rule 1017, Bats Trading is seeking approval for this change of ownership from FINRA.

    4. Ownership and Voting Limitations of BGM; Resolutions

    The BGM Charter provides that (i) no Person,8 either alone or together with its Related Persons,9 may own, directly or indirectly, of record or beneficially, shares constituting more than 40 percent of any class of its capital stock, and no Exchange Member, either alone or together with its Related Persons, may own, directly or indirectly, of record or beneficially, shares constituting more than 20 percent of any class of its capital stock (collectively, the “BGM Ownership Limitation”); and (ii) subject to certain exceptions, no Person, either alone or together with its Related Persons, at any time, may, directly, indirectly or pursuant to any of various arrangements, vote or cause the voting of shares or give any consent or proxy with respect to shares representing more than 20 percent of the voting power of its then issued and outstanding capital stock (the “BGM Voting Limitation”).10 Purported transfers that would result in a violation of the BGM Ownership Limitation are not recognized by BGM to the extent of any ownership in excess of the BGM Ownership Limitation, and purported voting or voting arrangements in violation of the BGM Voting Limitation are not honored by BGM to the extent of any voting in excess of the limitation.11

    8 The BGM Charter generally defines a “Person” as a natural person, partnership, corporation, limited liability company, entity, government, or political subdivision, agency or instrumentality of a government. See BGM Charter, Art. FIFTH, para. (a)(i).

    9 The BGM Charter generally defines a “Related Person” as, with respect to any Person, (i) any “affiliate” of such Person (as defined in Rule 12b-2 under the Act); (ii) any other Person with which such first Person has any agreement, arrangement or understanding (whether or not in writing) to act together for the purpose of acquiring, voting, holding or disposing of shares of the capital stock of BGM; (iii) in the case of a Person that is a company, corporation or similar entity, any executive officer (as defined under Rule 3b-7 under the Act) or director of such Person and, in the case of a Person that is a partnership or limited liability company, any general partner, managing member or manager of such Person, as applicable; (iv) in the case of any Person that is a registered broker or dealer that has been admitted to membership in any of the Bats Exchanges (for purposes of this definition of “Related Person,” each such national securities exchange shall be referred to generally as an “Exchange” and any member of such Exchange, an “Exchange Member”), any Person that is associated with the Exchange Member (as determined using the definition of “person associated with a member” as defined under Section 3(a)(21) of the Act); (v) in the case of a Person that is a natural person and Exchange Member, any broker or dealer that is also an Exchange Member with which such Person is associated; (vi) in the case of a Person that is a natural person, any relative or spouse of such Person, or any relative of such spouse who has the same home as such Person or who is a director or officer of BGM or any of its parents or subsidiaries; (vii) in the case of a Person that is an executive officer (as defined under Rule 3b-7 under the Act) or a director of a company, corporation or similar entity, such company, corporation or entity, as applicable; and (viii) in the case of a Person that is a general partner, managing member or manager of a partnership or limited liability company, such partnership or limited liability company, as applicable. See BGM Charter, Art. FIFTH, para. (a)(ii).

    10See BGM Charter, Art. FIFTH, para. (b).

    11See BGM Charter, Art. FIFTH, para. (d).

    However, the BGM Charter provides that each of the BGM Ownership Limitation and the BGM Voting Limitation may be waived (except with respect to Exchange Members and their Related Persons) pursuant to a resolution duly adopted by the BGM Board if, in connection with taking such action, the BGM Board states in such resolution that it is the determination of the BGM Board that the waiver:

    • Will not impair the ability of each Bats Exchange to carry out its functions and responsibilities as an “exchange” under the Act and the rules and regulations promulgated thereunder;

    • is otherwise in the best interests of BGM, its stockholders, and each Bats Exchange;

    • will not impair the ability of the Commission to enforce the Act and the rules and regulations promulgated thereunder; and

    • shall not be effective until it is filed with and approved by the Commission.12

    12See BGM Charter, Art. FIFTH, para. (b)(ii)(B).

    In granting such a waiver, the BGM Board has the discretion to impose on the Person and its Related Persons, such conditions and restrictions that it deems necessary, appropriate or desirable in furtherance of the objectives of the Act and the rules and regulations promulgated thereunder, and the governance of each Bats Exchange.13

    13Id.

