Federal Register Vol. 81, No.230,

Federal Register Volume 81, Issue 230 (November 30, 2016)

Page Range86249-86554
FR Document

81_FR_230
Current View
Page and SubjectPDF
81 FR 86553 - Thanksgiving Day, 2016PDF
81 FR 86340 - Sunshine Act MeetingPDF
81 FR 86330 - Sunshine Act NoticePDF
81 FR 86344 - Sunshine Act Meeting NoticePDF
81 FR 86374 - Agency Information Collection Activities: Comment RequestPDF
81 FR 86341 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Leave Supplement to the American Time Use SurveyPDF
81 FR 86319 - National Research, Promotion, and Consumer Information Programs; Request for Extension and Revision of a Currently Approved Information CollectionPDF
81 FR 86330 - Combined Notice of Filings #1PDF
81 FR 86288 - Fisheries of the Exclusive Economic Zone Off Alaska; Several Groundfish Species in the Bering Sea and Aleutian Islands Management AreaPDF
81 FR 86380 - Submission for OMB Review; Comment RequestPDF
81 FR 86343 - Information Collection: NRC Forms 366, 366A, and 366B, “Licensee Event Report”PDF
81 FR 86329 - Combined Notice of FilingsPDF
81 FR 86327 - Combined Notice of FilingsPDF
81 FR 86338 - Notice of Availability of the Record of Decision for the Previously Issued Oil and Gas Leases in the White River National Forest, COPDF
81 FR 86338 - Notice of Availability of the Record of Decision Adopting U.S. Forest Service's Final Environmental Impact Statement for Oil and Gas Leasing on Lands Administered by the White River National Forest, COPDF
81 FR 86378 - Positioning, Navigation, and Timing (PNT) Service for National Critical Infrastructure ResiliencyPDF
81 FR 86341 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Work Opportunity Tax CreditPDF
81 FR 86376 - Proposed Amendment to the Third Renewed Memorandum of Understanding (MOU) Assigning Certain Federal Environmental Responsibilities to the State of California, Including National Environmental Policy Act (NEPA) Authority for Certain Categorical Exclusions (CEs)PDF
81 FR 86322 - Impact of the Implementation of the Chemical Weapons Convention (CWC) on Legitimate Commercial Chemical, Biotechnology, and Pharmaceutical Activities Involving “Schedule 1” Chemicals (Including Schedule 1 Chemicals Produced as Intermediates) Through Calendar Year 2016PDF
81 FR 86332 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 86330 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
81 FR 86346 - Product Change-Priority Mail and First-Class Package Service Negotiated Service AgreementPDF
81 FR 86345 - Product Change-Priority Mail and First-Class Package Service Negotiated Service AgreementPDF
81 FR 86345 - Product Change-Priority Mail Express, Priority Mail, & First-Class Package Service Negotiated Service AgreementPDF
81 FR 86334 - Notice of Issuance of Final Determination Concerning Country of Origin of Computer Notebook Hard Disk DrivesPDF
81 FR 86344 - Hispanic Council on Federal EmploymentPDF
81 FR 86345 - OMB Emergency Review and 60-Day Notice for Comment for Existing Information Collection Request: OPM Form 1203-FX, Occupational Questionnaire OMB No. 3206-0040PDF
81 FR 86290 - Employment in the Excepted ServicePDF
81 FR 86357 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 7.31PDF
81 FR 86371 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 15 Relating to Pre-Opening IndicationsPDF
81 FR 86365 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 15-Equities Relating to Pre-Opening IndicationsPDF
81 FR 86368 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change Amending NYSE Arca Equities Rule 7.35P To Provide for Widened Price Collar Thresholds for the Core Open Auction on Volatile Trading DaysPDF
81 FR 86355 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending NYSE Arca Equities Rule 7.16PDF
81 FR 86346 - Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Make Ministerial and Corrective Changes to Rules 11.9, 11.13, 11.16, 11.22, and 11.27PDF
81 FR 86358 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Make Ministerial and Corrective Changes to Exchange Rules 11.13, 11.16, 11.22, and 11.27PDF
81 FR 86360 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of Proposed Rule Proposed Rule Change, as Modified by Amendment Nos. 1 and 2 Thereto, Regarding Use of Rule 144A Securities by the Fidelity Corporate Bond ETF, Fidelity Investment Grade Bond ETF, Fidelity Limited Term Bond ETF, and Fidelity Total Bond ETFPDF
81 FR 86369 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Section 907.00 of the Listed Company ManualPDF
81 FR 86348 - Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of Filing of Advance Notice To Accelerate Its Trade Guaranty, Add New Clearing Fund Components, Enhance Its Intraday Risk Management, Provide for Loss Allocation of “Off-the-Market Transactions,” and Make Other ChangesPDF
81 FR 86334 - Notice of Allotment Percentages to States for Child Welfare Services State GrantsPDF
81 FR 86249 - Prevailing Rate Systems; Redefinition of the New York, NY, and Philadelphia, PA, Appropriated Fund Federal Wage System Wage AreasPDF
81 FR 86328 - CED Ducor Solar 3, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 86329 - CED Ducor Solar 2, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 86326 - CED Ducor Solar 1, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 86325 - Kansas Electric Power Cooperative, Inc. v. Southwest Power Pool, Inc.; Notice of ComplaintPDF
81 FR 86326 - Gulf South Pipeline Company, LP; Notice of Request Under Blanket AuthorizationPDF
81 FR 86325 - Combined Notice of Filings #2PDF
81 FR 86328 - Combined Notice of Filings #1PDF
81 FR 86340 - Meeting of the Judicial Conference Committee on Rules of Practice and ProcedurePDF
81 FR 86320 - Craig and Thorne Bay Ranger Districts, Tongass National Forest; Alaska; Prince of Wales Landscape Level Analysis Project Environmental Impact StatementPDF
81 FR 86268 - Food Additives Permitted in Feed and Drinking Water of Animals; Guanidinoacetic AcidPDF
81 FR 86342 - Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978PDF
81 FR 86312 - Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various CommoditiesPDF
81 FR 86260 - Truth in Lending (Regulation Z)PDF
81 FR 86256 - Consumer Leasing (Regulation M)PDF
81 FR 86250 - Appraisals for Higher-Priced Mortgage Loans Exemption ThresholdPDF
81 FR 86323 - Notice of Roundtables and Extension of the Period for Comments on Examination Time GoalsPDF
81 FR 86337 - Deepwater Horizon Oil Spill; Draft Louisiana Trustee Implementation Group Restoration Plan #1: Restoration of Wetlands, Coastal, and Nearshore Habitats; Habitat Projects on Federally Managed Lands; and BirdsPDF
81 FR 86302 - Federal Government Participation in the Automated Clearing HousePDF
81 FR 86291 - Procedures Further Implementing the Annual Limitation on Suspension of Deportation and Cancellation of RemovalPDF
81 FR 86296 - Airworthiness Criteria: Glider Design Criteria for Stemme AG Model Stemme S12 Powered GliderPDF
81 FR 86315 - Endangered and Threatened Wildlife and Plants; 90-Day Findings on Three PetitionsPDF
81 FR 86270 - Production or Disclosure of Material or InformationPDF
81 FR 86297 - Regulations Implementing the Freedom of Information ActPDF
81 FR 86522 - Electric Storage Participation in Markets Operated by Regional Transmission Organizations and Independent System OperatorsPDF
81 FR 86490 - Greenhouse Gas Reporting Rule: Leak Detection Methodology Revisions and Confidentiality Determinations for Petroleum and Natural Gas SystemsPDF
81 FR 86467 - Medicaid and Children's Health Insurance Programs: Eligibility Notices, Fair Hearing and Appeal Processes for Medicaid and Other Provisions Related to Eligibility and Enrollment for Medicaid and CHIPPDF
81 FR 86382 - Medicaid and Children's Health Insurance Programs: Eligibility Notices, Fair Hearing and Appeal Processes for Medicaid and Other Provisions Related to Eligibility and Enrollment for Medicaid and CHIPPDF

Issue

81 230 Wednesday, November 30, 2016 Contents Agricultural Marketing Agricultural Marketing Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Research, Promotion, and Consumer Information Programs, 86319-86320 2016-28816 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Forest Service

Consumer Financial Protection Bureau of Consumer Financial Protection RULES Appraisals for Higher-Priced Mortgage Loans Exemption Threshold, 86250-86256 2016-28699 Consumer Leasing, 86256-86260 2016-28710 Truth in Lending, 86260-86268 2016-28718 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 86330-86334 2016-28797 2016-28798 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicaid and Children's Health Insurance Programs: Fair Hearing and Appeal Processes for Medicaid and Other Provisions Related to Eligibility and Enrollment for Medicaid and Children's Health Insurance Program, 86382-86466 2016-27844 PROPOSED RULES Medicaid and Children's Health Insurance Programs: Eligibility Notices, Fair Hearing and Appeal Processes for Medicaid and Other Provisions Related to Eligibility and Enrollment for Medicaid and Children's Health Insurance Program, 86467-86488 2016-27848 Children Children and Families Administration NOTICES Allotment Percentages to States for Child Welfare Services State Grants, 86334 2016-28770 Commerce Commerce Department See

Industry and Security Bureau

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

Comptroller Comptroller of the Currency RULES Appraisals for Higher-Priced Mortgage Loans Exemption Threshold, 86250-86256 2016-28699 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Greenhouse Gas Reporting: Leak Detection Methodology Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems, 86490-86519 2016-27981 PROPOSED RULES Pesticide Petitions: Residues of Pesticide Chemicals in or on Various Commodities, 86312-86314 2016-28738 Executive Office Executive Office for Immigration Review PROPOSED RULES Procedures Further Implementing the Annual Limitation on Suspension of Deportation and Cancellation of Removal, 86291-86296 2016-28590 Federal Aviation Federal Aviation Administration PROPOSED RULES Airworthiness Criteria: Glider Design Criteria for Stemme AG Model Stemme S12 Powered Glider, 86296-86297 2016-28575 Federal Energy Federal Energy Regulatory Commission PROPOSED RULES Electric Storage Participation in Markets Operated by Regional Transmission Organizations and Independent System Operators, 86522-86550 2016-28194 NOTICES Combined Filings, 86325, 86327-86330 2016-28762 2016-28763 2016-28808 2016-28809 2016-28810 2016-28815 Complaints: Kansas Electric Power Cooperative, Inc. v. Southwest Power Pool, Inc., 86325-86326 2016-28765 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: CED Ducor Solar 1, LLC, 86326 2016-28766 CED Ducor Solar 2, LLC, 86329 2016-28767 CED Ducor Solar 3, LLC, 86328 2016-28768 Requests under Blanket Authorizations: Gulf South Pipeline Company, LP, 86326-86327 2016-28764 Federal Highway Federal Highway Administration NOTICES Third Renewed Memorandum of Understanding Assigning Certain Federal Environmental Responsibilities to the State of California; Proposed Amendment, 86376-86378 2016-28800 Federal Mine Federal Mine Safety and Health Review Commission NOTICES Meetings: Sunshine Act, 86330 2016-28864 Federal Reserve Federal Reserve System RULES Appraisals for Higher-Priced Mortgage Loans Exemption Threshold, 86250-86256 2016-28699 Consumer Leasing, 86256-86260 2016-28710 Truth in Lending, 86260-86268 2016-28718 Fiscal Fiscal Service PROPOSED RULES Federal Government Participation in the Automated Clearing House, 86302-86312 2016-28671 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: 90-Day Findings on Three Petitions, 86315-86318 2016-28513 Food and Drug Food and Drug Administration RULES Food Additives: Permitted in Feed and Drinking Water of Animals; Guanidinoacetic Acid, 86268-86270 2016-28754 Foreign Claims Foreign Claims Settlement Commission NOTICES Meetings: Sunshine Act, 86340-86341 2016-28898 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Craig and Thorne Bay Ranger Districts, Tongass National Forest, AK; Prince of Wales Landscape Level Analysis Project, 86320-86321 2016-28760 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

Homeland Homeland Security Department See

U.S. Customs and Border Protection

Industry Industry and Security Bureau NOTICES Impact of the Implementation of the Chemical Weapons Convention on Legitimate Commercial Chemical, Biotechnology, and Pharmaceutical Activities Involving Schedule 1 Chemicals through Calendar Year 2016, 86322-86323 2016-28799 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

NOTICES Deepwater Horizon Oil Spill; Draft Louisiana Trustee Implementation Group Restoration Plan #1: Restoration of Wetlands, Coastal, and Nearshore Habitats; Habitat Projects on Federally Managed Lands; and Birds, 86337-86338 2016-28675
Judicial Conference Judicial Conference of the United States NOTICES Meetings: Committee on Rules of Practice and Procedure, 86340 2016-28761 Justice Department Justice Department See

Executive Office for Immigration Review

See

Foreign Claims Settlement Commission

Labor Department Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Leave Supplement to the American Time Use Survey, 86341 2016-28820 Work Opportunity Tax Credit, 86341-86342 2016-28803 Land Land Management Bureau NOTICES Records of Decision: Oil and Gas Leasing on Lands Administered by the White River National Forest, CO, 86338 2016-28806 Previously Issued Oil and Gas Leases in the White River National Forest, CO, 86338-86340 2016-28807 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Several Groundfish Species in the Bering Sea and Aleutian Islands Management Area, 86288-86289 2016-28814 National Science National Science Foundation NOTICES Permit Applications: Antarctic Conservation Act, 86342-86343 2016-28753 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Licensee Event Report, 86343-86344 2016-28812 Meetings: Sunshine Act, 86344 2016-28840 Occupational Safety Health Rev Occupational Safety and Health Review Commission PROPOSED RULES Regulations Implementing the Freedom of Information Act, 86297-86302 2016-28305 Patent Patent and Trademark Office NOTICES Meetings: Examination Time Goals, 86323-86324 2016-28689 Personnel Personnel Management Office RULES Prevailing Rate System: Redefinition of the New York, NY, and Philadelphia, PA, Appropriated Fund Federal Wage System Wage Areas, 86249-86250 2016-28769 PROPOSED RULES Employment in the Excepted Service, 86290-86291 2016-28783 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Occupational Questionnaire, 86345 2016-28785 Meetings: Hispanic Council on Federal Employment, 86344-86345 2016-28786 Postal Service Postal Service RULES Production or Disclosure of Material or Information, 86270-86287 2016-28430 NOTICES Product Changes: Priority Mail and First-Class Package Service Negotiated Service Agreement, 86345-86346 2016-28792 2016-28793 2016-28794 Priority Mail Express, Priority Mail, & First-Class Package Service Negotiated Service Agreement, 86345-86346 2016-28791 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Thanksgiving Day (Proc. 9546), 86551-86554 2016-28941 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Bats BYX Exchange, Inc., 86346-86348 2016-28776 Bats BZX Exchange, Inc., 86358-86360 2016-28775 National Securities Clearing Corp., 86348-86355 2016-28771 New York Stock Exchange LLC, 86369-86374 2016-28773 2016-28780 NYSE Arca, Inc., 86355-86358, 86360-86365, 86368-86369 2016-28774 2016-28777 2016-28778 2016-28781 NYSE MKT LLC, 86365-86368 2016-28779 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 86374-86376 2016-28822 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

NOTICES Requests for Information: Positioning, Navigation, and Timing Service for National Critical Infrastructure Resiliency, 86378-86380 2016-28805
Treasury Treasury Department See

Comptroller of the Currency

See

Fiscal Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 86380 2016-28813
Customs U.S. Customs and Border Protection NOTICES Country of Origin Determinations: Computer Notebook Hard Disk Drives, 86334-86337 2016-28790 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 86382-86488 2016-27848 2016-27844 Part III Environmental Protection Agency, 86490-86519 2016-27981 Part IV Energy Department, Federal Energy Regulatory Commission, 86522-86550 2016-28194 Part V Presidential Documents, 86551-86554 2016-28941 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.

81 230 Wednesday, November 30, 2016 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 532 RIN 3206-AN29 Prevailing Rate Systems; Redefinition of the New York, NY, and Philadelphia, PA, Appropriated Fund Federal Wage System Wage Areas AGENCY:

U.S. Office of Personnel Management.

ACTION:

Final rule.

SUMMARY:

The U.S. Office of Personnel Management (OPM) is issuing a final rule to redefine the geographic boundaries of the New York, NY, and Philadelphia, PA, appropriated fund Federal Wage System (FWS) wage areas. The final rule will address an anomalous situation affecting Joint Base McGuire-Dix-Lakehurst. Portions of the Joint Base are currently defined to the Philadelphia wage area and to the New York wage area. OPM has developed a new criterion for defining wage areas to address this unique situation so that the entire Joint Base is covered by a single wage schedule.

DATES:

Effective date: This regulation is effective on November 30, 2016.

Applicability date: This change applies on the first day of the first applicable pay period beginning on or after December 30, 2016.

FOR FURTHER INFORMATION CONTACT:

Madeline Gonzalez, by telephone at (202) 606-2838 or by email at [email protected]

SUPPLEMENTARY INFORMATION:

On July 20, 2016, OPM issued a proposed rule (81 FR 47049) to redefine the Joint Base McGuire-Dix-Lakehurst portions of Burlington County, NJ, and Ocean County, NJ, that are currently defined to the Philadelphia, PA, wage area to the New York, NY, wage area so that the entire Joint Base is covered by a single FWS wage schedule. This change is based on a majority recommendation of the Federal Prevailing Rate Advisory Committee (FPRAC), the national labor-management committee responsible for advising OPM on the administration of the FWS.

The 30-day comment period ended on August 19, 2016. OPM received comments from several hundred Federal employees, several Members of Congress, and one agency. Public comments supported defining the Joint Base McGuire-Dix-Lakehurst portions of Burlington County and Ocean County currently defined to the Philadelphia wage area to the New York wage area.

Employees stationed at Tobyhanna Army Depot in northeastern Pennsylvania asked that OPM also consider redefining Monroe County, PA, from the Scranton-Wilkes-Barre, PA, wage area to the New York wage area. FPRAC made a separate recommendation by majority vote in January 2016 that OPM redefine Monroe County to the New York wage area. FPRAC's recommendation, and the public comments regarding Tobyhanna Army Depot, is beyond the scope of this rule. The intent of this rule is to address an anomalous situation created when a contiguous Joint Base overlaps two metropolitan areas and two FWS wage areas. The proposed rule's new criterion for defining FWS wage area boundaries has limited applicability and was not intended to address any other situation.

An agency suggested that instead of defining a single contiguous Joint Base that overlaps two wage areas to the wage area with the most favorable payline, OPM should in the future consider basing the wage area definition for a Joint Base on the part of the Joint Base with the largest FWS employment count. The agency expressed concerns that Joint Bases were established in part to save costs and the proposed new criterion would result in higher wage costs. Although OPM considered this option when developing the proposed rule, it was not adopted because the new proposed criterion follows a protocol already established in similar FWS special wage schedule regulations as an equitable method for compensating employees stationed at a small contiguous installation.

In addition, several commenters questioned the effective date of the proposed change recommending retroactive applicability. OPM defines wage areas through regulations in 5 CFR part 532. Changes in OPM's regulations are prospective, not retroactive, following an appropriate period for public comment. This change will apply on the first day of the first applicable pay period beginning on or after 30 days following publication of the final regulations.

Regulatory Flexibility Act

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.

Executive Order 13563 and Executive Order 12866

This final rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 13563 and Executive Order 12866.

List of Subjects in 5 CFR Part 532

Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages.

U.S. Office of Personnel Management. Beth F. Cobert, Acting Director.

Accordingly, OPM amends 5 CFR part 532 as follows:

PART 532—PREVAILING RATE SYSTEMS 1. The authority citation for part 532 continues to read as follows: Authority:

5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.

Subpart B—Prevailing Rate Determinations 2. Section 532.211 is amended by adding a new paragraph (f) to read as follows:
§ 532.211 Criteria for establishing appropriated fund wage areas.

(f) A single contiguous military installation defined as a Joint Base that would otherwise overlap two separate wage areas shall be included in only a single wage area. The wage area of such a Joint Base shall be defined to be the wage area with the most favorable payline based on an analysis of the simple average of the 15 nonsupervisory second step rates on each one of the regular wage schedules applicable in the otherwise overlapped wage areas.

3. Appendix C to subpart B is amended by revising the wage area listing for the New York, NY, and Philadelphia, PA, wage areas to read as follows: Appendix C to Subpart B of Part 532—Appropriated Fund Wage and Survey Areas *    *    *    *    * NEW YORK *    *    *    *    * New York Survey Area New Jersey: Bergen Essex Hudson Middlesex Morris Passaic Somerset Union New York: Bronx Kings Nassau New York Orange Queens Suffolk Westchester Area of Application. Survey area plus: New Jersey: Burlington (Joint Base McGuire-Dix-Lakehurst portion only) Hunterdon Monmouth Ocean Sussex New York: Dutchess Putnam Richmond Rockland Pennsylvania: Pike *    *    *    *    * PENNSYLVANIA *    *    *    *    * Philadelphia Survey Area New Jersey: Burlington (Excluding the Joint Base McGuire-Dix-Lakehurst portion) Camden Gloucester Pennsylvania: Bucks Chester Delaware Montgomery Philadelphia Area of Application. Survey area plus: New Jersey: Atlantic Cape May Cumberland Mercer Warren Pennsylvania: Carbon Lehigh Northampton *    *    *    *    *
[FR Doc. 2016-28769 Filed 11-29-16; 8:45 am] BILLING CODE 6325-39-P
DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Part 34 [Docket No. OCC-2015-0021] RIN 1557-AD99 FEDERAL RESERVE SYSTEM 12 CFR Part 226 [Docket No. R-1443] RIN 7100-AD 90 BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1026 [Docket No. CFPB-2016-0035] RIN 3170-AA68 Appraisals for Higher-Priced Mortgage Loans Exemption Threshold AGENCY:

Board of Governors of the Federal Reserve System (Board); Bureau of Consumer Financial Protection (Bureau); and Office of the Comptroller of the Currency, Treasury (OCC).

ACTION:

Final rules, official interpretations and commentary.

SUMMARY:

The OCC, the Board, and the Bureau are finalizing amendments to the official interpretations for their regulations that implement section 129H of the Truth in Lending Act (TILA). Section 129H of TILA establishes special appraisal requirements for “higher-risk mortgages,” termed “higher-priced mortgage loans” or “HPMLs” in the agencies' regulations. The OCC, the Board, the Bureau, the Federal Deposit Insurance Corporation (FDIC), the National Credit Union Administration (NCUA) and the Federal Housing Finance Agency (FHFA) (collectively, the Agencies) issued joint final rules implementing these requirements, effective January 18, 2014. The Agencies' rules exempted, among other loan types, transactions of $25,000 or less, and required that this loan amount be adjusted annually based on any annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). If there is no annual percentage increase in the CPI-W, the OCC, the Board and the Bureau will not adjust this exemption threshold from the prior year. The final rule will memorialize this as well as the agencies' calculation method for determining the adjustment in years following a year in which there is no annual percentage increase in the CPI-W. Based on the CPI-W in effect as of June 1, 2016, the exemption threshold will remain at $25,500 through 2017.

DATES:

This final rule is effective January 1, 2017.

FOR FURTHER INFORMATION CONTACT:

OCC: MaryAnn Nash, Counsel, Legislative and Regulatory Activities Division, (202) 649-6287; for persons who are deaf and hard of hearing TTY, (202) 649-5597. Board: Lorna M. Neill, Senior Counsel, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, at (202) 452-3667; for users of Telecommunications Device for the Deaf (TDD) only, contact (202) 263-4869. Bureau: Jaclyn Maier, Counsel, Office of Regulations, Consumer Financial Protection Bureau, at (202) 435-7700.

SUPPLEMENTARY INFORMATION: I. Background

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) amended the Truth in Lending Act (TILA) to add special appraisal requirements for “higher-risk mortgages.” 1 In January 2013, the Agencies issued a joint final rule implementing these requirements and adopted the term “higher-priced mortgage loan” (HPML) instead of “higher-risk mortgage” (the January 2013 Final Rule).2 In July 2013, the Agencies proposed additional exemptions from the January 2013 Final Rule (the 2013 Supplemental Proposed Rule).3 In December 2013, the Agencies issued a supplemental final rule with additional exemptions from the January 2013 Final Rule (the December 2013 Supplemental Final Rule).4 Among other exemptions, the Agencies adopted an exemption from the new HPML appraisal rules for transactions of $25,000 or less, to be adjusted annually for inflation.

1 Public Law 111-203 section 1471, 124 Stat. 1376 (2010), codified at TILA section 129H, 15 U.S.C. 1639h.

2 78 FR 10368 (Feb. 13, 2013).

3 78 FR 48548 (Aug. 8, 2013).

4 78 FR 78520 (Dec. 26, 2013).

The Bureau's, the OCC's, and the Board's versions of the January 2013 Final Rule and December 2013 Supplemental Final Rule and corresponding official interpretations are substantively identical. The FDIC, NCUA, and FHFA adopted the Bureau's version of the regulations under the January 2013 Final Rule and December 2013 Supplemental Final Rule.5

5See NCUA: 12 CFR 722.3; FHFA: 12 CFR part 1222. Although the FDIC adopted the Bureau's version of the regulation, the FDIC did not issue its own regulation containing a cross-reference to the Bureau's version. See 78 FR 10368, 10370 (Feb. 13, 2013).

Section 34.203(b)(2) of subpart G of part 34 of the OCC's regulations, § 226.43(b)(2) of the Board's Regulation Z, and § 1026.35(c)(2)(ii) of the Bureau's Regulation Z, and their accompanying interpretations,6 provide that the exemption threshold for smaller loans will be adjusted effective January 1 of each year based on any annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) that was in effect on the preceding June 1. Any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900. If there is no annual percentage increase in the CPI-W, the OCC, the Board, and the Bureau will not adjust the threshold amounts from the prior year.7

6See 12 CFR part 34, appendix C to subpart G, comment 203(b)(2)-1 (OCC); 12 CFR part 226, supplement I, comment 43(b)(2)-1 (Board); and 12 CFR part 1026, Supplement I, comment 35(c)(2)(ii)-1 (Bureau).

7See 78 FR 48548, 48565 (Aug. 8, 2013) (“Thus, under the proposal, if the CPI-W decreases in an annual period, the percentage increase would be zero, and the dollar amount threshold for the exemption would not change.”).

II. Commentary Revision

On August 4, 2016, the OCC, the Board and the Bureau published a proposed rule in the Federal Register to memorialize the calculation method used by the agencies each year to adjust the exemption threshold. See 81 FR 51394 (Aug. 4, 2016). The proposed commentary stated that if there is no annual percentage increase in the CPI-W, the OCC, the Board and the Bureau will not adjust the exemption threshold from the prior year. The proposed commentary further set forth the calculation method the agencies would use in years following a year in which the exemption threshold was not adjusted because there was no increase in the CPI-W from the previous year. As the OCC, the Board and the Bureau discussed in the proposal, the proposed calculation method would ensure that the values for the exemption threshold keep pace with the CPI-W as contemplated in the December 2013 Supplemental Final Rule.

The comment period closed on September 6, 2016. In response to the proposal, the OCC, the Board and the Bureau received one comment from an individual, one from a State bankers association, and one from a community bank. The individual supported the proposal. The State bankers association requested that the smaller dollar loan exemption be raised to $50,000, and the community bank commenter requested an exemption from the HPML rules for small institutions. Both of these comments are beyond the scope of this rulemaking.

The OCC, the Board, and the Bureau are adopting the commentary revisions as proposed, with some minor clarifying amendments. These changes will be effective on January 1, 2017. The new commentary is substantively identical for § 34.203(b)(2) of subpart G of part 34 of the OCC's regulations, § 226.43(b)(2) of the Board's Regulation Z, and § 1026.35(c)(2)(ii) of the Bureau's Regulation Z. For ease of reference, this “Commentary Revision” discussion refers only to the section numbers of the commentary that will be published in the Bureau's Regulation Z at 12 CFR part 1026, supplement I.

Comment 35(c)(2)(ii)-1 to the Bureau's Regulation Z currently provides the threshold amount in effect during a particular period and details the rules the agencies use for rounding the threshold calculation to the nearest $100 or $1,000 increment, as discussed above in part I, “Background.” The OCC, the Board and the Bureau are revising comment 35(c)(2)(ii)-1 by moving the text regarding the threshold amount that is in effect during a particular period to a new proposed comment 35(c)(2)(ii)-3. Consistent with the proposal, the discussion of how the agencies round the threshold calculation will remain in comment 35(c)(2)(ii)-1 of the final rule. Additionally, current comments 35(c)(2)(ii)-2 and 35(c)(2)(ii)-3 are re-numbered as comments 35(c)(2)(ii)-4 and 35(c)(2)(ii)-5, respectively.

As the Agencies have stated previously,8 if there is no annual percentage increase in the CPI-W, the OCC, the Board, and the Bureau will not adjust the exemption threshold from the prior year. This position is consistent with the Board's and the Bureau's approach in adjusting the coverage thresholds for the Consumer Leasing Act (CLA) and TILA, based on section 1100E(b) of the Dodd-Frank Act, which states that the threshold must be adjusted by the “annual percentage increase” in the CPI-W (emphasis added).9 The Board and the Bureau are publishing similar amendments to the commentaries to each of their respective regulations implementing the CLA (Regulation M) and TILA (Regulation Z) elsewhere in this issue of the Federal Register.

8See 78 FR 48548, 48565 (Aug. 8, 2013) and 80 FR 73943, 73944 (Nov. 27, 2015).

9 76 FR 18354, 18355 n.1 (Apr. 4, 2011) (“[A]n annual period of deflation or no inflation would not require a change in the threshold amount.”).

For the HPML appraisal rule exemption for smaller loans, the OCC, the Board, and the Bureau are memorializing this concept in comment 35(c)(2)(ii)-2, which provides that, if the CPI-W in effect on June 1 does not increase from the CPI-W in effect on June 1 of the previous year, the threshold amount effective the following January 1 through December 31 will not change from the previous year. For example, if the threshold in effect from January 1, 2019, through December 31, 2019, is $27,500 and the CPI-W in effect on June 1 of 2019, indicates a 1.1 percent decrease from the CPI-W in effect on June 1, 2018, the threshold in effect for January 1, 2020, through December 31, 2020, will remain $27,500.

In the final rule, comment 35(c)(2)(ii)-2 further sets forth the calculation method the agencies would use in years following a year in which the exemption threshold was not adjusted because there was no increase in the CPI-W from the previous year. Specifically, comment 35(c)(2)(ii)-2 provides that, for the years after a year in which the threshold did not change because the CPI-W in effect on June 1 decreased from the CPI-W in effect on June 1 of the previous year, the threshold is calculated by applying the annual percentage change in the CPI-W to the dollar amount that would have resulted, after rounding, if the decreases and any subsequent increases in the CPI-W had been taken into account. Comment 35(c)(2)(ii)-2.i further states that, if the resulting amount, after rounding, is greater than the current threshold, then the threshold effective January 1 the following year will increase accordingly.

For example, assume that the threshold in effect from January 1, 2019, through December 31, 2019, is $27,500 and that, due to a 1.1 percent decrease from the CPI-W in effect on June 1, 2018, to the CPI-W in effect on June 1, 2019, the threshold in effect from January 1, 2020, through December 31, 2020, remains at $27,500. If, however, the threshold had been adjusted downward to reflect the decrease in the CPI-W over that time period, the threshold in effect from January 1, 2020, through December 31, 2020, would have been $27,200, after rounding. Further assume that the CPI-W in effect on June 1, 2020, increased by 1.6 percent from the CPI-W in effect on June 1, 2019. The calculation for the threshold that will be in effect from January 1, 2021, through December 31, 2021, is based on the impact of a 1.6 percent increase in the CPI-W on $27,200, rather than $27,500, resulting in a 2021 threshold of $27,600.

Furthermore, comment 35(c)(2)(ii)-2.ii states that, if the resulting amount calculated, after rounding, is equal to or less than the current threshold, then the threshold effective January 1 the following year will not change, but future increases will be calculated based on the amount that would have resulted, after rounding. To illustrate, assume in the example above that the CPI-W in effect on June 1, 2020, increased by only 0.6 percent from the CPI-W in effect on June 1, 2019. The calculation for the threshold that will be in effect from January 1, 2021, through December 31, 2021, is based on the impact of a 0.6 percent increase in the CPI-W on $27,200. The resulting amount, after rounding, is $27,400, which is lower than $27,500, the threshold in effect from January 1, 2020, through December 31, 2020. Therefore, the threshold in effect from January 1, 2021, through December 31, 2021, will remain $27,500. However, the calculation for the threshold that will be in effect from January 1, 2022, through December 31, 2022, will apply the percentage change in the CPI-W to $27,400, the amount that would have resulted based on the 0.6 percent change from the CPI-W in effect on June 1, 2019, after rounding, to the CPI-W in effect on June 1, 2020.

III. 2017 Threshold

Based on the calculation method detailed above, the exemption threshold amount for 2017 remains at $25,500. This is based on the CPI-W in effect on June 1, 2016, which was reported on May 17, 2016. The Bureau of Labor Statistics publishes consumer-based indices monthly, but does not report a CPI change on June 1; adjustments are reported in the middle of the month. The CPI-W is a subset of the CPI-U index (based on all urban consumers) and represents approximately 28 percent of the U.S. population. The CPI-W reported on May 17, 2016, reflects a 0.8 percent increase in the CPI-W from April 2015 to April 2016. Because the CPI-W decreased by 0.8 percent from April 2014 to April 2015, the OCC, the Board and the Bureau are calculating the threshold based on the amount that would have resulted had this decrease been taken into account, which is $25,300. A 0.8 percent increase in the CPI-W applied to $25,300 results in $25,500, which is the same threshold amount for 2016. Thus, the exemption threshold amount that will be in effect for 2017 remains at $25,500. The OCC, the Board and the Bureau are revising the commentaries to their respective regulations to add new comments as follows:

• Comment 203(b)(2)-3.iv to 12 CFR part 34, appendix C to subpart G (OCC);

• Comment 43(b)(2)-3.iv to supplement I of 12 CFR part 226 (Board); and

• Comment 35(c)(2)(ii)-3.iv in supplement I of 12 CFR part 1026 (Bureau).

These new comments state that, from January 1, 2017, through December 31, 2017, the threshold amount is $25,500. These revisions are effective January 1, 2017.

IV. Regulatory Analysis Administrative Procedure Act

Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the OCC, the Board and the Bureau find that notice and public comment are impracticable, unnecessary, or contrary to the public interest.10 The 2017 threshold amount for exempt transactions announced in this rule, $25,500, is technical and applies the calculation method set forth elsewhere in this final rule, for which notice and public comment were provided.11 For these reasons, the OCC, the Board and the Bureau have determined that publishing a notice of proposed rulemaking and providing opportunity for public comment for purposes of the 2017 threshold adjustment are unnecessary. Therefore, the amendments regarding the 2017 threshold amount for exempt transactions are adopted in final form.

10 5 U.S.C. 553(b)(B).

11See 81 FR 51394 (Aug. 4, 2016).

Bureau's Dodd-Frank Act Section 1022(b)(2) Analysis

In developing the final rule, the Bureau has considered potential benefits, costs, and impacts.12 In addition, the Bureau has consulted, or offered to consult with, the prudential regulators, the Securities and Exchange Commission, the Department of Housing and Urban Development, the Federal Housing Finance Agency, the Federal Trade Commission, and the Department of the Treasury, including regarding consistency with any prudential, market, or systemic objectives administered by such agencies.

12 Specifically, section 1022(b)(2)(A) calls for the Bureau to consider the potential benefits and costs of a regulation to consumers and covered persons, including the potential reduction of access by consumers to consumer financial products or services; the impact on depository institutions and credit unions with $10 billion or less in total assets as described in section 1026 of the Act; and the impact on consumers in rural areas.

The Bureau has chosen to evaluate the benefits, costs and impacts of the final rule against the current state of the world, which takes into account the current regulatory regime. The Bureau is not aware of any significant benefits or costs to consumers or covered persons associated with the final rule relative to the baseline. The OCC, the Board, and the Bureau previously stated that if there is no annual percentage increase in the CPI-W, then the agencies will not adjust the exemption threshold from the prior year.13 The final rule memorializes this in official commentary. The final rule also clarifies how the threshold is calculated for years after a year in which the threshold did not change. The Bureau believes that this clarification memorializes the method that the Bureau would be expected to use: This method holds the threshold fixed until a notional threshold calculated using the Bureau's methodology, taking into account both decreases and increases in the CPI-W, exceeds the actual threshold. The Bureau requested, but did not receive, comment on this point. Thus, the Bureau concludes that the final rule will not change the regulatory regime relative to the baseline and will create no significant benefits, costs, or impacts.

13 78 FR 48547, 48565 (Aug. 8, 2013) and 80 FR 73943, 73944 (Nov. 27, 2015).

The final rule will have no unique impact on depository institutions or credit unions with $10 billion or less in assets as described in section 1026(a) of the Dodd-Frank Act or on rural consumers. The Bureau does not expect this final rule to affect consumers' access to credit.

Regulatory Flexibility Act

OCC: Pursuant to the Regulatory Flexibility Act (RFA), an agency must prepare a regulatory flexibility analysis for all proposed and final rules that describes the impact of the rule on small entities.14 Under section 605(b) of the RFA, this analysis is not required if the head of the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short explanatory statement in the Federal Register along with its rule. The OCC has concluded that the final rule does not have a significant economic impact on a substantial number of small entities supervised by the OCC.

14See 5 U.S.C. 601 et seq.

As explained in the Commentary Revision section of the preamble, this final rule memorializes the calculation method used by the OCC, the Board, and the Bureau each year to adjust the threshold for exemption from the special appraisal requirements for HPMLs and clarifies the agencies' calculation method for determining the adjustment in the years following a year in which there is no annual percentage increase in the CPI-W. The economic impact of this final rule on small national banks and Federal savings associations is not expected to be significant. Accordingly, the OCC certifies that the proposed rule would not have a significant economic impact on a substantial number of small OCC-supervised entities. Therefore, pursuant to section 605(b) of the RFA, the OCC hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required.

Board: An initial regulatory flexibility analysis (IRFA) was included in the proposal in accordance with section 3(a) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. (RFA). In the IRFA, the Board requested comments on any approaches, other than the proposed alternatives, that would reduce the burden on small entities. The RFA requires an agency to prepare a final regulatory flexibility analysis (FRFA) unless the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.15 In accordance with section 3(a) of the RFA, the Board has reviewed the final regulation. Based on its analysis, and for the reasons stated below, the Board believes that the rule will not have a significant economic impact on a substantial number of small entities.

15See 5 U.S.C. 601 et seq.

1. Statement of the need for, and objectives of, the final rule. The final rule memorializes the calculation method used by the Board each year to adjust the exemption threshold in accordance with Regulation Z, 12 CFR 226.43(b)(2). The final rule also adopts the exemption threshold that will apply from January 1, 2017, through December 31, 2017, based on the calculation method memorialized in the final rule.

2. Summary of issues raised by comments in response to the IFRA. The Board did not receive any comments on the IFRA.

3. Small entities affected by the final rule. For purposes of the RFA, the Small Business Administration defines small entities to include banking entities with total assets of $550 million or less. Of Board supervised institutions with an asset size of $550 million or less as of March 2016, 223 reported making 5,135 higher-priced mortgage loans in 2015.16 The Board does not believe that the final rule will have a significant economic impact on the entities that it affects.

16 Board supervised institutions include State Member Banks, uninsured State branches and agencies of foreign banks. The number of institutions making higher-priced mortgage loans and the number of higher-priced mortgage loans is based on data reported pursuant to the Home Mortgage Disclosure Act (HMDA), 12 U.S.C. 2801 et seq.

4. Recordkeeping, reporting, and compliance requirements. The final rule would not impose any recordkeeping, reporting, or compliance requirements.

5. Other Federal rules. The Board has not identified any likely duplication, overlap and/or potential conflict between the final rule and any Federal rule.

Bureau: The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements.17 These analyses must describe the impact of the proposed and final rules on small entities.18 An IRFA or FRFA is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.19 The Bureau also is subject to certain additional procedures under the RFA involving the convening of a panel to consult with small business representatives prior to proposing a rule for which an IRFA is required.20

17 5 U.S.C. 601 et seq.

18Id. at 603(a) and 604(a). For purposes of assessing the impacts of the rule on small entities, “small entities” is defined in the RFA to include small businesses, small not-for-profit organizations, and small government jurisdictions. Id. at 601(6). A “small business” is determined by application of Small Business Administration regulations and reference to the North American Industry Classification System (NAICS) classifications and size standards. Id. at 601(3). A “small organization” is any “not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Id. at 601(4). A “small governmental jurisdiction” is the government of a city, county, town, township, village, school district, or special district with a population of less than 50,000. Id. at 601(5).

19Id. at 605(b).

20Id. at 609.

A FRFA is not required for this final rule because it will not have a significant economic impact on a substantial number of small entities. As discussed in the Bureau's Section 1022(b)(2) Analysis above, this final rule does not introduce costs or benefits to covered persons because it seeks only to clarify the method of threshold adjustment which has already been established in previous Agency rules. Therefore this final rule will not have a significant impact on small entities.

Certification

Accordingly, the Bureau Director, by signing below, certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995,21 the agencies reviewed this final rule. No collections of information pursuant to the Paperwork Reduction Act are contained in the final rule.

21 44 U.S.C. 3506; 5 CFR part 1320.

Unfunded Mandates Reform Act

The OCC has analyzed the final rule under the factors set forth in the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532). Under this analysis, the OCC considered whether the final rule includes a Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted annually for inflation).

The final rule memorializes the calculation method used by the OCC, the Board, and the Bureau each year to adjust the threshold for exemption from the special appraisal requirements for HPMLs and clarifies the agencies' calculation method for determining the adjustment in the years following a year in which there is no annual percentage increase in the CPI-W. Because the final rule is designed to clarify existing rules, and does not introduce any new requirements, the OCC has determined that it would not result in expenditures by State, local, and Tribal governments or by the private sector, of $100 million or more. Accordingly, the OCC has not prepared a written statement to accompany its final rule.

List of Subjects 12 CFR Part 34

Appraisal, Appraiser, Banks, Banking, Consumer protection, Credit, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending.

12 CFR Part 226

Advertising, Appraisal, Appraiser, Consumer protection, Credit, Federal Reserve System, Mortgages, Reporting and recordkeeping requirements, Truth in lending.

12 CFR Part 1026

Advertising, Appraisal, Appraiser, Banking, Banks, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending.

Department of the Treasury Office of the Comptroller of the Currency Authority and Issuance

For the reasons set forth in the preamble, the OCC amends 12 CFR part 34 as set forth below:

PART 34—REAL ESTATE LENDING AND APPRAISALS 1. The authority citation for part 34 continues to read as follows: Authority:

12 U.S.C. 1 et seq., 25b, 29, 93a, 371, 1463, 1464, 1465, 1701j-3, 1828(o), 3331 et seq., 5101 et seq., 5412(b)(2)(B) and 15 U.S.C. 1639h.

Subpart G—Appraisals for Higher-Priced Mortgage Loans 2. In appendix C to subpart G, under Section 34.203—Appraisals for Higher-Priced Mortgage Loans, the entry for Paragraph 34.203(b)(2) is revised to read as follows: Appendix C to Subpart G of Part 34—OCC Interpretations Section 34.203—Appraisals for Higher-Priced Mortgage Loans 34.203(b) Exemptions Paragraph 34.203(b)(2)

1. Threshold amount. For purposes of § 34.203(b)(2), the threshold amount in effect during a particular period is the amount stated in comment 203(b)(2)-3 for that period. The threshold amount is adjusted effective January 1 of each year by any annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) that was in effect on the preceding June 1. Comment 203(b)(2)-3 will be amended to provide the threshold amount for the upcoming year after the annual percentage change in the CPI-W that was in effect on June 1 becomes available. Any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900.

2. No increase in the CPI-W. If the CPI-W in effect on June 1 does not increase from the CPI-W in effect on June 1 of the previous year, the threshold amount effective the following January 1 through December 31 will not change from the previous year. When this occurs, for the years that follow, the threshold is calculated based on the annual percentage change in the CPI-W applied to the dollar amount that would have resulted, after rounding, if decreases and any subsequent increases in the CPI-W had been taken into account.

i. Net increases. If the resulting amount calculated, after rounding, is greater than the current threshold, then the threshold effective January 1 the following year will increase accordingly.

ii. Net decreases. If the resulting amount calculated, after rounding, is equal to or less than the current threshold, then the threshold effective January 1 the following year will not change, but future increases will be calculated based on the amount that would have resulted.

3. Threshold. For purposes of § 34.203(b)(2), the threshold amount in effect during a particular period is the amount stated below for that period.

i. From January 18, 2014, through December 31, 2014, the threshold amount is $25,000.

ii. From January 1, 2015, through December 31, 2015, the threshold amount is $25,500.

iii. From January 1, 2016, through December 31, 2016, the threshold amount is $25,500.

iv. From January 1, 2017, through December 31, 2017, the threshold amount is $25,500.

4. Qualifying for exemption—in general. A transaction is exempt under § 34.203(b)(2) if the creditor makes an extension of credit at consummation that is equal to or below the threshold amount in effect at the time of consummation.

5. Qualifying for exemption—subsequent changes. A transaction does not meet the condition for an exemption under § 34.203(b)(2) merely because it is used to satisfy and replace an existing exempt loan, unless the amount of the new extension of credit is equal to or less than the applicable threshold amount. For example, assume a closed-end loan that qualified for a § 34.203(b)(2) exemption at consummation in year one is refinanced in year ten and that the new loan amount is greater than the threshold amount in effect in year ten. In these circumstances, the creditor must comply with all of the applicable requirements of § 34.203 with respect to the year ten transaction if the original loan is satisfied and replaced by the new loan, unless another exemption from the requirements of § 34.203 applies. See § 34.203(b) and (d)(7).

Board of Governors of the Federal Reserve System Authority and Issuance

For the reasons set forth in the preamble, the Board amends Regulation Z, 12 CFR part 226, as set forth below:

PART 226—TRUTH IN LENDING (REGULATION Z) 3. The authority citation for part 226 continues to read as follows: Authority:

12 U.S.C. 3806; 15 U.S.C. 1604, 1637(c)(5), 1639(l), and 1639h; Pub. L. 111-24, section 2, 123 Stat. 1734; Pub. L. 111-203, 124 Stat. 1376.

4. In supplement I to part 226, under Section 226.43—Appraisals for Higher-Risk Mortgage Loans, the entry for Paragraph 43(b)(2) is revised to read as follows: Supplement I to Part 226—Official Staff Interpretations Subpart E—Special Rules for Certain Home Mortgage Transactions Section 226.43—Appraisals for Higher-Risk Mortgage Loans 43(b) Exemptions Paragraph 43(b)(2)

1. Threshold amount. For purposes of § 226.43(b)(2), the threshold amount in effect during a particular period is the amount stated in comment 43(b)(2)-3 for that period. The threshold amount is adjusted effective January 1 of each year by any annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) that was in effect on the preceding June 1. Comment 43(b)(2)-3 will be amended to provide the threshold amount for the upcoming year after the annual percentage change in the CPI-W that was in effect on June 1 becomes available. Any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900.

2. No increase in the CPI-W. If the CPI-W in effect on June 1 does not increase from the CPI-W in effect on June 1 of the previous year, the threshold amount effective the following January 1 through December 31 will not change from the previous year. When this occurs, for the years that follow, the threshold is calculated based on the annual percentage change in the CPI-W applied to the dollar amount that would have resulted, after rounding, if decreases and any subsequent increases in the CPI-W had been taken into account.

i. Net increases. If the resulting amount calculated, after rounding, is greater than the current threshold, then the threshold effective January 1 the following year will increase accordingly.

ii. Net decreases. If the resulting amount calculated, after rounding, is equal to or less than the current threshold, then the threshold effective January 1 the following year will not change, but future increases will be calculated based on the amount that would have resulted.

3. Threshold. For purposes of § 226.43(b)(2), the threshold amount in effect during a particular period is the amount stated below for that period.

i. From January 18, 2014, through December 31, 2014, the threshold amount is $25,000.

ii. From January 1, 2015, through December 31, 2015, the threshold amount is $25,500.

iii. From January 1, 2016, through December 31, 2016, the threshold amount is $25,500.

iv. From January 1, 2017, through December 31, 2017, the threshold amount is $25,500.

4. Qualifying for exemption—in general. A transaction is exempt under § 226.43(b)(2) if the creditor makes an extension of credit at consummation that is equal to or below the threshold amount in effect at the time of consummation.

5. Qualifying for exemption—subsequent changes. A transaction does not meet the condition for an exemption under § 226.43(b)(2) merely because it is used to satisfy and replace an existing exempt loan, unless the amount of the new extension of credit is equal to or less than the applicable threshold amount. For example, assume a closed-end loan that qualified for a § 226.43(b)(2) exemption at consummation in year one is refinanced in year ten and that the new loan amount is greater than the threshold amount in effect in year ten. In these circumstances, the creditor must comply with all of the applicable requirements of § 226.43 with respect to the year ten transaction if the original loan is satisfied and replaced by the new loan, unless another exemption from the requirements of § 226.43 applies. See § 226.43(b) and (d)(7).

Bureau of Consumer Financial Protection Authority and Issuance

For the reasons set forth in the preamble, the Bureau amends Regulation Z, 12 CFR part 1026, as set forth below:

PART 1026—TRUTH IN LENDING (REGULATION Z) 5. The authority citation for part 1026 continues to read as follows: Authority:

12 U.S.C. 2601, 2603-2605, 2607, 2609, 2617, 3353, 5511, 5512, 5532, 5581; 15 U.S.C. 1601 et seq.

6. In supplement I to part 1026, under Section 1026.35—Requirements for Higher-Priced Mortgage Loans, the entry for Paragraph 35(c)(2)(ii) is revised to read as follows: Supplement I to Part 1026—Official Interpretations Subpart E—Special Rules for Certain Home Mortgage Transactions Section 1026.35—Requirements for Higher-Priced Mortgage Loans 35(c)—Appraisals 35(c)(2) Exemptions Paragraph 35(c)(2)(ii)

1. Threshold amount. For purposes of § 1026.35(c)(2)(ii), the threshold amount in effect during a particular period is the amount stated in comment 35(c)(2)(ii)-3 for that period. The threshold amount is adjusted effective January 1 of each year by any annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) that was in effect on the preceding June 1. Comment 35(c)(2)(ii)-3 will be amended to provide the threshold amount for the upcoming year after the annual percentage change in the CPI-W that was in effect on June 1 becomes available. Any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900.

2. No increase in the CPI-W. If the CPI-W in effect on June 1 does not increase from the CPI-W in effect on June 1 of the previous year, the threshold amount effective the following January 1 through December 31 will not change from the previous year. When this occurs, for the years that follow, the threshold is calculated based on the annual percentage change in the CPI-W applied to the dollar amount that would have resulted, after rounding, if decreases and any subsequent increases in the CPI-W had been taken into account.

i. Net increases. If the resulting amount calculated, after rounding, is greater than the current threshold, then the threshold effective January 1 the following year will increase accordingly.

ii. Net decreases. If the resulting amount calculated, after rounding, is equal to or less than the current threshold, then the threshold effective January 1 the following year will not change, but future increases will be calculated based on the amount that would have resulted.

3. Threshold. For purposes of § 1026.35(c)(2)(ii), the threshold amount in effect during a particular period is the amount stated below for that period.

i. From January 18, 2014, through December 31, 2014, the threshold amount is $25,000.

ii. From January 1, 2015, through December 31, 2015, the threshold amount is $25,500.

iii. From January 1, 2016, through December 31, 2016, the threshold amount is $25,500.

iv. From January 1, 2017, through December 31, 2017, the threshold amount is $25,500.

4. Qualifying for exemption—in general. A transaction is exempt under § 1026.35(c)(2)(ii) if the creditor makes an extension of credit at consummation that is equal to or below the threshold amount in effect at the time of consummation.

5. Qualifying for exemption—subsequent changes. A transaction does not meet the condition for an exemption under § 1026.35(c)(2)(ii) merely because it is used to satisfy and replace an existing exempt loan, unless the amount of the new extension of credit is equal to or less than the applicable threshold amount. For example, assume a closed-end loan that qualified for a § 1026.35(c)(2)(ii) exemption at consummation in year one is refinanced in year ten and that the new loan amount is greater than the threshold amount in effect in year ten. In these circumstances, the creditor must comply with all of the applicable requirements of § 1026.35(c) with respect to the year ten transaction if the original loan is satisfied and replaced by the new loan, unless another exemption from the requirements of § 1026.35(c) applies. See § 1026.35(c)(2) and (c)(4)(vii).

Dated: November 22, 2016. Thomas J. Curry, Comptroller of the Currency.

By order of the Board of Governors of the Federal Reserve System, November 21, 2016.

Robert deV. Frierson, Secretary of the Board.
Dated: November 7, 2016. Richard Cordray, Director, Bureau of Consumer Financial Protection.
[FR Doc. 2016-28699 Filed 11-29-16; 8:45 am] BILLING CODE 4810-33-P; 6210-01-P; 4810-AM-P
FEDERAL RESERVE SYSTEM 12 CFR Part 213 [Docket No. R-1545] RIN 7100 AE-56 BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1013 [Docket No. CFPB-2016-0036] RIN 3170-AA66 Consumer Leasing (Regulation M) AGENCY:

Board of Governors of the Federal Reserve System (Board); and Bureau of Consumer Financial Protection (Bureau).

ACTION:

Final rules, official interpretations and commentary.

SUMMARY:

The Board and the Bureau are finalizing amendments to the official interpretations and commentary for the agencies' regulations that implement the Consumer Leasing Act (CLA). The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) amended the CLA by requiring that the dollar threshold for exempt consumer leases be adjusted annually by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). If there is no annual percentage increase in the CPI-W, the Board and Bureau will not adjust this exemption threshold from the prior year. The final rule memorializes this as well as the agencies' calculation method for determining the adjustment in years following a year in which there is no annual percentage increase in the CPI-W. Based on the CPI-W in effect as of June 1, 2016, the exemption threshold will remain at $54,600 through 2017. The Dodd-Frank Act also requires similar adjustments in the Truth in Lending Act's threshold for exempt consumer credit transactions. Accordingly, the Board and the Bureau are adopting similar amendments to the commentaries to each of their respective regulations implementing the Truth in Lending Act elsewhere in this issue of the Federal Register.

DATES:

This final rule is effective January 1, 2017.

FOR FURTHER INFORMATION CONTACT:

Board: Vivian W. Wong, Senior Counsel, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, at (202) 452-3667; for users of Telecommunications Device for the Deaf (TDD) only, contact (202) 263-4869.

Bureau: Jaclyn Maier, Counsel, Office of Regulations, Consumer Financial Protection Bureau, at (202) 435-7700.

SUPPLEMENTARY INFORMATION:

I. Background

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) increased the threshold in the Consumer Leasing Act (CLA) for exempt consumer leases, and the threshold in the Truth in Lending Act (TILA) for exempt consumer credit transactions,1 from $25,000 to $50,000, effective July 21, 2011.2 In addition, the Dodd-Frank Act requires that, on and after December 31, 2011, these thresholds be adjusted annually for inflation by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), as published by the Bureau of Labor Statistics. In April 2011, the Board issued a final rule amending Regulation M (which implements the CLA) consistent with these provisions of the Dodd-Frank Act, along with a similar final rule amending Regulation Z (which implements TILA) (collectively, the Board Final Threshold Rules).3

1 Although consumer credit transactions above the threshold are generally exempt, loans secured by real property or by personal property used or expected to be used as the principal dwelling of a consumer and private education loans are covered by TILA regardless of the loan amount. See 12 CFR 226.3(b)(1)(i) (Board) and 12 CFR 1026.3(b)(1)(i) (Bureau).

2 Public Law 111-203, section 1100E, 124 Stat. 1376 (2010).

3 76 FR 18349 (Apr. 4, 2011); 76 FR 18354 (Apr. 4, 2011).

Title X of the Dodd-Frank Act transferred rulemaking authority for a number of consumer financial protection laws from the Board to the Bureau, effective July 21, 2011. In connection with this transfer of rulemaking authority, the Bureau issued its own Regulation M implementing the CLA in an interim final rule, 12 CFR part 1013 (Bureau Interim Final Rule).4 The Bureau Interim Final Rule substantially duplicated the Board's Regulation M, including the revisions to the threshold for exempt transactions made by the Board in April 2011. In April 2016, the Bureau adopted the Bureau Interim Final Rule as final, subject to intervening final rules published by the Bureau.5 Although the Bureau has the authority to issue rules to implement the CLA for most entities, the Board retains authority to issue rules under the CLA for certain motor vehicle dealers covered by section 1029(a) of the Dodd-Frank Act, and the Board's Regulation M continues to apply to those entities.6

4 76 FR 78500 (Dec. 19, 2011).

5 81 FR 25323 (April 28, 2016).

6 Section 1029(a) of the Dodd-Frank Act states: “Except as permitted in subsection (b), the Bureau may not exercise any rulemaking, supervisory, enforcement, or any other authority * * * over a motor vehicle dealer that is predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both.” 12 U.S.C. 5519(a). Section 1029(b) of the Dodd-Frank Act states: “Subsection (a) shall not apply to any person, to the extent that such person (1) provides consumers with any services related to residential or commercial mortgages or self-financing transactions involving real property; (2) operates a line of business (A) that involves the extension of retail credit or retail leases involving motor vehicles; and (B) in which (i) the extension of retail credit or retail leases are provided directly to consumers; and (ii) the contract governing such extension of retail credit or retail leases is not routinely assigned to an unaffiliated third party finance or leasing source; or (3) offers or provides a consumer financial product or service not involving or related to the sale, financing, leasing, rental, repair, refurbishment, maintenance, or other servicing of motor vehicles, motor vehicle parts, or any related or ancillary product or service.” 12 U.S.C. 5519(b).

Section 213.2(e)(1) of the Board's Regulation M and § 1013.2(e)(1) of the Bureau's Regulation M, and their accompanying commentaries, provide that the exemption threshold will be adjusted annually effective January 1 of each year based on any annual percentage increase in the CPI-W that was in effect on the preceding June 1. They further provide that any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900.7 If there is no annual percentage increase in the CPI-W, the Board and Bureau will not adjust the exemption threshold from the prior year. Since 2011, the Board and the Bureau have adjusted the Regulation M exemption threshold annually, in accordance with these rules.

7See comments 2(e)-9 in supplements I of 12 CFR parts 213 and 1013.

II. Commentary Revision

On August 4, 2016, the Board and the Bureau published a proposed rule in the Federal Register to memorialize the calculation method used by the agencies each year to adjust the exemption threshold. See 81 FR 51400 (Aug. 4, 2016). The proposed commentary stated that if there is no annual percentage increase in the CPI-W, the Board and Bureau will not adjust the exemption threshold from the prior year. The proposed commentary further set forth the calculation method the agencies would use in years following a year in which the exemption threshold was not adjusted because there was no increase in the CPI-W from the previous year. As the Board and the Bureau discussed in the proposal, the proposed calculation method would ensure that the values for the exemption threshold keep pace with the CPI-W as contemplated by section 1100E(b) of the Dodd-Frank Act.

The comment period closed on September 6, 2016. In response to the proposal, the Board and the Bureau received one comment from a consumer supporting the proposal. The Board and the Bureau are adopting the commentary revisions as proposed, with some minor clarifying amendments. These changes will be effective on January 1, 2017.

Specifically, the Board and the Bureau are adopting comment 2(e)-9 as proposed to move the text regarding the threshold amount that is in effect during a particular period to a new comment 2(e)-11. The discussion of how the agencies round the threshold calculation will remain in comment 2(e)-9.

Furthermore, the Board and the Bureau are adopting new comment 2(e)-10 as proposed to provide that if the CPI-W in effect on June 1 does not increase from the CPI-W in effect on June 1 of the previous year (i.e., the CPI-W in effect on June 1 is either equal to or less than the CPI-W in effect on June 1 of the previous year), the threshold amount effective the following January 1 through December 31 will not change from the previous year. As the Board and the Bureau discussed in the proposal, this position is consistent with section 1100E(b) of the Dodd-Frank Act, which states that the threshold must be adjusted by the “annual percentage increase” in the CPI-W (emphasis added), and the position the agencies have previously taken.8 Thus, if the threshold in effect from January 1, 2019, through December 31, 2019, is $55,500 and the CPI-W in effect on June 1 of 2019 indicates a 1.1 percent decrease from the CPI-W in effect on June 1, 2018, the threshold in effect for January 1, 2020, through December 31, 2020, will remain $55,500.

8See, e.g., 76 FR 18354, 18355 n.1 (Apr. 4, 2011) (“[A]n annual period of deflation or no inflation would not require a change in the threshold amount.”).

Comment 2(e)-10 also provides that, for the years after a year in which the threshold did not change because the CPI-W in effect on June 1 decreased from the CPI-W in effect on June 1 of the previous year, the threshold is calculated by applying the annual percentage change in the CPI-W to the dollar amount that would have resulted, after rounding, if the decreases and any subsequent increases in the CPI-W had been taken into account. Comment 2(e)-10.i further states that, if the resulting amount, after rounding, is greater than the current threshold, then the threshold effective January 1 the following year will increase accordingly.

For example, assume that the threshold in effect from January 1, 2019, through December 31, 2019, is $55,500 and that, due to a 1.1 percent decrease from the CPI-W in effect on June 1, 2018, to the CPI-W in effect on June 1, 2019, the threshold in effect from January 1, 2020, through December 31, 2020, remains at $55,500. If, however, the threshold had been adjusted downward to reflect the decrease in the CPI-W over that time period, the threshold in effect from January 1, 2020, through December 31, 2020, would have been $54,900, after rounding. Further assume that the CPI-W in effect on June 1, 2020, increased by 1.6 percent from the CPI-W in effect on June 1, 2019. The calculation for the threshold that will be in effect from January 1, 2021, through December 31, 2021, is based on the impact of a 1.6 percent increase in the CPI-W on $54,900, rather than $55,500, resulting in a 2021 threshold of $55,800.

Furthermore, comment 2(e)-10.ii states that, if the resulting amount calculated, after rounding, is equal to or less than the current threshold, then the threshold effective January 1 the following year will not change, but future increases will be calculated based on the amount that would have resulted, after rounding. To illustrate, assume in the example above that the CPI-W in effect on June 1, 2020, increased by only 0.6 percent from the CPI-W in effect on June 1, 2019. The calculation for the threshold that will be in effect from January 1, 2021, through December 31, 2021, is based on the impact of a 0.6 percent increase in the CPI-W on $54,900. The resulting amount, after rounding, is $55,200, which is lower than $55,500, the threshold in effect from January 1, 2020, through December 31, 2020. Therefore, the threshold in effect from January 1, 2021, through December 31, 2021, will remain $55,500. However, the calculation for the threshold that will be in effect from January 1, 2022, through December 31, 2022, will apply the percentage change in the CPI-W to $55,200, the amount that would have resulted based on the 0.6 percent change from the CPI-W in effect on June 1, 2019, after rounding, to the CPI-W in effect on June 1, 2020.

III. 2017 Threshold

Based on the calculation method detailed above, the exemption threshold amount for 2017 remains at $54,600. This is based on the CPI-W in effect on June 1, 2016, which was reported on May 17, 2016. The Bureau of Labor Statistics publishes consumer-based indices monthly, but does not report a CPI change on June 1; adjustments are reported in the middle of the month. The CPI-W is a subset of the CPI-U index (based on all urban consumers) and represents approximately 28 percent of the U.S. population. The CPI-W reported on May 17, 2016 reflects a 0.8 percent increase in the CPI-W from April 2015 to April 2016. Because the CPI-W decreased from April 2014 to April 2015, the Board and the Bureau are calculating the threshold based on the amount that would have resulted had this decrease been taken into account, which is $54,200. A 0.8 percent increase in the CPI-W applied to $54,200 results in $54,600, which is the same threshold amount for 2016. Thus, the exemption threshold amount that will be in effect for 2017 remains at $54,600. The Board and the Bureau are revising the commentaries to their respective regulations to add new comment 2(e)-11.viii to state that, from January 1, 2017, through December 31, 2017, the threshold amount is $54,600. These revisions are effective January 1, 2017.

IV. Regulatory Analysis Administrative Procedure Act

Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Board and the Bureau find that notice and public comment are impracticable, unnecessary, or contrary to the public interest.9 The 2017 threshold amount for exempt consumer leases announced in this rule, $54,600, is technical and applies the calculation method set forth elsewhere in this final rule, for which notice and public comment were provided.10 For these reasons, the Board and the Bureau have determined that publishing a notice of proposed rulemaking and providing opportunity for public comment for purposes of the 2017 threshold adjustment are unnecessary. Therefore, the amendments regarding the 2017 threshold amount for exempt consumer leases are adopted in final form.

9 5 U.S.C. 553(b)(B).

10See 81 FR 51400 (Aug. 4, 2016).

Bureau's Dodd-Frank Act Section 1022(b)(2) Analysis

In developing the final rule, the Bureau has considered potential benefits, costs, and impacts.11 In addition, the Bureau has consulted, or offered to consult with, the prudential regulators, the Securities and Exchange Commission, the Department of Housing and Urban Development, the Federal Housing Finance Agency, the Federal Trade Commission, and the Department of the Treasury, including regarding consistency with any prudential, market, or systemic objectives administered by such agencies.

11 Specifically, section 1022(b)(2)(A) calls for the Bureau to consider the potential benefits and costs of a regulation to consumers and covered persons, including the potential reduction of access by consumers to consumer financial products or services; the impact on depository institutions and credit unions with $10 billion or less in total assets as described in section 1026 of the Act; and the impact on consumers in rural areas.

The Bureau has chosen to evaluate the benefits, costs and impacts of the final rule against the current state of the world, which takes into account the current regulatory regime. The Bureau is not aware of any significant benefits or costs to consumers or covered persons associated with the final rule relative to the baseline. The Board previously stated that if there is no annual percentage increase in the CPI-W, then the Board (and now the Bureau) will not adjust the exemption threshold from the prior year.12 The final rule memorializes this in official commentary. The final rule also clarifies how the threshold is calculated for years after a year in which the threshold did not change. The Bureau believes that this clarification memorializes the method that the Bureau would be expected to use: This method holds the threshold fixed until a notional threshold calculated using the Bureau's methodology, taking into account both decreases and increases in the CPI-W, exceeds the actual threshold. The Bureau requested, but did not receive, comment on this point. Thus, the Bureau concludes that the final rule will not change the regulatory regime relative to the baseline and will create no significant benefits, costs, or impacts.

12 76 FR 18354, 18355 n.1 (Apr. 4, 2011) (“[A]n annual period of deflation or no inflation would not require a change in the threshold amount.”).

The final rule will have no unique impact on depository institutions or credit unions with $10 billion or less in assets as described in section 1026(a) of the Dodd-Frank Act or on rural consumers. The Bureau does not expect this final rule to affect consumers' access to credit.

Regulatory Flexibility Act

Board: An initial regulatory flexibility analysis (IRFA) was included in the proposal in accordance with section 3(a) of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA). In the IRFA, the Board requested comments on any approaches, other than the proposed alternatives, that would reduce the burden on small entities. The RFA requires an agency to prepare a final regulatory flexibility analysis (FRFA) unless the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. In accordance with section 3(a) of the RFA, the Board has reviewed the final regulation. Based on its analysis, and for the reasons stated below, the Board believes that the rule will not have a significant economic impact on a substantial number of small entities.

1. Statement of the need for, and objectives of, the final rule. The final rule memorializes the calculation method used by the Board each year to adjust the exemption threshold in accordance with section 1100E of the Dodd-Frank Act. The final rule also adopts the exemption threshold that will apply from January 1, 2017, through December 31, 2017, based on the calculation method memorialized in this final rule.

2. Summary of issues raised by comments in response to the initial regulatory flexibility analysis. The Board did not receive any comments on the initial regulatory flexibility analysis.

3. Small entities affected by the final rule. Motor vehicle dealers that are subject to the Board's Regulation M and offer consumer leases that may be exempt from Regulation M under 12 CFR 213.2(e) would be affected. While the total number of small entities likely to be affected by the final rule is unknown, the Board does not believe the final rule will have a significant economic impact on the entities that it affects.

4. Recordkeeping, reporting, and compliance requirements. The final rule would not impose any recordkeeping, reporting, or compliance requirements.

5. Significant alternatives to the final revisions. The Board has not identified any significant alternatives that would reduce the regulatory burden on small entities associated with this final rule.

Bureau: The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements.13 These analyses must describe the impact of the proposed and final rules on small entities.14 An IRFA or FRFA is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.15 The Bureau also is subject to certain additional procedures under the RFA involving the convening of a panel to consult with small business representatives prior to proposing a rule for which an IRFA is required.16

13 5 U.S.C. 601 et seq.

14Id. at 603(a) and 604(a). For purposes of assessing the impacts of the rule on small entities, “small entities” is defined in the RFA to include small businesses, small not-for-profit organizations, and small government jurisdictions. Id. at 601(6). A “small business” is determined by application of Small Business Administration regulations and reference to the North American Industry Classification System (NAICS) classifications and size standards. Id. at 601(3). A “small organization” is any “not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Id. at 601(4). A “small governmental jurisdiction” is the government of a city, county, town, township, village, school district, or special district with a population of less than 50,000. Id. at 601(5).

15Id. at 605(b).

16Id. at 609.

A FRFA is not required for this final rule because it will not have a significant economic impact on a substantial number of small entities. As discussed in the Bureau's Section 1022(b)(2) Analysis above, this final rule does not introduce costs or benefits to covered persons because it seeks only to clarify the method of threshold adjustment which has already been established in previous Agency rules. Therefore this final rule will not have a significant impact on small entities.

Certification

Accordingly, the Bureau Director, by signing below, certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995,17 the agencies reviewed this final rule. No collections of information pursuant to the Paperwork Reduction Act are contained in the final rule.

17 44 U.S.C. 3506; 5 CFR 1320.

List of Subjects 12 CFR Part 213

Advertising, Consumer leasing, Consumer protection, Federal Reserve System, Reporting and recordkeeping requirements.

12 CFR Part 1013

Advertising, Consumer leasing, Reporting and recordkeeping requirements, Truth in lending.

Board of Governors of the Federal Reserve System Authority and Issuance

For the reasons set forth in the preamble, the Board amends Regulation M, 12 CFR part 213, as set forth below:

PART 213—CONSUMER LEASING (REGULATION M) 1. The authority citation for part 213 continues to read as follows: Authority:

15 U.S.C. 1604 and 1667f; Public Law 111-203, section 1100E, 124 Stat. 1376.

2. In supplement I to part 213, under Section 213.2—Definitions, under 2(e) Consumer lease, paragraph 9 is revised, and paragraphs 10 and 11 are added, to read as follows: Supplement I to Part 213—Official Staff Commentary to Regulation M Section 213.2—Definitions 2(e) Consumer Lease

9. Threshold amount. A consumer lease is exempt from the requirements of this part if the total contractual obligation exceeds the threshold amount in effect at the time of consummation. The threshold amount in effect during a particular time period is the amount stated in comment 2(e)-11 for that period. The threshold amount is adjusted effective January 1 of each year by any annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) that was in effect on the preceding June 1. Comment 2(e)-11 will be amended to provide the threshold amount for the upcoming year after the annual percentage change in the CPI-W that was in effect on June 1 becomes available. Any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900. If a consumer lease is exempt from the requirements of this Part because the total contractual obligation exceeds the threshold amount in effect at the time of consummation, the lease remains exempt regardless of a subsequent increase in the threshold amount.

10. No increase in the CPI-W. If the CPI-W in effect on June 1 does not increase from the CPI-W in effect on June 1 of the previous year, the threshold amount effective the following January 1 through December 31 will not change from the previous year. When this occurs, for the years that follow, the threshold is calculated based on the annual percentage change in the CPI-W applied to the dollar amount that would have resulted, after rounding, if decreases and any subsequent increases in the CPI-W had been taken into account.

i. Net increases. If the resulting amount calculated, after rounding, is greater than the current threshold, then the threshold effective January 1 the following year will increase accordingly.

ii. Net decreases. If the resulting amount calculated, after rounding, is equal to or less than the current threshold, then the threshold effective January 1 the following year will not change, but future increases will be calculated based on the amount that would have resulted.

11. Threshold. For purposes of § 213.2(e)(1), the threshold amount in effect during a particular period is the amount stated below for that period.

i. Prior to July 21, 2011, the threshold amount is $25,000.

ii. From July 21, 2011 through December 31, 2011, the threshold amount is $50,000.

iii. From January 1, 2012 through December 31, 2012, the threshold amount is $51,800.

iv. From January 1, 2013 through December 31, 2013, the threshold amount is $53,000.

v. From January 1, 2014 through December 31, 2014, the threshold amount is $53,500.

vi. From January 1, 2015 through December 31, 2015, the threshold amount is $54,600.

vii. From January 1, 2016 through December 31, 2016, the threshold amount is $54,600.

viii. From January 1, 2017 through December 31, 2017, the threshold amount is $54,600.

Bureau of Consumer Financial Protection Authority and Issuance

For the reasons set forth in the preamble, the Bureau amends Regulation M, 12 CFR part 1013, as set forth below:

PART 1013—CONSUMER LEASING (REGULATION M) 3. The authority citation for part 1013 continues to read as follows: Authority:

15 U.S.C. 1604 and 1667f; Public Law 111-203, section 1100E, 124 Stat. 1376.

4. In supplement I to part 1013, under Section 1013.2—Definitions, under 2(e)—Consumer Lease, paragraph 9 is revised, and paragraphs 10 and 11 are added, to read as follows: Supplement I to Part 1013—Official Interpretations Section 1013.2—Definitions 2(e) Consumer Lease

9. Threshold amount. A consumer lease is exempt from the requirements of this part if the total contractual obligation exceeds the threshold amount in effect at the time of consummation. The threshold amount in effect during a particular time period is the amount stated in comment 2(e)-11 for that period. The threshold amount is adjusted effective January 1 of each year by any annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) that was in effect on the preceding June 1. Comment 2(e)-11 will be amended to provide the threshold amount for the upcoming year after the annual percentage change in the CPI-W that was in effect on June 1 becomes available. Any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900. If a consumer lease is exempt from the requirements of this part because the total contractual obligation exceeds the threshold amount in effect at the time of consummation, the lease remains exempt regardless of a subsequent increase in the threshold amount.

10. No increase in the CPI-W. If the CPI-W in effect on June 1 does not increase from the CPI-W in effect on June 1 of the previous year, the threshold amount effective the following January 1 through December 31 will not change from the previous year. When this occurs, for the years that follow, the threshold is calculated based on the annual percentage change in the CPI-W applied to the dollar amount that would have resulted, after rounding, if decreases and any subsequent increases in the CPI-W had been taken into account.

i. Net increases. If the resulting amount calculated, after rounding, is greater than the current threshold, then the threshold effective January 1 the following year will increase accordingly.

ii. Net decreases. If the resulting amount calculated, after rounding, is equal to or less than the current threshold, then the threshold effective January 1 the following year will not change, but future increases will be calculated based on the amount that would have resulted.

11. Threshold. For purposes of § 1013.2(e)(1), the threshold amount in effect during a particular period is the amount stated below for that period.

i. Prior to July 21, 2011, the threshold amount is $25,000.

ii. From July 21, 2011 through December 31, 2011, the threshold amount is $50,000.

iii. From January 1, 2012 through December 31, 2012, the threshold amount is $51,800.

iv. From January 1, 2013 through December 31, 2013, the threshold amount is $53,000.

v. From January 1, 2014 through December 31, 2014, the threshold amount is $53,500.

vi. From January 1, 2015 through December 31, 2015, the threshold amount is $54,600.

vii. From January 1, 2016 through December 31, 2016, the threshold amount is $54,600.

viii. From January 1, 2017 through December 31, 2017, the threshold amount is $54,600.

By order of the Board of Governors of the Federal Reserve System, November 17, 2016. Robert deV. Frierson, Secretary of the Board. Dated: November 7, 2016. Richard Cordray, Director, Bureau of Consumer Financial Protection.
[FR Doc. 2016-28710 Filed 11-29-16; 8:45 am] BILLING CODE 6210-01-P; 4810-AM-P
FEDERAL RESERVE SYSTEM 12 CFR Part 226 [Docket No. R-1546] RIN 7100 AE-57 BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1026 [Docket No. CFPB-2016-0037] RIN 3170-AA67 Truth in Lending (Regulation Z) AGENCY:

Board of Governors of the Federal Reserve System (Board); and Bureau of Consumer Financial Protection (Bureau).

ACTION:

Final rules, official interpretations and commentary.

SUMMARY:

The Board and the Bureau are finalizing amendments to the official interpretations and commentary for the agencies' regulations that implement the Truth in Lending Act (TILA). The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) amended TILA by requiring that the dollar threshold for exempt consumer credit transactions be adjusted annually by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). If there is no annual percentage increase in the CPI-W, the Board and Bureau will not adjust this exemption threshold from the prior year. The final rule memorializes this as well as the agencies' calculation method for determining the adjustment in years following a year in which there is no annual percentage increase in the CPI-W. Based on the CPI-W in effect as of June 1, 2016, the exemption threshold will remain at $54,600 through 2017. The Dodd-Frank Act also requires similar adjustments in the Consumer Leasing Act's threshold for exempt consumer leases. Accordingly, the Board and the Bureau are adopting similar amendments to the commentaries to each of their respective regulations implementing the Consumer Leasing Act elsewhere in this issue of the Federal Register.

DATES:

This final rule is effective January 1, 2017.

FOR FURTHER INFORMATION CONTACT:

Board: Vivian W. Wong, Senior Counsel, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, at (202) 452-3667; for users of Telecommunications Device for the Deaf (TDD) only, contact (202) 263-4869.

Bureau: Jaclyn Maier, Counsel, Office of Regulations, Consumer Financial Protection Bureau, at (202) 435-7700.

SUPPLEMENTARY INFORMATION:

I. Background

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) increased the threshold in the Truth in Lending Act (TILA) for exempt consumer credit transactions,1 and the threshold in the Consumer Leasing Act (CLA) for exempt consumer leases, from $25,000 to $50,000, effective July 21, 2011.2 In addition, the Dodd-Frank Act requires that, on and after December 31, 2011, these thresholds be adjusted annually for inflation by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), as published by the Bureau of Labor Statistics. In April 2011, the Board issued a final rule amending Regulation Z (which implements TILA) consistent with these provisions of the Dodd-Frank Act, along with a similar final rule amending Regulation M (which implements the CLA) (collectively, the Board Final Threshold Rules).3

1 Although consumer credit transactions above the threshold are generally exempt, loans secured by real property or by personal property used or expected to be used as the principal dwelling of a consumer and private education loans are covered by TILA regardless of the loan amount. See 12 CFR 226.3(b)(1)(i) (Board) and 12 CFR 1026.3(b)(1)(i) (Bureau).

2 Public Law 111-203, section 1100E, 124 Stat. 1376 (2010).

3 76 FR 18354 (Apr. 4, 2011); 76 FR 18349 (Apr. 4, 2011).

Title X of the Dodd-Frank Act transferred rulemaking authority for a number of consumer financial protection laws from the Board to the Bureau, effective July 21, 2011. In connection with this transfer of rulemaking authority, the Bureau issued its own Regulation Z implementing TILA in an interim final rule, 12 CFR part 1026 (Bureau Interim Final Rule).4 The Bureau Interim Final Rule substantially duplicated the Board's Regulation Z, including the revisions to the threshold for exempt transactions made by the Board in April 2011. In April 2016, the Bureau adopted the Bureau Interim Final Rule as final, subject to intervening final rules published by the Bureau.5 Although the Bureau has the authority to issue rules to implement TILA for most entities, the Board retains authority to issue rules under TILA for certain motor vehicle dealers covered by section 1029(a) of the Dodd-Frank Act, and the Board's Regulation Z continues to apply to those entities.6

4 76 FR 79768 (Dec. 22, 2011).

5 81 FR 25323 (April 28, 2016).

6 Section 1029(a) of the Dodd-Frank Act states: “Except as permitted in subsection (b), the Bureau may not exercise any rulemaking, supervisory, enforcement, or any other authority . . . over a motor vehicle dealer that is predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both.” 12 U.S.C. 5519(a). Section 1029(b) of the Dodd-Frank Act states: “Subsection (a) shall not apply to any person, to the extent that such person (1) provides consumers with any services related to residential or commercial mortgages or self-financing transactions involving real property; (2) operates a line of business (A) that involves the extension of retail credit or retail leases involving motor vehicles; and (B) in which (i) the extension of retail credit or retail leases are provided directly to consumers; and (ii) the contract governing such extension of retail credit or retail leases is not routinely assigned to an unaffiliated third party finance or leasing source; or (3) offers or provides a consumer financial product or service not involving or related to the sale, financing, leasing, rental, repair, refurbishment, maintenance, or other servicing of motor vehicles, motor vehicle parts, or any related or ancillary product or service.” 12 U.S.C. 5519(b).

Section 226.3(b)(1)(ii) of the Board's Regulation Z and § 1026.3(b)(1)(ii) of the Bureau's Regulation Z, and their accompanying commentaries, provide that the exemption threshold will be adjusted annually effective January 1 of each year based on any annual percentage increase in the CPI-W that was in effect on the preceding June 1. They further provide that any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900.7 If there is no annual percentage increase in the CPI-W, the Board and Bureau will not adjust the exemption threshold from the prior year. Since 2011, the Board and the Bureau have adjusted the Regulation Z exemption threshold annually, in accordance with these rules.

7See comments 3(b)-1 in supplements I of 12 CFR parts 226 and 1026.

II. Commentary Revision

On August 4, 2016, the Board and the Bureau published a proposed rule in the Federal Register to memorialize the calculation method used by the agencies each year to adjust the exemption threshold. See 81 FR 51404 (Aug. 4, 2016). The proposed commentary stated that if there is no annual percentage increase in the CPI-W, the Board and Bureau will not adjust the exemption threshold from the prior year. The proposed commentary further set forth the calculation method the agencies would use in years following a year in which the exemption threshold was not adjusted because there was no increase in the CPI-W from the previous year. As the Board and the Bureau discussed in the proposal, the proposed calculation method would ensure that the values for the exemption threshold keep pace with the CPI-W as contemplated by section 1100E(b) of the Dodd-Frank Act.

The comment period closed on September 6, 2016. In response to the proposal, the Board and the Bureau received one comment from a consumer, supporting the proposal. The Board and the Bureau are adopting the commentary revisions as proposed, with some minor clarifying amendments. These changes will be effective on January 1, 2017.

Specifically, the Board and the Bureau are adopting comment 3(b)-1 as proposed to move the text regarding the threshold amount that is in effect during a particular period to a new comment 3(b)-3. The discussion of how the agencies round the threshold calculation will remain in comment 3(b)-1. Current comments 3(b)-2, 3(b)-3, 3(b)-4, 3(b)-5, and 3(b)-6 are renumbered as comments 3(b)-4, 3(b)-5, 3(b)-6, 3(b)-7, and 3(b)-8, respectively, and cross-references to these comments are also renumbered accordingly, as proposed.

Furthermore, the Board and the Bureau are adopting new comment 3(b)-2 as proposed to provide that if the CPI-W in effect on June 1 does not increase from the CPI-W in effect on June 1 of the previous year (i.e., the CPI-W in effect on June 1 is either equal to or less than the CPI-W in effect on June 1 of the previous year), the threshold amount effective the following January 1 through December 31 will not change from the previous year. As the Board and the Bureau discussed in the proposal, this position is consistent with section 1100E(b) of the Dodd-Frank Act, which states that the threshold must be adjusted by the “annual percentage increase” in the CPI-W (emphasis added), and the position the agencies have previously taken.8 Thus, if the threshold in effect from January 1, 2019, through December 31, 2019, is $55,500 and the CPI-W in effect on June 1 of 2019 indicates a 1.1 percent decrease from the CPI-W in effect on June 1, 2018, the threshold in effect for January 1, 2020, through December 31, 2020, will remain $55,500.