    In addition, notwithstanding the above, the BGM Charter provides 14 that in any case where a Person, either alone or with its Related Persons, would own or vote more than the BGM Ownership Limitation or BGM Voting Limitation, respectively, upon consummation of any proposed sale, assignment or transfer of BGM's capital stock, such a transaction will not become effective until the BGM Board determines, by resolution, that such Person and its Related Persons are not subject to any “statutory disqualification,” as defined in Section 3(a)(39) of the Act.15

    14See BGM Charter, Art. FIFTH, para. (b)(iii).

    15 15 U.S.C. 78c(a)(39).

    As described above, as a result of the Merger (and prior to its separate existence ceasing as a result of the Subsequent Merger), BGM will become a wholly owned subsidiary of CBOE Holdings, such that CBOE Holdings will possess ownership and voting rights in BGM in excess of the Ownership Limitation and the Voting Limitation. In addition, as a result of the Subsequent Merger, BGM will merge with and into CBOE V, terminating the BGM Charter and becoming an entity whose ownership and voting is held entirely by CBOE Holdings, in excess of the BGM Ownership Limitation and the BGM Voting Limitation that would otherwise apply.

    The BGM Board therefore determined that in order to effect the Transaction, a waiver of the BGM Ownership Limitation and the BGM Voting Limitation with respect to CBOE Holdings would be required. To do so, the BGM Board adopted the Resolutions, attached as Exhibit 5A, making certain determinations with respect to CBOE Holdings and the Transaction that are necessary to waive the BGM Ownership Limitation and BGM Voting Limitation. Specifically, the BGM Board determined that:

    • The acquisition of the proposed ownership by CBOE Holdings in BGM will not impair the ability of each Bats Exchange to carry out its functions and responsibilities as an “exchange” under the Act and the rules and regulations promulgated thereunder, is otherwise in the best interests of BGM, its stockholders and the Bats Exchanges, and will not impair the ability of the Commission to enforce the Act and the rules and regulations promulgated thereunder;

    • the acquisition or exercise of the proposed voting rights by CBOE Holdings in BGM will not impair the ability of each Bats Exchange to carry out its functions and responsibilities as an “exchange” under the Act and the rules and regulations promulgated thereunder, is otherwise in the best interests of BGM, its stockholders and the Bats Exchanges, and will not impair the ability of the Commission to enforce the Act and the rules and regulations promulgated thereunder;

    • neither CBOE Holdings nor any of its Related Persons is subject to “statutory disqualification” within the meaning of Section 3(a)(39) of the Act; 16 and

    16Id.

    • neither CBOE Holdings nor any of its Related Persons is an Exchange Member.17

    17 In addition, the Resolutions contain a determination that the execution and delivery of the Merger Agreement by CBOE Holdings constituted notice of CBOE Holdings' intention to acquire ownership and voting rights in excess of the BGM Ownership Limitation and BGM Voting Limitation, respectively, in writing and not less than 45 days before the Closing. See BGM Charter, Art. FIFTH, para. (b)(iv). The Exchange notes that Art. FIFTH, para. (c)(i) of the BGM Charter further requires that any Person that, either alone or together with its Related Persons, owns, directly or indirectly (whether by acquisition or by a change in the number of shares outstanding), of record or beneficially, five percent or more of the then outstanding shares of capital stock of BGM must immediately upon acquiring knowledge of its ownership of five percent or more give written notice of such ownership to the BGM Board. The Merger Agreement provides that the Merger Agreement constitutes such notice with respect to certain voting agreements entered into concurrently with the Merger Agreement. See Merger Agreement, Section 5.21.

    The Exchange has reviewed such Resolutions and requests that the Commission approve such Resolutions. The Exchange believes that the Commission should approve the Resolutions, as the Transaction will not impair the ability of any Bats Exchange to carry out its functions and responsibilities as an “exchange” under the Act and the rules and regulations promulgated thereunder, or the ability of the Commission to enforce the Act and the rules and regulations promulgated thereunder. The Bats Exchanges will continue to operate and regulate their markets and members as they have done prior to the Transaction. Thus, each Bats Exchange will continue to enforce the Act, the Commission's rules thereunder, and each Exchange's own rules, in the manner it does today. Further, the Commission will continue to have plenary regulatory authority over the Bats Exchanges, as is currently the case with these entities.