8See, e.g., 76 FR 18354, 18355 n.1 (Apr. 4, 2011) (“[A]n annual period of deflation or no inflation would not require a change in the threshold amount.”).

Comment 3(b)-2 also provides that, for the years after a year in which the threshold did not change because the CPI-W in effect on June 1 decreased from the CPI-W in effect on June 1 of the previous year, the threshold is calculated by applying the annual percentage change in the CPI-W to the dollar amount that would have resulted, after rounding, if the decreases and any subsequent increases in the CPI-W had been taken into account. Comment 3(b)-2.i further states that, if the resulting amount, after rounding, is greater than the current threshold, then the threshold effective January 1 the following year will increase accordingly.

For example, assume that the threshold in effect from January 1, 2019, through December 31, 2019, is $55,500 and that, due to a 1.1 percent decrease from the CPI-W in effect on June 1, 2018, to the CPI-W in effect on June 1, 2019, the threshold in effect from January 1, 2020, through December 31, 2020, remains at $55,500. If, however, the threshold had been adjusted downward to reflect the decrease in the CPI-W over that time period, the threshold in effect from January 1, 2020, through December 31, 2020, would have been $54,900, after rounding. Further assume that the CPI-W in effect on June 1, 2020, increased by 1.6 percent from the CPI-W in effect on June 1, 2019. The calculation for the threshold that will be in effect from January 1, 2021, through December 31, 2021, is based on the impact of a 1.6 percent increase in the CPI-W on $54,900, rather than $55,500, resulting in a 2021 threshold of $55,800.

Furthermore, comment 3(b)-2.ii states that, if the resulting amount calculated, after rounding, is equal to or less than the current threshold, then the threshold effective January 1 the following year will not change, but future increases will be calculated based on the amount that would have resulted, after rounding. To illustrate, assume in the example above that the CPI-W in effect on June 1, 2020, increased by only 0.6 percent from the CPI-W in effect on June 1, 2019. The calculation for the threshold that will be in effect from January 1, 2021, through December 31, 2021, is based on the impact of a 0.6 percent increase in the CPI-W on $54,900. The resulting amount, after rounding, is $55,200, which is lower than $55,500, the threshold in effect from January 1, 2020, through December 31, 2020. Therefore, the threshold in effect from January 1, 2021, through December 31, 2021, will remain $55,500. However, the calculation for the threshold that will be in effect from January 1, 2022, through December 31, 2022, will apply the percentage change in the CPI-W to $55,200, the amount that would have resulted based on the 0.6 percent change from the CPI-W in effect on June 1, 2019, after rounding, to the CPI-W in effect on June 1, 2020.

III. 2017 Threshold

Based on the calculation method detailed above, the exemption threshold amount for 2017 remains at $54,600. This is based on the CPI-W in effect on June 1, 2016, which was reported on May 17, 2016. The Bureau of Labor Statistics publishes consumer-based indices monthly, but does not report a CPI change on June 1; adjustments are reported in the middle of the month. The CPI-W is a subset of the CPI-U index (based on all urban consumers) and represents approximately 28 percent of the U.S. population. The CPI-W reported on May 17, 2016 reflects a 0.8 percent increase in the CPI-W from April 2015 to April 2016. Because the CPI-W decreased from April 2014 to April 2015, the Board and the Bureau are calculating the threshold based on the amount that would have resulted had this decrease been taken into account, which is $54,200. A 0.8 percent increase in the CPI-W applied to $54,200 results in $54,600, which is the same threshold amount for 2016. Thus, the exemption threshold amount that will be in effect for 2017 remains at $54,600. The Board and the Bureau are revising the commentaries to their respective regulations to add new comment 3(b)-3.viii to state that, from January 1, 2017, through December 31, 2017, the threshold amount is $54,600. These revisions are effective January 1, 2017.

IV. Regulatory Analysis Administrative Procedure Act

Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Board and the Bureau find that notice and public comment are impracticable, unnecessary, or contrary to the public interest.9 The 2017 threshold amount for exempt consumer credit transactions announced in this rule, $54,600, is technical and applies the calculation method set forth elsewhere in this final rule, for which notice and public comment were provided.10 For these reasons, the Board and the Bureau have determined that publishing a notice of proposed rulemaking and providing opportunity for public comment for purposes of the 2017 threshold adjustment are unnecessary. Therefore, the amendments regarding the 2017 threshold amount for exempt consumer credit transactions are adopted in final form.

9 5 U.S.C. 553(b)(B).

10See 81 FR 51404 (Aug. 4, 2016).

Bureau's Dodd-Frank Act Section 1022(b)(2) Analysis

In developing the final rule, the Bureau has considered potential benefits, costs, and impacts.11 In addition, the Bureau has consulted, or offered to consult with, the prudential regulators, the Securities and Exchange Commission, the Department of Housing and Urban Development, the Federal Housing Finance Agency, the Federal Trade Commission, and the Department of the Treasury, including regarding consistency with any prudential, market, or systemic objectives administered by such agencies.

11 Specifically, section 1022(b)(2)(A) calls for the Bureau to consider the potential benefits and costs of a regulation to consumers and covered persons, including the potential reduction of access by consumers to consumer financial products or services; the impact on depository institutions and credit unions with $10 billion or less in total assets as described in section 1026 of the Act; and the impact on consumers in rural areas.

The Bureau has chosen to evaluate the benefits, costs and impacts of the final rule against the current state of the world, which takes into account the current regulatory regime. The Bureau is not aware of any significant benefits or costs to consumers or covered persons associated with the final rule relative to the baseline. The Board previously stated that if there is no annual percentage increase in the CPI-W, then the Board (and now the Bureau) will not adjust the exemption threshold from the prior year.12 The final rule memorializes this in official commentary. The final rule also clarifies how the threshold is calculated for years after a year in which the threshold did not change. The Bureau believes that this clarification memorializes the method that the Bureau would be expected to use: This method holds the threshold fixed until a notional threshold calculated using the Bureau's methodology, taking into account both decreases and increases in the CPI-W, exceeds the actual threshold. The Bureau requested, but did not receive, comment on this point. Thus, the Bureau concludes that the final rule will not change the regulatory regime relative to the baseline and will create no significant benefits, costs, or impacts.

12 76 FR 18354, 18355 n.1 (Apr. 4, 2011) (“[A]n annual period of deflation or no inflation would not require a change in the threshold amount.”).

The final rule will have no unique impact on depository institutions or credit unions with $10 billion or less in assets as described in section 1026(a) of the Dodd-Frank Act or on rural consumers. The Bureau does not expect this final rule to affect consumers' access to credit.

Regulatory Flexibility Act

Board: An initial regulatory flexibility analysis (IRFA) was included in the proposal in accordance with section 3(a) of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA). In the IRFA, the Board requested comments on any approaches, other than the proposed alternatives, that would reduce the burden on small entities. The RFA requires an agency to prepare a final regulatory flexibility analysis (FRFA) unless the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. In accordance with section 3(a) of the RFA, the Board has reviewed the final regulation. Based on its analysis, and for the reasons stated below, the Board believes that the rule will not have a significant economic impact on a substantial number of small entities.

1. Statement of the need for, and objectives of, the final rule. The final rule memorializes the calculation method used by the Board each year to adjust the exemption threshold in accordance with section 1100E of the Dodd-Frank Act. The final rule also adopts the exemption threshold that will apply from January 1, 2017, through December 31, 2017, based on the calculation method memorialized in this final rule.

2. Summary of issues raised by comments in response to the initial regulatory flexibility analysis. The Board did not receive any comments on the initial regulatory flexibility analysis.

3. Small entities affected by the final rule. This rule would affect motor vehicle dealers that are subject to the Board's Regulation Z and offer closed-end or open-end credit that may be exempt from Regulation Z under 12 CFR 226.3(b). While the total number of small entities likely to be affected by the final rule is unknown, the Board does not believe the final rule will have a significant economic impact on the entities that it affects.

4. Recordkeeping, reporting, and compliance requirements. The final rule would not impose any recordkeeping, reporting, or compliance requirements.

5. Significant alternatives to the final revisions. The Board has not identified any significant alternatives that would reduce the regulatory burden on small entities associated with this final rule.

Bureau: The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements.13 These analyses must describe the impact of the proposed and final rules on small entities.14 An IRFA or FRFA is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.15 The Bureau also is subject to certain additional procedures under the RFA involving the convening of a panel to consult with small business representatives prior to proposing a rule for which an IRFA is required.16

13 5 U.S.C. 601 et seq.

14Id. at 603(a) and 604(a). For purposes of assessing the impacts of the rule on small entities, “small entities” is defined in the RFA to include small businesses, small not-for-profit organizations, and small government jurisdictions. Id. at 601(6). A “small business” is determined by application of Small Business Administration regulations and reference to the North American Industry Classification System (NAICS) classifications and size standards. Id. at 601(3). A “small organization” is any “not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Id. at 601(4). A “small governmental jurisdiction” is the government of a city, county, town, township, village, school district, or special district with a population of less than 50,000. Id. at 601(5).

15Id. at 605(b).

16Id. at 609.

A FRFA is not required for this final rule because it will not have a significant economic impact on a substantial number of small entities. As discussed in the Bureau's Section 1022(b)(2) Analysis above, this final rule does not introduce costs or benefits to covered persons because it seeks only to clarify the method of threshold adjustment which has already been established in previous Agency rules. Therefore this final rule will not have a significant impact on small entities.

Certification

Accordingly, the Bureau Director, by signing below, certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995,17 the agencies reviewed this final rule. No collections of information pursuant to the Paperwork Reduction Act are contained in the final rule.

17 44 U.S.C. 3506; 5 CFR 1320.

List of Subjects 12 CFR Part 226

Advertising, Consumer protection, Federal Reserve System, Reporting and recordkeeping requirements, Truth in lending.

12 CFR Part 1026

Advertising, Appraisal, Appraiser, Banking, Banks, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending.

Board of Governors of the Federal Reserve System Authority and Issuance

For the reasons set forth in the preamble, the Board amends Regulation Z, 12 CFR part 226, as set forth below:

PART 226—TRUTH IN LENDING (REGULATION Z) 1. The authority citation for part 226 continues to read as follows: Authority:

12 U.S.C. 3806; 15 U.S.C. 1604, 1637(c)(5), and 1639(l); Public Law 111-24, section 2, 123 Stat. 1734; Public Law 111-203, 124 Stat. 1376.

Subpart A—General 2. In supplement I to part 226, under Section 226.3—Exempt Transactions, the entry for 3(b) Credit over applicable threshold amount is revised to read as follows: Supplement I to Part 226—Official Staff Interpretations Subpart A—General Section 226.3—Exempt Transactions

3(b) Credit over applicable threshold amount.

1. Threshold amount. For purposes of § 226.3(b), the threshold amount in effect during a particular period is the amount stated in comment 3(b)-3 for that period. The threshold amount is adjusted effective January 1 of each year by any annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) that was in effect on the preceding June 1. Comment 3(b)-3 will be amended to provide the threshold amount for the upcoming year after the annual percentage change in the CPI-W that was in effect on June 1 becomes available. Any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900.

2. No increase in the CPI-W. If the CPI-W in effect on June 1 does not increase from the CPI-W in effect on June 1 of the previous year, the threshold amount effective the following January 1 through December 31 will not change from the previous year. When this occurs, for the years that follow, the threshold is calculated based on the annual percentage change in the CPI-W applied to the dollar amount that would have resulted, after rounding, if decreases and any subsequent increases in the CPI-W had been taken into account.

i. Net increases. If the resulting amount calculated, after rounding, is greater than the current threshold, then the threshold effective January 1 the following year will increase accordingly.

ii. Net decreases. If the resulting amount calculated, after rounding, is equal to or less than the current threshold, then the threshold effective January 1 the following year will not change, but future increases will be calculated based on the amount that would have resulted.

3. Threshold. For purposes of § 226.3(b), the threshold amount in effect during a particular period is the amount stated below for that period.

i. Prior to July 21, 2011, the threshold amount is $25,000.

ii. From July 21, 2011 through December 31, 2011, the threshold amount is $50,000.

iii. From January 1, 2012 through December 31, 2012, the threshold amount is $51,800.

iv. From January 1, 2013 through December 31, 2013, the threshold amount is $53,000.

v. From January 1, 2014 through December 31, 2014, the threshold amount is $53,500.

vi. From January 1, 2015 through December 31, 2015, the threshold amount is $54,600.

vii. From January 1, 2016 through December 31, 2016, the threshold amount is $54,600.

viii. From January 1, 2017 through December 31, 2017, the threshold amount is $54,600.

4. Open-end credit.

i. Qualifying for exemption. An open-end account is exempt under § 226.3(b) (unless secured by any real property, or by personal property used or expected to be used as the consumer's principal dwelling) if either of the following conditions is met:

A. The creditor makes an initial extension of credit at or after account opening that exceeds the threshold amount in effect at the time the initial extension is made. If a creditor makes an initial extension of credit after account opening that does not exceed the threshold amount in effect at the time the extension is made, the creditor must have satisfied all of the applicable requirements of this part from the date the account was opened (or earlier, if applicable), including but not limited to the requirements of § 226.6 (account-opening disclosures), § 226.7 (periodic statements), § 226.52 (limitations on fees), and § 226.55 (limitations on increasing annual percentages rates, fees, and charges). For example:

(1) Assume that the threshold amount in effect on January 1 is $50,000. On February 1, an account is opened but the creditor does not make an initial extension of credit at that time. On July 1, the creditor makes an initial extension of credit of $60,000. In this circumstance, no requirements of this part apply to the account.

(2) Assume that the threshold amount in effect on January 1 is $50,000. On February 1, an account is opened but the creditor does not make an initial extension of credit at that time. On July 1, the creditor makes an initial extension of credit of $50,000 or less. In this circumstance, the account is not exempt and the creditor must have satisfied all of the applicable requirements of this part from the date the account was opened (or earlier, if applicable).

B. The creditor makes a firm written commitment at account opening to extend a total amount of credit in excess of the threshold amount in effect at the time the account is opened with no requirement of additional credit information for any advances on the account (except as permitted from time to time with respect to open-end accounts pursuant to § 226.2(a)(20)).

ii. Subsequent changes generally. Subsequent changes to an open-end account or the threshold amount may result in the account no longer qualifying for the exemption in § 226.3(b). In these circumstances, the creditor must begin to comply with all of the applicable requirements of this part within a reasonable period of time after the account ceases to be exempt. Once an account ceases to be exempt, the requirements of this part apply to any balances on the account. The creditor, however, is not required to comply with the requirements of this part with respect to the period of time during which the account was exempt. For example, if an open-end credit account ceases to be exempt, the creditor must within a reasonable period of time provide the disclosures required by § 226.6 reflecting the current terms of the account and begin to provide periodic statements consistent with § 226.7. However, the creditor is not required to disclose fees or charges imposed while the account was exempt. Furthermore, if the creditor provided disclosures consistent with the requirements of this part while the account was exempt, it is not required to provide disclosures required by § 226.6 reflecting the current terms of the account. See also comment 3(b)-6.

iii. Subsequent changes when exemption is based on initial extension of credit. If a creditor makes an initial extension of credit that exceeds the threshold amount in effect at that time, the open-end account remains exempt under § 226.3(b) regardless of a subsequent increase in the threshold amount, including an increase pursuant to § 226.3(b)(1)(ii) as a result of an increase in the CPI-W. Furthermore, in these circumstances, the account remains exempt even if there are no further extensions of credit, subsequent extensions of credit do not exceed the threshold amount, the account balance is subsequently reduced below the threshold amount (such as through repayment of the extension), or the credit limit for the account is subsequently reduced below the threshold amount. However, if the initial extension of credit on an account does not exceed the threshold amount in effect at the time of the extension, the account is not exempt under § 226.3(b) even if a subsequent extension exceeds the threshold amount or if the account balance later exceeds the threshold amount (for example, due to the subsequent accrual of interest).

iv. Subsequent changes when exemption is based on firm commitment.

A. General. If a creditor makes a firm written commitment at account opening to extend a total amount of credit that exceeds the threshold amount in effect at that time, the open-end account remains exempt under § 226.3(b) regardless of a subsequent increase in the threshold amount pursuant to § 226.3(b)(1)(ii) as a result of an increase in the CPI-W. However, see comment 3(b)-8 with respect to the increase in the threshold amount from $25,000 to $50,000. If an open-end account is exempt under § 226.3(b) based on a firm commitment to extend credit, the account remains exempt even if the amount of credit actually extended does not exceed the threshold amount. In contrast, if the firm commitment does not exceed the threshold amount at account opening, the account is not exempt under § 226.3(b) even if the account balance later exceeds the threshold amount. In addition, if a creditor reduces a firm commitment, the account ceases to be exempt unless the reduced firm commitment exceeds the threshold amount in effect at the time of the reduction. For example:

(1) Assume that, at account opening in year one, the threshold amount in effect is $50,000 and the account is exempt under § 226.3(b) based on the creditor's firm commitment to extend $55,000 in credit. If during year one the creditor reduces its firm commitment to $53,000, the account remains exempt under § 226.3(b). However, if during year one the creditor reduces its firm commitment to $40,000, the account is no longer exempt under § 226.3(b).

(2) Assume that, at account opening in year one, the threshold amount in effect is $50,000 and the account is exempt under § 226.3(b) based on the creditor's firm commitment to extend $55,000 in credit. If the threshold amount is $56,000 on January 1 of year six as a result of increases in the CPI-W, the account remains exempt. However, if the creditor reduces its firm commitment to $54,000 on July 1 of year six, the account ceases to be exempt under § 226.3(b).

B. Initial extension of credit. If an open-end account qualifies for a § 226.3(b) exemption at account opening based on a firm commitment, that account may also subsequently qualify for a § 226.3(b) exemption based on an initial extension of credit. However, that initial extension must be a single advance in excess of the threshold amount in effect at the time the extension is made. In addition, the account must continue to qualify for an exemption based on the firm commitment until the initial extension of credit is made. For example:

(1) Assume that, at account opening in year one, the threshold amount in effect is $50,000 and the account is exempt under § 226.3(b) based on the creditor's firm commitment to extend $55,000 in credit. The account is not used for an extension of credit during year one. On January 1 of year two, the threshold amount is increased to $51,000 pursuant to § 226.3(b)(1)(ii) as a result of an increase in the CPI-W. On July 1 of year two, the consumer uses the account for an initial extension of $52,000. As a result of this extension of credit, the account remains exempt under § 226.3(b) even if, after July 1 of year two, the creditor reduces the firm commitment to $51,000 or less.

(2) Same facts as in paragraph iv.B(1) above except that the consumer uses the account for an initial extension of $30,000 on July 1 of year two and for an extension of $22,000 on July 15 of year two. In these circumstances, the account is not exempt under § 226.3(b) based on the $30,000 initial extension of credit because that extension did not exceed the applicable threshold amount ($51,000), although the account remains exempt based on the firm commitment to extend $55,000 in credit.

(3) Same facts as in paragraph iv.B(1) above except that, on April 1 of year two, the creditor reduces the firm commitment to $50,000, which is below the $51,000 threshold then in effect. Because the account ceases to qualify for a § 226.3(b) exemption on April 1 of year two, the account does not qualify for a § 226.3(b) exemption based on a $52,000 initial extension of credit on July 1 of year two.

5. Closed-end credit.

i. Qualifying for exemption. A closed-end loan is exempt under § 226.3(b) (unless the extension of credit is secured by any real property, or by personal property used or expected to be used as the consumer's principal dwelling; or is a private education loan as defined in § 226.46(b)(5)), if either of the following conditions is met.

A. The creditor makes an extension of credit at consummation that exceeds the threshold amount in effect at the time of consummation. In these circumstances, the loan remains exempt under § 226.3(b) even if the amount owed is subsequently reduced below the threshold amount (such as through repayment of the loan).

B. The creditor makes a commitment at consummation to extend a total amount of credit in excess of the threshold amount in effect at the time of consummation. In these circumstances, the loan remains exempt under § 226.3(b) even if the total amount of credit extended does not exceed the threshold amount.

ii. Subsequent changes. If a creditor makes a closed-end extension of credit or commitment to extend closed-end credit that exceeds the threshold amount in effect at the time of consummation, the closed-end loan remains exempt under § 226.3(b) regardless of a subsequent increase in the threshold amount. However, a closed-end loan is not exempt under § 226.3(b) merely because it is used to satisfy and replace an existing exempt loan, unless the new extension of credit is itself exempt under the applicable threshold amount. For example, assume a closed-end loan that qualified for a § 226.3(b) exemption at consummation in year one is refinanced in year ten and that the new loan amount is less than the threshold amount in effect in year ten. In these circumstances, the creditor must comply with all of the applicable requirements of this part with respect to the year ten transaction if the original loan is satisfied and replaced by the new loan, which is not exempt under § 226.3(b). See also comment 3(b)-6.

6. Addition of a security interest in real property or a dwelling after account opening or consummation.

i. Open-end credit. For open-end accounts, if, after account opening, a security interest is taken in real property, or in personal property used or expected to be used as the consumer's principal dwelling, a previously exempt account ceases to be exempt under § 226.3(b) and the creditor must begin to comply with all of the applicable requirements of this part within a reasonable period of time. See comment 3(b)-4.ii. If a security interest is taken in the consumer's principal dwelling, the creditor must also give the consumer the right to rescind the security interest consistent with § 226.15.

ii. Closed-end credit. For closed-end loans, if, after consummation, a security interest is taken in any real property, or in personal property used or expected to be used as the consumer's principal dwelling, an exempt loan remains exempt under § 226.3(b). However, the addition of a security interest in the consumer's principal dwelling is a transaction for purposes of § 226.23, and the creditor must give the consumer the right to rescind the security interest consistent with that section. See § 226.23(a)(1) and the accompanying commentary. In contrast, if a closed-end loan that is exempt under § 226.3(b) is satisfied and replaced by a loan that is secured by any real property, or by personal property used or expected to be used as the consumer's principal dwelling, the new loan is not exempt under § 226.3(b) and the creditor must comply with all of the applicable requirements of this part. See comment 3(b)-5.

7. Application to extensions secured by mobile homes. Because a mobile home can be a dwelling under § 226.2(a)(19), the exemption in § 226.3(b) does not apply to a credit extension secured by a mobile home that is used or expected to be used as the principal dwelling of the consumer. See comment 3(b)-6.

8. Transition rule for open-end accounts exempt prior to July 21, 2011. Section 226.3(b)(2) applies only to open-end accounts opened prior to July 21, 2011. Section 226.3(b)(2) does not apply if a security interest is taken by the creditor in any real property, or in personal property used or expected to be used as the consumer's principal dwelling. If, on July 20, 2011, an open-end account is exempt under § 226.3(b) based on a firm commitment to extend credit in excess of $25,000, the account remains exempt under § 226.3(b)(2) until December 31, 2011 (unless the firm commitment is reduced to $25,000 or less). If the firm commitment is increased on or before December 31, 2011 to an amount in excess of $50,000, the account remains exempt under § 226.3(b)(1) regardless of subsequent increases in the threshold amount as a result of increases in the CPI-W. If the firm commitment is not increased on or before December 31, 2011 to an amount in excess of $50,000, the account ceases to be exempt under § 226.3(b) based on a firm commitment to extend credit. For example:

i. Assume that, on July 20, 2011, the account is exempt under § 226.3(b) based on the creditor's firm commitment to extend $30,000 in credit. On November 1, 2011, the creditor increases the firm commitment on the account to $55,000. In these circumstances, the account remains exempt under § 226.3(b)(1) regardless of subsequent increases in the threshold amount as a result of increases in the CPI-W.

ii. Same facts as paragraph i. above except, on November 1, 2011, the creditor increases the firm commitment on the account to $40,000. In these circumstances, the account ceases to be exempt under § 226.3(b)(2) after December 31, 2011, and the creditor must begin to comply with the applicable requirements of this part.

Bureau of Consumer Financial Protection Authority and Issuance

For the reasons set forth in the preamble, the Bureau amends Regulation Z, 12 CFR part 1026, as set forth below:

PART 1026—TRUTH IN LENDING (REGULATION Z) 3. The authority citation for part 1026 continues to read as follows: Authority:

12 U.S.C. 2601, 2603-2605, 2607, 2609, 2617, 3353, 5511, 5512, 5532, 5581; 15 U.S.C. 1601 et seq.

4. In supplement I to part 1026, under Section 1026.3—Exempt Transactions, the entry for 3(b)—Credit Over Applicable Threshold Amount is revised to read as follows: Supplement I to Part 1026—Official Interpretations Subpart A—General Section 1026.3—Exempt Transactions 3(b) Credit Over Applicable Threshold Amount

1. Threshold amount. For purposes of § 1026.3(b), the threshold amount in effect during a particular period is the amount stated in comment 3(b)-3 below for that period. The threshold amount is adjusted effective January 1 of each year by any annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) that was in effect on the preceding June 1. Comment 3(b)-3 will be amended to provide the threshold amount for the upcoming year after the annual percentage change in the CPI-W that was in effect on June 1 becomes available. Any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900.

2. No increase in the CPI-W. If the CPI-W in effect on June 1 does not increase from the CPI-W in effect on June 1 of the previous year, the threshold amount effective the following January 1 through December 31 will not change from the previous year. When this occurs, for the years that follow, the threshold is calculated based on the annual percentage change in the CPI-W applied to the dollar amount that would have resulted, after rounding, if decreases and any subsequent increases in the CPI-W had been taken into account.

i. Net increases. If the resulting amount calculated, after rounding, is greater than the current threshold, then the threshold effective January 1 the following year will increase accordingly.

ii. Net decreases. If the resulting amount calculated, after rounding, is equal to or less than the current threshold, then the threshold effective January 1 the following year will not change, but future increases will be calculated based on the amount that would have resulted.

3. Threshold. For purposes of § 1026.3(b), the threshold amount in effect during a particular period is the amount stated below for that period.

i. Prior to July 21, 2011, the threshold amount is $25,000.

ii. From July 21, 2011 through December 31, 2011, the threshold amount is $50,000.

iii. From January 1, 2012 through December 31, 2012, the threshold amount is $51,800.

iv. From January 1, 2013 through December 31, 2013, the threshold amount is $53,000.

v. From January 1, 2014 through December 31, 2014, the threshold amount is $53,500.

vi. From January 1, 2015 through December 31, 2015, the threshold amount is $54,600.

vii. From January 1, 2016 through December 31, 2016, the threshold amount is $54,600.

viii. From January 1, 2017 through December 31, 2017, the threshold amount is $54,600.

4. Open-end credit. i. Qualifying for exemption. An open-end account is exempt under § 1026.3(b) (unless secured by real property, or by personal property used or expected to be used as the consumer's principal dwelling) if either of the following conditions is met:

A. The creditor makes an initial extension of credit at or after account opening that exceeds the threshold amount in effect at the time the initial extension is made. If a creditor makes an initial extension of credit after account opening that does not exceed the threshold amount in effect at the time the extension is made, the creditor must have satisfied all of the applicable requirements of this part from the date the account was opened (or earlier, if applicable), including but not limited to the requirements of § 1026.6 (account-opening disclosures), § 1026.7 (periodic statements), § 1026.52 (limitations on fees), and § 1026.55 (limitations on increasing annual percentage rates, fees, and charges). For example:

1. Assume that the threshold amount in effect on January 1 is $50,000. On February 1, an account is opened but the creditor does not make an initial extension of credit at that time. On July 1, the creditor makes an initial extension of credit of $60,000. In this circumstance, no requirements of this part apply to the account.

2. Assume that the threshold amount in effect on January 1 is $50,000. On February 1, an account is opened but the creditor does not make an initial extension of credit at that time. On July 1, the creditor makes an initial extension of credit of $50,000 or less. In this circumstance, the account is not exempt and the creditor must have satisfied all of the applicable requirements of this part from the date the account was opened (or earlier, if applicable).

B. The creditor makes a firm written commitment at account opening to extend a total amount of credit in excess of the threshold amount in effect at the time the account is opened with no requirement of additional credit information for any advances on the account (except as permitted from time to time with respect to open-end accounts pursuant to § 1026.2(a)(20)).

ii. Subsequent changes generally. Subsequent changes to an open-end account or the threshold amount may result in the account no longer qualifying for the exemption in § 1026.3(b). In these circumstances, the creditor must begin to comply with all of the applicable requirements of this part within a reasonable period of time after the account ceases to be exempt. Once an account ceases to be exempt, the requirements of this part apply to any balances on the account. The creditor, however, is not required to comply with the requirements of this part with respect to the period of time during which the account was exempt. For example, if an open-end credit account ceases to be exempt, the creditor must within a reasonable period of time provide the disclosures required by § 1026.6 reflecting the current terms of the account and begin to provide periodic statements consistent with § 1026.7. However, the creditor is not required to disclose fees or charges imposed while the account was exempt. Furthermore, if the creditor provided disclosures consistent with the requirements of this part while the account was exempt, it is not required to provide disclosures required by § 1026.6 reflecting the current terms of the account. See also comment 3(b)-6.

iii. Subsequent changes when exemption is based on initial extension of credit. If a creditor makes an initial extension of credit that exceeds the threshold amount in effect at that time, the open-end account remains exempt under § 1026.3(b) regardless of a subsequent increase in the threshold amount, including an increase pursuant to § 1026.3(b)(1)(ii) as a result of an increase in the CPI-W. Furthermore, in these circumstances, the account remains exempt even if there are no further extensions of credit, subsequent extensions of credit do not exceed the threshold amount, the account balance is subsequently reduced below the threshold amount (such as through repayment of the extension), or the credit limit for the account is subsequently reduced below the threshold amount. However, if the initial extension of credit on an account does not exceed the threshold amount in effect at the time of the extension, the account is not exempt under § 1026.3(b) even if a subsequent extension exceeds the threshold amount or if the account balance later exceeds the threshold amount (for example, due to the subsequent accrual of interest).

iv. Subsequent changes when exemption is based on firm commitment. A. General. If a creditor makes a firm written commitment at account opening to extend a total amount of credit that exceeds the threshold amount in effect at that time, the open-end account remains exempt under § 1026.3(b) regardless of a subsequent increase in the threshold amount pursuant to § 1026.3(b)(1)(ii) as a result of an increase in the CPI-W. However, see comment 3(b)-8 with respect to the increase in the threshold amount from $25,000 to $50,000. If an open-end account is exempt under § 1026.3(b) based on a firm commitment to extend credit, the account remains exempt even if the amount of credit actually extended does not exceed the threshold amount. In contrast, if the firm commitment does not exceed the threshold amount at account opening, the account is not exempt under § 1026.3(b) even if the account balance later exceeds the threshold amount. In addition, if a creditor reduces a firm commitment, the account ceases to be exempt unless the reduced firm commitment exceeds the threshold amount in effect at the time of the reduction. For example:

1. Assume that, at account opening in year one, the threshold amount in effect is $50,000 and the account is exempt under § 1026.3(b) based on the creditor's firm commitment to extend $55,000 in credit. If during year one the creditor reduces its firm commitment to $53,000, the account remains exempt under § 1026.3(b). However, if during year one the creditor reduces its firm commitment to $40,000, the account is no longer exempt under § 1026.3(b).

2. Assume that, at account opening in year one, the threshold amount in effect is $50,000 and the account is exempt under § 1026.3(b) based on the creditor's firm commitment to extend $55,000 in credit. If the threshold amount is $56,000 on January 1 of year six as a result of increases in the CPI-W, the account remains exempt. However, if the creditor reduces its firm commitment to $54,000 on July 1 of year six, the account ceases to be exempt under § 1026.3(b).

B. Initial extension of credit. If an open-end account qualifies for a § 1026.3(b) exemption at account opening based on a firm commitment, that account may also subsequently qualify for a § 1026.3(b) exemption based on an initial extension of credit. However, that initial extension must be a single advance in excess of the threshold amount in effect at the time the extension is made. In addition, the account must continue to qualify for an exemption based on the firm commitment until the initial extension of credit is made. For example:

1. Assume that, at account opening in year one, the threshold amount in effect is $50,000 and the account is exempt under § 1026.3(b) based on the creditor's firm commitment to extend $55,000 in credit. The account is not used for an extension of credit during year one. On January 1 of year two, the threshold amount is increased to $51,000 pursuant to § 1026.3(b)(1)(ii) as a result of an increase in the CPI-W. On July 1 of year two, the consumer uses the account for an initial extension of $52,000. As a result of this extension of credit, the account remains exempt under § 1026.3(b) even if, after July 1 of year two, the creditor reduces the firm commitment to $51,000 or less.

2. Same facts as in paragraph iv.B.1 above except that the consumer uses the account for an initial extension of $30,000 on July 1 of year two and for an extension of $22,000 on July 15 of year two. In these circumstances, the account is not exempt under § 1026.3(b) based on the $30,000 initial extension of credit because that extension did not exceed the applicable threshold amount ($51,000), although the account remains exempt based on the firm commitment to extend $55,000 in credit.

3. Same facts as in paragraph iv.B.1 above except that, on April 1 of year two, the creditor reduces the firm commitment to $50,000, which is below the $51,000 threshold then in effect. Because the account ceases to qualify for a § 1026.3(b) exemption on April 1 of year two, the account does not qualify for a § 1026.3(b) exemption based on a $52,000 initial extension of credit on July 1 of year two.

5. Closed-end credit. i. Qualifying for exemption. A closed-end loan is exempt under § 1026.3(b) (unless the extension of credit is secured by real property, or by personal property used or expected to be used as the consumer's principal dwelling; or is a private education loan as defined in § 1026.46(b)(5)), if either of the following conditions is met:

A. The creditor makes an extension of credit at consummation that exceeds the threshold amount in effect at the time of consummation. In these circumstances, the loan remains exempt under § 1026.3(b) even if the amount owed is subsequently reduced below the threshold amount (such as through repayment of the loan).

B. The creditor makes a commitment at consummation to extend a total amount of credit in excess of the threshold amount in effect at the time of consummation. In these circumstances, the loan remains exempt under § 1026.3(b) even if the total amount of credit extended does not exceed the threshold amount.

ii. Subsequent changes. If a creditor makes a closed-end extension of credit or commitment to extend closed-end credit that exceeds the threshold amount in effect at the time of consummation, the closed-end loan remains exempt under § 1026.3(b) regardless of a subsequent increase in the threshold amount. However, a closed-end loan is not exempt under § 1026.3(b) merely because it is used to satisfy and replace an existing exempt loan, unless the new extension of credit is itself exempt under the applicable threshold amount. For example, assume a closed-end loan that qualified for a § 1026.3(b) exemption at consummation in year one is refinanced in year ten and that the new loan amount is less than the threshold amount in effect in year ten. In these circumstances, the creditor must comply with all of the applicable requirements of this part with respect to the year ten transaction if the original loan is satisfied and replaced by the new loan, which is not exempt under § 1026.3(b). See also comment 3(b)-6.

6. Addition of a security interest in real property or a dwelling after account opening or consummation. i. Open-end credit. For open-end accounts, if after account opening a security interest is taken in real property, or in personal property used or expected to be used as the consumer's principal dwelling, a previously exempt account ceases to be exempt under § 1026.3(b) and the creditor must begin to comply with all of the applicable requirements of this part within a reasonable period of time. See comment 3(b)-4.ii. If a security interest is taken in the consumer's principal dwelling, the creditor must also give the consumer the right to rescind the security interest consistent with § 1026.15.

ii. Closed-end credit. For closed-end loans, if after consummation a security interest is taken in real property, or in personal property used or expected to be used as the consumer's principal dwelling, an exempt loan remains exempt under § 1026.3(b). However, the addition of a security interest in the consumer's principal dwelling is a transaction for purposes of § 1026.23, and the creditor must give the consumer the right to rescind the security interest consistent with that section. See § 1026.23(a)(1) and its commentary. In contrast, if a closed-end loan that is exempt under § 1026.3(b) is satisfied and replaced by a loan that is secured by real property, or by personal property used or expected to be used as the consumer's principal dwelling, the new loan is not exempt under § 1026.3(b), and the creditor must comply with all of the applicable requirements of this part. See comment 3(b)-5.

7. Application to extensions secured by mobile homes. Because a mobile home can be a dwelling under § 1026.2(a)(19), the exemption in § 1026.3(b) does not apply to a credit extension secured by a mobile home that is used or expected to be used as the principal dwelling of the consumer. See comment 3(b)-6.

8. Transition rule for open-end accounts exempt prior to July 21, 2011. Section 1026.3(b)(2) applies only to open-end accounts opened prior to July 21, 2011. Section 1026.3(b)(2) does not apply if a security interest is taken by the creditor in real property, or in personal property used or expected to be used as the consumer's principal dwelling. If, on July 20, 2011, an open-end account is exempt under § 1026.3(b) based on a firm commitment to extend credit in excess of $25,000, the account remains exempt under § 1026.3(b)(2) until December 31, 2011 (unless the firm commitment is reduced to $25,000 or less). If the firm commitment is increased on or before December 31, 2011 to an amount in excess of $50,000, the account remains exempt under § 1026.3(b)(1) regardless of subsequent increases in the threshold amount as a result of increases in the CPI-W. If the firm commitment is not increased on or before December 31, 2011 to an amount in excess of $50,000, the account ceases to be exempt under § 1026.3(b) based on a firm commitment to extend credit. For example:

i. Assume that, on July 20, 2011, the account is exempt under § 1026.3(b) based on the creditor's firm commitment to extend $30,000 in credit. On November 1, 2011, the creditor increases the firm commitment on the account to $55,000. In these circumstances, the account remains exempt under § 1026.3(b)(1) regardless of subsequent increases in the threshold amount as a result of increases in the CPI-W.

ii. Same facts as paragraph i above except, on November 1, 2011, the creditor increases the firm commitment on the account to $40,000. In these circumstances, the account ceases to be exempt under § 1026.3(b)(2) after December 31, 2011, and the creditor must begin to comply with the applicable requirements of this part.

By order of the Board of Governors of the Federal Reserve System, November 17, 2016.

Robert deV. Frierson, Secretary of the Board. Dated: November 7, 2016. Richard Cordray, Director, Bureau of Consumer Financial Protection.
[FR Doc. 2016-28718 Filed 11-29-16; 8:45 am] BILLING CODE 6210-01-4810-AM-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 573 [Docket No. FDA-2015-F-2337] Food Additives Permitted in Feed and Drinking Water of Animals; Guanidinoacetic Acid AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final rule.

SUMMARY:

The Food and Drug Administration (FDA, we, the Agency) is amending the regulations for food additives permitted in feed and drinking water of animals to provide for the safe use of guanidinoacetic acid as a substance that spares arginine and serves as a precursor of creatine in broiler chicken and turkey feeds. This action is in response to a food additive petition filed by Alzchem AG.

DATES:

This rule is effective November 30, 2016. Submit either written or electronic objections and requests for a hearing by December 30, 2016. See section V of this document for information on the filing of objections.

ADDRESSES:

You may submit objections and requests for a hearing as follows:

Electronic Submissions

Submit electronic objections in the following way:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Objections submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your objection will be made public, you are solely responsible for ensuring that your objection 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 objection, that information will be posted on http://www.regulations.gov.

• If you want to submit an objection with confidential information that you do not wish to be made available to the public, submit the objection 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 objections submitted to the Division of Dockets Management, FDA will post your objection, 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-2015-F-2337 for “Food Additives Permitted in Feed and Drinking Water of Animals; Guanidinoacetic Acid.” Received objections 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 an objection with confidential information that you do not wish to be made publicly available, submit your objections only as a written/paper submission. You should submit two copies in 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 objections. 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 objections 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 objections 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:

Chelsea Trull, Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-6729, [email protected]

SUPPLEMENTARY INFORMATION: I. Background

In a document published in the Federal Register of July 16, 2015 (80 FR 42069), FDA announced that we had filed a food additive petition (animal use) (FAP 2292) submitted by Alzchem AG, Chemiepark Trostberg, Dr.-Albert-Frank-Str. 32, 83308, Trostberg, Germany. The petition proposed that the regulations for food additives permitted in feed and drinking water of animals be amended to provide for the safe use of guanidinoacetic acid as a substance that spares arginine and serves as a precursor of creatine in broiler chicken and turkey feeds. The notice of petition provided for a 30-day comment period on the petitioner's request for categorical exclusion from preparing an environmental assessment or environmental impact statement.

II. Conclusion

FDA concludes that the data establish the safety and utility of guanidinoacetic acid for use as a substance that spares arginine and serves as a precursor of creatine in broiler chicken and turkey feeds and that the food additive regulations should be amended as set forth in this document.

III. Public Disclosure

In accordance with § 571.1(h) (21 CFR 571.1(h)), the petition and documents we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT). As provided in § 571.1(h), we will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.

IV. Analysis of Environmental Impact

The Agency has determined under 21 CFR 25.32(r) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

V. Objections and Hearing Requests

Any person who will be adversely affected by this regulation may file with the Division of Dockets Management (see ADDRESSES) either electronic or written objections. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provision of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection.

Any objections received in response to the regulation may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov.

List of Subjects in 21 CFR Part 573

Animal feeds, Food additives.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 573 is amended as follows:

PART 573—FOOD ADDITIVES PERMITTED IN FEED AND DRINKING WATER OF ANIMALS 1. The authority citation for part 573 continues to read as follows: Authority:

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

2. Add § 573.496 to read as follows:
§ 573.496 Guanidinoacetic acid.

The food additive, guanidinoacetic acid, may be safely used in broiler chicken and turkey feeds in accordance with the following prescribed conditions:

(a) The additive is manufactured by reacting glycine with cyanamide in an aqueous solution.

(b) The additive is used or intended for use to spare arginine and as a precursor of creatine in broiler chicken and turkey feeds at levels not to exceed 0.12 percent of the complete feed.

(c) The additive consists of not less than 97 percent guanidinoacetic acid [N-(aminoiminomethyl)-glycine] (CAS 352-97-6) by weight.

(d) The additive meets the following specifications:

(1) Dicyandiamide not to exceed 0.5 percent;

(2) Cyanamide not to exceed 0.01 percent;

(3) Melamine not to exceed 15 parts per million (ppm);

(4) Sum of ammeline, ammelide, and cyanuric acid not to exceed 35 ppm; and

(5) Water not to exceed 1 percent.