    The Exchange also notes that the Resolutions reflect the determination by the BGM Board that the Transaction and CBOE Holdings' resulting ownership and voting rights in BGM following the Merger, and CBOE V's ownership and voting rights following the Subsequent Merger, are otherwise in the best interests of BGM, its stockholders and the Bats Exchanges. The Bats Exchanges will be ultimately held by an entity, CBOE Holdings, that already owns other national securities exchanges and is subject to governance documents that similarly restrict concentration of ownership and voting rights.

    As described in more detail below, the Exchange is also requesting approval of the adoption of the CBOE Holdings Charter and the CBOE Holdings Bylaws. The CBOE Holdings Charter includes a number of provisions relating to the Commission's regulatory oversight that have a similar effect as those in the BGM Charter, including the BGM Ownership Limitation and the BGM Voting Limitation. Therefore, notwithstanding the Resolutions and the Transaction, provisions similar (and, in some cases, more stringent) to the BGM Ownership Limitation and the BGM Voting Limitation will remain in place with respect to potential future transactions involving the ultimate parent company of the Bats Exchanges. This means that the Exchange ownership structure will continue to provide the Commission with appropriate oversight tools to ensure that the Commission will have the ability to enforce the Act with respect to the Exchange, its direct and indirect parent companies, and its directors, officers, employees and agents to the extent they are involved in the activities of the Exchange, and protect the independence of the Exchange's self-regulatory activities.

    The Exchange therefore requests that the Commission approve the Resolutions, attached as Exhibit 5A.

    5. CBOE Holdings Charter and CBOE Holdings Bylaws

    CBOE Holdings currently holds a direct ownership interest in the CBOE Exchanges. The Commission has previously approved the CBOE Holdings Charter and the CBOE Holdings Bylaws (collectively, the “CBOE Holdings Organizational Documents”), attached as Exhibits 5B and 5C, respectively.18

    18See Securities Exchange Act Release No. 62158 (May 24, 2010), 75 FR 30082 (May 28, 2010) (SR-CBOE-2008-88). The CBOE Organizational Documents have been subsequently amended from time to time pursuant to proposed rule changes that were filed with the Commission for immediate effectiveness. See, e.g., Securities Exchange Act Release No. 76282 (October 27, 2015), 80 FR 67464 (November 2, 2015) (SR-CBOE-2015-092).

    In connection with the Transaction, upon the Closing, CBOE Holdings will become the indirect owner (through CBOE V and Direct Edge) of the Exchange and EDGA and the indirect owner (through CBOE V and BGM Holdings) of BZX, BYX and Bats Trading (and certain other subsidiaries not registered with the Commission in any capacity).

    The CBOE Holdings Organizational Documents include various provisions relating to any “Regulated Securities Exchange Subsidiary,” which is defined as any national securities exchange controlled, directly or indirectly, by CBOE Holdings. Upon the Closing, the Exchange will be covered by the definition of Regulated Securities Exchange Subsidiary for purposes of the CBOE Holdings Organizational Documents. As a result, no amendments to the CBOE Holdings Organizational Documents will be necessary to reflect CBOE Holdings' indirect ownership of the Exchange.

    The Exchange believes that the CBOE Holdings Organizational Documents will protect and maintain the integrity of the self-regulatory functions of the Exchange and facilitate the ability of the Exchange and the Commission to carry out their regulatory and oversight obligations under the Act, as the CBOE Organizational Documents do with respect to the CBOE Exchanges.

    In addition, the CBOE Organizational Documents contain provisions, including those with respect to the following, that are similar to those contained in the BGM Charter and BGM's Amended and Restated Bylaws (the “BGM Bylaws”), which the Commission has previously found to be consistent with the Act: 19

    19See Securities Exchange Act Release No. 77464 (March 29, 2016), 81 FR 19252 (April 4, 2016) (File Nos. SR-BATS-2016-10, SR-BYX-2016-02, SR-EDGX-2016-04, and SR-EDGA-2016-01).