(e) To assure safe use of the additive in addition to the other information required by the Federal Food, Drug, and Cosmetic Act:

(1) The label and labeling of the additive, any feed premix, and complete feed shall contain the name of the additive.

(2) The label and labeling of the additive and any feed premix shall also contain:

(i) A statement to indicate that the maximum use level of guanidinoacetic acid must not exceed 0.12 percent of the complete feed for broiler chickens and turkeys; and

(ii) Adequate directions for use.

Dated: November 22, 2016. Tracey H. Forfa, Deputy Director, Center for Veterinary Medicine.
[FR Doc. 2016-28754 Filed 11-29-16; 8:45 am] BILLING CODE 4164-01-P
POSTAL SERVICE 39 CFR Part 265 Production or Disclosure of Material or Information AGENCY:

Postal Service.

ACTION:

Final rule.

SUMMARY:

The Postal Service is amending its regulations concerning compliance with the Freedom of Information Act (FOIA) to implement the changes to the procedures for the disclosure of records and for engaging in dispute resolution required by the FOIA Improvement Act of 2016. As part of this process, the Postal Service is also restructuring the regulations setting forth its FOIA procedures, without substantive change, to make them easier for members of the public to understand and use.

DATES:

These regulations are effective December 27, 2016.

ADDRESSES:

Questions or comments on this action are welcome. Mail or deliver written comments to: Michael Elston, Associate General Counsel and Chief Ethics & Compliance Officer, 475 L'Enfant Plaza SW., Room 6000, Washington, DC 20260-1135.

FOR FURTHER INFORMATION CONTACT:

Natalie A. Bonanno, Chief Counsel, Federal Compliance, [email protected], (202) 268-2944.

SUPPLEMENTARY INFORMATION:

The Postal Service is amending 39 CFR part 265 to implement changes to the procedures for the disclosure of records and for engaging in dispute resolution under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as required by the FOIA Improvement Act of 2016 (FOIAIA), Public Law 114-185 (June 30, 2016), 130 Stat. 538. Under section 3 of the FOIA Improvement Act (130 Stat. 544) agencies are required to make such changes not later than 180 days after its date of enactment.

The Postal Service has accordingly prepared a revision of 39 CFR part 265 to implement the amendments to the FOIA contained in section 2 of the FOIAIA. These amendments relate to such matters as the availability of certain records for public inspection in an electronic format; the assessment of fees related to voluminous record requests; modifications to the exemptions from disclosure for certain records described in 5 U.S.C. 552(b); and addressing the role of the Office of Government Information Services (OGIS).

In addition, the Postal Service is restructuring its FOIA response procedures, without substantive change to their underlying policy, with the objective of enhancing their usefulness and comprehensibility. In this regard, 39 CFR part 265 has been retitled and subdivided into three subparts, dealing separately with (1) the generally applicable procedures for the disclosure of records under FOIA; (2) special rules applicable to the disclosure of records in compliance with subpoenas and other court orders, in response to requests for records or testimony in other legal proceedings, or pursuant to requests directed to the Postal Inspection Service; and (3) the rules concerning the availability of specific categories of records that are not subject to mandatory disclosure in whole or in part.

As reorganized and amended, 39 CFR part 265 is structured as follows:

Subpart A—Procedures for Disclosure of Records Under the Freedom of Information Act

This subpart sets forth the procedural rules applicable to the submission and processing of FOIA requests, including how and to whom a request should be submitted, the responsibility for and the timing of a response, the nature and content of the response, the treatment of confidential commercial information obtained from a submitter outside the Postal Service that may be protected from disclosure, the procedure for making an administrative appeal of the Postal Service's response to a request, and the fees that may apply to processing a request. This subpart is designed to carry forward the substantive content of former §§ 265.1-265.5 and §§ 265.7-265.9 in a more accessible and useful format.

265.1 General Provisions

This section has been retitled and revised to present a concise and accessible overview of the policies and functions implemented by this subpart.

265.2 Proactive Disclosure of Postal Service Records

This section has been retitled and revised to ensure the continued availability of those records that must be made publicly available, or are appropriate for public disclosure, and to provide for the posting and indexing of records in an electronic format as required under the FOIAIA.

265.3 Procedure for Submitting a FOIA Request

This section has been retitled and revised to explain the organization and functions of the Postal Service's FOIA Requester Service Centers (RSCs), as well as the procedures to be followed in submitting a FOIA request.

265.4 Responsibility for Responding to Requests

This section has been retitled and revised to clarify the functional responsibilities of the RSCs in responding to FOIA requests.

265.5 Timing of Responses to Requests

This section has been retitled and revised to set out the timeframe applicable to the processing of requests, including special provisions for the multitrack processing of simple or complex requests, expedited processing where appropriate, the extension of time in unusual circumstances, and aggregation of requests.

265.6 Responses to Requests

This section has been retitled and revised to specify the procedures for grants of requests, adverse determinations of requests, denials of requests, and any redaction of documents released.

265.7 Confidential Commercial Information Obtained From Submitters

This section, the successor to former § 265.8, has been retitled and revised to specify the procedures for processing requests for information that may be protected from disclosure under FOIA Exemption 4 (5 U.S.C. 552(b)(4)) because it contains confidential commercial or financial information obtained by the Postal Service from a submitter outside the Postal Service.

265.8 Administrative Appeals

This section has been retitled and revised to set forth the requirements for making an appeal of a FOIA decision, and the process for its adjudication.

265.9 Fees

This section has been retitled and revised to specify the fee structure for processing FOIA requests, including special provisions concerning requests from educational institutions, noncommercial scientific institutions, and representatives of the news media.

Subpart B—Production or Disclosure in Federal and State Proceedings

This subpart retains current §§ 265.11-265.13 with no substantive change. Where necessary, cross-references to other postal regulations have been updated.

265.11 Compliance With Subpoenas Duces Tecum, Court Orders, and Summonses

No substantive changes have been made in this section.

265.12 Demands for Testimony or Records in Certain Legal Proceedings

No substantive changes have been made in this section.

265.13 Compliance With Subpoenas, Summonses, and Court Orders by Postal Employees Within the Postal Inspection Service Where the Postal Service, the United States, or Any Other Federal Agency Is Not a Party

No substantive changes have been made in this section.

Subpart C—Availability of Records

The provisions of former § 265.6 have been redesignated as § 265.14, and relocated to a separate subpart. This action is intended to enhance the usefulness of these regulations, and add clarity to the distinction between those records that are available to the public on request, and those records that are not subject to mandatory public disclosure, or available only with certain restrictions.

265.14 Rules Concerning Specific Categories of Records

This section retitles, relocates, and revises for clarity the rules concerning records that are not subject to mandatory public disclosure, as well as those that are available with certain restrictions, including records compiled for law enforcement purposes, the names and addresses of postal customers, and records the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

List of Subjects in 39 CFR Part 265

Administrative practice and procedure, Courts, Freedom of Information, Government employees.

For the reasons stated in the preamble, the Postal Service amends 39 CFR chapter I by revising part 265 to read as follows:

PART 265—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION Subpart A—Procedures for Disclosure of Records Under the Freedom of Information Act Sec. 265.1 General provisions. 265.2 Proactive disclosure of Postal Service records. 265.3 Procedure for submitting a FOIA request. 265.4 Responsibility for responding to requests. 265.5 Timing of responses to requests. 265.6 Responses to requests. 265.7 Confidential commercial information obtained from submitters. 265.8 Administrative appeals. 265.9 Fees. Subpart B—Production or Disclosure in Federal and State Proceedings 265.11 Compliance with subpoenas duces tecum, court orders, and summonses. 265.12 Demands for testimony or records in certain legal proceedings. 265.13 Compliance with subpoenas, summonses, and court orders by postal employees within the Postal Inspection Service where the Postal Service, the United States, or any other Federal agency is not a party. Subpart C—Availability of Records 265.14 Rules concerning specific categories of records. Authority:

5 U.S.C. 552; 5 U.S.C. App. 3; 39 U.S.C. 401, 403, 410, 1001, 2601; Pub. L. 114-185.

§ 265.1 General provisions.

(a) This subpart contains the regulations that implement the Freedom of Information Act (FOIA), 5 U.S.C. 552, insofar as the Act applies to the Postal Service. These rules should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget, (OMB Guidelines), 52 FR 10012 (Mar. 27, 1987). The Postal Service FOIA Requester's Guide, an easy-to-read guide for making Postal Service FOIA requests, is available at http://about.usps.com/who-we-are/foia/welcome.htm.

(b) Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under Part 266 as well as under this subpart.

(c) It is the policy of the Postal Service to make its official records available to the public to the maximum extent consistent with the public interest. This policy requires a practice of full disclosure of those records that are covered by the requirements of the FOIA, subject only to the specific exemptions required or authorized by law. The exemptions from mandatory disclosure for various types of records provided by 5 U.S.C. 552(b) and 39 U.S.C. 410(c) reflect the fact that under some circumstances, the public interest may be better served by leaving the disclosure of particular records to the discretion of the Postal Service rather than by requiring their disclosure. This Postal Service policy does not create any right enforceable in court.

(d) As referenced in this subpart, component means any department or facility within the Postal Service that maintains records; the Office of Inspector General; and the Postal Inspection Service. Postal Service refers to all such components collectively.

(e) Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.

§ 265.2 Proactive disclosure of Postal Service records.

(a) In general. The Postal Service is responsible for determining which of its records must be made publicly available, for identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. The Postal Service's FOIA Requester Service Centers (RSCs) and FOIA Public Liaisons can assist individuals in locating Postal Service records. Descriptions of, and contact information for, the various FOIA RSCs can be found at http://about.usps.com/who-we-are/foia/welcome.htm.

(b) Records available in an electronic format. Records that the FOIA requires the Postal Service to make available for public inspection in an electronic format pursuant to 5 U.S.C. 552(a)(2) and that are exempt from the requirements of 5 U.S.C. 552(a)(3), may be accessed through the Postal Service's Web site at http://about.usps.com/who-we-are/foia/welcome.htm. The Postal Service must ensure that its Web site of posted records and indices is reviewed and updated on an ongoing basis. Such records available for public inspection in an electronic format include the following:

(1) Opinions. All final opinions and orders made in the adjudication of cases by the Judicial Officer and Administrative Law Judges, all final determinations pursuant to section 404(b) of title 39, United States Code, to close or consolidate a post office, or to disapprove a proposed closing or consolidation, all advisory opinions concerning the private express statutes issued pursuant to 39 CFR 310.6, and all supplier disagreement decisions are on file and available for inspection and copying at the Headquarters Library and, if created on or after November 1, 1996, also at the Postal Service's Web site at http://about.usps.com/who-we-are/foia/welcome.htm.

(2) Administrative manuals and instructions. The manuals, instructions, and other publications of the Postal Service that affect members of the public are available through the Headquarters Library and at many post offices and other postal facilities. Those which are available to the public but are not listed for sale may be inspected in the Headquarters Library, at any postal facility which maintains a copy, or, if created on or after November 1, 1996, through the Postal Service's Web site at http://about.usps.com/who-we-are/foia/welcome.htm. Copies of publications which are not listed as for sale or as available free of charge may be requested on an individual basis in accordance with the procedures provided in § 265.3.

(3) Previously released records. Copies of all records, regardless of form or format, that have been released to any person pursuant to the FOIA; and that because of the nature of their subject matter, the Postal Service determines have become or are likely to become the subject of subsequent requests for substantially the same records; or that have been requested 3 or more times, as well as a general index of such records. Records processed and disclosed after March 31, 1997, are available for inspection and copying at the Headquarters Library. Any such records created by the Postal Service on or after November 1, 1996, also will be available at the Postal Service's Web site identified at § 265.2(b). Records described in this paragraph that were not created by, or on behalf of, the Postal Service generally will not be available at the Web site. Records will be available in the form in which they were originally disclosed, except to the extent that they contain information that is not appropriate for public disclosure and may be withheld pursuant to this section. Any deleted material will be marked and the applicable exemptions indicated in accordance with § 265.6(d).

(4) Public index. (i) A public index is maintained in the Headquarters Library and at the Web site of all final opinions and orders made by the Postal Service in the adjudication of cases, Postal Service policy statements which may be relied on as precedents in the disposition of cases, administrative staff manuals and instructions that affect the public, and other materials which the Postal Service elects to index and make available to the public on request in the manner set forth in paragraph (b) of this section.

(ii) The index contains references to matters issued after July 4, 1967, and may reference matters issued prior to that date.

(iii) Any person may arrange for the inspection of any matter in the public index in accordance with the procedures of § 265.3.

(iv) Copies of the public index and of matters listed in the public index may be requested through the procedures described in § 265.3, with payment of any applicable fees.

(v) Materials listed in the public index that were created on or after November 1, 1996, will also be available in electronic format at the Postal Service's Web site at http://about.usps.com/who-we-are/foia/welcome.htm.

§ 265.3 Procedure for submitting a FOIA request.

(a) To whom submitted. A request must be submitted to the appropriate FOIA Requester Service Center (RSC). Descriptions of, and contact information for, the various FOIA RSCs can be found at http://about.usps.com/who-we-are/foia/welcome.htm. For assistance in determining the appropriate FOIA RSC, requesters may contact the USPS HQ FOIA Requester Service Center, Privacy and Records Office, U.S. Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260, telephone (202) 268-2608. Requests for listings of postal employee names should also be sent to the USPS HQ FOIA Requester Service Center.

(b) Form of request. A request to inspect or to obtain a copy of an identifiable Postal Service record must be in writing and bear the caption “Freedom of Information Act Request” or otherwise be clearly and prominently identified as a request for records pursuant to the Freedom of Information Act, both on the letter and on the envelope or other cover. Requests for records that are labeled incorrectly may be delayed in reaching the appropriate FOIA RSC. A requester must provide his or her full name and mailing address. A requester may also provide a daytime telephone number or email address to facilitate communication regarding his or her request.

(c) Content of request. Requesters must describe the records sought in sufficient detail to enable Postal Service personnel to locate them with a reasonable amount of effort. Whenever possible, requesters should include specific information about each record sought, such as the type of record (e.g., contract, report, memorandum, etc.); the title or case number of a specific document or report; the topic or subject matter; the name of the office, facility, functional unit or employees most likely to possess the record; the geographical location, such as a city and state, where the records are thought to exist; the date or general timeframe of the record's creation; and any details related to the purpose of the record. Requests for email records should specify the likely senders and recipients, keywords, and a range of dates. If seeking information about a company, requesters should provide the exact name and address of the company (many companies use similar names). Before submitting requests, requesters may contact the relevant Postal Service FOIA Requester Service Center to discuss the records they are seeking and to receive assistance in describing the records. The request may state the maximum amount of fees for which the requester is willing to accept liability without prior notice. If no amount is stated, the requester will be deemed willing to accept liability for fees not to exceed $25.00. See paragraph (e)(2) of § 265.9.The request may also specify the preferred form or format (including electronic formats) of the requested records.

(d) First-party requests. A requester who is making a request for records about himself must provide verification of identity sufficient to satisfy the component as to his identity prior to release of the record. For Privacy Act-protected records, the requester must further comply with the procedures set forth in 39 CFR 266.6.

(e) Third-party requests. Where a FOIA request seeks disclosure of records that pertain to a third party, a requester may receive greater access by submitting a written authorization signed by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (e.g., a copy of a death certificate or an obituary). As an exercise of administrative discretion, each component can require a requester to supply a notarized authorization, a declaration, or other additional information if necessary in order to verify that a particular individual has consented to disclosure.

(f) Improper requests. A request that does not reasonably describe the records sought, or does not comply with the published rules regarding the procedures to be followed for submitting a request, will be deemed to be an improper FOIA request. If after receiving a request, the Postal Service determines that it is improper, the Postal Service will inform the requester as to why the request is improper. If the requester fails to respond to the Postal Service's request for clarification or additional information within 30 calendar days, the Postal Service will assume the requester is no longer interested in pursuing the request and close its file. The FOIA Requester Service Centers and the FOIA Public Liaisons are available to assist requesters in correcting a request that does not reasonably describe the records sought.

§ 265.4 Responsibility for responding to requests.

(a) In general. When a request is received, the FOIA RSC will either respond to the request, or refer the request to the appropriate FOIA RSC or records custodians. The FOIA RSC will advise the requester of any such referral. The Postal Service, the Office of Inspector General of the Postal Service, and the Postal Inspection Service, respectively, are responsible for responding to requests they receive for records they maintain. Records responsive to a request ordinarily will include only records in the Postal Service's possession as of the date of the search. If any other date is used, the Postal Service shall inform the requester of that date. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c) or 39 U.S.C. 410(c) is not considered responsive to the request.

(b) Authority to grant or deny requests. The records custodian of the requested record, or his designee, is authorized to grant or to deny the request. FOIA RSC staff may also grant or deny requests.

(c) Receipt and tracking of requests. FOIA RSCs are responsible for the initial receipt and tracking of FOIA requests.

(d) Acknowledgments of requests. FOIA RSCs must acknowledge the request in writing and assign it an individualized tracking number if it will take longer than 10 working days to process. The acknowledgement of the request must include a brief description of the records sought to allow requesters to more easily keep track of their requests.

§ 265.5 Timing of responses to requests.

(a) In general. Requests will ordinarily be responded to according to their order of receipt. A request that is not initially submitted to the appropriate FOIA RSC will be deemed to have been received by the Postal Service at the time that it is actually received by the appropriate FOIA RSC or at the time the request is referred to the appropriate records custodian by a FOIA RSC, but in any case a request will be deemed to have been received no later than 10 business days after the request is first received by a FOIA RSC.

(b) Multitrack processing. (1) Unless expedited processing has been granted, the Postal Service places each request in simple or complex tracks based on the amount of work and time involved in processing the request. Factors considered in assigning a request into the complex track may include one or more of the following factors:

(i) The request involves voluminous documents;

(ii) The complexity of the material;

(iii) The request involves record searches at multiple facilities or locations;

(iv) The request requires consultation among components or other agencies;

(v) The number of open requests submitted by the same requester.

(2) Within each track, the Postal Service processes requests in the order in which they are received. When appropriate, the FOIA RSC or the component will notify the requester if it has placed the request in the “Complex” track, and provide the requester with an opportunity to limit the scope of the request. If the requester limits the scope of the request, it may result in faster processing.

(c) Expedited processing. (1) Requests and appeals shall be processed on an expedited basis whenever it is determined that they involve:

(i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;

(ii) An urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information.

(2) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (e)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester's sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, a component may waive the formal certification requirement.

(3) A component shall notify the requester within 10 calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, and shall be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision shall be acted on expeditiously

(d) Unusual circumstances. Whenever the statutory time limit for processing a request cannot be met because of “unusual circumstances”, as defined in the FOIA, and the component extends the time limit on that basis, the component shall, before the expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which processing of the request can be expected to be completed. Where the extension exceeds 10 working days, the component shall, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing and alert the requester to the availability of the Office of Government Information Services to provide dispute resolution services. The component shall make available its designated FOIA contact and its FOIA Public Liaison for this purpose.

(e) Aggregating requests. For the purposes of satisfying unusual circumstances under the FOIA, the Postal Service may aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a single requester or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances. Multiple requests that involve unrelated matters shall not be aggregated.

§ 265.6 Responses to requests.

(a) Grants of requests. Once a component makes a determination to grant a request in whole or in part, it shall notify the requester in writing and include a statement alerting the requester of his or her right to seek assistance from the FOIA Public Liaison. The component also shall inform the requester of any fees charged under § 265.9 and shall disclose the requested records to the requester promptly upon payment of any applicable fees.

(b) Adverse determinations of requests. A component making an adverse determination denying a request in any respect shall notify the requester of that determination in writing. Adverse determinations, or denials of requests, include decisions that: the requested record is exempt, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing.

(c) Content of denial. The denial shall include, to the extent applicable:

(1) The name and title or position of the person responsible for the denial;

(2) A brief statement of the reasons for the denial, including any FOIA exemption applied by the component in denying the request;

(3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption; and

(4) A statement that the denial may be appealed under § 265.8, and a description of the requirements set forth therein.

(5) A statement notifying the requester of his or her right to seek dispute resolution services from the FOIA Public Liaison or the Office of Government Information Services.

(d) Markings on released documents. Markings on released documents must be clearly visible to the requester. Records disclosed in part shall be marked to show the amount of information deleted and the exemption under which the deletion was made unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted shall also be indicated on the record, if technically feasible.

(e) Use of record exclusions. (1) In the event that a component identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component must confer with Department of Justice, Office of Information Policy (OIP), to obtain approval to apply the exclusion.

§ 265.7 Confidential commercial information obtained from submitters.

(a) Definitions. (1) Confidential commercial information means commercial or financial information obtained by the Postal Service from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).

(2) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides information, either directly or indirectly to the Postal Service.

(b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, either at the time of submission or within a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under Exemption 4. The Postal Service will not determine the validity of any request for confidential treatment until a request for disclosure of the information is received. These designations shall expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.

(c) When notice to submitters is required. (1) The Postal Service shall promptly provide written notice to a submitter of confidential commercial information whenever records containing such information are requested under the FOIA if, after reviewing the request, the responsive records, and any appeal by the requester, the Postal Service determines that it may be required to disclose the records, provided:

(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or

(ii) The Postal Service has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption.

(2) The notice shall either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.

(d) Exceptions to submitter notice requirements. The notice requirements of this section shall not apply if:

(1) The Postal Service determines that the information is exempt under the FOIA or 39 U.S.C. 410(c);

(2) The information has been lawfully published or has been officially made available to the public;

(3) Disclosure of the information is required by a statute other than the FOIA or by a Postal Service regulation; if disclosure is required by a Postal Service regulation and the submitter provided written justification for protection of the information under Exemption 4 at the time of submission or a reasonable time thereafter, advanced written notice of the disclosure must be provided to the submitter; or

(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous or overly broad, except that, in such cases, the component shall give the submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.

(e) Opportunity to object to disclosure. (1) The Postal Service shall specify a reasonable time period within which the submitter must respond to the notice referenced above. If a submitter has any objections to disclosure, it should provide the Postal Service a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential. Whenever possible, the submitter's claim of confidentiality should be supported by a statement or certification by an officer or authorized representative of the submitter that the information in question is in fact confidential, has not been disclosed to the public by the submitter, and is not routinely available to the public from other sources.

(2) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by the Postal Service after the date of any disclosure decision shall not be considered by the Postal Service. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA. The Postal Service must consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.

(f) Determination that confidential treatment is warranted. If the Postal Service determines that confidential treatment is warranted for any part of the requested records and that the records will therefore be redacted or withheld, it must inform the requester in writing, and must advise the requester of the right to appeal. A copy of the letter of denial must also be provided to the submitter of the records in any case in which the submitter had been notified of the request.

(g) Notice of intent to disclose. If the Postal Service decides to disclose information over the objection of a submitter, the Postal Service shall provide the submitter written notice, which shall include:

(1) A statement of the reasons why each of the submitter's disclosure objections was not sustained;

(2) A description or copy of the information to be disclosed; and

(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.

(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, the component shall promptly notify the submitter. Whenever a submitter files a lawsuit to prevent disclosure of confidential commercial information, the component shall promptly notify the requester.

(i) Requester notification. The Postal Service shall notify a requester whenever it notifies the submitter of its intent to disclose the requested information.

§ 265.8 Administrative appeals.

(a) Requirements for making an appeal. Requesters may appeal adverse decisions rendered by the Postal Inspection Service or any Postal Service component by mail to the General Counsel, U.S. Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260; or by email to [email protected] The requester must make the appeal in writing and to be considered timely it must be postmarked, or in the case of electronic submissions, transmitted, within 90 calendar days after the date of the response; or within a reasonable time if the appeal is from a failure of the custodian to act. The General Counsel may, in his or her discretion, consider late appeals. In the event of the denial of a request or of other action or failure to act on the part of a custodian from which no appeal is taken, the General Counsel may, if he or she considers that there is doubt as to the correctness of the custodian's action or failure to act, review the action or failure to act as though an appeal pursuant to this section had been taken. A letter of appeal should include, as applicable:

(1) A copy of the request, of any notification of denial or other action, and of any other related correspondence;

(2) The FOIA tracking number assigned to the request;

(3) A statement of the action, or failure to act, from which the appeal is taken;

(4) A statement identifying the specific redactions to responsive records that the requester is challenging;

(5) A statement of the relief sought; and

(6) A statement of the reasons why the requester believes the action or failure to act is erroneous.

(b) Adjudication of appeals. (1) The decision of the General Counsel or his or her designee constitutes the final decision of the Postal Service on the issue being appealed. The General Counsel will give prompt consideration to an appeal for expedited processing of a request. All other decisions normally will be made within 20 working days from the time of the receipt by the General Counsel. The 20-day response period may be extended by the General Counsel, or his or her designee, for a period not to exceed an additional 10 working days when reasonably necessary to permit the proper consideration of an appeal, under one or more of the unusual circumstances set forth in paragraph (a)(5) of this section. The aggregate number of additional working days utilized, however, may not exceed 10 working days.

(2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.

(3) On receipt of any appeal, the General Counsel, or his or her designee, must take appropriate action to ensure compliance with applicable classification rules.

(c) Decisions on appeals. A decision on an appeal must be made in writing. A decision that upholds a component's determination in whole or in part will contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision will provide the requester with notification of the statutory right to file a lawsuit and will inform the requester of the mediation services offered by the Office of Government Information Services of the National Archives and Records Administration as a non-exclusive alternative to litigation. If a custodian's decision is remanded or modified on appeal, the requester will be notified of that determination in writing. The component will further process the request in accordance with that appeal determination and respond directly to the requester. If not prohibited by or under law, the General Counsel, or his designee may direct the disclosure of a record even though its disclosure is not required by law or regulation.

(d) When appeal is required. Before seeking judicial review of a component's adverse determination, a requester generally must first submit a timely administrative appeal.

(e) Appeal procedures for the Office of the Inspector General. The appeal procedures for the Office of the Inspector General are described in 39 CFR 230.5.

§ 265.9 Fees.

(a) In general. The Postal Service shall charge for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines. In order to resolve any fee issues that arise under this section, a component may contact a requester for additional information. The Postal Service will conduct searches, review, and duplication in the most efficient and the least expensive manner. The Postal Service ordinarily will collect all applicable fees before sending copies of records to a requester. Requesters must pay fees by check or money order made payable to “U.S. Postal Service.”

(b) Definitions. For purposes of this section:

(1) Commercial-use requester is a requester who asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. The Postal Service's decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester's intended use of the information.

(2) Direct costs are those expenses that the Postal Service incurs in searching for and duplicating records in order to respond to a FOIA request. In the case of commercial-use requesters, direct costs include reviewing and taking all other measures needed to prepare the records for disclosure.

(3) Search is the process of looking for and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records.

(4) Duplication is reproducing a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.

(5) Review is the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 265.6, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.

(6) Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is authorized by, and is made under the auspices of, an educational institution and that the records are not sought for a commercial use, but rather are sought to further scholarly research. To fall within this fee category, the request must serve the scholarly research goals of the institution rather than an individual research goal.

(7) Noncommercial scientific institution is an institution that is not operated on a “commercial” basis, as defined in paragraph (b)(1) of this section and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and are not for a commercial use.

(8) Representative of the news media is any person or entity organized and operated to publish or broadcast news to the public that actively gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term news means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast “news” to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the Internet. A request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity shall be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, the Postal Service shall also consider a requester's past publication record in making this determination.

(c) Charging fees. In responding to FOIA requests, the Postal Service shall charge the following fees unless a waiver or reduction of fees has been granted under paragraph (k) of this section. Because the fee amounts provided below already account for the direct costs associated with a given fee type, components should not add any additional costs to charges calculated under this section.

(1) Search. (i) Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. Search fees shall be charged for all other requesters, subject to the restrictions of paragraph (d) of this section. The Postal Service may charge for time spent searching even if no responsive records are located or if it determines that the records are entirely exempt from disclosure.

(ii) For each half hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fee shall be $21.00.

(iii) Requesters shall be charged the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. Requesters shall be notified of the costs associated with creating such a program and must agree to pay the associated costs before the costs may be incurred.

(iv) For requests that require the retrieval of records stored at a Federal records center operated by the National Archives and Records Administration (NARA), or other storage facility, additional costs may be charged for their retrieval.

(2) Duplication. Duplication fees shall be charged to all requesters, subject to the restrictions of paragraph (d) of this section. A component shall honor a requester's preference for receiving a record in a particular form or format where it is readily reproducible by the component in the form or format requested. Where photocopies are supplied, the component shall provide one copy per request at a cost of five cents per page. For copies of records produced on tapes, disks, or other media, components shall charge the direct costs of producing the copy, including operator time. Where paper documents must be scanned in order to comply with a requester's preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials. For other forms of duplication, components shall charge the direct costs.

(3) Review. Commercial-use requesters shall be charged review fees. Review fees shall be assessed in connection with the initial review of the record, i.e., the review conducted by a component to determine whether an exemption applies to a particular record or portion of a record. No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed to no longer apply, any costs associated with a component's re-review of the records in order to consider the use of other exemptions may be assessed as review fees. Review fees shall be charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section.

(d) Restrictions on charging fees. (1) No search fees will be charged for requests by educational institutions (unless the records are sought for a commercial use), noncommercial scientific institutions, or representatives of the news media.

(2)(i) If a component fails to comply with the time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees.

(ii) If a component has determined that unusual circumstances as defined by the FOIA apply and the component provided timely written notice to the requester in accordance with the FOIA, the component has an additional 10 days to respond to the request.

(iii) If a component has determined that unusual circumstances as defined by the FOIA apply and more than 5,000 pages are necessary to respond to the request, the component may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees if the following steps are taken:

(A) The component provides timely written notice of unusual circumstances to the requester; and

(B) The component discussed or made three good faith attempts to discuss via mail, email, or telephone how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii).

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

(3) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.

(4) Except for requesters seeking records for a commercial use, components shall provide without charge:

(i) The first 100 pages of duplication (or the cost equivalent for other media); and

(ii) The first two hours of search.

(5) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search, a total fee calculated under paragraph (c) of this section is $25.00 or less for any request, no fee will be charged.

(e) Notice of anticipated fees in excess of $25.00. (1) When a component determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the component shall notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the component shall advise the requester accordingly. If the requester is a noncommercial use requester, the notice shall specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge, and shall advise the requester whether those entitlements have been provided.

(2) In cases in which a requester has been notified that the actual or estimated fees are in excess of $25.00, the request shall not be considered received and further work will not be completed until the requester agrees in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the requester's statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. Components are not required to accept payments in installments.

(3) If the requester has indicated a willingness to pay some designated amount of fees, but the component estimates that the total fee will exceed that amount, the component shall toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The component shall inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.

(4) Components shall make available their FOIA Public Liaison or other FOIA contact to assist any requester in reformulating a request to meet the requester's needs at a lower cost.

(f) Charges for other services. Although not required to provide special services, if a component chooses to do so as a matter of administrative discretion, the direct costs of providing the service requested by the requester shall be charged. Examples of such services include providing multiple copies of the same document, or sending records by means other than first class mail.

(g) Aggregating requests. In instances where the Postal Service reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single request into a series of requests for the purpose of avoiding fees, or that a requester or group of requesters acting in concert makes multiple requests for the same records maintained at multiple facilities or components, the Postal Service may aggregate those requests and charge accordingly. Multiple FOIA requests by a single requester related to the same issue will be aggregated for the purpose of assessing fees. Multiple requests involving unrelated matters shall not be aggregated.

(h) Advance payments. (1) For requests other than those described in paragraphs (h)(2) or (3) of this section, a component shall not require the requester to submit an advance payment before work is commenced or continued on a request. Payment owed for work already completed (i.e., payment before copies are sent to a requester) is not an advance payment.

(2) When a component determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. A component may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.

(3) Where a requester has previously failed to pay a properly charged FOIA fee within 30 calendar days of the billing date, a component may require that the requester pay the full amount due on that prior request, and the component may require that the requester make an advance payment of the full amount of any anticipated fee before the component begins to process a new request or continues to process a pending request or any pending appeal. Where a component has a reasonable basis to believe that a requester has misrepresented the requester's identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.

(4) In cases in which a component requires advance payment, the request shall not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the component's fee determination, the request will be administratively closed.

(i) Other statutes specifically providing for fees. The fee schedule of this section does not apply to fees charged under any statute that specifically requires the Postal Service to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily-based fee schedule program, the component shall inform the requester of the contact information for that program.

(j) Requirements for waiver or reduction of fees. (1) Records responsive to a request shall be furnished without charge or at a reduced rate below the rate established under paragraph (c) of this section, where a component determines, based on all available information, that the requester has demonstrated that:

(i) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Postal Service, and

(ii) Disclosure of the information is not primarily in the commercial interest of the requester.

(2) In deciding whether disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of operations or activities of the Postal Service, components shall consider all four of the following factors:

(i) The subject of the request must concern identifiable operations or activities of the Postal Service, with a connection that is direct and clear, not remote or attenuated.

(ii) Disclosure of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not contribute to such understanding where nothing new would be added to the public's understanding.

(iii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public shall be considered. A representative of the news media does not automatically satisfy this consideration.

(iv) The public's understanding of the subject in question must be enhanced by the disclosure to a significant extent.

(3) To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, components shall consider the following factors:

(i) Components shall identify any commercial interest of the requester, as defined in paragraph (b)(1) of this section, that would be furthered by the requested disclosure. Requesters shall be given an opportunity to provide explanatory information regarding this consideration.

(ii) Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.

(4) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.

(5) Requests for a waiver or reduction of fees should be made when the request is first submitted to the component and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester shall be required to pay any costs incurred up to the date the fee waiver request was received.

Subpart B—Production or Disclosure in Federal and State Proceedings
§  265.11 Compliance with subpoena duces tecum, court orders, and summonses.

(a) Compliance with subpoena duces tecum. (1) Except as required by Part 262, produce other records of the Postal Service only in compliance with a subpoena duces tecum or appropriate court order.

(2) Time, leave, and payroll records of postal employees are subject to production when a subpoena duces tecum or appropriate court order has been properly served. The custodian of the records may designate a postal employee to present the records. The presentation by a designee rather than the employee named in the subpoena or court order must meet with the approval of the attorneys for each side. In addition, such records may be released if authorized in writing by the employee.

(3) If the subpoena involves a job-connected injury, the records are under the exclusive jurisdiction of the Office of Workers' Compensation Programs, Department of Labor. Requests for authorization to produce these records shall be addressed to: Office of Workers' Compensation Programs, U.S. Department of Labor, Washington, DC 20210-0001. Also notify the attorney responsible for the issuance of the subpoena or court order.

(4) Employee medical records are primarily under the exclusive jurisdiction of the U.S. Civil Service Commission. The Commission has delegated authority to the Postal Service and to the Commission's Regional Directors to release medical information, in response to proper requests and upon competent medical advice, in accordance with the following criteria:

(i) Except in response to a subpoena or court order, do not release any medical information about an employee to any non-Federal entity or individual without authorization from the employee.

(ii) With authorization from the employee, the Area, Information Systems Service Center, or Chief Field Counsel will respond as follows to a request from a non-Federal source for medical information:

(A) If, in the opinion of a Federal medical officer, the medical information indicates the existence of a malignancy, a mental condition, or other condition about which a prudent physician would hesitate to inform a person suffering from such a condition as to its exact nature and probable outcome, do not release the medical information to the employee or to any individual designated by him, except to a physician, designated by the employee in writing. If a subpoena or court order was issued, the responding official shall caution the moving party as to the possible dangers involved if the medical information is divulged.

(B) If, in the opinion of a Federal medical officer, the medical information does not indicate the presence of any condition which would cause a prudent physician to hesitate to inform a person of the exact nature and probable outcome of his condition, release it in response to a subpoena or court order, or to the employee or to any person, firm, or organization he authorizes in writing.

(C) If a Federal medical officer is not available, refer the request to the Civil Service Commission regional office with the medical certificates or other medical reports concerned.

(5) Do not release any records containing information as to the employee's security or loyalty.

(6) Honor subpoenas or court orders only when disclosure is authorized.

(7) When authorized to comply with a subpoena duces tecum, do not leave the original records with the court.

(b) [Reserved]

§  265.12 Demands for testimony or records in certain legal proceedings.

(a) Scope and applicability of this section. (1) This section establishes procedures to be followed if the Postal Service or any Postal Service employee receives a demand for testimony concerning or disclosure of:

(i) Records contained in the files of the Postal Service;

(ii) Information relating to records contained in the files of the Postal Service; or

(iii) Information or records acquired or produced by the employee in the course of his or her official duties or because of the employee's official status.

(2) This section does not create any right or benefit, substantive or procedural, enforceable by any person against the Postal Service.

(3) This section does not apply to any of the following:

(i) Any legal proceeding in which the United States is a party;

(ii) A demand for testimony or records made by either House of Congress or, to the extent of matter within its jurisdiction, any committee or subcommittee of Congress;

(iii) An appearance by an employee in his or her private capacity in a legal proceeding in which the employee's testimony does not relate to the employee's official duties or the functions of the Postal Service; or

(iv) A demand for testimony or records submitted to the Postal Inspection Service (a demand for Inspection Service records or testimony will be handled in accordance with rules in § 265.13).

(4) This section does not exempt a request from applicable confidentiality requirements, including the requirements of the Privacy Act, 5 U.S.C. 552a.

(b) Definitions. The following definitions apply to this section:

(1) Adjudicative authority includes, but is not limited to, the following:

(i) A court of law or other judicial forums, whether local, state, or federal; and

(ii) Mediation, arbitration, or other forums for dispute resolution.

(2) Demand includes a subpoena, subpoena duces tecum, request, order, or other notice for testimony or records arising in a legal proceeding.

(3) Employee means a current employee or official of the Postal Service.

(4) General Counsel means the General Counsel of the United States Postal Service, the Chief Field Counsels, or an employee of the Postal Service acting for the General Counsel under a delegation of authority.

(5) Legal proceeding means:

(i) A proceeding before an adjudicative authority;

(ii) A legislative proceeding, except for a proceeding before either House of Congress or before any committee or subcommittee of Congress; or

(iii) An administrative proceeding.

(6) Private litigation means a legal proceeding to which the United States is not a party.

(7) Records custodian means the employee who maintains a requested record. For assistance in identifying the custodian of a specific record, contact the Manager, Records Office, U.S. Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260, telephone (202) 268-2608.

(8) Testimony means statements made in connection with a legal proceeding, including but not limited to statements in court or other forums, depositions, declarations, affidavits, or responses to interrogatories.

(9) United States means the federal government of the United States and any of its agencies, establishments, or instrumentalities, including the United States Postal Service.

(c) Requirements for submitting a demand for testimony or records. (1) Ordinarily, a party seeking to obtain records from the Postal Service should submit a request in accordance with the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Postal Service's regulations implementing the FOIA at 39 CFR 265.1 through 265.9, 265.14; or the Privacy Act, 5 U.S.C. 552a and the Postal Service's regulations implementing the Privacy Act at 39 CFR 266.1 through 266.10.

(2) A demand for testimony or records issued pursuant to the rules governing the legal proceeding in which the demand arises must:

(i) Be in writing;

(ii) Identify the requested record and/or state the nature of the requested testimony, describe the relevance of the record or testimony to the proceeding, and why the information sought is unavailable by any other means; and

(iii) If testimony is requested, contain a summary of the requested testimony and a showing that no document could be provided and used in lieu of testimony.

(3) Procedures for service of demand are made as follows:

(i) Service of a demand for testimony or records (including, but not limited to, personnel or payroll information) relating to a current or former employee must be made in accordance with the applicable rules of civil procedure on the employee whose testimony is requested or the records custodian. The requester also shall deliver a copy of the demand to the District Manager, Customer Services and Sales, for all current employees whose work location is within the geographic boundaries of the manager's district, and any former employee whose last position was within the geographic boundaries of the manager's district. A demand for testimony or records must be received by the employee whose testimony is requested and the appropriate District Manager, Customer Services and Sales, at least ten (10) working days before the date the testimony or records are needed.

(ii) Service of a demand for testimony or records other than those described in paragraph (c)(3)(i) of this section must be made in accordance with the applicable rules of civil procedure on the employee whose testimony is requested or the records custodian. The requester also shall deliver a copy of the demand to the General Counsel, United States Postal Service, 475 L'Enfant Plaza SW., Washington DC 20260-1100, or the Chief Field Counsel. A demand for testimony or records must be received by the employee and the General Counsel or Chief Field Counsel at least ten (10) working days before the date testimony or records are needed.

(d) Procedures followed in response to a demand for testimony or records. (1) After an employee receives a demand for testimony or records, the employee shall immediately notify the General Counsel or Chief Field Counsel and request instructions.

(2) An employee may not give testimony or produce records without the prior authorization of the General Counsel.

(3)(i) The General Counsel may allow an employee to testify or produce records if the General Counsel determines that granting permission:

(A) Would be appropriate under the rules of procedure governing the matter in which the demand arises and other applicable laws, privileges, rules, authority, and regulations; and

(B) Would not be contrary to the interest of the United States. The interest of the United States includes, but is not limited to, furthering a public interest of the Postal Service and protecting the human and financial resources of the United States.

(ii) An employee's testimony shall be limited to the information set forth in the statement described at paragraph (c)(2) of this section or to such portions thereof as the General Counsel determines are not subject to objection. An employee's testimony shall be limited to facts within the personal knowledge of the employee. A Postal Service employee authorized to give testimony under this rule is prohibited from giving expert or opinion testimony, answering hypothetical or speculative questions, or giving testimony with respect to privileged subject matter. The General Counsel may waive the prohibition of expert testimony under this paragraph only upon application and showing of exceptional circumstances and the request substantially meets the requirements of this section.

(4) The General Counsel may establish conditions under which the employee may testify. If the General Counsel authorizes the testimony of an employee, the party seeking testimony shall make arrangements for the taking of testimony by those methods that, in the General Counsel's view, will least disrupt the employee's official duties. For example, at the General Counsel's discretion, testimony may be provided by affidavits, answers to interrogatories, written depositions, or depositions transcribed, recorded, or preserved by any other means allowable by law.

(5) If a response to a demand for testimony or records is required before the General Counsel determines whether to allow an employee to testify, the employee or counsel for the employee shall do the following:

(i) Inform the court or other authority of the regulations in this section; and

(ii) Request that the demand be stayed pending the employee's receipt of the General Counsel's instructions.

(6) If the court or other authority declines the request for a stay, or rules that the employee must comply with the demand regardless of the General Counsel's instructions, the employee or counsel for the employee shall respectfully decline to comply with the demand, citing United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the regulations in this section.

(7) The General Counsel may request the assistance of the Department of Justice or a U.S. Attorney where necessary to represent the interests of the Postal Service and the employee.

(8) At his or her discretion, the General Counsel may grant a waiver of any procedure described by this section, where waiver is considered necessary to promote a significant interest of the United States or for other good cause.

(9) If it otherwise is permissible, the records custodian may authenticate, upon the request of the party seeking disclosure, copies of the records. No employee of the Postal Service shall respond in strict compliance with the terms of a subpoena duces tecum unless specifically authorized by the General Counsel.

(e) Postal Service employees as expert witnesses. No Postal Service employee may testify as an expert or opinion witness, with regard to any matter arising out of the employee's official duties or the functions of the Postal Service, for any party other than the United States, except that in extraordinary circumstances, the General Counsel may approve such expert testimony in private litigation. A Postal Service employee may not testify as such an expert witness without the express authorization of the General Counsel. A litigant must obtain authorization of the General Counsel before designating a Postal Service employee as an expert witness.

(f) Substitution of Postal Service employees. Although a demand for testimony may be directed to a named Postal Service employee, the General Counsel, where appropriate, may designate another Postal Service employee to give testimony. Upon request and for good cause shown (for example, when a particular Postal Service employee has direct knowledge of a material fact not known to the substitute employee designated by the Postal Service), the General Counsel may permit testimony by a named Postal Service employee.

(g) Fees and costs. (1) The Postal Service may charge fees, not to exceed actual costs, to private litigants seeking testimony or records by request or demand. The fees, which are to be calculated to reimburse fully the Postal Service for processing the demand and providing the witness or records, may include, among others:

(i) Costs of time spent by employees, including attorneys, of the Postal Service to process and respond to the demand;

(ii) Costs of attendance of the employee and agency attorney at any deposition, hearing, or trial;

(iii) Travel costs of the employee and agency attorney;

(iv) Costs of materials and equipment used to search for, process, and make available information.

(2) All costs for employee time shall be calculated on the hourly pay of the employee (including all pay, allowance, and benefits) and shall include the hourly fee for each hour, or portion of each hour, when the employee is in travel, in attendance at a deposition, hearing, or trial, or is processing or responding to a request or demand.

(3) At the discretion of the Postal Service, where appropriate, costs may be estimated and collected before testimony is given.

(h) Acceptance of service. This section does not in any way abrogate or modify the requirements of the Federal Rules of Civil Procedure (28 U.S.C. Appendix) regarding service of process.

§ 265.13 Compliance with subpoenas, summonses, and court orders by postal employees within the Postal Inspection Service where the Postal Service, the United States, or any other Federal agency is not a party.

(a) Applicability of this section. The rules in this section apply to all federal, state, and local court proceedings, as well as administrative and legislative proceedings, other than:

(1) Proceedings where the United States, the Postal Service, or any other Federal agency is a party;

(2) Congressional requests or subpoenas for testimony or documents;

(3) Consultative services and technical assistance rendered by the Inspection Service in executing its normal functions;

(4) Employees serving as expert witnesses in connection with professional and consultative services under 5 CFR part 7001, provided that employees acting in this capacity must state for the record that their testimony reflects their personal opinions and should not be viewed as the official position of the Postal Service;

(5) Employees making appearances in their private capacities in proceedings that do not relate to the Postal Service (e.g., cases arising from traffic accidents, domestic relations) and do not involve professional or consultative services; and

(6) When in the opinion of the Counsel or the Counsel's designee, Office of the Chief Postal Inspector, it has been determined that it is in the best interest of the Inspection Service or in the public interest.

(b) Purpose and scope. The provisions in this section limit the participation of postal employees within or assigned to the Inspection Service, in private litigation, and other proceedings in which the Postal Service, the United States, or any other federal agency is not a party. The rules are intended to promote the careful supervision of Inspection Service resources and to reduce the risk of inappropriate disclosures that might affect postal operations.

(c) Definitions. For the purposes of this section:

(1) Authorizing official is the person responsible for giving the authorization for release of documents or permission to testify.

(2) Case or matter means any civil proceeding before a court of law, administrative board, hearing officer, or other body conducting a judicial or administrative proceeding in which the United States, the Postal Service, or another federal agency is not a named party.

(3) Demand includes any request, order, or subpoena for testimony or the production of documents.

(4) Document means all records, papers, or official files, including, but not limited to, official letters, telegrams, memoranda, reports, studies, calendar and diary entries, graphs, notes, charts, tabulations, data analyses, statistical or information accumulations, records of meetings and conversations, film impressions, magnetic tapes, computer discs, and sound or mechanical reproductions;

(5) Employee or Inspection Service employee, for the purpose of this section only, refers to a Postal Service employee currently or formerly assigned to the Postal Inspection Service, student interns, contractors and employees of contractors who have access to Inspection Service information and records.

(6) Inspection Service means the organizational unit within the Postal Service that performs the functions specified in part 233 of this chapter.

(7) Inspection Service Legal Counsel is an attorney authorized by the Chief Postal Inspector to give legal advice to members of the Inspection Service.

(8) Inspection Service Manual is the directive containing the standard operating procedures for Postal Inspectors and certain Inspection Service employees.

(9) Nonpublic includes any material or information not subject to mandatory public disclosure under §  265.14(b).

(10) Official case file means official documents that relate to a particular case or investigation. These documents may be kept at any location and do not necessarily have to be in the same location in order to constitute the file.

(11) Postal Inspector reports include all written reports, letters, recordings, or other memorializations made in conjunction with the duties of a Postal Inspector.

(12) Testify or testimony includes both in-person oral statements before any body conducting a judicial or administrative proceeding and statements made in depositions, answers to interrogatories, declarations, affidavits, or other similar documents.

(13) Third-party action means an action, judicial or administrative, in which the United States, the Postal Service, or any other federal agency is not a named party.

(d) Policy. (1) No current or former employee within the Inspection Service may testify or produce documents concerning information acquired in the course of employment or as a result of his or her relationship with the Postal Service in any proceeding to which this section applies (see paragraph (a) of this section), unless authorized to do so. Authorization will be provided by:

(i) The Postal Inspector in Charge of the affected field Division, or designee, for Division personnel and records, after that official has determined through consultation with Inspection Service legal counsel that no legal objection, privilege, or exemption applies to such testimony or production of documents.

(ii) The Chief Postal Inspector or designee for Headquarters employees and records, after that official has determined through consultation with Inspection Service legal counsel, that no legal objection, privilege, or exemption applies to such testimony or production of documents.

(2) Consideration shall be given to:

(i) Statutory restrictions, as well as any legal objection, exemption, or privilege that may apply;

(ii) Relevant legal standards for disclosure of nonpublic information and documents;

(iii) Inspection Service rules and regulations and the public interest;

(iv) Conservation of employee time; and

(v) Prevention of the expenditure of Postal Service resources for private purposes.

(3) If additional information is necessary before a determination can be made, the authorizing official may, in coordination with Inspection Service legal counsel, request assistance from the Department of Justice.

(e) Compliance with subpoena duces tecum. (1) Except as required by part 262 of this chapter, produce any other record of the Postal Service only in compliance with a subpoena duces tecum or appropriate court order.

(2) Do not release any record containing information relating to an employee's security or loyalty.

(3) Honor subpoenas and court orders only when disclosure is authorized.

(4) When authorized to comply with a subpoena duces tecum or court order, do not leave the originals with the court.

(5) Postal Inspector reports are considered to be confidential internal documents and shall not be released unless there is specific authorization by the Chief Postal Inspector or the Inspector in Charge of the affected field Division, after consulting with Inspection Service legal counsel.

(6) The Inspection Service Manual and other operating instructions issued to Inspection Service employees are considered to be confidential and shall not be released unless there is specific authorization, after consultation with Inspection Service legal counsel. If the requested information relates to confidential investigative techniques, or release of the information would adversely affect the law enforcement mission of the Inspection Service, the subpoenaed official, through Inspection Service legal counsel, may request an in camera, ex parte conference to determine the necessity for the release of the information. The entire Manual should not be given to any party.

(7) Notes, memoranda, reports, transcriptions, whether written or recorded and made pursuant to an official investigation conducted by a member of the Inspection Service, are the property of the Inspection Service and are part of the official case file, whether stored with the official file.

(f) Compliance with summonses and subpoenas ad testificandum. (1) If an Inspection Service employee is served with a third-party summons or a subpoena requiring an appearance in court, contact should be made with Inspection Service legal counsel to determine whether and which exemptions or restrictions apply to proposed testimony. Inspection Service employees are directed to comply with summonses, subpoenas, and court orders, as to appearance, but may not testify without authorization.

(2) Postal Inspector reports or records will not be presented during testimony, in either state or federal courts in which the United States, the Postal Service, or another federal agency is not a party in interest, unless authorized by the Chief Postal Inspector or the Postal Inspector in Charge of the affected field Division, who will make the decision after consulting with Inspection Service legal counsel. If an attempt is made to compel production, through testimony, the employee is directed to decline to produce the information or matter and to state that it may be exempted and may not be disclosed or produced without the specific approval of the Chief Postal Inspector or the Postal Inspector in Charge of the affected field Division. The Postal Service will offer all possible assistance to the courts, but the question of disclosing information for which an exemption may be claimed is a matter of discretion that rests with the appropriate official. Paragraph (e) of this section covers the release of Inspection Service documents in cases where the Postal Service or the United States is not a party.

(g) General procedures for obtaining Inspection Service documents and testimony from Inspection Service employees. (1) To facilitate the orderly response to demands for the testimony of Inspection Service employees and production of documents in cases where the United States, the Postal Service, or another federal agency is not a party, all demands for the production of nonpublic documents or testimony of Inspection Service employees concerning matters relating to their official duties and not subject to the exemptions set forth in paragraph (a) of this section shall be in writing and conform to the requirements outlined in paragraphs (g)(2) and (g)(3) of this section.

(2) Before or simultaneously with service of a demand described in paragraph (g)(1) of this section, the requesting party shall serve on the Counsel, Office of the Chief Postal Inspector, 475 L'Enfant Plaza SW., Washington, DC 20260-2101, an affidavit or declaration containing the following information:

(i) The title of the case and the forum where it will be heard;

(ii) The party's interest in the case;

(iii) The reasons for the demand;

(iv) A showing that the requested information is available, by law, to a party outside the Postal Service;

(v) If testimony is sought, a summary of the anticipated testimony;

(vi) If testimony is sought, a showing that Inspection Service records could not be provided and used in place of the requested testimony;

(vii) The intended use of the documents or testimony; and

(viii) An affirmative statement that the documents or testimony is necessary for defending or prosecuting the case at issue.

(3) The Counsel, Office of the Chief Postal Inspector, shall act as agent for the receipt of legal process for demands for production of records or testimony of Inspection Service employees where the United States, the Postal Service, or any other federal agency is not a party. A subpoena for testimony or for the production of documents from an Inspection Service employee concerning official matters shall be served in accordance with the applicable rules of civil procedure. A copy of the subpoena and affidavit or declaration, if not previously furnished, shall also be sent to the Chief Postal Inspector or the appropriate Postal Inspector in Charge.

(4) Any Inspection Service employee who is served with a demand shall promptly inform the Chief Postal Inspector, or the appropriate Postal Inspector in Charge, of the nature of the documents or testimony sought and all relevant facts and circumstances.

(h) Authorization of testimony or production of documents. (1) The Chief Postal Inspector or the Postal Inspector in Charge of the affected field Division, after consulting with Inspection Service legal counsel, shall determine whether testimony or the production of documents will be authorized.

(2) Before authorizing the requested testimony or the production of documents, the Chief Postal Inspector or the Postal Inspector in Charge of the affected field Division shall consider the following factors:

(i) Statutory restrictions, as well as any legal objection, exemption, or privilege that may apply;

(ii) Relevant legal standards for disclosure of nonpublic information and documents;

(iii) Inspection Service rules and regulations and the public interest;

(iv) Conservation of employee time; and

(v) Prevention of expenditures of government time and resources solely for private purposes.

(3) If, in the opinion of the authorizing official, the documents should not be released or testimony should not be furnished, that official's decision is final.

(4) Inspection Service legal counsel may consult or negotiate with the party or the party's counsel seeking testimony or documents to refine and limit the demand, so that compliance is less burdensome, or obtain information necessary to make the determination whether the documents or testimony will be authorized. If the party or party's counsel seeking the documents or testimony fails to cooperate in good faith, preventing Inspection Service legal counsel from making an informed recommendation to the authorizing official, that failure may be presented to the court or other body conducting the proceeding as a basis for objection.

(5) Permission to testify or to release documents in all cases will be limited to matters outlined in the affidavit or declaration described in paragraph (g)(2) of this section or to such parts as deemed appropriate by the authorizing official.

(6) If the authorizing official allows the release of documents or testimony to be given by an employee, arrangements shall be made for the taking of testimony or receipt of documents by the least disruptive methods to the employee's official duties. Testimony may, for example, be provided by affidavits, answers to interrogatories, written depositions, or depositions transcribed, recorded, or preserved by any other means allowable by law.

(i) While giving a deposition, the employee may, at the option of the authorizing official, be represented by Inspection Service legal counsel.

(ii) While completing affidavits, or other written reports or at any time during the process of preparing for testimony or releasing documents, the employee may seek the assistance of Inspection Service legal counsel.

(7) Absent written authorization from the authorizing official, the employee shall respectfully decline to produce the requested documents, testify, or, otherwise, disclose the requested information.

(8) If the authorization is denied or not received by the return date, the employee, together with counsel, where appropriate, shall appear at the stated time and place, produce a copy of this section, and respectfully decline to testify or produce any document on the basis of the regulations in this section.

(9) The employee shall appear as ordered by the subpoena, summons, or other appropriate court order, unless:

(i) Legal counsel has advised the employee that an appearance is inappropriate, as in cases where the subpoena, summons, or other court order was not properly issued or served, has been withdrawn, discovery has been stayed; or

(ii) Where the Postal Service will present a legal objection to furnishing the requested information or testimony.

(i) Inspection Service employees as expert or opinion witnesses. No Inspection Service employee may testify as an expert or opinion witness, with regard to any matter arising out of the employee's duties or functions at the Postal Service, for any party other than the United States, except that in extraordinary circumstances, the Counsel, Office of the Chief Postal Inspector, may approve such testimony in private litigation. An Inspection Service employee may not testify as such an expert or opinion witness without the express authorization of the Counsel, Office of the Chief Postal Inspector. A litigant must first obtain authorization of the Counsel, Office of the Chief Postal Inspector, before designating an Inspection Service employee as an expert or opinion witness.

(j) Postal liability. This section is intended to provide instructions to Inspection Service employees and does not create any right or benefit, substantive or procedural, enforceable by any party against the Postal Service.

(k) Fees. (1) Unless determined by 28 U.S.C. 1821 or other applicable statute, the costs of providing testimony, including transcripts, shall be borne by the requesting party.

(2) Unless limited by statute, such costs shall also include reimbursement to the Postal Service for the usual and ordinary expenses attendant upon the employee's absence from his or her official duties in connection with the case or matter, including the employee's salary and applicable overhead charges, and any necessary travel expenses as follows:

(i) The Inspection Service is authorized to charge reasonable fees to parties demanding documents or information. Such fees, calculated to reimburse the Postal Service for the cost of responding to a demand, may include the costs of time expended by Inspection Service employees, including attorneys, to process and respond to the demand; attorney time for reviewing the demand and for legal work in connection with the demand; expenses generated by equipment used to search for, produce, and copy the requested information; travel costs of the employee and the agency attorney, including lodging and per diem where appropriate. Such fees shall be assessed at the rates and in the manner specified in §  265.9.

(ii) At the discretion of the Inspection Service where appropriate, fees and costs may be estimated and collected before testimony is given.

(iii) The provisions in this section do not affect rights and procedures governing public access to official documents pursuant to the Freedom of Information Act, 5 U.S.C 552.

(l) Acceptance of service. The rules in this section in no way modify the requirements of the Federal Rules of Civil Procedure (28 U.S.C. Appendix) regarding service of process.

Subpart C—Availability of Records
§ 265.14 Rules concerning specific categories of records.

(a) Records available to the public on request. Except as otherwise proscribed by law or regulations, including but not limited to paragraphs (b) and (c) of this section, § 265.2 and § 265.11-§ 265.13, Postal Service records will be made available to any person in accordance with the procedures provided in § 265.3.

(b) Records not subject to mandatory public disclosure. Certain classes of records are exempt from mandatory disclosure under exemptions contained in the Freedom of Information Act and in 39 U.S.C. 410(c). The Postal Service will exercise its discretion, in accordance with the policy stated in § 265.1(c), as implemented by instructions issued by the Records Office with the approval of the General Counsel in determining whether the public interest is served by the inspection or copying of records that are:

(1) Related solely to the internal personnel rules and practices of the Postal Service.

(2) Trade secrets, or privileged or confidential commercial or financial information, obtained from any person.

(3) Information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed. This class includes, but is not limited to:

(i) Information pertaining to methods of handling valuable registered mail.

(ii) Records of money orders, except as provided in R900 of the Domestic Mail Manual (DMM).

(iii) Technical information concerning postage meters and prototypes submitted for Postal Service approval prior to leasing to mailers.

(iv) Reports of market surveys conducted by or under contract in behalf of the Postal Service.

(v) Records indicating rural carrier lines of travel.

(vi) Records compiled within the Postal Service which would be of potential benefit to persons or firms in economic competition with the Postal Service.

(vii) Information which, if publicly disclosed, could materially increase procurement costs.

(viii) Information which, if publicly disclosed, could compromise testing or examination materials.

(4) Interagency or internal memoranda or letters that would not be available by law to a private party in litigation with the Postal Service.

(5) Reports and memoranda of consultants or independent contractors, except to the extent they would be required to be disclosed if prepared within the Postal Service.

(6) Files personal in nature, including medical and personnel files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

(7) Information prepared for use in connection with proceedings under chapter 36 of title 39, U.S. Code, relating to rate, classification, and service changes.

(8) Information prepared for use in connection with the negotiation of collective bargaining agreements under chapter 12 of title 39, U.S. Code, or minutes of, or notes kept during, negotiating sessions conducted under such chapter.

(9) Other matter specifically exempted from disclosure by statute.

(c) Records or information compiled for law enforcement purposes. (1) Investigatory files compiled for law enforcement purposes, whether or not considered closed, are exempt by statute from mandatory disclosure except to the extent otherwise available by law to a party other than the Postal Service, 39 U.S.C. 410(c)(6). As a matter of policy, however, the Postal Service will normally make records or information compiled for law enforcement purposes available upon request unless the production of these records:

(i) Could reasonably be expected to interfere with enforcement proceedings;

(ii) Would deprive a person of a right to a fair trial or an impartial adjudication;

(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;

(iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority (such as the Postal Inspection Service) in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;

(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or

(vi) Could reasonably be expected to endanger the life or physical safety of any individual.

(2) Whenever a request is made which involves access to records that could reasonably be expected to interfere with law enforcement proceedings, and

(i) The investigation or proceeding involves a possible violation of criminal law; and

(ii) There is reason to believe that,

(A) The subject of the investigation or proceeding is not aware of its pendency, and

(B) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the Postal Service may, during only such time as that circumstance continues, treat the records as not subject to the requirements of the Freedom of Information Act.

(3) Whenever informant records maintained by a criminal law enforcement agency (such as the Postal Inspection Service) under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the records may be treated as not subject to the requirements of the Freedom of Information Act unless the informant's status as an informant has been officially confirmed.

(4) Authority to disclose records or information compiled for law enforcement purposes to persons outside the Postal Service must be obtained from the Chief Postal Inspector, U.S. Postal Service, Washington, DC 20260-2100, or designee.

(d) Disclosure of names and addresses of customers. Upon request, the names and addresses of specifically identified Postal Service customers will be made available only as follows:

(1) Change of address. The new address of any specific customer who has filed a permanent or temporary change of address order (by submitting PS Form 3575, a hand-written order, or an electronically communicated order) will be furnished to any person, except that the new address of a specific customer who has indicated on the order that the address change is for an individual or an entire family will be furnished only in those circumstances stated at paragraph (d)(5) of this section. Disclosure will be limited to the address of the specifically identified individual about whom the information is requested (not other family members or individuals whose names may also appear on the change of address order). The Postal Service reserves the right not to disclose the address of an individual for the protection of the individual's personal safety. Other information on PS Form 3575 or copies of the form will not be furnished except in those circumstances stated at paragraphs (d)(5)(i), (d)(5)(iii), or (d)(5)(iv) of this section.

(2) Name and address of permit holder. The name and address of the holder of a particular bulk mail permit, permit imprint or similar permit (but not including postage meter licenses), and the name of any person applying for a permit in behalf of a holder will be furnished to any person upon the filing of a proper FOIA request and payment of any applicable fees. For the name and address of a postage meter license holder, see paragraph (d)(3) of this section. (Lists of permit holders may not be disclosed to members of the public. See paragraph (e)(1) of this section.)

(3) Name and address of postage evidencing user. The name and address of an authorized user of a postage meter or PC Postage product (postage evidencing systems) printing a specified indicium will be furnished to any person upon the payment of any fees authorized by § 265.9(b), provided the user is using the postage meter or PC Postage product for business purposes. The request for this information must be sent to the manager of Postage Technology Management, Postal Service Headquarters. The request must include the original or a photocopy of the envelope or wrapper on which the postage meter or PC postage indicium in question is printed, and a copy or description of the contents to support that the sender is a business or firm and not an individual. (Lists of authorized users of postage meters or PC Postage products may not be disclosed to members of the public.)

(4) Post Office boxholder information. Information from PS Form 1093, Application for Post Office Box or Caller Service, will be provided as follows:

(i) Except as provided in paragraph (d)(4)(iii) of this section, the boxholder applicant name and address from PS Form 1093 will be provided only in those circumstances stated in paragraphs (d)(5)(i) through (iii) of this section.

(ii) Except as provided in paragraph (d)(4)(iii) of this section, the names of persons listed as receiving mail, other than the boxholder applicant, will be furnished from PS Form 1093 only in those circumstances stated in paragraphs (d)(5)(i) and (iii) of this section.

(iii) When a copy of a protective order has been filed with the postmaster, information from PS Form 1093 will not be disclosed except pursuant to the order of a court of competent jurisdiction.

(5) Exceptions. Except as otherwise provided in these regulations, names or addresses of Postal Service customers will be furnished only as follows:

(i) To a Federal, State or local government agency upon prior written certification that the information is required for the performance of its duties. The Postal Service requires government agencies to use the format appearing at the end of this section when requesting the verification of a customer's current address or a customer's new mailing address. If the request lacks any of the required information or a proper signature, the postmaster will return the request to the agency, specifying the deficiency in the space marked `OTHER'. A copy of PS Form 1093 may be provided.

(ii)(A) To a person empowered by law to serve legal process, or the attorney for a party in whose behalf service will be made, or a party who is acting pro se,1 upon receipt of written information that specifically includes all of the following:

1 The term pro se means that a party is not represented by an attorney but by himself or herself.

(1) A certification that the name or address is needed and will be used solely for service of legal process in connection with actual or prospective litigation;

(2) A citation to the statute or regulation that empowers the requester to serve process, if the requester is other than the attorney for a party in whose behalf service will be made, or a party who is acting pro se;

(3) The names of all known parties to the litigation;

(4) The court in which the case has been or will be commenced;

(5) The docket or other identifying number, if one has been issued; and

(6) The capacity in which the boxholder is to be served, e.g., defendant or witness.

(B) By submitting such information, the requester certifies that it is true. The address of an individual who files with the postmaster a copy of a protective court order will not be disclosed except as provided under paragraphs (d)(5)(i), (iii), or (iv) of this section. A copy of Form 1093 will not be provided. The Postal Service suggests use of the standard format appearing at the end of this section when requesting information under this paragraph. When using the standard format on the submitter's own letterhead, the standard format must be used in its entirety. The warning statement and certification specifically must be included immediately before the signature block. If the request lacks any of the required information or a proper signature, the postmaster will return it to the requester specifying the deficiency.

(iii) In compliance with a subpoena or court order, except that change of address or boxholder information which is not otherwise subject to disclosure under these regulations may be disclosed only pursuant to a court order.

(iv) To a law enforcement agency, for oral requests made through the Inspection Service, but only after the Inspection Service has confirmed that the information is needed in the course of a criminal investigation. (All other requests from law enforcement agencies should be submitted in writing to the postmaster as in paragraph (d)(5)(i) of this section.)

(6) Jury service. The mailing address of any customer sought in connection with jury service, if known, will be furnished without charge upon prior written request to a court official, such as a judge, court clerk or jury commissioner.

(7) Address verification. The address of a postal customer will be verified at the request of a Federal, State, or local government agency upon written certification that the information is required for the performance of the agency's duties. “Verification” means advising such an agency whether or not its address for a postal customer is one at which mail for that customer is currently being delivered. “Verification” neither means nor implies knowledge on the part of the Postal Service as to the actual residence of the customer or as to the actual receipt by the customer of mail delivered to that address. The Postal Service requires government agencies to use the format appearing at the end of this section when requesting the verification of a customer's current address or a customer's new mailing address. If the request lacks any of the required information or a proper signature, the postmaster will return the request to the agency, specifying the deficiency in the space marked “OTHER”.

(8) Business/Residence location. If the location of a residence or a place of business is known to a Postal Service employee, whether as a result of official duties or otherwise, the employee may, but need not, disclose the location or give directions to it. No fee is charged for such information.

(9) Private mailbox information. Information from PS Form 1583, Application for Delivery of Mail Through Agent, will be provided as follows:

(i) Except as provided in paragraph (d)(9)(iii) of this section, information from PS Form 1583 will be provided only in the circumstance stated in paragraph (d)(5)(iii) of this section.

(ii) To the public only for the purpose of identifying a particular address as an address of an agent to whom mail is delivered on behalf of other persons. No other information, including, but not limited to, the identities of persons on whose behalf agents receive mail, may be disclosed to the public from PS Form 1583.

(iii) Information concerning an individual who has filed a protective court order with the postmaster will not be disclosed except pursuant to the order of a court of competent jurisdiction.

(e) Information not available for public disclosure. (1) Except as provided by paragraph (a)(6) of this section, the Postal Service and its officers and employees shall not make available to the public by any means or for any purpose any mailing list or other list of names or addresses (past or present) of postal patrons or other persons.

(2) Records or other documents which are classified or otherwise specifically authorized by Executive Order 12356 and implementing regulations to be kept secret in the interest of the national defense or foreign policy are not subject to disclosure pursuant to this part.

(3) Records consisting of trade secrets or confidential financial data, the disclosure of which is prohibited by 18 U.S.C. 1905, are not subject to disclosure pursuant to this part.

(4) Other records, the disclosure of which is prohibited by statute, are not subject to disclosure pursuant to this part.

(f) Protection of the right of privacy. If any record required or permitted by this part to be disclosed contains the name of, or other identifying details concerning, any person, including an employee of the Postal Service, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, the name or other identifying details shall be deleted before the record is disclosed and the requester so informed.

(g) Disclosure in part of otherwise exempt record. Any reasonably segregable portion of a record shall be provided after deleting the information which is neither subject to mandatory disclosure nor available as a matter of discretion.

BILLING CODE 7710-12-P ER30NO16.002 ER30NO16.003
Stanley F. Mires, Attorney, Federal Compliance.
[FR Doc. 2016-28430 Filed 11-29-16; 8:45 am] BILLING CODE 7710-12-C
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150916863-6211-02] RIN 0648-XF064 Fisheries of the Exclusive Economic Zone Off Alaska; Several Groundfish Species 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; apportionment of reserves; request for comments.

SUMMARY:

NMFS apportions amounts of the non-specified reserve to the total allowable catch (TAC) of Bering Sea and Aleutian Islands (BSAI) Alaska plaice, Kamchatka flounder, northern rockfish, skates, sculpins, sharks, and octopus in the BSAI management area. This action is necessary to allow the fisheries to continue operating. It is intended to promote the goals and objectives of the fishery management plan for the BSAI management area.

DATES:

Effective November 29, 2016 through 2400 hrs, Alaska local time, December 31, 2016. Comments must be received at the following address no later than 4:30 p.m., Alaska local time, December 15, 2016.

ADDRESSES:

You may submit comments on this document, identified by FDMS Docket Number NOAA-NMFS-2015-0118 by any of the following methods:

Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to, http://www.regulations.gov/docket?D=NOAA-NMFS-2015-0118, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, 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:

Steve Whitney, 907-586-7228.

SUPPLEMENTARY INFORMATION:

NMFS manages the groundfish fishery in the (BSAI) exclusive economic zone 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 parts 600 and 679.

In the BSAI, the 2016 TAC of Alaska plaice was established as 12,325 metric tons (mt), the 2016 TAC of Kamchatka flounder was established as 4,550 mt, the 2016 TAC of northern rockfish was established as 4,375 mt, the 2016 TAC of skates was established as 27,100 mt, the 2016 TAC of sculpins was established as 4,325 mt, the 2016 TAC of sharks was established as 125 mt, and the 2016 TAC of octopus was established as 400 mt by the final 2016 and 2017 harvest specifications for groundfish of the BSAI (81 FR 14773, March 18, 2016) and apportionment of non-specified reserves (81 FR 68369, October 4, 2016). In accordance with § 679.20(a)(3) the Regional Administrator, Alaska Region, NMFS, has reviewed the most current available data and finds that the TACs for BSAI Alaska plaice, Kamchatka flounder, northern rockfish, skates, sculpins, sharks, and octopus need to be supplemented from the non-specified reserve to promote efficiency in the utilization of fishery resources in the BSAI and allow fishing operations to continue.

Therefore, in accordance with § 679.20(b)(3), NMFS apportions from the non-specified reserve of groundfish 1,000 mt to the Alaska plaice TAC, 300 mt to the Kamchatka flounder TAC, 170 mt to the northern rockfish TAC, 402 mt to the skates TAC, 300 mt to the sculpins TAC, 5 mt to the sharks TAC, and 100 mt to the octopus TAC. These apportionments are consistent with § 679.20(b)(1)(i) and do not result in overfishing of any target species because the revised TACs and total allowable catch (TAC) are equal to or less than the specifications of the acceptable biological catch in the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773; March 18, 2016) and apportionment of non-specified reserves (81 FR 68369; October 4, 2016).

The harvest specification for the 2016 TACs and TACs included in the harvest specifications for groundfish in the BSAI are revised as follows: The 2016 TAC is increased to 13,325 mt for Alaska plaice, 4,850 mt for Kamchatka flounder, 4,545 mt for northern rockfish, 27,502 mt for skates, 4,625 mt for sculpins, 130 mt for sharks, and 500 mt for BSAI octopus.

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) and § 679.20(b)(3)(iii)(A) as such a 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 apportionment of the non-specified reserves of groundfish to the BSAI Alaska plaice, Kamchatka flounder, northern rockfish, skates, sculpins, sharks, and octopus in the BSAI. 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 and 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 22, 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.

Under § 679.20(b)(3)(iii), interested persons are invited to submit written comments on this action (see ADDRESSES) until December 15, 2016. 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 25, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
[FR Doc. 2016-28814 Filed 11-29-16; 8:45 am] BILLING CODE 3510-22-P
81 230 Wednesday, November 30, 2016 Proposed Rules OFFICE OF PERSONNEL MANAGEMENT 5 CFR Parts 302 RIN 3206-AN30 Employment in the Excepted Service AGENCY:

Office of Personnel Management.

ACTION:

Proposed rule.

SUMMARY:

The Office of Personnel Management (OPM) is proposing to revise its regulations governing employment in the excepted service. The proposed rules will clarify the existing policy on exemptions from excepted service selection procedures, and provide additional procedures for passing over a preference eligible veteran. The intended effect of these proposed changes is to strengthen the application of veterans' entitlements in the excepted service.

DATES:

Comments must be received on or before January 30, 2017.

ADDRESSES:

You may submit comments, identified by Regulation Identification Number (RIN) “3206-AN30” using any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. All submissions received through the Portal must include the agency name and docket number or Regulation Identification Number (RIN) for this rulemaking.

Email: [email protected] Include “RIN 3206-AN30, Excepted Service” in the subject line of the message.

Fax: (202) 606-2329.

Mail: Kimberly A. Holden, Deputy Associate Director for Recruitment and Hiring, U.S. Office of Personnel Management, Room 6551, 1900 E Street NW., Washington, DC 20415-9700.

Hand Delivery/Courier: U.S. Office of Personnel Management, Room 6500, 1900 E Street NW., Washington, DC 20415-9700.

FOR FURTHER INFORMATION CONTACT:

Katika Floyd by telephone at (202) 606-0960; by email at [email protected]; by fax at (202) 606-2329; or by TTY at (202) 418-3134.

SUPPLEMENTARY INFORMATION:

The Office of Personnel Management (OPM) is proposing to revise the regulations governing employment in the excepted service. OPM is proposing these changes to clarify the existing policy on exemptions from excepted service selection procedures, and provide additional procedures for passing over a preference eligible veteran.

Background

All Federal civilian employees occupy positions in the competitive service, the excepted service, or the Senior Executive Service. The main differences between the three employment systems are in the manner that candidates apply for jobs and in the opportunity for appointees to move within the Federal service. Each employment system is covered by different laws and regulations.

The term “excepted service” covers a variety of situations. Entire agencies may be placed in the excepted service by statute. Positions in large parts of agencies (such as components or offices within agencies) as well as individual positions may be placed in the excepted service. If positions are placed in the excepted service (by law, Executive order, or OPM regulation), it means they have been excepted from certain requirements of the competitive service or the Senior Executive Service. However, the reasons for and scope of the exceptions will vary, depending on the circumstances surrounding their exception and who is authorizing the exception. If positions are not in the competitive service and are subject to the provisions of Title 5, United States Code, or are subject to a statutory requirement to follow veterans preference provisions of Title 5, then the agencies with such positions must follow the employment procedures outlined by OPM in its regulations (which are the ones addressed in this proposed regulation).

Positions Exempt From Appointment Procedures

OPM can exempt positions from the appointment procedures for the excepted service. The reasons for exemption will vary based on the reasons why the rating and ranking procedures outlined in OPM's regulation would be difficult for an agency to implement. The positions that OPM has exempted from the appointment procedures of 5 CFR part 302 are listed at 5 CFR 302.101(c). Per 5 CFR 302.101(c), agencies must follow the principle of veterans' preference as far as administratively feasible when filling an “exempted” position in the excepted service.

We propose clarifying the exemption listed at 5 CFR 302.101(c)(6). This exemption is for, “positions included in Schedule A (see subpart C of part 213 of this chapter) and similar types of positions when OPM agrees with the agency that the positions should be included hereunder.” As so written, this exemption may be construed to suggest that all Schedule A appointing authorities are exempt from the excepted service appointment procedures of part 302, however, such a construction is not correct. Therefore, we propose revising this exemption to say, “Positions included in Schedule A (see subpart C of part 213 of this chapter) for which OPM states in writing that an agency is not required to fill the positions according to the procedures in this subpart.” We believe this clarification will eliminate any potential ambiguity that all Schedule A positions are subject to the application of veterans' preference only as far as administratively feasible. Additionally, we are proposing to clarify that positions filled under 5 CFR 213.3102(u) by persons with intellectual disabilities, severe physical disabilities, or psychiatric disabilities are exempt from the procedures of part 302.

Passing Over a Preference Eligible

We propose modifying the regulations for the passing over of a preference eligible adding specific procedures. The change will require that an agency must follow the procedures in 5 U.S.C. 3318(c) (which also apply to category rating under 5 U.S.C. 3319(c)(7)) which are described in the Delegated Examining Operations Handbook. We are making this change in response to the U.S. Court of Appeals for the Federal Circuit's decision in Gingery v. Department of Defense, 550 F.3d 1347 (Fed. Cir. 2008). Under Gingery, when excepted service positions are not exempted from the hiring requirements in 5 CFR 302.101, and applicants are hired from certificates—including through category rating—the pass over rules in 5 U.S.C. 3318 generally apply. See also Dean v. Department of Labor, 808 F.3d 497, 507 (Fed. Cir. 2015); Jarrard v. Department of Justice, 669 F.3d 1320, 1323 (Fed. Cir. 2012). The court in Gingery ruled that the current text in 5 CFR 302.401(b) is invalid, on grounds that it does not provide pass-over protections generally available to preference-eligible applicants under 5 U.S.C. 3318(b)(1) (since renumbered as 5 U.S.C. 3318(c)(1)), or the pass-over protections specifically available to preference eligibles with 30-percent or more compensable service-connected disabilities under 5 U.S.C. 3318(b)(2) and (b)(4) (since renumbered as 5 U.S.C. 3318(c)(2) and (c)(4)). See 550 F.3d at 1353-54.

OPM issued guidance on the Gingery decision on February 9, 2009, and clarified this guidance on March 12, 2009. However, OPM has not yet amended the text of the regulation. We are proposing to amend section 302.401(b) of our regulations to conform to the pass-over procedures in 5 U.S.C. 3318(c).

OPM notes that Public Law 114-137, the Competitive Service Act of 2015, recently amended 5 U.S.C. 3318 and 3319 to permit the use of shared certificates. This proposed rule does not address the Competitive Service Act. OPM will initiate a separate regulatory action to implement the Competitive Service Act.

E.O. 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866.

Regulatory Flexibility Act

I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would apply only to Federal agencies and employees.

List of Subjects in 5 CFR Part 302

Government employees.

U.S. Office of Personnel Management. Beth F. Cobert, Acting Director.

Accordingly, OPM is proposing to revise 5 CFR part 302 as follows:

PART 302—EMPLOYMENT IN THE EXCEPTED SERVICE 1. The authority citation for part 302 continues to read as follows: Authority:

5 U.S.C. 1302, 3301, 3302, 3317, 3318, 3320, 8151, E.O. 10577 (3 CFR 1954-1958 Comp., p. 218); § 302.105 also issued under 5 U.S.C. 1104, Pub. L. 95-454, sec. 3(5); § 302.501 also issued under 5 U.S.C. 7701 et seq.

2. Amend § 302.101 to revise paragraph (c)(6) and to add paragraph (c)(11) to read as follows:
§ 302.101 Positions covered by regulations.

(c) * * *

(6) Positions included in Schedule A (see subpart C of part 213 of this chapter) for which OPM agrees with the agency that the positions should be included hereunder and states in writing that an agency is not required to fill positions according to the procedures in this part.

(11) Appointment of persons with intellectual disabilities, severe physical disabilities, or psychiatric disabilities to positions filled under 5 CFR 213.3102(u).

3. Revise § 302.401(b) to read as follows:
§ 302.401 Selection and appointment.

(b) Passing over a preference applicant. When an agency, in making an appointment as provided in paragraph (a) of this section, passes over the name of a preference eligible, it shall follow the procedures in 5 U.S.C. 3318(c) and 3319(c)(7) as described in the Delegated Examining Operations Handbook. An agency may discontinue consideration of the name of a preference eligible for a position as described in 5 U.S.C. 3318(c).

[FR Doc. 2016-28783 Filed 11-29-16; 8:45 am] BILLING CODE 6325-39-P
DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Part 1240 [EOIR No. 180; AG Order No. 3780-2016] RIN 1125-AA25 Procedures Further Implementing the Annual Limitation on Suspension of Deportation and Cancellation of Removal AGENCY:

Executive Office for Immigration Review, Department of Justice.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Justice proposes to amend the regulations of the Executive Office for Immigration Review (EOIR) governing the annual statutory limitation on cancellation of removal and suspension of deportation decisions. First, the rule proposes to eliminate certain procedures created in 1998 that were used to convert 8,000 conditional grants of suspension of deportation and cancellation of removal to outright grants before the end of fiscal year 1998. The need for such procedures ceased to exist after the end of fiscal year 1998. Second, the Department proposes to authorize immigration judges and the Board of Immigration Appeals (Board) to issue final decisions denying applications, without restriction, regardless of whether the annual limitation has been reached. This proposed amendment would decrease the high volume of reserved decisions that results when the annual limitation is reached early in the fiscal year; reduce the associated delays caused by postponing the resolution of pending cases before EOIR; and provide an applicant with knowledge of a decision in the applicant's case on or around the date of the hearing held on the applicant's suspension or cancellation application.

DATES:

Written comments must be submitted on or before January 30, 2017. Comments received by mail will be considered timely if they are postmarked on or before that date. The electronic Federal Docket Management System (FDMS) will accept comments until midnight Eastern Time at the end of that day.

ADDRESSES:

Please submit written comments to Jean King, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041. To ensure proper handling, please reference RIN No. 1125-AA25 or EOIR docket No. 180 on your correspondence. You may submit comments electronically or view an electronic version of this proposed rule at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Jean King, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041; telephone (703) 605-1744 (not a toll-free call).

SUPPLEMENTARY INFORMATION: I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. EOIR also invites comments that relate to the economic, environmental, or federalism effects that might result from this rule. To provide the most assistance to EOIR, comments should reference a specific portion of the rule; explain the reason for any recommended change; and include data, information, or authority that support such recommended change.

All comments submitted for this rulemaking should include the agency name and EOIR Docket No. 180. Please note that all comments received are considered part of the public record and made available for public inspection at www.regulations.gov. Such information includes personally identifiable information (such as a person's name, address, or any other data that might personally identify that individual) voluntarily submitted by the commenter.

If you want to submit personally identifiable information as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONALLY IDENTIFIABLE INFORMATION” in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on www.regulations.gov.

Personally identifiable information and confidential business information provided as set forth above will be placed in the agency's public docket file, but not posted online. To inspect the agency's public docket file in person, you must make an appointment with agency counsel. Please see the FOR FURTHER INFORMATION CONTACT paragraph above for agency counsel's contact information.