    Ownership and Voting Limitations. Similar to the BGM Voting Limitation and the BGM Ownership Limitation contained in the BGM Charter, the CBOE Holdings Charter limits the extent of ownership and voting rights which certain persons may possess or exercise.20 Like the BGM Charter, the CBOE Holdings Charter similarly prohibits any Person,21 together with its Related Persons,22 from exercising voting rights with respect to more than 20 percent of the then outstanding votes entitled to be cast on such matter.23 However, with respect to ownership limitations, the CBOE Holdings Charter contains a more stringent threshold than contained in the BGM Charter. Under the CBOE Holdings Charter, no Person, together with its Related Persons, is permitted at any time to beneficially own directly or indirectly shares of stock of CBOE Holdings representing in the aggregate more than 20 percent of the then outstanding shares of stock of CBOE Holdings.24 In contrast, the BGM Ownership Limitation only applies a 20 percent threshold to any Exchange Member together with its Related Persons, while applying a 40 percent threshold to any other Person together with its Related Persons. As a result, the CBOE Holdings Charter should be at least as effective as the BGM Charter at preventing any stockholder from exercising undue control over the operation of the Exchange.

    20Compare CBOE Holdings Charter, Art. SIXTH with BGM Charter, Art. FIFTH.

    21 “Person” mean an individual, partnership (general or limited), joint stock company, corporation, limited liability company, trust or unincorporated organization, or any governmental entity or agency or political subdivision thereof. See CBOE Holdings Charter, Art. FIFTH, para. (a)(iv).

    22 “Related Person” is defined in the CBOE Holdings Charter in a manner substantially the same as it is defined in the BGM Charter. See supra note 9; CBOE Holdings Charter, Art. FIFTH, para. (a)(vi).

    23See CBOE Holdings Charter, Art. SIXTH, para. (a).

    24See CBOE Holdings Charter, Art. SIXTH, para. (b).

    Independence and Non-Interference. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that for so long as CBOE Holdings controls, directly or indirectly, a Regulated Securities Exchange Subsidiary, each officer, director and employee of CBOE Holdings must give due regard to the preservation of the independence of the self-regulatory function of the Regulated Securities Exchange Subsidiaries and may not take any actions that he or she knows or reasonably should have known would interfere with the effectuation of any decisions by the board of directors of any Regulated Securities Exchange Subsidiary relating to such Regulated Securities Exchange Subsidiary's regulatory functions (including disciplinary matters) or that would adversely affect the ability of the Regulated Securities Exchange Subsidiary to carry out such Regulated Securities Exchange Subsidiary's responsibilities under the Act.25

    25Compare CBOE Holdings Charter, Art. SIXTEENTH, para. (c) with BGM Bylaws, Section 12.01.

    Confidentiality. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that, to the fullest extent permitted by applicable law, all confidential information pertaining to the self-regulatory function of Regulated Securities Exchange Subsidiaries contained in the books and records of any Regulated Securities Exchange Subsidiary that shall come into the possession of the CBOE Holdings must be retained in confidence by CBOE Holdings and its officers, directors, employees and agents and must not be used for any commercial purposes.26

    26Compare CBOE Holdings Charter, Art. FIFTEENTH with BGM Bylaws, Section 12.02.

    Books and Records. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that, for so long as CBOE Holdings directly or indirectly controls any Regulated Securities Exchange Subsidiary, the books, records, premises, officers, directors and employees of CBOE Holdings shall be deemed to be the books, records, premises, officers, directors and employees of the Regulated Securities Exchange Subsidiary for purposes of and subject to oversight pursuant to the Act, but only to the extent that such books, records, premises, officers, directors and employees of the Corporation relate to the business of such Regulated Securities Exchange Subsidiary.27

    27Compare CBOE Holdings Charter, Art. FIFTEENTH with BGM Bylaws, Section 12.03.