II. Background

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Public Law 104-208, div. C, 110 Stat. 3009-546, added section 240A(e) to the Immigration and Nationality Act (“INA” or the “Act”), Public Law 82-414, 66 Stat. 163 (1952) (codified as amended in scattered sections of 8, 18, and 22 U.S.C.), by establishing an annual limitation on the number of aliens who may be granted suspension of deportation or cancellation of removal followed by adjustment of status.1 The annual limitation is as follows:

1 The Department has considered whether section 240A(e) of the Act can be interpreted as imposing an annual limitation on adjustments of status only, rather than on the immigration judge or Board's decision to grant an application for cancellation of removal or suspension of deportation. The Department has determined that section 240A(e) does not apply only to adjustments of status. The language and history of that section indicates that Congress intended “cancellation/suspension” and “adjustment of status” to be a single inseparable process, and that the 4,000 annual limitation applies to the entire process. To be sure, in other sections of the Act, Congress has distinguished between the act of granting relief to an alien and the process of adjusting the alien's status to lawful permanent resident. See INA sec. 208, 209 (8 U.S.C. 1158, 1159(b)). But section 240A(b)(1) of the Act indicates that Congress did not intend to separate the act of granting cancellation of removal or suspension of deportation from adjustment of status in section 240A.

Further justification for the Department's interpretation is found in section 240A(e)(1) of the Act which provides that: “[t]he numerical limitation under this paragraph shall apply to the aggregate number of decisions in any fiscal year to cancel the removal (and adjust the status) of an alien, or suspend the deportation (and adjust the status) of an alien under this section . . . .” INA sec. 240A(e)(1) (8 U.S.C. 1229b(e)(1)). The use of the phrase “aggregate number of decisions” indicates that Congress intended the 4,000 annual limitation to apply to “decisions” and not just the ministerial act of adjusting an alien's status to lawful permanent resident.

The legislative history of section 240A(e) also supports the Department's interpretation. When initially passed by the House of Representatives, the annual limitation provision stated that: “[t]he number of adjustments under this paragraph shall not exceed 4,000 for any fiscal year.” See Immigration in the National Interest Act of 1996, H.R. 2202, 104th Cong. sec. 304 (as passed by House, March 21, 1996). Although the language of the House Bill was never signed into law, many of its provisions were later added to IIRIRA, including section 240A(e) of the Act which was amended and enacted as follows: “The Attorney General may not cancel the removal and adjust the status under this section, nor suspend the deportation and adjust the status under section 244(a) . . . of a total of more than 4,000 aliens in any fiscal year.” Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Public Law 104-208, div. C, sec. 304(a), 110 Stat. 3009-546, 3009-596. The significance of this amendment is a shift from a limitation only on adjustments to a limitation on cancellation of removal (or suspension of deportation) and adjustment of status, which confirms that Congress intended “cancellation/suspension” and “adjustment of status” to be a single inseparable process for purposes of applying the 4,000 annual limitation.

[T]he Attorney General may not cancel the removal and adjust the status under this section, nor suspend the deportation and adjust the status under section 244(a) (as in effect before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996), of a total of more than 4,000 aliens in any fiscal year.

INA sec. 240A(e)(1), 8 U.S.C. 1229b(e)(1).

In February 1997, EOIR reached the fiscal year 1997 annual limitation and the Chief Immigration Judge directed immigration judges to reserve decisions in suspension of deportation cases that they intended to grant. See 63 FR 52134, 52134 (Sep. 30, 1998). These instructions were intended to serve as a temporary measure to provide the Department with time to consider how best to address the annual limitation. See id.

On October 3, 1997, the Department issued an interim rule, which authorized immigration judges and the Board to grant applications for suspension of deportation and cancellation of removal only on a “conditional basis.” 62 FR 51760, 51762 (Oct. 3, 1997). On October 15, 1997, the Chief Immigration Judge instructed immigration judges to convert previously reserved grants of suspension and cancellation to conditional grants.

On November 19, 1997, Congress enacted the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Public Law 105-100, title II, 111 Stat. 2160, 2193-2201, which amended section 240A(e) of the Act. NACARA reaffirmed the annual limitation of 4,000 grants but exempted from the limitation certain nationals of Guatemala, El Salvador, and the former Soviet bloc countries. See NACARA sec. 204, 111 Stat. at 2200-01. Moreover, NACARA provided for an additional 4,000 suspension/cancellation grants to increase the annual limitation to a total of 8,000 for fiscal year 1998 only. Id.

On September 30, 1998, the Department issued the current interim rule to: (1) Create a process to convert 8,000 conditional grants to outright grants before the end of fiscal year 1998, see 63 FR at 52138-39 (codified at 8 CFR 1240.21(b)); and (2) establish a new procedure for processing applications for suspension and cancellation in order to avoid exceeding the annual limitation, see id. at 52139-40 (codified at 8 CFR 1240.21(c)).

First, in order to utilize the 8,000 grants available in fiscal year 1998, the rule provided for converting the first 8,000 conditional grants made since October 1997 to outright grants of suspension/cancellation in order of the date the conditional grant was issued by the immigration judge or the Board. See id. at 52138 (codified at 8 CFR 1240.21(b)(1)). Any conditional grants remaining after 1998 were to be converted to outright grants in fiscal year 1999 when a grant became available. See id. at 52139 (codified at 8 CFR 1240.21(b)(3)).

Additionally, in an effort to preserve as many grants as possible in fiscal year 1998, the rule required nationals of Nicaragua and Cuba who received a conditional grant of suspension or cancellation to first pursue adjustment under section 202 of NACARA, because NACARA exempts the adjustment of status of certain nationals from the annual limitation. See NACARA sec. 202, 111 Stat. at 2160. The rule directed the former Immigration and Naturalization Service (INS) to notify all Cuban and Nicaraguan applicants to appear at an INS office to apply for NACARA adjustment before December 31, 1998. See 63 FR at 52138-39 (codified at 8 CFR 1240.21(b)(2)(i)). The rule provided that “[a]n alien who fail[ed] to appear to perfect his or her request for NACARA adjustment . . . [had] his or her conditional grant of suspension of deportation or cancellation of removal automatically converted . . . to a grant of suspension of deportation or cancellation effective December 31, 1998.” Id. at 52139 (codified at 8 CFR 1240.21(b)(2)(vi)). Second, the rule established a procedure for future processing of suspension of deportation and cancellation cases under the annual limitation. Specifically, the rule eliminated the conditional grant process, stating that “[t]he Immigration Court and the Board shall no longer issue conditionalgrants . . . .” Id. at 52138 (codified at 8 CFR 1240.21(a)(2)). Instead, under the interim rule, immigration judges and the Board may issue grants of suspension or cancellation in chronological order until grants are no longer available in a fiscal year.2 When grants are no longer available in a fiscal year, “further decisions to grant or deny such relief shall be reserved” until grants become available in a future fiscal year.3 Id. at 52140 (codified at 8 CFR 1240.21(c)(1)) (emphasis added). With respect to denials, the rule further clarified that immigration judges and the Board “may deny without reserving decision or may pretermit those suspension of deportation or cancellation of removal applications in which the applicant has failed to establish statutory eligibility for relief.” Id. However, the rule prohibits immigration judges and the Board from basing such denials “on an unfavorable exercise of discretion, a finding of no good moral character on a ground not specifically noted in section 101(f) of the [INA], a failure to establish exceptional or extremely unusual hardship to a qualifying relative in cancellation cases, or a failure to establish extreme hardship to the applicant and/or qualifying relative in suspension cases.” Id.

2 As explained in the rule's preamble, future grants were to be issued on a first-in-time basis, but only when numbers became available. See 63 FR at 52136-37. As a general matter, the immigration courts and the Board continue to follow the first-in-time rule. However, a limited number of grants that would count against the annual limitation are held in reserve, if needed, to allow immigration judges and the Board to grant relief in high priority cases. Such priority cases currently include, for example, cases of aliens who are being held in detention. Other categories of cases may be designated as priorities in the future as a result of exigent circumstances.

3 The rule's preamble explained: “[p]ersons with reserved decisions will be considered to be `in proceedings' while their decision is reserved. They normally cannot be removed from the country while they are still in proceedings. Neither can they receive any form of relief until the Immigration Court or the Board takes further action.” 63 FR at 52137.

III. Rationale for the Proposed Amendments

The Department proposes to make three amendments to the current rule before it is finalized. First, the Department proposes to eliminate the current text of paragraph (b), which established a procedure to convert 8,000 conditional grants of suspension of deportation and cancellation of removal to outright grants before the end of fiscal year 1998 and to convert some conditional grants to grants of adjustment of status under NACARA. See 8 CFR 1240.21(b). The need for such procedures ceased to exist after fiscal year 1998. Second, the Department proposes to amend the interim rule to allow immigration judges and the Board to issue final decisions denying cancellation and suspension applications, without restriction, regardless of whether the annual limitation has been reached. Under the proposed rule, after the annual limitation has been reached, only grants would be required to be reserved. Contra 8 CFR 1240.21(c)(1). Finally, the Department proposes to make a technical amendment to the current text of 8 CFR 1240.21(c).

A. Elimination of Current Text of Paragraph (b)

The Department has determined that the current text of paragraph (b) in the interim rule should be removed. As discussed, that section was added to address a discrete issue that required resolution before the end of fiscal year 1998: the interaction between the September 1997 interim rule authorizing immigration judges and the Board to grant applications for suspension and cancellation on a “conditional basis” and the enactment of NACARA in November 1997, which added 4,000 grants to the statutory annual limitation, creating a total of 8,000 available grants for fiscal year 1998. Specifically, the issue before the Department was how best to convert 8,000 conditional grants to outright grants before the end of fiscal year 1998. Pursuant to 8 CFR 1240.21(b)(1), the Department successfully converted all 8,000 conditional grants to outright grants in fiscal year 1998. Additionally, the Department was able to preserve grants for use in fiscal year 1998 by offering Nicaraguan and Cuban nationals who received a conditional grant of suspension or cancellation in 1997 an opportunity to pursue adjustment under NACARA pursuant to the procedures in 8 CFR 1240.21(b)(2). Any applicants who did not apply for adjustment under NACARA (or whose applications were denied) automatically received a grant of cancellation or suspension by the end of fiscal year 1998. Given that the purpose of these provisions has been achieved, the Department now proposes to remove the current text of paragraph (b). This amendment will not affect any applicant who has applied or will apply for cancellation of removal, suspension of deportation, or NACARA relief.4

4 Paragraph (b) contains other sections concerning the conversion of conditional grants into outright grants in fiscal year 1998. Paragraph (b)(4) allows INS to file a motion to reopen within 90 days after the alien's conditional grant is converted into a final grant. Paragraph (b)(5) enables an alien with a conditional grant to remain eligible for conversion to an outright grant in fiscal year 1998 notwithstanding the alien's departure from the United States. Paragraph (b)(3) provides a rule for conditional grants on appeal to the Board to be converted when a grant is available. As discussed, the conversion process was completed in fiscal year 1998 and remaining grants were converted in 1999. Therefore, the Department has determined that these provisions can be eliminated because they no longer have any continuing effect.

B. Authorizing Issuance of Denials

The Department proposes to amend the interim rule to allow immigration judges and the Board to issue final decisions denying applications after the annual limitation has been reached. This amendment would (1) decrease the high volume of reserved decisions that results from reaching the annual limitation early in the fiscal year; (2) reduce the associated delays caused by postponing the resolution of pending cases before EOIR; and (3) provide an applicant with knowledge of a decision in the applicant's case on or around the date of the hearing held on the applicant's suspension or cancellation application.

As an initial matter, the Department notes that this proposed amendment is permitted by the INA. Section 240A(e)(1) of the INA limits the number of aliens who may be granted suspension of deportation or cancellation of removal to 4,000 aliens in any fiscal year. The statute, however, does not prohibit the issuance of denials of suspension of deportation or cancellation of removal applications once the annual limitation is reached. Therefore, the current regulation at 8 CFR 1240.21(c)(1), which prohibits immigration judges and the Board from issuing grants and some denials of suspension of deportation or cancellation of removal applications once the annual limitation is reached, is not mandated by statute.

In recent years, immigration judges and the Board have reached the annual 4,000 limitation early in the fiscal year. By May 23, 2011, approximately 3,800 applications had been granted. Procedures were instituted to halt further decisions so as not to exceed the annual limitation.5 As a result of reaching the annual limitation early in fiscal year 2011, a backlog of reserved decisions to grant or deny applications was created. EOIR estimates nearly 1,400 decisions were reserved after May 23, 2011. EOIR reached the annual limitation even earlier in fiscal year 2012 because of the fiscal year 2011 backlog. By February 6, 2012, approximately 3,500 applications had been granted. Throughout the remainder of fiscal year 2012, approximately 3,547 decisions were reserved. Given the number of cases being carried over from fiscal year 2012, EOIR reached 3,500 grants in the first two months of fiscal year 2013. Throughout the remainder of fiscal year 2013, approximately 5,250 decisions were reserved. EOIR estimates that approximately 1,967 of these applications would have been denied in fiscal year 2013 if the decision had not been reserved.6 Because of the large number of decisions that were reserved in fiscal year 2013, the annual limitation was not lifted at the beginning of fiscal year 2014. Instead, immigration judges were required to reserve all decisions in non-detained suspension and cancellation of removal cases unless notified that a grant was available. To comply with the annual limitation, a total of approximately 6,405 decisions had to be reserved throughout fiscal year 2014. Of these cases, 4,890 were identified as potential grants and 1,814 were identified as potential denials. Therefore, the entire 4,000 grants available for fiscal year 2015 must be allocated to cases that were reserved in fiscal year 2014 and identified as potential grants. In sum, as the multi-year backlog grows, more total cases are held, and aliens must wait longer for resolution of their cases.7

5 The statutory limitation of 4,000 grants was reached in September 2012, once the remaining 200 grants had been allocated.

6 The precise number of reserved decisions that will ultimately result in denials cannot be determined because of the variety of possible case outcomes (including the withdrawal of the application or the grant of another form of relief).

7 A reserved decision is not a final decision and cannot be appealed by either party. Unlike a conditional grant, no benefits accrue when a decision is reserved. See Executive Office for Immigration Review, Operating Policies and Procedures Memorandum 12-01: Procedures on Handling Applications for Suspension/Cancellation in Non-Detained Cases Once Numbers are no Longer Available in a Fiscal Year 3-5 (February 3, 2012) (indicating that reserved decisions may be rendered as “draft oral decisions” or “draft written decisions” that may become final decisions when a number in the queue is available); see also 63 FR at 52137 (preamble to the rule explained that “[p]ersons with reserved decisions will be considered to still be `in proceedings' while their decision is reserved . . . [and cannot] receive any form of relief until the Immigration Court or the Board takes further action”); 8 CFR 1003.1(b) (jurisdiction of Board of Immigration Appeals over decisions of immigration judges).

Allowing immigration judges and the Board to issue denials even after the annual limitation is reached would significantly reduce the number of reserved decisions. This would also reduce administrative burden and scheduling complications, as well as related costs, associated with suspension and cancellation of removal cases subject to the annual limitation.8 In turn, the amendment would allow the Department to better meet the objectives of expeditious processing of removal proceedings.

8 At present, when a denial is reserved, immigration judges and court staff spend significant resources preparing a draft decision. Moreover, when the annual limitation is lifted each fiscal year, an immigration judge must again review the decision before issuing it. See EOIR, OPPM 12-01, supra (outlining current procedures immigration judges and court staff must follow to reserve denial decisions).

Finally, the proposed amendment would provide final case resolution to more individuals applying for suspension of deportation and cancellation of removal.9 An applicant would have knowledge of a decision to grant, reserve, or deny the application at or near the date of the hearing in which the immigration judge considered the applicant's application for suspension or cancellation. As a result, an applicant whose case is denied would be able to determine whether to file an appeal from the immigration judge's decision with the Board or get the applicant's affairs in order and apply for any other relief for which an applicant remains eligible. Additionally, an applicant who is advised that the applicant's case is reserved, because the applicant's case has not been denied, would now have greater certainty in knowing that the applicant likely will be granted cancellation or suspension once grant numbers become available.10

9 This result is also consistent with views expressed by one commenter to the 1998 rule. See Section III infra.

10 Moreover, an applicant who receives a denial may be able to appeal to the Board sooner, rather than having to wait in the queue for a denial, and then potentially having to go back in the queue if the Board grants the appeal and remands to the immigration judge for a new decision.

For these reasons, the Department is proposing to amend the regulations at 8 CFR 1240.21(c)(1) to provide that, even after the annual limitation is reached, immigration judges and the Board may issue decisions denying the suspension of deportation or cancellation of removal application without restriction.11

11 This regulatory amendment mirrors the solution adopted in February 1997 when EOIR reached the fiscal year 1997 annual limitation. See 63 FR 52134. Specifically, that directive reserved the adjudication of grants of suspension of deportation or cancellation of removal while allowing immigration judges and the Board to continue to issue denials of such relief.

C. Technical Amendment to 8 CFR 1240.21(c)

The final sentence of the introductory text of § 1240.21(c) of the current rule states that “[t]he awarding of such relief shall be determined according to the date the order granting such relief becomes final as defined in §§ 1003.1(d)(3) and 1003.39 of this chapter.” The citation to § 1003.1(d)(3), which relates to the Board's scope of review, is erroneous. Therefore, the Department proposes to replace the reference to § 1003.1(d)(3) with a reference to § 1003.1(d)(7), which appropriately relates to finality of decisions.

IV. Response to Comments Received on the 1998 Interim Rule

The Department received the following comments in response to the 1998 interim rule.

One commenter stated that the rule does not implement the intent of Congress because it does not limit the number of aliens granted cancellation or suspension by the immigration courts. The commenter suggests that section 240A(e) of the Act requires denial of relief and deportation of aliens for whom one of the 4,000 slots is not available at the time the case is completed. The Department does not interpret section 240A(e) in this manner. Rather, the Department construes the annual limitation as a restriction on when, not whether, EOIR may grant suspension of deportation or cancellation to an alien who falls outside of the annual allotment of 4,000 slots. Accordingly, the interim rule was necessary for the Department to create a procedure for reserving a decision granting a suspension or cancellation of removal application until a number becomes available.

In addition, one commenter expressed concern about the “adverse effect on applicants of the reservation of decision procedure.” The commenter states that the “reservation of decision results in a secret determination causing the applicant to remain in proceedings with no knowledge of a decision for an undeterminable amount of time. Although the applicant will have presented his or her best case and evidence and had his or her day in court, the applicant will be unable to make any decisions about the future or get affairs in order in case of a denial.” The Department shares these concerns. As noted above, the proposed amendment would provide final case resolution to more individuals applying for suspension of deportation and cancellation of removal, thereby providing greater certainty and eliminating concerns about a “secret determination” process. In addition, the alien would be able to appeal the denial, whereas at present a reserved decision is not appealable until the decision is issued.

Moreover, two commenters asked why aliens with reserved decisions could not receive advance parole to travel outside of the United States or work authorization while their cases were pending. EOIR does not have jurisdiction over work authorization and advance parole. These issues may be raised with the Department of Homeland Security (DHS) which does have such jurisdiction.

Finally, two commenters discussed the procedures designed to convert 8,000 conditional grants to outright grants in fiscal year 1998. As discussed above, all conditional grants were converted into outright grants by 1999. Therefore, the proposed rule would eliminate the procedures created to convert 8,000 conditional grants of suspension of deportation and cancellation of removal to outright grants before the end of fiscal year 1998. Accordingly, the Department does not address these comments.

V. Regulatory Requirements A. Regulatory Flexibility Act

The Department has reviewed this regulation in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that this rule will not have a significant economic impact on a substantial number of small entities. The rule will not regulate “small entities,” as that term is defined in 5 U.S.C. 601(6).

B. Unfunded Mandates Reform Act of 1995

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

C. Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. See 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

D. Executive Orders 12866 and 13563: Regulatory Planning and Review

The Department has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and, therefore, it has not been reviewed by the Office of Management and Budget. Nevertheless, the Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 12866, section 1(b), and Executive Order 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Additionally, it calls on each agency to periodically review its existing regulations and determine whether any should be modified, streamlined, expanded, or repealed to make the agency's regulatory program more effective or less burdensome in achieving its regulatory objectives.

The Department is issuing this proposed rule consistent with these Executive Orders. This rule would affect the adjudication of suspension of deportation and cancellation of removal cases after the annual limitation under section 240A(e) has been reached. The Department expects this rule would reduce the number of reserved suspension of deportation and cancellation of removal cases once the annual limitation has been reached. Further, this rule will have a positive economic impact on Department functions because it will significantly reduce the administrative work and scheduling complications associated with suspension of deportation and cancellation of removal cases subject to the annual limitation. While this rule would remove all the current restrictions on issuing denials, immigration judges and the Board will still be required to provide a legal analysis for all decisions denying a suspension of deportation or cancellation of removal application. Accordingly, the Department does not foresee any burdens to the public as a result of this proposed rule. To the contrary, it will benefit the public by saving administrative costs and allowing earlier resolution of cases.

E. Executive Order 13132: Federalism

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

F. Executive Order 12988: Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rule because there are no new or revised recordkeeping or reporting requirements.

List of Subjects 8 CFR Part 1240

Administrative practice and procedure, Aliens, Immigration, Legal services, Organization and functions (Government agencies).

Accordingly, for the reasons stated in the preamble, part 1240 of chapter V of title 8 of the Code of Federal Regulations is proposed to be amended as follows:

PART 1240—PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES 1. The authority citation for part 1240 continues to read as follows: Authority:

8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226, 1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202 and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat. 2681).

2. Amend § 1240.21 by: a. Removing and reserving paragraph (b); and b. Revising paragraphs (c) introductory text, and (c)(1) to read as follows:
§ 1240.21 Suspension of deportation and adjustment of status under section 244(a) of the Act (as in effect before April 1, 1997) and cancellation of removal and adjustment of status under section 240A(b) of the Act for certain nonpermanent residents.

(c) Grants of suspension of deportation or cancellation of removal in fiscal years subsequent to fiscal year 1998. On and after October 1, 1998, the Immigration Court and the Board may grant applications for suspension of deportation and adjustment of status under section 244(a) of the Act (as in effect prior to April 1, 1997) or cancellation of removal and adjustment of status under section 240A(b) of the Act that meet the statutory requirements for such relief and warrant a favorable exercise of discretion until the annual numerical limitation has been reached in that fiscal year. The awarding of such relief shall be determined according to the date the order granting such relief becomes final as defined in §§ 1003.1(d)(7) and 1003.39 of this chapter.

(1) Applicability of the Annual Limitation. When grants are no longer available in a fiscal year, further decisions to grant such relief must be reserved until such time as a grant becomes available under the annual limitation in a subsequent fiscal year.

Dated: November 21, 2016. Loretta E. Lynch, Attorney General.
[FR Doc. 2016-28590 Filed 11-29-16; 8:45 am] BILLING CODE 4410-30-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration [Docket No. FAA-2016-9452] 14 CFR Part 21 Airworthiness Criteria: Glider Design Criteria for Stemme AG Model Stemme S12 Powered Glider AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Notice of proposed design criteria.

SUMMARY:

This notice announces the availability of and requests comments on the proposed design criteria for the Stemme AG model Stemme S12 powered glider. The Administrator finds the proposed design criteria, which make up the certification basis for the Stemme S12, acceptable.These final design criteria will be published in the Federal Register.

DATES:

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

ADDRESSES:

Send comments identified by docket number FAA-2016-9452 using any of the following methods:

Federal eRegulations Portal: Go to http://www.regulations.gov and follow the online instructions for sending your comments electronically.

Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

Hand Delivery of Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m., and 5 p.m., Monday through Friday, except Federal holidays.

Fax: Fax comments to Docket Operations at 202-493-2251.

Privacy: The FAA will post all comments it receives, without change, to http://regulations.gov, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.

Docket: Background documents or comments received may be read at http://www.regulations.gov at any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m., and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Mr. Jim Rutherford, Federal Aviation Administration, Small Airplane Directorate, Aircraft Certification Service, 901 Locust, Room 301, Kansas City, MO 64106, telephone (816) 329-4165, facsimile (816) 329-4090.

SUPPLEMENTARY INFORMATION: Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the design criteria, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will consider all comments received on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these airworthiness design criteria based on received comments.

Background

On January 08, 2016, Stemme AG submitted an application for type validation of the Stemme S12 in accordance with the Technical Implementation Procedures for Airworthiness and Environmental Certification Between the FAA and the European Aviation Safety Agency (EASA), Revision 5, dated September 15, 2015. The Stemme S12 is a two-seat, self-launching, powered glider with a liquid cooled, turbocharged engine mounted in the center fuselage, an indirect drive shaft, and a fully-foldable, variable-pitch composite propeller in the nose. It is constructed from glass and carbon fiber reinforced composites, features a conventional T-type tailplane, and has a retractable main landing gear. The glider has a maximum weight of 1,984 pounds (900 kilograms) and may be equipped with an optional dual-axis autopilot system. EASA type certificated the Stemme S12 under Type Certificate Number (No.) EASA.A.054 on March 11, 2016. The associated EASA Type Certificate Data Sheet (TCDS) No. EASA.A.054 defined the certification basis Stemme AG submitted to the FAA for review and acceptance.

The applicable requirements for glider certification in the United States can be found in FAA Advisory Circular (AC) 21.17-2A, “Type Certification—Fixed-Wing Gliders (Sailplanes), Including Powered Gliders,” dated February 10, 1993. AC 21.17-2A has been the basis for certification of gliders and powered gliders in the United States for many years. AC 21.17-2A states that applicants may utilize the Joint Aviation Requirements (JAR)-22, “Sailplanes and Powered Sailplanes”, or another accepted airworthiness criteria, or a combination of both, as the accepted means for showing compliance for glider type certification.

Type Certification Basis

The applicant proposed a Certification Basis based on EASA Certification Specification (CS)-22, “Sailplanes and Powered Sailplanes”, initial issue, dated November 14, 2003. In addition to CS-22 requirements, the applicant proposed to comply with other requirements from the certification basis referenced in EASA TCDS No. EASA.A.054, including special conditions and equivalent safety findings.

The Proposed Design Criteria

Applicable Airworthiness Criteria under § 21.17(b).

Based on the Special Class provisions of § 21.17(b), the following airworthiness requirements form the FAA Certification Basis for this design:

1. 14 CFR part 21, effective February 1, 1965, including amendments 21-1 through 21-93 as applicable.

2. EASA CS-22, initial issue, dated November 14, 2003.

3. EASA Special Condition No. SC-A.22.1.01, “Increase in maximum mass for sailplanes and powered sailplanes.”

4. “Preliminary Standard for the Substantiation of Indirect Drive Shafts in Power Plants of Powered Sailplanes Certified to JAR-22” (with a modification for the Stemme AG model Stemme S 10), Luftfahrt-Bundesamt (LBA) document number (no.) I231-87, issued August 05, 1988.

5. Installation of a Dual-Axis Autopilot System, including—

• EASA CS-VLA (Very Light Aeroplanes) 1309, “Equipment, systems, and installations”; initial issue, dated November 14, 2003; and

• EASA CS-23.1329, “Automatic pilot system”, amendment 3, dated July 20, 2012.

6. Drop Testing for Retractable Landing Gear (EASA equivalent safety findings) to include CS-VLA 725, “Limit drop tests”; CS-VLA 726, “Ground load dynamic tests”; and CS-VLA 727, “Reserve energy absorption”; initial issue dated November 14, 2003.

7. “Standards for Structural Substantiation of Sailplane and Powered Sailplane Parts Consisting of Glass or Carbon Fiber Reinforced Plastics”, LBA document no. I4-FVK/91, issued July 1991.

8. “Guideline for the analysis of the electrical system for powered sailplanes”, LBA document no. I334-MS 92, issued September 15, 1992.

9. The following kinds of operation are allowed: VFR-Day.

10. Date of application for FAA Type Certificate: January 08, 2016.

Issued in Kansas City, Missouri on November 18, 2016. Mel Johnson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-28575 Filed 11-29-16; 8:45 am] BILLING CODE 4910-13-P
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 29 CFR Part 2201 Regulations Implementing the Freedom of Information Act AGENCY:

Occupational Safety and Health Review Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Occupational Safety and Health Review Commission (“OSHRC”) is proposing revisions to its regulations implementing the Freedom of Information Act (“FOIA”). These proposed revisions account for statutory amendments included in the FOIA Improvement Act of 2016 (“FOIA Improvement Act”), as well as the addition of procedures pertaining to confidential commercial information and preservation of records, clarifications of existing procedures, and updates to contact information.

DATES:

Comments must be received by OSHRC on or before December 20, 2016.

ADDRESSES:

You may submit comments by any of the following methods:

Email: [email protected] Include “PROPOSED RULEMAKING, PART 2201” in the subject line of the message.

Fax: (202) 606-5417.

Mail: Occupational Safety and Health Review Commission, ATTN: FOIA Public Liaison, One Lafayette Centre, 1120 20th Street NW., Ninth Floor, Washington, DC 20036-3457.

Hand Delivery/Courier: Same as mailing address.

Instructions: All submissions must include your name, return address, and email address, if applicable. Please clearly label submissions as “PROPOSED RULEMAKING, PART 2201.”

FOR FURTHER INFORMATION CONTACT:

OSHRC's FOIA Public Liaison, by telephone at (202) 606-5410, by email at [email protected], or by mail at the address stated above.

SUPPLEMENTARY INFORMATION:

I. Background

OSHRC proposes several substantive and procedural revisions to its regulations implementing the FOIA that fall within four general categories. First, OSHRC proposes modifying its existing FOIA regulations to reflect the amendments to the FOIA contained in the FOIA Improvement Act of 2016, Public Law 114-185. The FOIA Improvement Act amended various practices under the FOIA, such as requiring notification to requesters of the right to seek dispute resolution at various times throughout the FOIA process from the National Archives and Records Administration's Office of Government Information Services (“OGIS”), a ninety-day minimum time period to file administrative appeals, and limitations on assessing certain fees and exceptions to those limitations.

Second, OSHRC proposes revising its regulations to further clarify and update its procedures relating to the submission and processing of FOIA requests.

Third, OSHRC proposes adding a new section to its regulations establishing procedures to notify submitters of records containing confidential commercial information when those records are requested under the FOIA, in compliance with Executive Order 12,600.

Fourth, OSHRC proposes adding a new section to its regulations explaining the procedure for the preservation of records related to FOIA requests.

Accordingly, OSHRC proposes to revise its regulations implementing the FOIA and put them out for public comment. The specific amendments that OSHRC proposes to each section of 29 CFR part 2201 are discussed hereafter in regulatory sequence.

In 29 CFR 2201.3, OSHRC proposes revising paragraph (a) to direct requestors to OSHRC's FOIA Reference Guide for further information. OSHRC proposes a minor revision to paragraph (c) explaining the role of the FOIA Public Liaison. OSHRC also proposes minor revisions to paragraph (d) to update the contact information for the FOIA Requester Service Center.

In 29 CFR 2201.4, OSHRC proposes a minor revision to a reference to another section of the regulations included in paragraph (a). OSHRC proposes removing paragraph (b) regarding examination of records in cases appealed to courts as the provision is no longer necessary. OSHRC additionally proposes revising new paragraph (b), previously paragraph (c), to update the list of records available at the OSHRC e-FOIA Reading Room. OSHRC proposes revising new paragraph (c), previously paragraph (d), to clarify the location of records available onsite at the OSHRC National Office. OSHRC proposes changing paragraph (e) to paragraph (d) due to the removal of paragraph (b) in this section.

In 29 CFR 2201.5, OSHRC proposes revising paragraph (a) to clarify the procedure for how to make a FOIA request regarding the ability to submit a request in multiple ways, including by email and OSHRC's online FOIA request form. OSHRC proposes changing paragraph (b) to describe the procedures for a requester making a request for records about himself or herself. OSHRC proposes adding paragraph (c) to describe the procedure enabling a requester to receive greater access when a request for records pertains to another individual. OSHRC also proposes adding paragraph (d) to explain what elements should be included in the description of records in a FOIA request. OSHRC proposes adding paragraph (e), previously included in part in another paragraph in this section, to explain the procedure for requests regarding the preferred form or format of a response. OSHRC proposes adding paragraph (f) to describe the necessary contact information to be provided by a requestor. OSHRC further proposes adding paragraph (g), previously included in another paragraph of this section, to describe how OSHRC determines the date of receipt of a FOIA request and revising the reference in this paragraph to reflect the changes to paragraph designations in a subsequent section.

In 29 CFR 2201.6, OSHRC proposes revising paragraphs (c) and (f) to include notification to the requestor of the availability of assistance from the FOIA Public Liaison and the right to seek dispute resolution services from OGIS. OSHRC also proposes revising the references in paragraph (f) to reflect the changes to paragraph designations in subsequent sections. OSHRC proposes revising paragraph (h) to reflect changes to the procedure notifying a requester of the tracking number assigned to the FOIA request.

OSHRC proposes redesignating 29 CFR 2201.7 to 29 CFR 2201.10 as 29 CFR 2201.8 to 29 CFR 2201.11, respectively, and then adding a new 29 CFR 2201.7. This proposed new section pertains to “confidential commercial information,” and describes this type of information and how it is designated as such by a submitter, the circumstances under which OSHRC must notify the submitter of such information when it is contained in records requested under the FOIA, exceptions to this notice requirement, and the process for the submitter to object to the disclosure of such information.

In redesignated 29 CFR 2201.8, OSHRC proposes revising paragraph (a) to explain that OSHRC shall charge fees in accordance with the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget. OSHRC also proposes revising paragraph (b) to explain the limitations on assessing certain fees and exceptions to those limitations, as well as a minor revision to a reference to the Commission. OSHRC proposes revising paragraphs (h) and (i) to reflect the change in name for the Commission's Office of the Executive Director. OSHRC proposes revising the references in this entire section to reflect the changes to paragraph designations in previous and subsequent sections.

In redesignated 29 CFR 2201.9, OSHRC proposes revising the reference in this section to reflect the changes to paragraph designations in a previous section.

In redesignated 29 CFR 2201.10, OSHRC proposes adding paragraph (a) to revise the time period to file an appeal, as well as identify information to be included with the appeal. OSHRC proposes adding paragraph (b) to clarify the procedure for adjudication of appeals. OSHRC also proposes adding paragraph (c) to explain the content of and procedure for decisions on appeals. OSHRC proposes adding paragraph (d) to explain the process of mediation provided by OGIS. OSHRC also proposes adding paragraph (e) to describe the requirements for seeking review by a court of an adverse determination by OSHRC.

In redesignated 29 CFR 2201.11, OSHRC proposes a minor revision to a reference to OSHRC's Web site.

OSHRC proposes adding a new section at 29 CFR 2201.12 on the procedures for preserving records pertaining to FOIA requests.

II. Statutory and Executive Order Reviews

Executive Orders 12866 and 13132, and the Unfunded Mandates Reform Act of 1995: OSHRC is an independent regulatory agency and, as such, is not subject to the requirements of E.O. 12866, E.O. 13132, or the Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq.

Regulatory Flexibility Act: The Chairman of OSHRC certifies under the Regulatory Flexibility Act, 5 U.S.C. 605(b), that these rules, if adopted, would not have a significant economic impact on a substantial number of small entities. The only proposed revisions that could economically impact a small entity pertain to how OSHRC charges its FOIA fees. OSHRC, however, receives relatively few FOIA requests from “small entities” that result in fees being assessed; when fees are assessed, the amounts are generally minimal; and it is not anticipated that the amendments will have much affect (if any) on the number of entities responsible for paying FOIA fees or the amounts of those fees. For these reasons, a regulatory flexibility analysis is not required.

Paperwork Reduction Act of 1995: OSHRC has determined that the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply because these rules do not contain any information collection requirements that require the approval of OMB.

Congressional Review Act: These proposed revisions do not constitute a “rule,” as defined by the Congressional Review Act, 5 U.S.C. 804(3)(C), because they involve changes to agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.

List of Subjects

Freedom of information.

Signed at Washington, DC, on the 17th day of November, 2016. Cynthia L. Attwood, Chairman.

For the reasons set forth in the preamble, OSHRC proposes to amend 29 CFR part 2201 as follows:

PART 2201—REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT 1. The authority citation for part 2201 continues to read as follows: Authority:

29 U.S.C. 661(g); 5 U.S.C. 552.

§ 2201.3 [Amended]
2. Amend § 2201.3 by: a. Removing the words “FOIA handbook” and adding, in their place, the words “FOIA Reference Guide” in paragraph (a)(5). b. Removing the word “supervisory” in paragraph (c). c. Revising paragraph (d) to read as follows:
§ 2201.3 Delegation of authority and responsibilities.

(d) OSHRC establishes a FOIA Requester Service Center that shall be staffed by the FOIA Disclosure Officer(s) and FOIA Public Liaison(s). The address of the FOIA Requester Service Center is 1120 20th Street NW., 9th Floor, Washington, DC 20036-3457. The telephone number, fax number and additional contact information for the FOIA Requester Service Center is located on the agency's Web site at: http://www.oshrc.gov/foia.html. The FOIA Requester Service Center is available to provide information about the status of a request to the requester using the assigned tracking number (as described in § 2201.6(h)), including:

(1) The date on which the agency originally received the request; and

(2) An estimated date on which the agency will complete action on the request.

§ 2201.4 [Amended]
3. Amend § 2201.4 by: a. Removing the citation “§ 2201.5(a)” and adding, in its place, the citation “§ 2201.5” in paragraph (a). b. Removing paragraph (b) in its entirety. c. Redesignating paragraphs (c) through (e) as paragraphs (b) through (d), respectively. d. Revising the opening of redesignated paragraph (b), and paragraphs (b)(1), (b)(5), (b)(6), and (c) to read as follows:
§ 2201.4 General policy and definitions.

(b) Record availability at the OSHRC e-FOIA Reading Room. The records of Commission activities are publicly available for inspection and copying, and may be accessed electronically on the Commission's Web site at http://www.oshrc.gov/foia/foia_reading_room.html. These records include:

(1) Final decisions, including concurring and dissenting opinions, remand orders, as well as Administrative Law Judge decisions pending OSHRC review, briefing notices, and other significant orders;

(5) Copies of records that have been released to a person under the FOIA that, because of the subject matter, the Commission determines have become or are likely to become the subject of subsequent requests for substantially the same records, as well as records the Commission determines absent a FOIA request could be of significant public interest; and

(6) A general index of records referred to under paragraph (b)(5) of this section.

(c) Record availability onsite at OSHRC National Office. Any member of the public may, upon request, access OSHRC's e-FOIA Reading Room via a computer terminal at the OSHRC National Office, located at 1120 20th St. NW., 9th Floor, Washington, DC 20036-3457. Such a request must be made in writing to the FOIA Requester Service Center, and indicate a preferred date and time for the requested access. OSHRC reserves the right to arrange a different date and time with the requester, if necessary.

§ 2201.5 [Amended]
4. Revise § 2201.5 to read as follows:
§ 2201.5 Procedure for requesting records.

(a) General information. All requests for information must be made in writing to the FOIA Disclosure Officer and may be: (1) Mailed or delivered; (2) faxed; or (3) emailed. Requests may also be made using the Commission's online FOIA request form (which is a downloadable PDF file found at http://www.oshrc.gov/foia/foia_request_form.html) and the completed form can be submitted by mail, fax, or email. Contact information for the FOIA Disclosure Officer is described in § 2201.3(d). For mailed or delivered requests, the words “Freedom of Information Act Request” must be printed on the face of the request's envelope or covering as well as the request itself.

(b) A requester who is making a request for records about himself or herself must comply with verification of identity requirements as required by 29 CFR 2400.6 in OSHRC's Privacy Act regulations.

(c) Where a request for records pertains to another individual, a requester may receive greater access by submitting either a notarized authorization signed by that individual or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (e.g., a copy of a death certificate or an obituary).

(d) Description of records sought. A request must describe the records sought in sufficient detail to enable the Commission to locate them with a reasonable amount of effort. To the extent possible, the request should include specific information to identify the requested records, such as the docket number(s) or case name(s). Before submitting a request, the requester may contact the FOIA Disclosure Officer, as described in § 2201.3(d), to discuss the records being sought and receive assistance in describing them. If a determination is made after receiving a request that it does not reasonably describe the records sought, the FOIA Disclosure Officer will contact the requester to explain what additional information is needed or why the request is otherwise insufficient. A requester attempting to reformulate or modify such a request is encouraged to discuss the request with the FOIA Disclosure Officer. If a request does not reasonably describe the records sought, the agency's response may be delayed.

(e) Requests may specify the preferred form or format (including electronic formats) of the response. The FOIA Disclosure Officer shall honor a requester's specified preference of form or format of disclosure if the record is readily reproducible with reasonable efforts in the requested form or format. When a requester does not specify the preferred form or format of the response, the FOIA Disclosure Officer shall respond in the form or format in which the record is most accessible to the Commission.

(f) The requester must provide contact information, such as a phone number, email address, and/or mailing address, to facilitate the agency's communication with the requester.

(g) Date of receipt. A request that complies with paragraph (a) of this section is deemed received on the actual date it is received by the Commission. A request that does not comply with paragraph (a) of this section is deemed received when it is actually received by the FOIA Disclosure Officer. For requests that are expected to result in fees exceeding $250, the request shall not be deemed to have been received until the requester is advised of the anticipated costs and the Commission has received full payment or satisfactory assurance of full payment as provided under § 2201.8(f).

§ 2201.6 [Amended]
5. Amend § 2201.6 by revising paragraphs (c), (f), and (h) to read as follows:
§ 2201.6 Responses to requests.

(c) Additional extension. The FOIA Disclosure Officer shall notify the requester in writing when it appears that a request cannot be completed within the allowable time (20 working days plus a 10-working-day extension). In such instances, the requester will be provided an opportunity to limit the scope of the request so that it may be processed in the time limit, or to agree to a reasonable alternative time frame for processing. The FOIA Disclosure Officer or FOIA Public Liaison shall be available to assist the requester for this purpose and shall notify the requester of the right to seek dispute resolution services from the National Archives and Records Administration's Office of Government Information Services (OGIS).

(f) Content of denial. When the FOIA Disclosure Officer denies a request for records, either in whole or in part, a request for expedited processing, and/or a request for fee waivers (see § 2201.9), the written notice of the denial shall state the reason for denial, give a reasonable estimate of the volume of matter denied (unless doing so would harm an interest protected by the exemption(s) under which the request was denied), set forth the name and title or position of the person responsible for the denial of the request, notify the requester of the right to appeal the determination as specified in § 2201.10, and notify the requester of the assistance available from the FOIA Public Liaison and the dispute resolution services offered by OGIS. A refusal by the FOIA Disclosure Officer to process the request because the requester has not made advance payment or given a satisfactory assurance of full payment required under § 2201.8(f) may be treated as a denial of the request and appealed under § 2201.10.

(h) Tracking numbers. The FOIA Disclosure Officer shall assign an individualized tracking number to each request received for processing and provide the requester with the tracking number.

§§ 2201.7 through 2201.10 [Redesignated as §§ 2201.8 through 2201.11 and Amended]
6. Redesignate §§ 2201.7 through 2201.10 as §§ 2201.8 through 2201.11, respectively. 7. Add new § 2201.7 to read as follows:
§ 2201.7 Confidential commercial information.

(a) Definitions.

(1) Confidential commercial information means commercial or financial information obtained by OSHRC from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).

(2) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly to OSHRC.

(b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, at the time of submission, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.

(c) When notice to submitters is required. OSHRC shall promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if OSHRC determines that it may be required to disclose the records, provided the submitter has complied with paragraph (b) of this section or OSHRC has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure. The notice must either describe the commercial information requested or include a copy of the requested records or portions of records containing the information.

(d) Exceptions to submitter notice requirements. The notice requirements of this section do not apply if:

(1) OSHRC determines that the information is exempt under the FOIA, and therefore will not be disclosed;

(2) The information has been lawfully published or has been officially made available to the public;

(3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12,600 of June 23, 1987; or

(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, OSHRC shall give the submitter written notice of any final decision to disclose the information within a reasonable number of days prior to a specified disclosure date.

(e) Opportunity to object to disclosure. OSHRC shall specify a reasonable time period within which the submitter must provide a response to the notice referenced above. If a submitter has any objections to disclosure, it should provide a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential. A submitter who fails to respond within the time period specified in the notice will be considered to have no objection to disclosure of the information. OSHRC is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.

(f) Analysis of objections. OSHRC shall consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.

(g) Notice of decision. OSHRC shall provide the submitter with written notice once a decision is made as to whether or not to disclose information over the submitter's objection. When a decision is made to disclose information over the submitter's objection, this notice shall include a statement of the reasons why each of the submitter's disclosure objections was not sustained, a description of the information to be disclosed or copies of the records as the agency intends to release them, and a specified disclosure date (which must be a reasonable time after the notice).

(h) Notice of FOIA lawsuit. OSHRC shall promptly notify the submitter when a requester files a lawsuit seeking to compel the disclosure of confidential commercial information.

(i) Requester notification. OSHRC shall notify the requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.

8. Amend redesignated § 2201.8 by: a. Redesignating paragraph (b)(3) as paragraph (b)(5). b. Revising paragraphs (a), the opening of paragraph (b), and paragraphs (b)(1) and (b)(2)(v); adding new paragraphs (b)(3) and (b)(4); and revising redesignated paragraph (b)(5), and paragraphs (h) and (i), to read as follows:
§ 2201.8 Fees for copying, searching, and review.

(a) Fees required unless waived. The FOIA Disclosure Officer shall charge fees in accordance with the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget and in accordance with paragraph (b) of this section. See Appendix A. If the fees for a request are less than the threshold amount as provided in OSHRC's fee schedule, no fees shall be charged. The FOIA Disclosure Officer shall, however, waive the fees in the circumstances stated in § 2201.9.

(b) Calculation of fees. Fees for copying, searching and reviewing will be based on the direct costs of these services, including the average hourly salary (base plus DC locality payment), plus 16 percent for benefits, of the following three categories of employees involved in responding to FOIA requests: Clerical—based on an average of all employees at GS-9 and below; professional—based on an average of all employees at GS-10 through GS-14; and managerial—based on an average of all employees at GS-15 and above. OSHRC will calculate a schedule of fees based on these direct costs. The schedule of fees under this section appears in Appendix A to this part. A copy of the schedule of fees may also be obtained at no charge from the FOIA Disclosure Officer. See § 2201.3(d).

(1) Copying fee. The fee per copy of each page shall be calculated in accordance with the per-page amount established in OSHRC's fee schedule. See Appendix A to this part. For other forms of duplication, direct costs of producing the copy, including operator time, shall be calculated and assessed. Copying fees shall not be charged for the first 100 pages of copies unless the copies are requested for a commercial use. No copying fee shall be charged for educational, scientific, or news media requests if the agency fails to comply with any time limit in § 2201.6, provided that no unusual or exceptional circumstances (as those terms are defined in § 2201.6(b) and § 2201.4(d), respectively) apply to the processing of the request.

(2) * * *

(v) Failure to comply with time limits. No search fee shall be charged if the Commission fails to comply with any time limit in § 2201.6, provided that no unusual or exceptional circumstances (as those terms are defined in § 2201.6(b) and § 2201.4(d), respectively) apply to the processing of the request.

(3) Unusual circumstances. (i) If the Commission has determined that unusual circumstances, as defined in § 2201.6(b), apply and has provided timely written notice to the requester, a failure to comply with the time limit shall be excused for an additional 10 days and the Commission shall assess fees as usual.

(ii) If the Commission has determined that unusual circumstances, as defined in § 2201.6(b), apply and more than 5,000 pages are necessary to respond to the request, the Commission may charge search fees, or, in the case of requesters described in § 2201.8(b)(2)(ii), may charge duplication fees, if the Commission provided timely written notice of unusual circumstances to the requester in accordance with § 2201.6(b) and the Commission discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with the FOIA. If this exception is satisfied, the Commission may charge all applicable fees incurred in the processing of the request even if such processing extends beyond an additional 10 days.

(4) If a court has determined that exceptional circumstances exist, as defined in § 2201.4(d), a failure to comply with the time limits shall be excused for the length of time provided by the court order.

(5) Review fee. A review fee shall be charged only for commercial requests. Review fees shall be calculated in accordance with the amounts established in OSHRC's schedule of fees. See Appendix A. A review fee shall be charged for the initial examination of documents located in response to a request to determine if it may be withheld from disclosure, and for the excision of withholdable portions. However, a review fee shall not be charged for review by the Chairman under § 2201.10 (Appeal of denials).

(h) Interest on unpaid bills. The Commission's Office of the Executive Director shall begin assessing interest charges on unpaid bills starting on the thirty-first day after the date the bill was sent. Interest will accrue from the date of billing until the Commission receives full payment. Interest will be at the rate described in 31 U.S.C. 3717.

(i) Debt collection procedures. If bills are unpaid 60 days after the mailing of a written notice to the requester, the Commission's Office of the Executive Director may resort to the debt collection procedures set out in the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.

9. Amend redesignated § 2201.9 by removing the citation “§ 2201.7(b)” in paragraph (a) and adding, in its place, the citation “§ 2201.8(b)”. 10. Revise redesignated § 2201.10 to read as follows:
§ 2201.10 Appeal of denials.

(a) Requirements for making an appeal. A denial of a request for records, either in whole or in part, a request for expedited processing, or a request for fee waivers, may be appealed in writing to the Chairman of the Commission. To be considered timely, the appeal must be postmarked, or in the case of electronic submissions, transmitted, within 90 calendar days of the date of the agency's written notice of denial. The appeal should clearly identify the agency determination that is being appealed and the assigned FOIA tracking number. To facilitate handling, the requester should mark both the appeal and its envelope, or state in the subject line of an electronic transmission, “Freedom of Information Act Appeal.”

(b) Adjudication of appeals. The Chairman shall act on the appeal under 5 U.S.C. 552(a)(6)(A)(ii) within 20 working days after the receipt of the appeal. An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation. On receipt of any appeal involving classified information, the Chairman shall take appropriate action to ensure compliance with applicable classification rules.

(c) Decisions on appeals. The Chairman shall provide the decision on an appeal in writing. If the Chairman wholly or partially upholds the denial of the request, the decision shall contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision must include notification that the requester may obtain judicial review of the decision under 5 U.S.C. 552(a)(4)(B)-(G). The decision shall also inform the requester of the mediation services offered by OGIS as a non-exclusive alternative to litigation. If the Chairman's decision is remanded or modified on appeal to the court, the requester will be notified by the agency of that determination in writing. The Commission shall then further process the request in accordance with the appeal determination and shall respond directly to the requester.

(d) Engaging in dispute services provided by OGIS. Mediation is a voluntary process. If the Commission agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner in the process in an attempt to resolve the dispute.

(e) When appeal is required. Before seeking review by a court of the Commission's adverse determination, a requester generally must first submit a timely administrative appeal.

11. Amend redesignated § 2201.11 by removing the words “through OSHRC's Web site” and adding, in their place, the words “on OSHRC's Web site” in paragraph (b).
§ 2201.12 [Added]
12. Add § 2201.12 to read as follows:
§ 2201.12 Preservation of Records.

OSHRC shall preserve all correspondence pertaining to FOIA requests, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the General Records Schedule 14 of the National Archives and Records Administration. OSHRC shall not dispose of or destroy records while they are the subject of a pending request, appeal or lawsuit under the FOIA.

[FR Doc. 2016-28305 Filed 11-29-16; 8:45 am] BILLING CODE 7600-01-P
DEPARTMENT OF THE TREASURY Fiscal Service 31 CFR Part 210 RIN 1510-AB32 Federal Government Participation in the Automated Clearing House AGENCY:

Bureau of the Fiscal Service, Treasury.

ACTION:

Notice of proposed rulemaking with request for comment.

SUMMARY:

The Department of the Treasury, Bureau of the Fiscal Service (Fiscal Service) is proposing to amend its regulation governing the use of the Automated Clearing House (ACH) Network by Federal agencies. Our regulation adopts, with some exceptions, the NACHA Operating Rules developed by NACHA—The Electronic Payments Association (NACHA) as the rules governing the use of the ACH Network by Federal agencies. We are issuing this proposed rule to address changes that NACHA has made to the NACHA Operating Rules since the publication of the 2013 NACHA Operating Rules & Guidelines book. These changes include amendments set forth in the 2014, 2015, and 2016 NACHA Operating Rules & Guidelines books.

DATES:

Comments on the proposed rule must be received by January 30, 2017.

ADDRESSES:

Comments on this rule, identified by docket FISCAL-2016-0001, should only be submitted using the following methods:

Federal eRulemaking Portal: www.regulations.gov. Follow the instructions on the Web site for submitting comments.

Mail: Ian Macoy, Bureau of the Fiscal Service, 401 14th Street SW., Room 400B, Washington, DC 20227.

The fax and email methods of submitting comments on rules to Fiscal Service have been decommissioned.

Instructions: All submissions received must include the agency name (Bureau of the Fiscal Service) and docket number FISCAL-2016-0001 for this rulemaking. In general, comments received will be published on Regulations.gov without change, including any business or personal information provided. Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not disclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.

You can download this proposed rule at the following Web site: https://www.fiscal.treasury.gov/fsservices/instit/pmt/ach/ach_home.htm. You may also inspect and copy this proposed rule at: Treasury Department Library, Freedom of Information Act (FOIA) Collection, Room 1428, Main Treasury Building, 1500 Pennsylvania Avenue NW., Washington, DC 20220. Before visiting, you must call (202) 622-0990 for an appointment.

In accordance with the U.S. government's eRulemaking Initiative, Fiscal Service publishes rulemaking information on www.regulations.gov. Regulations.gov offers the public the ability to comment on, search, and view publicly available rulemaking materials, including comments received on rules.

FOR FURTHER INFORMATION CONTACT:

Ian Macoy, Director of Settlement Services, at (202) 874-6835 or [email protected]; or Natalie H. Diana, Senior Counsel, at (202) 874-6680 or [email protected].

SUPPLEMENTARY INFORMATION: I. Background

Title 31 CFR part 210 (Part 210) governs the use of the ACH Network by Federal agencies. The ACH Network is a nationwide electronic fund transfer (EFT) system that provides for the inter-bank clearing of electronic credit and debit transactions and for the exchange of payment-related information among participating financial institutions. Part 210 incorporates the NACHA Operating Rules, with certain exceptions. From time to time the Fiscal Service amends Part 210 in order to address changes that NACHA periodically makes to the NACHA Operating Rules or to revise the regulation as otherwise appropriate.

Currently, Part 210 incorporates the NACHA Operating Rules as set forth in the 2013 NACHA Operating Rules & Guidelines book. NACHA has adopted a number of changes to the NACHA Operating Rules since the publication of the 2013 NACHA Operating Rules & Guidelines book. We are proposing to incorporate in Part 210 most, but not all, of these changes. We are also proposing two changes to Part 210, related to reversals and prepaid cards, that do not stem from a change to the NACHA Operating Rules.

We are requesting public comment on all the proposed amendments to Part 210.

II. Summary of Proposed Rule Changes A. 2014 NACHA Operating Rules & Guidelines Book Changes

The 2014 edition of the NACHA Operating Rules & Guidelines contains changes related to the following amendments:

• Person-to-Person Payments via ACH;

• IAT Modifications; Proof of Authorization for Non-Consumer Entries;

• Dishonored Returns and Contested Dishonored Returns Related to an Unintended Credit to a Receiver;

• Reclamation Entries—Corrections to Rules Governing Authorizations;

• Incomplete Transaction Clarification;

• Use of Tilde as Data Segment Terminator;

• Editorial Clarification—Non-Consumer Receiver's Obligation to Credit Originator's Account;

• Prenotification Entries—Reduction in Waiting Period for Live Entries;

• Notification of Change (NOC)—Removal of Change Code C04 (Incorrect Individual Name/Receiving Company Name); and

• ACH Operator Edit for Returns.

We are proposing to incorporate in Part 210 all of the foregoing amendments, which are summarized below, except the amendment relating to reclamation entries.

1. Person-to-Person Payments via ACH

This amendment standardized the use of the ACH Network for Person-to-Person (P2P) Entries by expanding the Internet-Initiated/Mobile (WEB) SEC Code to accommodate credit Entries transmitted between consumers (P2P transactions). A P2P Entry is defined as “a credit Entry initiated by or on behalf of a holder of a Consumer Account that is intended for a Consumer Account of a Receiver.” The amendment also modified the definition of a Customer Initiated Entry (CIE) to “a credit Entry initiated by or on behalf of the holder of a Consumer Account to the Non-Consumer Account of a Receiver.” These definitional changes ensure there is a clear differentiation between WEB credit and CIE—i.e., CIE for a bill payment from a consumer to a business, and WEB credit for a P2P transaction from one consumer to another or between consumer accounts belonging to the same person. In addition, this amendment clarified the treatment of NOCs related to credit WEB Entries and CIE Entries.

We are proposing to accept this amendment.

2. IAT Modifications

This amendment revised the NACHA Operating Rules to update the rules and formatting of the International ACH Transaction (IAT) in order to facilitate more accurate screening and compliance with OFAC sanctions policies. This modification requires a Gateway to identify within an Inbound IAT Entry (1) the ultimate foreign beneficiary of the funds transfer when the proceeds from a debit Inbound IAT Entry are for further credit to an ultimate foreign beneficiary that is a party other than the Originator of the debit IAT Entry, or (2) the foreign party ultimately funding a credit Inbound IAT Entry when that party is not the Originator of the credit IAT Entry. This amendment revised the description of the Payment Related Information Field as it relates to the IAT Remittance Addenda Record to establish specific formatting requirements for inclusion of the ultimate foreign beneficiary's/payer's name, street address, city, state/province, postal code, and ISO Country Code. The amendment also requires an Originator, Third-Party Sender, Originating Depository Financial Institution (ODFI), or Gateway transmitting an IAT Entry to identify any country named within the IAT Entry by that country's 2-digit alphabetic ISO Country Code, as defined by the International Organization for Standardization's (ISO) 3166-1-alpha-2 code list.

We are proposing to accept this amendment.

3. Proof of Authorization for Non-Consumer Entries

This amendment established a minimum standard for proof of authorization for Non-Consumer Entries to aid in the resolution of unauthorized or fraudulent debits to businesses, particularly those where no trading partner relationship/agreement exists between the Originator and Receiver. This change permits a Receiving Depository Financial Institution (RDFI) to request proof of a Non-Consumer Receiver's authorization for a CCD, CTX, or an Inbound IAT Entry to a Non-Consumer Account. The ODFI must provide the required information to the RDFI at no charge within ten banking days of receiving a written request for such information from the RDFI. The amendment also requires the Originator to provide such proof of authorization to the ODFI for its use or for use by the RDFI.

The amendment provides two methods by which an ODFI can comply with the RDFI's request for proof of authorization. The first is to provide an accurate record of the authorization. The second is to provide the Originator's contact information that can be used for inquiries about authorization of Entries. At a minimum, this contact information must include (1) the Originator's name, and (2) the Originator's phone number or email address for inquiries regarding authorization of Entries.

We are proposing to accept this amendment.

4. Dishonored Returns and Contested Dishonored Returns Related to an Unintended Credit to a Receiver

This amendment established the right of an ODFI to dishonor the Return of a debit Erroneous Entry if the Return Entry results in an unintended credit to the Receiver because (1) the Return Entry relates to a debit Erroneous Entry, (2) the ODFI has already originated a credit Reversing Entry to correct the Erroneous Entry, and (3) the ODFI has not received a Return of that credit Reversing Entry.

Similarly, under this amendment an ODFI may dishonor the Return of a debit Reversing Entry if the Return Entry results in an unintended credit to the Receiver because (1) the Return Entry relates to a debit Reversing Entry that was intended to correct a credit Erroneous Entry, and (2) the ODFI has not received a Return of that credit Erroneous Entry. The amendment requires an ODFI dishonoring a debit Return Entry under either of these conditions to warrant that it originated a Reversal in an effort to correct the original erroneous transaction and therefore is dishonoring the Return of the debit Erroneous Entry or the debit Reversing Entry, either of which causes an unintended credit to the Receiver. The amendment also establishes the right of an RDFI to contest this type of dishonored Return if either of the following conditions exists: (1) The RDFI returned both the Erroneous Entry and the related Reversal; or (2) the RDFI is unable to recover the funds from the Receiver.

We are proposing to accept this amendment.

5. Reclamation Entries—Corrections to Rules Governing Authorization

This amendment made several corrections to the rules governing the authorization of Reclamation Entries. These changes address technical and drafting discrepancies between Reversing Entries and Reclamation Entries in the NACHA Operating Rules and make the rules related to Reclamation Entries consistent with those for Reversing Entries to the extent possible.

We are proposing not to incorporate this amendment in Part 210. Part 210 generally excludes all NACHA Operating Rules relating to the reclamation of benefit payments because Part 210 contains specific provisions on the reclamation of Federal benefit payments. No revision to the text of Part 210 is required to exclude this amendment from Part 210 because the amendment modifies Section 2.10 of the NACHA Operating Rules, which is already inapplicable to the government under § 210.2(d)(2).

6. Incomplete Transaction Clarifications

The Incomplete Transaction Clarifications amendment recognizes certain ARC, BOC, and POP Entries to Non-Consumer Accounts as eligible for return under the Incomplete Transaction Rule. This change streamlines RDFIs' processing of ARC, BOC, and POP returns and improves their ability to comply with the NACHA Operating Rules by eliminating different processing requirements for unauthorized/improper consumer and non-consumer ARC, BOC, and POP Entries, which share the same Standard Entry Class Code. The change restores the RDFI's ability to rely solely on the Standard Entry Class Code when determining handling requirements for specific types of Entries. This amendment also added specific references to “consumer” Receivers, where appropriate, to add clarity regarding the scope of the Incomplete Transaction Rules.

This amendment modifies Article Three, Subsection 3.12.3 (Incomplete Transaction) to add the word “consumer” to clarify that the Receiver of an Incomplete Transaction is generally the owner of a consumer account, with one specific exception. The amendment also adds language to this subsection to state that an ARC, BOC, or POP Entry may also be considered an Incomplete Transaction regardless of whether the account that is debited is a Consumer Account or a Non-Consumer Account. The amendment made corresponding changes to the definition of an Incomplete Transaction in Article Eight, Section 8.50 and clarified that a Written Statement of Unauthorized Debit must be accepted for any Incomplete Transaction involving any ARC, BOC, or POP Entry.

We are proposing to accept this amendment.

7. Use of Tilde as Data Segment Terminator

This amendment corrected two IAT field descriptions, “Originator City and State/Province” and “Receiver City and State/Province,” to clarify that the tilde (“~”) is a valid data segment terminator.

We are proposing to accept this amendment.

8. Editorial Clarification—Non-Consumer Receiver's Obligation to Credit Originator's Account

This amendment revised the text and title of Article Three, Subsection 3.3.1.3 (Non-Consumer Receiver Must Credit Originator's Account) to make the section's intent clearer and easier to understand for ACH Network participants. This change was editorial in nature only.

We are proposing to accept this amendment.

9. Prenotification Entries—Reduction in Waiting Period for Live Entries

This amendment reduced the six banking-day waiting period between initiation of a Prenotification and “live” Entries for Originators choosing to originate Prenotes. This amendment also modified the NACHA Operating Rules related to Notifications of Change to clarify the Originator's obligations with respect to an NOC received in response to a Prenote. This change permits an Originator that has originated a Prenotification Entry to a Receiver's account to initiate subsequent Entries to the Receiver's account as soon as the third Banking Day following the Settlement Date of the Prenotification Entry, provided that the ODFI has not received a return or NOC related to the Prenotification.

We are proposing to accept this amendment.

10. Notification of Change—Removal of Change Code C04 (Incorrect Individual Name/Receiving Company Name)

This amendment removed the Notification of Change Code—C04 (Incorrect Individual Name/Receiving Company Name) from the NACHA Operating Rules. Change Code C04 (Incorrect Individual Name/Receiving Company Name) had been used by RDFIs to request a correction to the name of the Receiver indicated in an ACH Entry. As with any Notification of Change, the RDFI that transmitted an NOC with this change code warranted the accuracy of the corrected data (in this case, the Receiver's name). The Originator was then obligated to make the requested change within six banking days or prior to initiating a subsequent Entry, whichever is later.

In certain scenarios, the use of C04 created compliance and liability challenges for the Originator, ODFI, and RDFI. Generally speaking, an ACH transaction involves a mutual customer of both the Originator and the RDFI. In the event that the Receiver's name on a debit Entry was different from the name on the account, most RDFIs would either post the Entry based solely on the account number or return the transaction using Return Reason Code R03 (No Account/Unable to Locate Account). In some cases, RDFIs transmitted NOCs using Change Code C04 to instruct the Originator to change the Receiver's name on future Entries. The use of C04 presented additional risk to the RDFI and the ODFI and/or the Originator because the RDFI was warranting that the name change is accurate, but it did not always reflect the party with whom the Originator has the relationship. As a result, Originators were typically unable or unwilling to make the changes in accordance with their obligations under the NACHA Operating Rules. An Originator continuing to debit its customer without making the change warranted by the RDFI did so in violation of the current Rules, creating challenges and conflict for all parties. Eliminating Change Code C04 (Incorrect Individual Name/Receiving Company Name) removed the challenges and potential rules violations that Originators faced when they receive a request for a name change that they were unable to make. Under the amendment, an Originator can rely on its own contracts and records to properly identify the name of the Receiver being credited or debited without being in violation of the NACHA Operating Rules because of the failure to respond to an NOC.

Eliminating Change Code C04 (Incorrect Individual Name/Receiving Company Name) lessens the risk to the RDFI as it warrants that information contained in an NOC is correct. A change as significant as a name change should be accomplished through communication of the Receiver with the Originator so that the authorization held by the Originator is accurate. The RDFI that identifies a name mismatch can post the Entry based solely on the account number, return the Entry as R03, or choose to assist its Receiver by communicating directly with the ODFI/Originator. Any of these options should cause the Originator and the Receiver to communicate relating to needed changes while relieving the RDFI of the warranty that the information is correct.

We are proposing to accept this amendment.

11. ACH Operator Edit for Returns

This amendment incorporated an additional ACH Operator edit within the listing of ACH Operator file/batch reject edit criteria specified within Appendix Two of the NACHA Operating Rules. Specifically, this edit requires ACH Operators to reject any batch of Return Entries in which RDFI returns and ACH Operator returns are commingled. By definition, different parties are responsible for generating each type of return, and each must be separately identified within the Company/Batch Header Record as the sender of the batch. This ACH Operator edit codifies this fact within the NACHA Operating Rules and ensures consistent processing of return batches by all ACH Operators.

We are proposing to accept this amendment.

B. 2015 NACHA Operating Rules & Guidelines Book Changes

The 2015 edition of the NACHA Operating Rules contains changes related to the following amendments: 1

1 The 2015 Rules & Guidelines book also included two amendments addressed in the 2014 Rules & Guidelines book that had effective dates in 2015: (1) Dishonored Returns and Contested Dishonored Returns Related to an Unintended Credit to a Receiver and (2) Notification of Change—Removal of Change Code C04. Because those amendments are addressed in Section A above, we are not including them in Section B.

• ACH Network Risk and Enforcement;

• Improving ACH Network Quality—Unauthorized Entry Fee;

• Clarification on Company Identification for P2P WEB Credit Entries;

• Point-of-Sale Entries—Clarification of General Rule;

• Return Fee Entry Formatting Requirements;

• Entry Detail Record for Returns—Clarification Regarding POP Entries;

• Clarification of RDFI's Obligation to Recredit Receiver;

• Clarification on Prenotification Entries and Addenda Records; and

• ACH Operator Edit for Returns.

We are proposing to incorporate in Part 210 all of the foregoing amendments, which are summarized below, other than some provisions of the amendment relating to ACH Network Risk and Enforcement and the amendment on Improving ACH Network Quality—Unauthorized Entry Fee.

1. ACH Network Risk and Enforcement

This amendment expanded existing rules regarding ODFIs' and Third-Party Senders' requirements for risk management and origination practices, such as return rate levels. It also expanded NACHA's authority to initiate enforcement proceedings for a potential violation of the NACHA Operating Rules related to unauthorized Entries.

Return Rate Levels

The amendment reduced the threshold for unauthorized debit Entries (Return Reason Codes R05, R07, R10, R29, and R51) from 1.0 percent to 0.5 percent and also established two new return rate levels for other types of returns. First, a return rate level of 3.0 percent will apply to debit entries returned due to administrative or account data errors (Return Reason Codes R02—Account Closed; R03—No Account/Unable to Locate Account; and R04—Invalid Account Number Structure). Second, a return rate level of 15.0 percent will apply to all debit entries (excluding RCK entries) that are returned for any reason.

The amendment also established an inquiry process, which is separate and distinct from an enforcement proceeding, as a starting point to evaluate the origination activity of Originators and Third-Party Senders that reach the new administrative return and overall debit return rate levels. The identification of an Originator or Third-Party Sender with a return rate that is higher than the respective return rate level may trigger a review of the Originator's or Third-Party Sender's ACH origination procedures. At the conclusion of the inquiry, NACHA may determine that no further action is required, or it may take the next step and recommend to the ACH Rules Enforcement Panel that the ODFI be required to reduce the Originator's or Third-Party Sender's overall or administrative return rate below the established level.

In this new role, the ACH Rules Enforcement Panel will be the final authority in deciding, after the completion of the inquiry, whether the ODFI should be required to reduce the Originator's or Third-Party Sender's overall or administrative return rate. After reviewing NACHA's recommendation, the Panel can decide either to take no action, at which point the case would be closed, or to have NACHA send a written directive to the ODFI, which would require the reduction of the Originator's or Third-Party Sender's administrative or overall return rate.

We are proposing not to incorporate in Part 210 the provisions of the amendment relating to return rate levels. No change to the text of Part 210 is required to exclude these provisions because Part 210 already excludes Section 2.17 and Appendix 10, which is where the return rate level changes have been addressed in the NACHA Operating Rules.

Reinitiation of Entries

This amendment explicitly prohibited the reinitiation of Entries outside of the express limited circumstances under which they are permitted under the NACHA Operating Rules. The amendment also added a specific prohibition against reinitiating a transaction that was returned as unauthorized. The amendment further included an anti-evasion provision, specifying that any other Entry that NACHA reasonably believes represents an attempted evasion of the defined limitations will be treated as an improper reinitiation. The ACH Rules Enforcement Panel will have final authority in deciding whether a specific case involves an attempted evasion of the limitations on reinitiation.

To avoid unintended consequences from these clarifications, the amendment included two categories of Entries that will not be considered reinitiations. First, the amendment clarified that a debit Entry in a series of preauthorized recurring debit Entries will not be treated as a reinitiated Entry, even if the subsequent debit Entry follows a returned debit Entry, as long as the subsequent Entry is not contingent upon whether an earlier debit Entry in the series has been returned. Second, the amendment expressly stated that a debit Entry will not be considered a “reinitiation” if the Originator obtains a new authorization for the debit Entry after the receipt of the Return.

The amendment requires a reinitiated Entry to contain identical content in the following fields: Company Name, Company ID, and Amount. Further, the amendment permits modification to other fields only to the extent necessary to correct an error or facilitate processing of an Entry. This change allows reinitiations to correct administrative errors, but prohibits reinitiation of Entries that may be attempts to evade the limitation on the reinitiation of returned Entries by varying the content of the Entry. Finally, the amendment addressed certain technical issues associated with the reinitiation requirements.

We are proposing to accept the reinitiation provisions of the amendment.

Third-Party Sender Issues

The amendment added a direct obligation on Third-Party Senders to monitor, assess and enforce limitations on their customer's origination and return activities in the same manner the NACHA Operating require of ODFIs. Prior to this amendment, the NACHA Operating Rules required ODFIs to establish, implement, periodically review and enforce exposure limits for their Originators and Third-Party Senders. The ODFI was required to monitor each Originator's and Third-Party Sender's origination and return activity across multiple Settlement Dates, enforce restrictions on the types of Entries that may be originated and enforce the exposure limit. If an ODFI enters into a relationship with a Third-Party Sender that processes Entries such that the ODFI itself cannot or does not perform these monitoring and enforcement tasks with respect to the Originators serviced by the Third-Party Sender, the Third-Party Sender must do so. The amendment added a specific statement of this obligation.

We are proposing to accept the Third-Party Sender provisions of the amendment.

NACHA's Enforcement Authority

The amendment provided NACHA with the express authority to bring an enforcement action based on the origination of unauthorized entries. To ensure the judicious use of the expanded authority, the amendment requires the ACH Rules Enforcement Panel to validate the materiality of this type of enforcement case before NACHA can initiate any such proceeding. In addition, the amendment encourages RDFIs to voluntarily provide to NACHA information, such as return data, that may be indicative of a potential Rules violation for improper authorization practices by other ACH Network participants, even if the RDFI is not interested in itself initiating a Rules enforcement proceeding. Such early sharing of information regarding unusual return rates or unauthorized transactions can help eliminate improper activities more quickly.

We are proposing not to incorporate in Part 210 the provisions of the amendment that relate to NACHA's enforcement authority. Part 210 excludes the government from the risk investigation and enforcement provisions of the NACHA Operating Rules. Fiscal Service tracks unauthorized return rates for Federal agencies and will use the new unauthorized return limits and reinitiation limitations in overseeing agency ACH origination activity. No change to the text of Part 210 is required to exclude these provisions because Part 210 already excludes Appendix Ten of the NACHA Operating Rules, which governs rules enforcement.

2. Improving ACH Network Quality—Unauthorized Entry Fee

This amendment requires an ODFI to pay a fee to the RDFI for each ACH debit that is returned as unauthorized (return reason codes R05, R07, R10, R29 and R51). RDFIs will be compensated for a portion of the costs they bear for handling unauthorized transactions, and will experience reduced costs due to a reduction in unauthorized transactions over time. The amendment provides that ODFIs and RDFIs authorize debits and credits to their accounts for the collection and distribution of the fees. IAT transactions are not covered by the fee, but could be included in the future. The amendment defines a methodology by which NACHA staff will set and review every three years the amount of the Unauthorized Entry Fee. In setting the amount of the fee, NACHA staff will apply several stated principles, including the review of RDFI cost surveys. Based on the results of the current data collection on RDFIs' costs for handling unauthorized transactions, NACHA has estimated that the fee amount will be in the range of $3.50-$5.50 per return.

We are proposing not to incorporate this amendment in Part 210. Part 210 does not incorporate those provisions of the NACHA Operating Rules dealing with enforcement for noncompliance and the government therefore is not subject to fines for violation of the provisions of the ACH Rules. See 31 CFR part 210.2(d)(2), (3). Fiscal Service works with agencies to achieve Government-wide compliance with all ACH Rule requirements and tracks compliance, including returns of unauthorized debit entries. The number of such returns is low in relation to originated entries: in calendar year 2015, approximately 73,000 ACH debits originated by agencies were returned as unauthorized. Based on an estimated fee of $3.50-$5.50, the resulting cost to the government would be approximately $255,500-$401,500 per year. We do not believe it is in the public interest to subject the Treasury General Account to fines of this nature. Rather, we propose to work with agencies to monitor and reduce the number of unauthorized debit entries.

3. Clarification of Company Identification for Person-to-Person WEB Credit Entries

This amendment added language to the Company Identification field description to clarify content requirements for Person-to-Person (P2P) WEB credit Entries. For P2P WEB credit Entries, the Company/Batch Header Record identifies the P2P service provider (i.e., the consumer Originator's own financial institution or a third-party service provider) rather than the consumer Originator. Prior to the amendment, the NACHA Operating Rules specifically defined service provider content requirements for the Company Name field, but omitted the same clarification for the Company Identification, which is a related field. The purpose of the amendment was to eliminate any potential confusion over proper formatting of this field.

We are proposing to accept this amendment.

4. Point-of-Sale (POS) Entries—Clarification of General Rule

This amendment re-aligned the general rule for POS Entries with the definition of POS Entries in Article Eight. A POS Entry is generally considered to be a debit Entry initiated at an electronic terminal by a consumer to pay an obligation incurred in a point-of-sale transaction. However, a POS Entry can also be an adjusting or other credit Entry related to the debit Entry, transfer of funds, or obligation (for example, a credit to refund a previous point-of-sale transaction). Prior to the amendment, the definition of POS within the NACHA Operating Rules recognized these Entries as both debits and credits, but the general rule for POS identified POS Entries only as debits. This amendment corrected the discrepancy.

We are proposing to accept this amendment.

5. Return Fee Entry Formatting Requirements

This amendment modified the description of the Individual Name Field in a PPD Return Fee Entry related to a returned ARC, BOC, or POP Entry to require that it contain the same information identified within the original ARC, BOC, or POP Entry. The Individual Name Field is optional for ARC, BOC, and POP; therefore, this field (1) may include the Receiver's name, (2) may include a reference number, identification number, or code that the merchant needs to identify the particular transaction or customer, or (3) may be blank.

The name of the Receiver must be included in all PPD Entries. With ARC, BOC, or POP Entries, where a reading device must be used to capture the Receiver's routing number, account number, and check serial number, it is difficult for the Originator to capture the Receiver's name in an automated fashion. For this reason, the NACHA Operating Rules do not require Originators to include the Receiver's name in the ARC, BOC, or POP Entry Detail Record. Originators are permitted the choice of including either the Receiver's name, or a reference number, identification number, or code necessary to identify the transaction, or the field may be left blank. Because information contained within the returned ARC, BOC, or POP Entry is typically used to create a related Return Fee Entry, the Receiver's name is likely not readily available to the Originator for use in the Return Fee Entry, especially when the Receiver's authorization for the Return Fee Entry was obtained by notice. This amendment established consistent formatting requirements with respect to the Receiver's name for check conversion entries and related return fees.

We are proposing to accept this amendment.

6. Entry Detail Record for Returns—Clarification Regarding POP Entries

This amendment added a footnote to the Entry Detail Record for Return Entries to clarify the specific use of positions 40-54 with respect to the return of a POP Entry. On a forward POP Entry, positions 40-54 represent three separate fields to convey (1) the check serial number (positions 40-48); (2) the truncated name or abbreviation of the city or town in which the electronic terminal is located (positions 49-52); and (3) the state in which the electronic terminal is located (positions 53-54). However, these three fields are not explicitly identified in the Entry Detail Record for Return Entries, which caused some confusion among users as to how to map such information from the original forward Entry into the Return Entry format.

We are proposing to accept this amendment.

7. Clarification of RDFI's Obligation to Recredit Receiver

This amendment clarified that an RDFI's obligation to recredit a Receiver for an unauthorized or improper debit Entry is generally limited to Consumer Accounts, with certain exceptions for check conversion and international transactions. Prior to the NACHA Operating Rules simplification initiative in 2010, the rules governing a Receiver's right to recredit for unauthorized debit entries clearly limited this provision to debit Entries affecting Consumer Accounts, except as expressly provided for ARC, BOC, IAT, and POP Entries (which can affect both consumer and business accounts). However, when rules language was combined and revised during the simplification process into a general discussion on recredit, some of this clarity was lost, resulting in language that was somewhat ambiguous and the cause of confusion for some ACH participants. This change more clearly defines the intent of the rule requirement for an RDFI to recredit a Receiver.

We are proposing to accept this amendment.

8. Clarification of Prenotification Entries and Addenda Records

This amendment revised the NACHA Operating Rules to clarify that, with the exception of IAT Entries, a prenotification Entry is not required to include addenda records that are associated with a subsequent live Entry. Generally speaking, the format of a Prenotification Entry must be the same as the format of a live dollar Entry. There are, however, some differences between Prenotes and live Entries to which the Prenotes relate:

• The dollar amount of a Prenotification Entry must be zero;

• a Prenotification Entry is identified by a unique transaction code; and

• addenda records associated with a live Entry are not required with Prenotes (unless the Prenote relates to an IAT Entry).

While the first two formatting criteria above for Prenotification Entries are clearly defined within the technical standards and are commonly understood by industry participants, the issue of whether Prenotification Entries require addenda records was somewhat ambiguous. The amendment eliminated that ambiguity.

We are proposing to accept this amendment.

9. ACH Operator Edit for Returns

This amendment incorporated an additional ACH Operator edit within the listing of ACH Operator file/batch reject edit criteria specified within Appendix Two of the NACHA Operating Rules. Specifically, this edit requires ACH Operators to reject any batch of Return Entries in which RDFI returns and ACH Operator returns are commingled. By definition, different parties are responsible for generating each type of return, and each must be separately identified within the Company/Batch Header Record as the sender of the batch. This ACH Operator edit codifies this fact and ensures consistent processing of return batches by all ACH Operators.

We are proposing to accept this amendment.

C. 2016 NACHA Operating Rules & Guidelines Book Changes

The 2016 edition of the NACHA Operating Rules & Guidelines contains changes related to the following amendments: 2

2 The 2016 Rule Book also codified changes related to the rule NACHA adopted in 2015 on Improving ACH Network Quality (Unauthorized Entry Fee), which is addressed above in Section B—2015 NACHA Operating Rule Book Changes.

• Same-Day ACH: Moving Payments Faster;

• Disclosure Requirements for POS Entries;

• Recrediting Receiver—Removal of Fifteen Calendar Day Notification Time Frame;

• Clarification of RDFI Warranties for Notifications of Change; and

• Minor Rules Topics.

We are proposing to incorporate in Part 210 all of the foregoing amendments except that we are proposing to delay our implementation of Same-Day ACH as discussed below.

1. Same-Day ACH: Moving Payments Faster

This amendment will allow for same-day processing of ACH payments. Currently, the standard settlement period for ACH transactions is one or two business days after processing. The Same-Day ACH amendment will enable the option for same-day processing and settlement of ACH payments through new ACH Network functionality without affecting existing ACH schedules and capabilities. Originators that desire same-day processing will have the option to send Same Day ACH Entries to accounts at any RDFI. All RDFIs will be required to receive Same-Day ACH Entries, which gives ODFIs and Originators the certainty of being able to send same day ACH Entries to accounts at all RDFIs in the ACH Network. The amendment includes a “Same-Day Entry fee” on each Same-Day ACH transaction to help mitigate RDFI costs for supporting Same-Day ACH.

The amendment has a phased implementation period, spreading from 2016 to 2018, with the following effective dates:

• Phase 1—September 23, 2016: ACH credits will be eligible to be processed during two new Same-Day ACH windows with submission deadlines at 10:30 a.m. ET and 2:45 p.m. ET, with settlement occurring at 1:00 p.m. ET and 5:00 p.m. ET, respectively. RDFIs will be required to provide funds availability by the end of the RDFI's processing day. Applicable to ACH credits only and non-monetary Entries, with funds availability due at the end of the RDFI's processing day.

• Phase 2—September 15, 2017: ACH debits will become eligible for same-day processing during the two new Same-Day windows.

• Phase 3—March 16, 2018: RDFIs will be required to provide funds availability for same day credits no later than 5:00 p.m. at the RDFI's local time.

The existing next-day ACH settlement window of 8:30 a.m. ET will not change. With the addition of the new Same-Day ACH processing windows, the ACH Network will provide three opportunities for ACH settlement each day.

Payment Eligibility

Virtually all types of ACH payments will be eligible for same-day processing by the end of the implementation period. The only ACH transactions ineligible for same-day processing will be IAT transactions and individual transactions over $25,000.

In addition to credits and debits, the ACH Network supports a number of transaction types that do not transfer a dollar value. Non-monetary transactions include Prenotifications; Notifications of Change (NOCs); Zero Dollar Entries that convey remittance information using CCDs and CTXs; and Death Notification Entries. With the exception of Prenotifications for future debit Entries, these non-monetary transactions will be eligible for same-day processing from the outset. Automated Enrollment Entries (ENRs) do not use Effective Entry Dates. Since there will not be a way to distinguish same day ENR Entries from next-day Entries, ENRs will not be processed as same day transactions.