    Compliance With Securities Laws; Cooperation With the Commission. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that CBOE Holdings shall comply with the federal securities laws and the rules and regulations thereunder and shall cooperate with the Commission, and each Regulated Securities Exchange Subsidiary pursuant to and to the extent of its regulatory authority, and shall take reasonable steps necessary to cause its agents to cooperate with the Commission and, where applicable, the Regulated Securities Exchange Subsidiaries pursuant to their regulatory authority, with respect to such agents' activities related to the Regulated Securities Exchange Subsidiaries.28

    28Compare CBOE Holdings Charter, Art. SIXTEENTH, para. (a) with BGM Bylaws, Section 12.04.

    Consent to Jurisdiction. Similar to provisions contained in the BGM Bylaws, the CBOE Holdings Charter provides that CBOE Holdings, its directors, officers, agents and employees, irrevocably submit to the jurisdiction of the U.S. federal courts, the Commission, and the Regulated Securities Exchange Subsidiaries, for the purposes of any suit, action or proceeding pursuant to U.S. federal securities laws or the rules or regulations thereunder, commenced or initiated by the Commission arising out of, or relating to, the Regulated Securities Exchange Subsidiaries' activities.29

    29Compare CBOE Holdings Charter, Art. FOURTEENTH with BGM Bylaws, Section 12.05.

    Amendments. Similar to provisions contained in the BGM Charter and BGM Bylaws, the CBOE Organizational Documents provide that for so long as CBOE Holdings controls, directly or indirectly, Regulated Securities Exchange, before any amendment to or repeal of the CBOE Holdings Charter or CBOE Holdings Bylaws may be effective, such amendment or repeal must be submitted to the board of directors of each such exchange, and if the amendment or repeal is required to be filed with, or filed with and approved by the Commission, then such change shall not be effective until filed with, or filed with and approved by, the Commission, as the case may be.30 As stated above, the Exchange believes that the foregoing provisions will assist the Exchange in fulfilling its self-regulatory obligations and in administering and complying with the requirements of the Act.

    30Compare CBOE Holdings Charter, Arts. ELEVENTH, TWELFTH and CBOE Holdings Bylaws, Section 10.2 with BGM Charter, Art. FOURTEENTH and BGM Bylaws, Article XI.

    6. CBOE V Certificate and CBOE V Operating Agreement

    Effective as of the Closing of the Transaction, CBOE V will hold direct ownership of (i) Direct Edge, which will continue to hold direct ownership of the Exchange and EDGA and (ii) BGM Holdings, which will continue to hold direct ownership of BZX, BYX and Bats Trading (and certain other subsidiaries not registered with the Commission in any capacity). However, unlike BGM currently, CBOE V will not be the ultimate holding company under the post-Closing corporate structure, but rather will be an intermediate holding company owned by CBOE Holdings. The Exchange believes that the CBOE V Operating Agreement contains provisions relating to its indirect ownership of one or more national securities exchanges, including such exchanges' regulatory functions and Commission oversight, that are appropriate for an intermediate holding company in the ownership chain of a national securities exchange. Many of the provisions of the CBOE V Operating Agreement relating to these matters are similar to the organizational documents of Direct Edge, which currently is, and following the Subsequent Merger will be, similarly situated as an intermediate holding company of the Exchange. The Commission has previously found the Direct Edge organizational documents to be consistent with the Act.31

    31See Securities Exchange Act Release No. 71449 (January 30, 2014), 79 FR 6961 (February 5, 2014) (SR-EDGA-2013-34; SR-EDGX-2013-43).

    Although CBOE V will not carry out any regulatory functions, the Exchange notes that its activities with respect to the operation of the Bats Exchanges must be consistent with, and must not interfere with, the self-regulatory obligations of each Bats Exchange. The CBOE V Operating Agreement therefore includes certain provisions that are designed to maintain the independence of the Bats Exchanges' self-regulatory functions, enable the Bats Exchanges to operate in a manner that complies with the federal securities laws, including the objectives of Sections 6(b) 32 and 19(g) 33 of the Act, and facilitate the ability of each Bats Exchange and the Commission to fulfill their respective regulatory and oversight obligations under the Act.

    32 15 U.S.C. 78f(b).

    33 15 U.S.C. 78s(g).

    a. CBOE V Certificate of Formation

    The CBOE V Certificate, attached as Exhibit 5D, includes the following provisions required under Delaware law: (i) The full name of CBOE V as “CBOE V, LLC”, and (ii) the name and address of CBOE V's registered office in the State of Delaware and the name of CBOE V's registered agent at such address.34 In addition, the CBOE V Certificate contains a provision providing that CBOE V shall indemnify members of its board of directors and certain other persons, subject to certain conditions.

    34 Delaware Limited Liability Company Act § 18-201.

    As the Exchange believes is customary for limited liability companies formed in the State of Delaware, other substantive provisions governing the ownership, operation and management of CBOE V are set forth in the CBOE V Operating Agreement, discussed below.

    b. CBOE V Operating Agreement

    With respect to ownership and control of CBOE V, the CBOE V Operating Agreement, attached as Exhibit 5E, specifically provides that CBOE V's sole member is CBOE Holdings, until the CBOE V Operating Agreement is amended (subject to Commission approval, as described below).35 Further, for so long as CBOE V controls, directly or indirectly, a subsidiary that is registered with the Commission as a national securities exchange (an “Exchange Subsidiary”), CBOE Holdings may not sell, assign, transfer, convey, gift, exchange or otherwise dispose of any or all of its member interest in CBOE V, except pursuant to an amendment to the CBOE V Operating Agreement that is filed with and approved by the Commission. 36 These restrictions are designed to ensure that any change to the ownership or control of any Exchange Subsidiary, including without limitation the Bats Exchanges, may only occur through a change in the ownership or control of CBOE Holdings. As such, any purported change of such ownership or control (unless pursuant to a Commission-approved change of ownership of CBOE V) would need to comply with the CBOE Holdings Charter and CBOE Holdings Bylaws, including the ownership and voting limitations discussed above (or a Commission-approved waiver therefrom).

    35 CBOE V Operating Agreement, Section 1.1.

    36 CBOE V Operating Agreement, Section 5.1.

    The CBOE V Operating Agreement also contains several provisions designed to protect the independence of the self-regulatory functions of the Bats Exchanges. The CBOE V Operating Agreement requires that, for so long as CBOE V, directly or indirectly, controls any Exchange Subsidiary, CBOE Holdings, as the sole member of CBOE V, and officers, employees and agents of CBOE V must give due regard to the preservation of independence of the self-regulatory functions of such Exchange Subsidiary, as well as to its obligations to investors and the general public, and not interfere with the effectuation of any decisions by the board of directors of an Exchange Subsidiary relating to its regulatory functions (including disciplinary matters) or which would interfere with the ability of such Exchange Subsidiary to carry out its responsibilities under the Act.37

    37 See CBOE V Operating Agreement, Section 10.1(a).

    The CBOE V Operating Agreement also would require that CBOE V comply with the U.S. federal securities laws and rules and regulations thereunder and cooperate with the Commission and each Exchange Subsidiary, as applicable, pursuant to and to the extent of their respective regulatory authority.38 Further, CBOE V's officers, directors, employees and agents shall be deemed to agree to (i) comply with the U.S. federal securities laws and the rules and regulations thereunder; and (ii) cooperate with the Commission and each Exchange Subsidiary in respect of the Commission's oversight responsibilities regarding such Exchange Subsidiary and the self-regulatory functions and responsibilities of the Exchange Subsidiaries, and CBOE V will take reasonable steps to cause its officers, employees and agents to so cooperate.39

    38 See CBOE V Operating Agreement, Section 10.2(a).

    39 Id.

    Furthermore, to the fullest extent permitted by law, CBOE V and its officers, directors, employees and agents will be deemed to irrevocably submit to the jurisdiction of the U.S. federal courts, the Commission, and each Exchange Subsidiary, as applicable, for purposes of any suit, action, or proceeding pursuant to the U.S. federal securities laws or the rules or regulations thereunder arising out of, or relating to, the activities of such Exchange Subsidiary.40

    40 See CBOE V Operating Agreement, Section 10.3(a).

    The proposed CBOE V Operating Agreement also contains a number of provisions designed to ensure that the Exchange will have sufficient access to the books and records of CBOE V as they relate to any Exchange Subsidiary. Pursuant to the CBOE V Operating Agreement, to the extent they are related to the operation or administration of an Exchange Subsidiary, the books, records, premises, officers, agents, and employees of CBOE V are deemed to be the books, records, premises, officers, agents and employees of such Exchange Subsidiary for the purposes of, and subject to oversight pursuant to, the Act.41 In addition, for as long as CBOE V controls, directly or indirectly, an Exchange Subsidiary, CBOE V's books and records shall be subject at all times to inspection and copying by the Commission and the applicable Exchange Subsidiary, provided that such books and records are related to the operation or administration of an Exchange Subsidiary.42

    41 See CBOE V Operating Agreement, Section 8.4(b).

    42 Id.

    The proposed CBOE V Operating Agreement also provides that, to the fullest extent permitted by law, all books and records of any Exchange Subsidiary reflecting confidential information pertaining to the self-regulatory function of such Exchange Subsidiary (including disciplinary matters, trading data, trading practices and audit information) that comes into the possession of CBOE V, shall be retained in confidence by CBOE V, CBOE V's officers, employees and agents and CBOE Holdings, and not used for any non-regulatory purposes.43 The proposed CBOE V Operating Agreement provides, however, that the foregoing shall not limit or impede the rights of the Commission or an Exchange Subsidiary to access and examine such confidential information pursuant to the U.S. federal securities laws and the rules and regulations thereunder, or limit or impede the ability of CBOE Holdings or any of CBOE V's officers, employees or agents to disclose such confidential information to the Commission or an Exchange Subsidiary.44

    43 See CBOE V Operating Agreement, Section 8.4(a).

    44 Id.

    In addition, the CBOE V Operating Agreement provides that for so long as CBOE V controls, directly or indirectly, any Exchange Subsidiary, before any amendment to or repeal of any provision of the CBOE V Operating Agreement will be effective, those changes must be submitted to the board of directors of each Exchange Subsidiary, and if the same must be filed with, or filed with and approved by, the Commission before the changes may be effective under Section 19 of the Act 45 and the rules promulgated thereunder, then the proposed changes shall not be effective until filed with, or filed with and approved by, the Commission, as the case may be.46

    45 15 U.S.C. 78s.

    46 See CBOE V Operating Agreement, Section 11.2.

    7. Direct Edge Operating Agreement

    The Direct Edge Operating Agreement currently provides that the sole member of Direct Edge is BGM. However, as a result of the Transaction, CBOE V will become the sole member of Direct Edge. The Exchange proposes to amend the Direct Edge Operating Agreement to reflect this change, as set forth in Exhibit 5F.

    8. Bylaws of the Exchange

    In connection with the Transaction, the Exchange proposes to amend and restate its Fifth Amended and Restated Bylaws and adopt the amended Exchange Bylaws as its Sixth Amended and Restated Bylaws, attached as Exhibit 5G. Specifically, the Exchange proposes to (i) expand the prohibition contained in Section 2 of Article XI of the Exchange Bylaws and (ii) add a definition of “Trading Permit Holder” to Article I.

    Currently, Section 2 of Article XI of the Exchange Bylaws prohibits directors of BGM or Direct Edge who are not also directors, officers, staff, counsel or advisors of the Exchange from participating in any meetings of the Exchange's board of directors (or any committee thereof) pertaining to the self-regulatory function of the Exchange (including disciplinary matters). This provision refers to BGM and Direct Edge because they are currently the only direct and indirect owners of the Exchange. However, following the Transaction, the Exchange will be owned indirectly by CBOE V and CBOE Holdings (in addition to its direct ownership by Direct Edge). Therefore, the Exchange is proposing to remove the reference to BGM and insert references to CBOE V and CBOE Holdings, so that CBOE V and CBOE Holdings will both be covered by this prohibition. The Exchange believes that this amendment will protect the independence of the Exchange's self-regulatory activities.

    In addition, as noted above, the CBOE Holdings Charter currently prohibits certain persons from owning or exercising voting rights over certain percentages of ownership of CBOE Holdings. The CBOE Holdings Charter permits the board of directors of CBOE Holdings to waive the limitation on the exercise of voting rights in excess of 20 percent of the then outstanding votes entitled to be cast on such matter only if, among other things, “for so long as [CBOE Holdings] directly or indirectly controls any Regulated Securities Exchange Subsidiary, neither such Person nor any of its Related Persons is a `Trading Permit Holder' (as defined in the Bylaws of any Regulated Securities Exchange Subsidiary as they may be amended from time to time).” 47

    47See CBOE Holdings Charter, Art. SIXTH, para. (a)(ii)(C).

    The Exchange does not issue “trading permits,” but admits members. The Exchange believes the provisions of the CBOE Holdings Charter that refer to Trading Permit Holders of its Regulated Securities Exchange Subsidiaries should apply equally to members of the Exchange once it becomes a Regulated Securities Exchange Subsidiary of CBOE Holdings. As a result, the Exchange proposes to add clause (ff) to Article I of the Exchange Bylaws, providing that “ `Trading Permit Holder' shall have the same meaning as Exchange Member.” This will ensure that the Exchange's members will be considered Trading Permit Holders of a Regulated Securities Exchange Subsidiary for purposes of the CBOE Holdings Charter.

    9. Exchange Rules a. Exchange Rule 2.3—Member Eligibility

    Pursuant to Exchange Rule 2.3, in order to be eligible for membership in the Exchange, a registered broker or dealer is currently required to be a member of at least one other national securities association or national securities exchange. However, membership in the Exchange's affiliated national securities exchanges, BZX, BYX or EDGA, is not sufficient for purposes of eligibility for Exchange membership. The Exchange adopted this because the Bats Exchanges have historically not functioned as the designated examining authority for any of its members, and the Exchange wanted to be sure that any member would be appropriately supervised by another national securities association or national securities exchange that has the capacity to function as the member's designated examining authority.

    As a result of the Transaction, the Exchange will additionally become affiliated with the CBOE Exchanges. As with the Bats Exchanges, C2 does not currently serve as the designated examination authority for any of its members. CBOE, however, does act as the designated examining authority for certain of its members. Therefore, the Exchange proposes to amend Exchange Rule 2.3 to specify that a registered broker or dealer will be eligible for membership only if it is a member of a national securities association or national securities exchange other than or in addition to the following affiliates of the Exchange: BZX, BYX, EDGA and C2.

    In addition, to ensure there is no confusion with respect to the possibility that a broker or dealer could qualify for membership in the Exchange based solely on membership in CBOE Futures or any other national securities exchange notice—registered with the Commission pursuant to Section 6(g) of the Act 48 that lists or trades security-futures products, the Exchange proposes to also specify that eligibility for membership requires membership in a national securities association registered pursuant to Section 15A of the Act or a national securities exchange registered with the Commission pursuant to Section 6(a) of the Act, so as to exclude a national securities exchange registered solely under Section 6(g) of the Act. The proposed amendments to Exchange Rule 2.3 are set forth in Exhibit 5H.

    48 15 U.S.C. 78f(g).

    b. Exchange Rule 2.10—Affiliation Between Exchange and a Member

    Exchange Rule 2.10 provides that, without prior approval of the Commission, neither the Exchange, nor any of its affiliates, shall directly or indirectly acquire or maintain an ownership interest in a member of the Exchange. This restriction is intended to address potential conflicts of interest that could result from affiliation between the Exchange and a member. Notwithstanding this general restriction, Exchange Rule 2.10 provides that it does not prohibit a member or its affiliate from acquiring or holding an equity interest in BGM that is permitted by the ownership and voting limitations contained in the BGM Charter and the BGM Bylaws. In addition, Exchange Rule 2.10 states that it does not prohibit a member from being or becoming an affiliate of the Exchange, or an affiliate of any affiliate of the Exchange, solely by reason of such member or any officer, director, manager, managing member, partner or affiliate of such member being or becoming either (a) a director of the Exchange pursuant to the Bylaws of the Exchange, or (b) a director of the Exchange serving on the board of directors of BGM. The Exchange proposes to replace the references to BGM in Rule 2.10 with references to CBOE Holdings to reflect the fact that following the Transaction, CBOE Holdings will replace BGM as the ultimate parent holding company of the Exchange.

    Exchange Rule 2.10 also clarifies that it does not prohibit the Exchange from being an affiliate of its routing broker-dealer Direct Edge ECN LLC d/b/a DE Rou