Identification of Same-Day Transactions via the Effective Entry Date

Same-Day ACH transactions will be identified by the ODFI and its Originator by using the current day's date in the Effective Entry Date field of the Company/Batch Header Record. (Note: The NACHA Operating Rules define the Effective Entry Date as “the date specified by the Originator on which it intends a batch of Entries to be settled.”) In addition, transactions intended for same-day processing that carry a current day Effective Entry Date will need to meet an ACH Operator's submission deadline for same-day processing. For example, transactions originated on Monday, October 10, 2016 that are intended for same-day processing must have an Effective Entry Date of “161010” in the Company/Batch Header Record and be submitted to an ACH Operator no later than the 2:45 p.m. ET deadline to ensure same-day settlement. Any Entry carrying the current day's date in the Effective Entry Date field that is submitted prior to an ACH Operator's same-day processing submission deadline will be handled as a Same-Day ACH transaction and assessed the Same-Day Entry fee.

Stale or Invalid Effective Entry Dates

In the current processing environment, any batch of Entries submitted to an ACH Operator that contains an Effective Entry Date that is invalid or stale (in the past) is processed at the next settlement opportunity, which is currently the next banking day. With the arrival of same-day processing, the same protocol will apply. ACH transactions submitted to an ACH Operator with stale or invalid Effective Entry Dates will be settled at the earliest opportunity, which could be the same-day. If the transactions are submitted prior to the close of the second same-day processing window at 2:45 p.m. ET, the Entries will be settled the same-day and the Same-Day Entry fee will apply. If the transactions are submitted to the ACH Operator after 2:45 p.m. ET, the Entries will be settled the next day and the Same-Day Entry fee will not apply.

Return Entry Processing

The amendment allows same-day processing of return Entries at the discretion of the RDFI, whether or not the forward Entry was a Same-Day ACH transaction. Any return Entry will be eligible for settlement on a same-day basis; the $25,000 per transaction limit and IAT restriction will not apply. Because returns are initiated and flow from RDFI to ODFI, return Entries processed on a same-day basis will not be subject to the Same-Day Entry fee. RDFIs will not be required to process returns on the same-day that the forward Entry is received. The existing return time frame (the return Entry must be processed in such time that it is made available to the ODFI no later than the opening of business on the second banking day following the Settlement Date of the original Entry) will still be applicable. RDFIs will have the option of using any of the available settlement windows for returns, as long as the existing return time frame is met.

Same-Day Entry Fee

In order to ensure universal reach to any account at any RDFI, all RDFIs must implement Same-Day ACH. To assist RDFIs in recovering costs associated with enabling same-day transactions, the amendment includes a fee paid from the ODFI to the RDFI for each Same-Day ACH Entry. The fee provides a mechanism to help RDFIs mitigate investment and operating expenses and provide a fair return on their required investments. The initial Same-Day Entry fee is set at 5.2 cents per Same Day Entry. The fee will be assessed and collected by the ACH Operators through their established monthly billing. The Rule includes a methodology to measure the effectiveness of the Same-Day Entry fee at five, eight and ten full years after implementation. After each review, the Same-Day Entry fee could be maintained or lowered, but not increased.

We are proposing to accept the Same-Day amendment but with delayed implementation of NACHA's Phase 1 implementation date where the government is receiving Same-Day credit Entries. Fiscal Service plans to enable agencies to originate Same-Day Entries in appropriate situations and will work with agencies to develop and publish guidance outlining the criteria and procedures to be used for originating Same-Day Entries. Fiscal Service believes that Same-Day credit Entries may be useful to agencies that need to make certain emergency or time-sensitive payments, including payments not exceeding $25,000 that are currently made by Fedwire. We believe that the majority of ACH credit Entries originated by the government are not suitable for same-day processing in light of the fee payable for Same-Day Entries, and therefore we anticipate that the government's origination of Same-Day Entries will be limited. We plan to publish guidance for agencies that will set forth both the criteria and the procedure for certifying a Same-Day ACH transaction. That guidance will indicate whether agencies should indicate their intent for same-day processing and settlement solely by utilizing the Effective Entry Date, or may also utilize the optional standardized content in the Company Descriptive Date field as a same-day transaction indicator.

With regard to Same-Day ACH credit Entries received by the Federal Government, we are proposing to begin processing those Same-Day Entries on a same-day basis beginning no earlier than August 30, 2017 rather than on NACHA's Phase 1 implementation date of September 23, 2016. This delayed implementation date reflects coding and reporting changes and testing that must be undertaken to enable the processing of incoming Same-Day credit Entries by Fiscal Service's ACH credit processing systems. Any ACH credit Entry received by the U.S. government prior to August 30, 2017, will not be eligible for same-day settlement and will continue to settle on a future date (typically the next banking day) regardless of submission date and time. We are not proposing any delay to the NACHA Same-Day ACH amendment's Phase 2 or Phase 3 implementation dates for the Government's same-day processing.

The 2016 NACHA Operating Rules incorporate in the rule text only those provisions of the Same-Day ACH amendment that have effective dates in 2016. However, in order to provide advance notice of the impact of the Phase 2 and 3 implementations, the 2016 Rules Book sets forth the sections of the NACHA Operating Rules affected by the Same-Day ACH amendment as they will read upon implementation in 2017 and 2018.

We are proposing to incorporate in Part 210 the future changes relating to the Same-Day ACH amendment's Phase 2 and 3 implementation provisions scheduled for 2017 and 2018 as they appear in the 2016 NACHA Operating Rules & Guidelines book.

2. Disclosure Requirements for POS Entries

This amendment established an Originator/Third-Party Service Provider obligation to provide consumer Receivers with certain disclosures when providing those consumers with cards used to initiate ACH Point of Sale (POS) Entries. The amendment requires Originators or Third-Party Service Providers that issue ACH cards (or their virtual, non-card equivalent, collectively referred to as “ACH Cards”) to make the following disclosures in written or electronic, retainable form to a consumer prior to activation:

• The ACH Card is not issued by the consumer's Depository Financial Institution.

• POS Entries made with the ACH Card that exceed the balance in the consumer's financial institution account may result in overdrafts and associated fees, regardless of whether the consumer has opted to allow overdrafts with respect to debit cards issued by the Depository Financial Institution that holds the consumer's account.

• Benefits and protections for transactions made using the ACH Card may vary from those available through debit cards issued by the consumer's Depository Financial Institution.

The amendment included sample language for Originators or Third-Party Service Providers to consider in designing an ACH Card disclosure for purposes of compliance with the NACHA Operating Rules. This amendment will not affect Agencies because they do not issue ACH Cards.

We are proposing to accept this amendment.

3. Recrediting Receiver—Removal of Fifteen Calendar Day Notification Time Frame

This amendment removed the fifteen calendar day notification period associated with an RDFI's obligation to promptly recredit a consumer account for an unauthorized debit Entry, and aligned the RDFI's recredit obligation with its ability to transmit an Extended Return Entry. Because of the extended return window for unauthorized consumer debits under the NACHA Operating Rules, prior to the amendment many RDFIs found the reference to the fifteen calendar day timing to be a source of confusion and misunderstanding. The amendment revised the NACHA Operating Rules to align the provision for prompt recredit with the RDFI's receipt of a Written Statement of Unauthorized Debit from the consumer and the RDFI's ability to transmit an Extended Return Entry (i.e., transmitted to the ACH Operator so that the Extended Return Entry is made available to the ODFI no later than opening of business on the banking day following the sixtieth calendar day following the settlement date of the original Entry). This change applies to unauthorized/improper entries bearing Standard Entry Class Codes (SECs) that are classified as consumer entries, as well as those that can be both consumer and non-consumer entries (ARC, BOC, POP, and IAT debit entries).

We are proposing to accept this amendment.

4. Clarification of RDFI Warranties for Notifications of Change

This amendment modified the NACHA Operating Rules with respect to Notifications of Change (NOCs) to clarify aspects of: (1) The RDFI's warranties made with respect to its transmission of a Notification of Change or Corrected Notification of Change; and (2) the ODFI's warranties made with respect to usage of the corrected data within subsequent transactions. Specifically, the amendment clarified that the RDFI's warranty for information contained in a Notification of Change or Corrected Notification of Change is applicable only to the corrected information supplied by the RDFI.

This modification removed from the RDFI's warranty on NOCs the specific statement that the Receiver has authorized the change identified in the NOC, if the Receiver's authorization is required. This subsection has been misinterpreted to mean that it supersedes the ODFI's warranty that a subsequent Entry is properly authorized by the Receiver. The RDFI does not warrant that the Entry itself has been properly authorized by the Receiver, but only that the data supplied in the Corrected Data field is accurate. The warranty that any Entry (including a subsequent Entry that uses corrected data from an NOC) is properly authorized still lies with the ODFI per Article Two, Subsection 2.4.1.1 (The Entry is Authorized by the Originator and Receiver).

We are proposing to accept this amendment.

5. Minor Rules Topics

These amendments changed four areas of the NACHA Operating Rules to address minor topics. Minor changes to the NACHA Operating Rules have little-to-no impact on ACH participants and no significant economic impact.

i. Clarification of ODFI Periodic Statement Requirements for CIE and WEB Credits

This amendment made minor, editorial clarifications to the language within Article Two, Subsections 2.5.4.2 (ODFI to Satisfy Periodic Statement Requirement) and 2.5.17.6 (ODFI to Satisfy Periodic Statement Requirement for Credit WEB Entries) to clarify the intent of language governing an ODFI's periodic statement obligations with respect to the origination of CIE and credit WEB Entries by consumers.

Periodic statement requirements typically are an obligation of the RDFI for the receipt of Entries to a consumer account. For CIE and WEB credits, however, the Originator of the ACH credit also is a consumer, thus putting periodic statement requirements on the ODFI as well for these entries. These clarifications do not affect the substance of the ODFI's obligation to identify on the consumer Originator's periodic statement the date, amount, and description of a transaction involving the consumer's account; rather, they simply recognize that the debiting of the consumer's account to provide funds for the CIE or WEB credit could be accomplished by something other than an ACH debit.

We are proposing to accept this amendment.

ii. Clarifying the Commercially Reasonable Encryption Standard

The NACHA Operating Rules require ACH participants to utilize a commercially reasonable standard of encryption technology when transmitting any banking information related to an Entry via an Unsecured Electronic Network. This amendment removed the reference to 128-bit encryption technology as the minimum acceptable commercially reasonable standard, but retained the general reference to using a commercially reasonable level of encryption. The amendment also clarified that a commercially reasonable level of security must comply with current, applicable regulatory guidelines, which already impose more rigorous encryption obligations.

Prior to the amendment the NACHA Operating Rules established a minimum for this commercially reasonable encryption standard at the 128-bit RC4 encryption technology level. A task force of NACHA's former Internet Council, comprised of technology expert members, recommended that the specific reference to 128-bit RC4 encryption be removed, on the grounds that it is now out of date as a commercially reasonable standard.

We are proposing to accept this amendment.

iii. Definition of Zero-Dollar Entry

This amendment reintroduced the definition of a Zero-Dollar Entry within Article Eight (Definitions of Terms Used in These Rules) to correspond to unique technical references in the Appendices of the NACHA Operating Rules. Zero Dollar Entries are unique in that, although their dollar amount is zero, they bear remittance data that must be provided to the Receiver in an identical manner as “live” entries that transfer funds. The definition was removed in 2010 when the definition of a “Non-Monetary Entry” was introduced into the NACHA Operating Rules.

We are proposing to accept this amendment.

iv. Expansion of Permissible Criteria for ODFI Requests for Return

In addition to being able to request the return of an Erroneous Entry, as permitted by the NACHA Operating Rules, this amendment revised the NACHA Operating Rules to permit an ODFI to request that an RDFI return any Entry that the ODFI claims was originated without the authorization of the Originator. This amendment also expanded the description of Return Reason Code R06 (Returned per ODFI's Request) to include Entries returned by the RDFI for this reason. This newly permissible circumstance reflects actual current industry practice with regard to the recovery of funds related to unauthorized credit origination.

Use of the ODFI Request for Return process is always optional on the part of both ODFIs and RDFIs. An RDFI will continue to be able to make its own business decision about whether to agree to return an Entry that the ODFI claims was originated without the authorization of the Originator. An RDFI responding to a request for the return of such an Entry will be indemnified under the NACHA Operating Rules against loss or liability by the ODFI.

We are proposing to accept this amendment.

D. Notification of Reversals

NACHA Operating Rule 2.9.1 requires that the Originator of a Reversing Entry make a reasonable attempt to notify the Receiver of the Reversing Entry and the reason for the Reversing Entry no later than the settlement date of the Entry. In attempting to contact Receivers regarding the reversal of a duplicate or erroneous Entry on behalf of federal agencies, Fiscal Service has found that efforts to reach Receivers, typically through the RDFI, are often unsuccessful. Adhering to the notification requirement also impedes the timeliness and efficiency of originating reversals, which is disadvantageous both for Fiscal Service and for Receivers. Accordingly, we are proposing to exclude this requirement from incorporation in Part 210.

We request comment on whether this exclusion raises any concerns for Receivers or RDFIs.

E. Prepaid Cards

In 2010, Fiscal Service amended Part 210 to establish requirements that prepaid cards receiving Federal payments must meet. 75 FR 80335. To be eligible to receive Federal payments, a prepaid card must meet four conditions: (1) The card account must be held at an insured financial institution; (2) the account be set up to meet the requirements for pass through deposit or share insurance under 12 CFR part 330 or 12 CFR part 745; (3) the account may not be attached to a line of credit or loan agreement under which repayment from the card account is triggered by delivery of the Federal payment; and (4) the issuer of the card must comply with all of the requirements, and provide the Federal payment recipient with the same consumer protections, that apply to a payroll card under regulations implementing the Electronic Fund Transfer Act, 15 U.S.C. 1693a(1). See 31 CFR 210.5(b)(5)(i).

We required that prepaid cards provide Regulation E payroll card protections because when our prepaid rule was issued in 2010, Regulation E did not cover any prepaid cards other than payroll cards. However, on October 5, 2016, the Consumer Financial Protection Bureau (CFPB) released its final rule to amend Regulation E to cover prepaid accounts. We are therefore proposing to amend our prepaid rule to replace the reference in 210.5(b)(5)(i)(D) to “payroll card” with a reference to “prepaid account,” so that the requirement would read: “The issuer of the card complies with all of the requirements, and provides the holder of the card with all of the consumer protections, that apply to a prepaid account under the rules implementing the Electronic Fund Transfer Act, as amended.” We would also delete the definition of “payroll card account” from the rule because it would be unnecessary. These changes would be effective on the effective date of the CFPB's final rule. We request comment on this proposed amendment.

III. Section-by-Section Analysis

In order to incorporate in Part 210 the NACHA Operating Rule changes that we are accepting, we are replacing references to the 2013 NACHA Rules & Guidelines book with references to the 2016 NACHA Operating Rules & Guidelines book. Several of the NACHA Operating Rule amendments that we are not proposing to incorporate are modifications to provisions of the NACHA Operating Rules that are already excluded under Part 210. Other than replacing the references to the 2013 NACHA Operating Rules & Guidelines book, no change to Part 210 is necessary to exclude those amendments.

§ 210.2

We are proposing to amend the definition of “applicable ACH Rules” at § 210.2(d) to reference the rules published in NACHA's 2016 Rules & Guidelines book rather than the rules published in NACHA's 2013 Rules & Guidelines book. The definition has been updated to reflect the reorganization and renumbering of the NACHA Operating Rules. A reference to Section 1.11 of the NACHA Operating Rules is added to § 210.2(d)(1) in order to exclude from Part 210 the imposition of fees for ACH debits that are returned as unauthorized. The reference in § 210.2(d)(6) to the NACHA Operating Rule governing International ACH Transactions section has been updated by replacing an obsolete reference to ACH Rule 2.11 with the correct reference to Section 2.5.8. A new paragraph (7) is added to § 210.2(d) to exclude from Part 210 the requirement to make a reasonable attempt to notify the Receiver of a Reversing Entry under Subsection 2.9.1 of the NACHA Operating Rules. A new paragraph (8) is added to exclude from Part 210, until July 1, 2017, the provisions of Subsection 3.3.1.1, Section 8.99 and Appendix Three (definition of Effective Entry Date) that require an RDFI to make the amount of a credit Same-Day Entry available no later than the completion for that Settlement Date.

§ 210.3(b)

We are proposing to amend § 210.3(b) by replacing the references to the ACH Rules as published in the 2013 Rules & Guidelines book with references to the ACH Rules as published in the 2016 NACHA Operating Rules & Guidelines book.

§ 210.6

In § 210.6 we are proposing to replace the reference to ACH Rule 2.4.4 with a reference to ACH Rule 2.4.5 to reflect the re-numbering of ACH Rule 2.4.4. This change is not substantive.

§ 210.8

In § 210.8(b) we are proposing to replace the reference to ACH Rule 2.4.4 with a reference to ACH Rule 2.4.5 to reflect the re-numbering of ACH Rule 2.4.4. This change is not substantive.

IV. Incorporation by Reference

In this rule, Fiscal Service is proposing to incorporate by reference the 2016 NACHA Operating Rules & Guidelines book. The Office of Federal Register (OFR) regulations require that agencies discuss in the preamble of a proposed rule ways that the materials the agency proposes to incorporate by reference are reasonably available to interested parties or how it worked to make those materials reasonably available to interested parties. In addition, the preamble of the proposed rule must summarize the material. 1 CFR 51.5(a). In accordance with OFR's requirements, the discussion in the Supplementary Information section summarizes the 2016 NACHA Operating Rules. Financial institutions utilizing the ACH Network are bound by the NACHA Operating Rules and have access to the NACHA Operating Rules in the course of their everyday business. The NACHA Operating Rules are available as a bound book or in online form from NACHA—The Electronic Payments Association, 2550 Wasser Terrace, Suite 400, Herndon, Virginia 20171, tel. 703-561-1100, [email protected]

V. Procedural Analysis Request for Comment on Plain Language

Executive Order 12866 requires each agency in the Executive branch to write regulations that are simple and easy to understand. We invite comment on how to make the proposed rule clearer. For example, you may wish to discuss: (1) Whether we have organized the material to suit your needs; (2) whether the requirements of the rule are clear; or (3) whether there is something else we could do to make the rule easier to understand.

Regulatory Planning and Review

The proposed rule does not meet the criteria for a “significant regulatory action” as defined in Executive Order 12866. Therefore, the regulatory review procedures contained therein do not apply.

Regulatory Flexibility Act Analysis

It is hereby certified that the proposed rule will not have a significant economic impact on a substantial number of small entities. The proposed rule imposes on the Federal government a number of changes that NACHA—The Electronic Payments Association, has already adopted and imposed on private sector entities that utilize the ACH Network. The proposed rule does not impose any additional burdens, costs or impacts on any private sector entities, including any small entities. Accordingly, a regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is not required.

Unfunded Mandates Act of 1995

Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532 (Unfunded Mandates Act), requires that the agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires the agency to identify and consider a reasonable number of regulatory alternatives before promulgating the rule. We have determined that the proposed rule will not result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, we have not prepared a budgetary impact statement or specifically addressed any regulatory alternatives.

List of Subjects in 31 CFR Part 210

Automated Clearing House, Electronic funds transfer, Financial institutions, Fraud, and Incorporation by reference.

Words of Issuance

For the reasons set out in the preamble, we propose to amend 31 CFR part 210 as follows:

PART 210—FEDERAL GOVERNMENT PARTICIPATION IN THE AUTOMATED CLEARING HOUSE 1. The authority citation for part 210 continues to read as follows: Authority:

5 U.S.C. 5525; 12 U.S.C. 391; 31 U.S.C. 321, 3301, 3302, 3321, 3332, 3335, and 3720.

2. In § 210.2, revise paragraph (d) to read as follows:
§ 210.2 Definitions.

(d) Applicable ACH Rules means the ACH Rules with an effective date on or before March 16, 2018, as published in “2016 NACHA Operating Rules & Guidelines: A Complete Guide to Rules Governing the ACH Network” and supplements thereto, except:

(1) Section 1.11; Subsections 1.2.2, 1.2.3, 1.2.4, 1.2.5 and 1.2.6; Appendix Seven; Appendix Eight; Appendix Nine and Appendix Ten (governing the enforcement of the ACH Rules, including self-audit requirements, and claims for compensation);

(2) Section 2.10 and Section 3.6 (governing the reclamation of benefit payments);

(3) The requirement in Appendix Three that the Effective Entry Date of a credit entry be no more than two Banking Days following the date of processing by the Originating ACH Operator (see definition of “Effective Entry Date” in Appendix Three);

(4) Section 2.2 (setting forth ODFI obligations to enter into agreements with, and perform risk management relating to, Originators and Third-Party Senders) and Section 1.6 (Security Requirements);

(5) Section 2.17 (requiring reporting and reduction of high rates of entries returned as unauthorized);

(6) The requirements of Section 2.5.8 (International ACH Transactions) shall not apply to entries representing the payment of a Federal tax obligation by a taxpayer;

(7) The requirement to make a reasonable attempt to notify the Receiver of a Reversing Entry under Subsection 2.9.1; and

(8) Until August 30, 2017, the provisions of Subsection 3.3.1.1, Section 8.99 and Appendix Three (definition of Effective Entry Date) that require an RDFI to make the amount of a credit Same-Day Entry available no later than the completion for that Settlement Date.

3. In § 210.3, revise paragraph (b) to read as follows:
§ 210.3 Governing law.

(b) Incorporation by reference—applicable ACH Rules.

(1) This part incorporates by reference the applicable ACH Rules, including rule changes with an effective date on or before March 16, 2018, as published in the “2016 NACHA Operating Rules & Guidelines: A Complete Guide to Rules Governing the ACH Network,” and supplements thereto. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the “2016 NACHA Operating Rules & Guidelines” are available from NACHA—The Electronic Payments Association, 2550 Wasser Terrace, Suite 400, Herndon, Virginia 20171, tel. 703-561-1100, [email protected] Copies also are available for public inspection at the Office of the Federal Register, 800 North Capitol Street NW., Suite 700, Washington, DC 20002; and the Bureau of the Fiscal Service, 401 14th Street SW., Room 400A, Washington, DC 20227.

(2) Any amendment to the applicable ACH Rules approved by NACHA—The Electronic Payments Association after publication of the 2016 NACHA Operating Rules & Guidelines shall not apply to Government entries unless the Service expressly accepts such amendment by publishing notice of acceptance of the amendment to this part in the Federal Register. An amendment to the ACH Rules that is accepted by the Service shall apply to Government entries on the effective date of the rulemaking specified by the Service in the Federal Register notice expressly accepting such amendment.

4. Revise § 210.6 to read as follows:
§ 210.6 Agencies.

Notwithstanding any provision of the ACH Rules, including Subsections 2.4.5, 2.8.4, 4.3.5, 2.9.2, 3.2.2, and 3.13.3, agencies shall be subject to the obligations and liabilities set forth in this section in connection with Government entries.

(a) Receiving entries. An agency may receive ACH debit or credit entries only with the prior written authorization of the Service.

(b) Liability to a recipient. An agency will be liable to the recipient for any loss sustained by the recipient as a result of the agency's failure to originate a credit or debit entry in accordance with this part. The agency's liability shall be limited to the amount of the entry(ies).

(c) Liability to an originator. An agency will be liable to an Originator or an ODFI for any loss sustained by the originator or ODFI as a result of the agency's failure to credit an ACH entry to the agency's account in accordance with this part. The agency's liability shall be limited to the amount of the entry(ies).

(d) Liability to an RDFI or ACH association. Except as otherwise provided in this part, an agency will be liable to an RDFI for losses sustained in processing duplicate or erroneous credit and debit entries originated by the agency. An agency's liability shall be limited to the amount of the entry(ies), and shall be reduced by the amount of the loss resulting from the failure of the RDFI to exercise due diligence and follow standard commercial practices in processing the entry(ies). This section does not apply to credits received by an RDFI after the death or legal incapacity of a recipient of benefit payments or the death of a beneficiary as governed by subpart B of this part. An agency shall not be liable to any ACH association.

(e) Acquittance of the agency. The final crediting of the amount of an entry to a recipient's account shall constitute full acquittance of the Federal Government.

(f) Reversals. An agency may reverse any duplicate or erroneous entry, and the Federal Government may reverse any duplicate or erroneous file. In initiating a reversal, an agency shall certify to the Service that the reversal complies with applicable law related to the recovery of the underlying payment. An agency that reverses an entry shall indemnify the RDFI as provided in the applicable ACH Rules, but the agency's liability shall be limited to the amount of the entry. If the Federal Government reverses a file, the Federal Government shall indemnify the RDFI as provided in the applicable ACH Rules, but the extent of such liability shall be limited to the amount of the entries comprising the duplicate or erroneous file. Reversals under this section shall comply with the time limitations set forth in the applicable ACH Rules.

(g) Point-of-purchase debit entries. An agency may originate a Point-of-Purchase (POP) entry using a check drawn on a consumer or business account and presented at a point-of-purchase. The requirements of ACH Rules Subsections 2.3.2.2 and 2.5.10.1 shall be met for such an entry if the Receiver presents the check at a location where the agency has posted the notice required by the ACH Rules and has provided the Receiver with a copy of the notice.

(h) Return Fee Entry. An agency that has authority to collect returned item service fees may do so by originating a Return Fee Entry if the agency provides notice to the Receiver in accordance with the ACH Rules.”

5. In § 210.8, revise paragraphs (a) and (b) to read as follows:
§ 210.8 Financial institutions.

(a) Status as a Treasury depositary. The origination or receipt of an entry subject to this part does not render a financial institution a Treasury depositary. A financial institution shall not advertise itself as a Treasury depositary on such basis.

(b) Liability. Notwithstanding ACH Rules Subsections 2.4.5, 2.8.4, 4.3.5, 2.9.2, 3.2.2, and 3.13.3, if the Federal Government sustains a loss as a result of a financial institution's failure to handle an entry in accordance with this part, the financial institution shall be liable to the Federal Government for the loss, up to the amount of the entry, except as otherwise provided in this section. A financial institution shall not be liable to any third party for any loss or damage resulting directly or indirectly from an agency's error or omission in originating an entry. Nothing in this section shall affect any obligation or liability of a financial institution under Regulation E, 12 CFR part 1005, or the Electronic Funds Transfer Act, 12 U.S.C. 1693 et seq.

Dated: November 23, 2016. David A. Lebryk, Fiscal Assistant Secretary.
[FR Doc. 2016-28671 Filed 11-29-16; 8:45 am] BILLING CODE 4810-AS-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR 180 [EPA-HQ-OPP-2015-0032; FRL-9954-06] Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of filing of petitions and request for comment.

SUMMARY:

This document announces the Agency's receipt of several initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.

DATES:

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

ADDRESSES:

Submit your comments, identified by the docket identification (ID) number and the pesticide petition number (PP) of interest as shown in the body of this document, by one of the following methods:

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

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

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

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

FOR FURTHER INFORMATION CONTACT:

Michael L. Goodis, Acting Director, Registration Division (RD) (7505P), main telephone number: (703) 305-7090; email address: [email protected]; or Robert McNally, Director, Biopesticides and Pollution Prevention Division (7511P); main number (703) 305-7090; email address: [email protected] The mailing address for each contact person is: Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. As part of the mailing address, include the contact person's name, division, and mail code. The division to contact is listed at the end of each pesticide petition summary.

SUPPLEMENTARY INFORMATION:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT for the division listed at the end of the pesticide petition summary of interest.

B. What should I consider as I prepare my comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

II. What action is the Agency taking?

EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available at http://www.regulations.gov.

As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petitions so that the public has an opportunity to comment on these requests for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petitions may be obtained through the petition summaries referenced in this unit.

New Tolerances

1. PP 6E8462. (EPA-HQ-OPP-2016-0365). Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419, requests to establish an import tolerance in 40 CFR part 180 for residues of the herbicide trinexapac-ethyl: 4-(cyclopropyl-α-hydroxy-methylene)-3,5-dioxo-cyclohexanecarboxylic acid ethyl ester expressed as its primary metabolite CGA-179500: 4-(cyclopropyl-α-hydroxy-methylene)-3,5-dioxo-cyclohexanecarboxylic acid in or on poppy, seed at 8 parts per million (ppm). The Syngenta Crop Protection Analytical Method GRM020.01A is used to measure and evaluate the chemical trinexapac-ethyl expressed as its major metabolite CGA-179500. Contact: RD.

2. PP 6E8488. (EPA-HQ-OPP-2016-0384). Interregional Research Project No. 4 (IR-4) Project Headquarters, Rutgers, The State University of NJ, 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to establish a tolerance in 40 CFR part 180 for residues of the herbicide quinclorac, 3,7-dichloro-8-quinolinecarboxylic acid in or on asparagus at 0.06 ppm; the bushberry subgroup 13-07B, except lowbush blueberry at 0.6 ppm; and the caneberry subgroup 13-07A at 0.06 ppm. Adequate analytical methods gas chromatography/electron capture detector (GC/ECD) are available for enforcing quinclorac tolerances on plant (BASF Method A8902) and livestock (BASF Method 268/1) commodities. Contact: RD.

3. PP 6E8492. (EPA-HQ-OPP-2016-0495). Interregional Research Project No. 4 (IR-4) Project Headquarters, Rutgers, The State University of NJ, 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to establish a tolerance in 40 CFR part 180 for residues of prometryn in or on the raw agricultural commodity lettuce at 0.5 ppm; cottonseed subgroup 20C at 0.25 ppm; fennel, Florence at 0.5 ppm; leaf petiole vegetable subgroup 22B at 0.5 ppm; sesame, oil at 0.12 ppm; sesame, seed at 0.05 ppm; and Swiss chard at 0.5 ppm. A gas chromatography analytical method is available for enforcement purposes. The method determines residues of prometryn in/on plants using a microcoulometric sulfur detection system. Contact: RD.

4. PP 6E8498. (EPA-HQ-OPP-2016-0563). Bayer CropScience, 2 T.W. Alexander Drive, Research Triangle Park, NC 27709, requests to establish a tolerance in 40 CFR part 180 for residues of the insecticide, imidacloprid, in or on olive at 2 ppm, tea, green at 50 ppm, and tea, black (dried) at 50 ppm. The common moiety method using a permanganate oxidation, silyl derivatization, and capillary gas chromatography mass spectrometry (GC MS) selective ion monitoring is used to measure and evaluate the chemical imidacloprid and its metabolites containing the 6-chloropyridinyl moiety. Contact: RD.

5. PP 6F8479. (EPA-HQ-OPP-2016-0508). Bayer CropScience LP, 2 T.W. Alexander Drive, Research Triangle Park, NC 27709, requests to establish a tolerance in 40 CFR part 180 for residues of the fungicide fluoxastrobin in or on Rapeseed Subgroup 20A at 0.01 ppm. The analytical method liquid chromatography-mass spectrometry (LC/MS/MS) detection method is used to measure and evaluate the chemical fluoxastrobin. Contact: RD.

6. PP 6F8458. (EPA-HQ-OPP-2016-0537). Syngenta Crop Protection, LLC, PO Box 18300, Greensboro, NC 27419, requests to establish tolerances in 40 CFR 180.665 for residues of the fungicide, sedaxane, by establishing tolerances in or on grain, cereal, forage, fodder and straw, group 16 at 0.06 ppm; grain, cereal, group 15 at 0.01 ppm; peanut at 0.01 ppm; and peanut, hay at 0.08 ppm. The GRM023.01A/GRM023.01B and HPLC/LC-MS/MS is used to measure and evaluate the chemical sedaxane. Contact: RD.

7. PP 6F8475. (EPA-HQ-OPP-2016-0538). FMC Corporation, 1735 Market Street, Philadelphia, PA 19103, requests to establish a tolerance in 40 CFR 180 for residues of the fungicide, bixafen, in or on cattle, fat at 0.5 ppm; cattle, kidney at 0.3 ppm; cattle, liver at 1.5 ppm; cattle, muscle at 0.15 ppm; grain, cereal, forage, fodder and straw, group 16 (except rice), forage at 4.0 ppm; grain, cereal, forage, fodder and straw, group 16 (except rice), hay at 5.0 ppm; grain, cereal, forage, fodder and straw, group 16 (except rice), stover at 6.0 ppm; grain, cereal, forage, fodder and straw, group 16 (except rice), straw at 7.0 ppm; grain, cereal, group 15 (except rice and sorghum) at 0.15 ppm; grain, aspirated fractions at 80 ppm; milk at 0.1 ppm; oilseed, rapeseed subgroup 20A at 0.15 ppm; peanut, hay at 10.0 ppm; peanut, nutmeat at 0.02 ppm; peanut, refined oil at 0.04 ppm; poultry, eggs at 0.02 ppm; poultry, fat at 0.02 ppm; poultry, liver at 0.02 ppm; poultry, muscle at 0.02 ppm; sorghum, grain at 3.0 ppm; soybean, hulls at 0.15 ppm; soybean, seed at 0.06 ppm; sugar beet, dried pulp at 1.0 ppm; vegetable, root subgroup 1A at 0.2 ppm and vegetable, tuberous and corm subgroup 1C at 0.02 ppm. The HPLC-MS/MS is used to measure and evaluate the chemical bixafen. Contact: RD.

8. PP 6F8493. (EPA-HQ-OPP-2016-0536). United Phosphorus, Inc., 630 Freedom Business Center, Suite 402, King of Prussia, PA 19406, requests to establish a tolerance in 40 CFR 180 for residues of the fungicide, ziram, in or on filbert (hazelnut) at 0.1 ppm. The residues of ziram are determined by acid hydrolysis to release carbon disulfide (CS2). The CS2 is measured by head-space gas chromatography or colorimetrically. Adequate enforcement methodology is used to measure and evaluate the chemical ziram. Contact: RD.

Amended Tolerances

1. PP 6E8492. (EPA-HQ-OPP-2016-0495). Interregional Research Project No. 4 (IR-4) Project Headquarters, Rutgers, The State University of NJ, 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to remove the tolerances in 40 CFR 180.222 for residues of prometryn in or on cotton, undelinted seed at 0.25 ppm and the leaf petioles subgroup 4B at 0.5 ppm. A gas chromatography analytical method is available for enforcement purposes. The method determines residues of prometryn in/on plants using a microcoulometric sulfur detection system. Contact: RD.

2. PP 6E8500. (EPA-HQ-OPP-2016-0518). BASF Corporation, P.O. Box 13528, Research Triangle Park, NC 27709, requests to amend the tolerance in 40 CFR 180.663 for residues of the fungicide ametoctradin in or on hops, dried cone from 10 ppm to 100 ppm. The high performance liquid chromotography—mass spectrometry (HPLC-MS/MS) analytical method is used to measure and evaluate the chemical residues of ametoctradin. Contact: RD.

3. PP 6F8458. (EPA-HQ-OPP-2016-0537). Syngenta Crop Protection, LLC, PO Box 18300, Greensboro, NC 27419, requests to amend the tolerances in 40 CFR 180.665 for residues of the fungicide, sedaxane, by removing the tolerances on barley, grain at 0.01 ppm; barley, hay at 0.04 ppm; barley, straw at 0.01 ppm; corn, field, forage at 0.01 ppm; corn, field, grain at 0.01 ppm; corn, field, stover at 0.01 ppm; corn, pop, grain at 0.01 ppm; corn, pop, stover at 0.01 ppm; corn, sweet, forage at 0.01 ppm; corn, sweet, kernel plus cob with husks removed at 0.01 ppm; corn, sweet, stover at 0.01 ppm; oat, forage at 0.015 ppm; oat, grain at 0.01 ppm; oat, hay at 0.06 ppm; oat, straw at 0.01 ppm; rye, forage at 0.015 ppm; rye, grain at 0.01 ppm; rye, straw at 0.01 ppm; sorghum, grain, forage at 0.01 ppm; sorghum, grain, grain at 0.01 ppm; sorghum, grain, stover at 0.01 ppm; wheat, forage at 0.015 ppm; wheat, grain at 0.01 ppm; wheat, hay at 0.06 ppm; and wheat, straw at 0.01 ppm. The GRM023.01A/GRM023.01B and HPLC/LC-MS/MS is used to measure and evaluate the chemical sedaxane. Contact: RD.

New Tolerance Exemptions

1. PP IN-10849. (EPA-HQ-OPP-2015-0728). Jeneil Biosurfactant Company, 1150 18th Street NW., Suite 1000, Washington, DC 20036, requests to establish an exemption from the requirement of a tolerance for residues of isoamyl alcohol (CAS Reg. No. 123-51-3) when used as an inert ingredient (solvent) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest under 40 CFR 180.910. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

2. PP IN-10949. (EPA-HQ-OPP-2016-0337). Clariant Corporation, 4000 Monroe Road, Charlotte, NC 28205 requests to establish an exemption from the requirement of a tolerance for residues of fatty acids, montan-wax, ethoxylated (CAS Reg No. 68476-04-0) having a minimum number-average molecular weight (in amu) of 1800, when used as an inert ingredient in pesticide formulations under 40 CFR 180.960. The petitioner believes no analytical method is needed because it is not required for a tolerance exemption. Contact: RD.

Amended Tolerance Exemptions

1. PP 6E8471. (EPA-HQ-OPP-2016-0566). Interregional Research Project Number 4 (IR-4), Rutgers University, 500 College Rd. East, Suite 201W, Princeton, NJ 08540, requests to amend an exemption from the requirement of a tolerance in 40 CFR 180.1206 for residues of the fungicide Aspergillus flavus AF36 by adding in or on almond and fig. The petitioner believes no analytical method is needed because an exemption from the requirement of a tolerance is proposed for Almond and Fig. Contact: BPPD.

Authority:

21 U.S.C. 346a.

Dated: November 16, 2016. Michael L. Goodis, Acting Director, Registration Division, Office of Pesticide Programs.
[FR Doc. 2016-28738 Filed 11-29-16; 8:45 am] BILLING CODE 6560-50-P
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [4500030115] Endangered and Threatened Wildlife and Plants; 90-Day Findings on Three Petitions AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of petition findings and initiation of status reviews.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), announce 90-day findings on three petitions to list or reclassify wildlife or plants under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that one petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted, and we are not initiating a status review in response to this petition. We refer to this as the “not-substantial” petition finding. We also find that two petitions present substantial scientific or commercial information indicating that the petitioned actions may be warranted. Therefore, with the publication of this document, we announce that we plan to initiate a review of the status of these species to determine if the petitioned actions are warranted. To ensure that these status reviews are comprehensive, we are requesting scientific and commercial data and other information regarding these species. Based on the status reviews, we will issue 12-month findings on the petitions, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

DATES:

When we conduct status reviews, we will consider all information that we have received. To ensure that we will have adequate time to consider submitted information during the status reviews, we request that we receive information no later than January 30, 2017. For information submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below), this means submitting the information electronically by 11:59 p.m. Eastern Time on that date.

ADDRESSES:

Not-substantial petition finding: A summary of the basis for the not-substantial petition finding contained in this document is available on http://www.regulations.gov under the appropriate docket number (see Table 1 under SUPPLEMENTARY INFORMATION), or on the Service's Web site at http://ecos.fws.gov. Supporting information in preparing this finding is available for public inspection, by appointment, during normal business hours by contacting the appropriate person, as specified in Table 3 under SUPPLEMENTARY INFORMATION. If you have new information concerning the status of, or threats to, this species or its habitat, please submit that information to the person listed in Table 3 under SUPPLEMENTARY INFORMATION.

Status reviews: You may submit information on species for which a status review is being initiated by one of the following methods:

(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter the appropriate docket number (see Table 2 under SUPPLEMENTARY INFORMATION). Then, click on the Search button. After finding the correct document, you may submit information by clicking on “Comment Now!” If your information will fit in the provided comment box, please use this feature of http://www.regulations.gov, as it is most compatible with our information review procedures. If you attach your information as a separate document, our preferred file format is Microsoft Word. If you attach multiple comments (such as form letters), our preferred format is a spreadsheet in Microsoft Excel.

(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: [Insert appropriate docket number; see Table 2 under SUPPLEMENTARY INFORMATION]; U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike; Falls Church, VA 22041-3803.

We request that you send information only by the methods described above. We will post all information we receive on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Request for Information for Status Reviews, below, for more information).

FOR FURTHER INFORMATION CONTACT:

See Table 3 under SUPPLEMENTARY INFORMATION for specific people to contact for each species.

SUPPLEMENTARY INFORMATION:

Not-Substantial Finding

The not-substantial petition finding contained in this document is listed in Table 1 below, and a summary of the basis for the finding, along with supporting information, are available on http://www.regulations.gov under the appropriate docket number, or on the Service's Web site at http://ecos.fws.gov.

Table 1—Not-Substantial Finding Common name Docket No. URL to Docket on http://www.regulations.gov Tetraneuris verdiensis (Verde four-nerve daisy) FWS-R2-ES-2016-0132 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2016-0132. Substantial Findings List of Substantial Findings

The list of substantial findings contained in this document is given below in Table 2, and the basis for the findings, along with supporting information, are available on http://www.regulations.gov under the appropriate docket number, or on the Service's Web site at http://ecos.fws.gov.

Table 2—List of Substantial Findings for Which a Status Review Is Being Initiated Common name Docket No. URL to Docket on http://www.regulations.gov Leopard FWS-HQ-ES-2016-0131 http://www.regulations.gov/#!docketDetail;D=FWS-HQ-ES-2016-0131. Lesser prairie-chicken FWS-R2-ES-2016-0133 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2016-0133. Request for Information for Status Reviews

When we make a finding that a petition presents substantial information indicating that listing, reclassification, or delisting a species may be warranted, we are required to review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on these species from governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties. We seek information on:

(1) The species' biology, range, and population trends, including:

(a) Habitat requirements;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns; and

(d) Historical and current population levels, and current and projected trends.

(2) The five factors that are the basis for making a listing, reclassification, or delisting determination for a species under section 4(a) of the Act (16 U.S.C. 1531 et seq.), including past and ongoing conservation measures that could decrease the extent to which one or more of the factors affect the species, its habitat, or both. The five factors are:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range (Factor A);

(b) Overutilization for commercial, recreational, scientific, or educational purposes (Factor B);

(c) Disease or predation (Factor C);

(d) The inadequacy of existing regulatory mechanisms (Factor D); or

(e) Other natural or manmade factors affecting its continued existence (Factor E).

(3) The potential effects of climate change on the species and its habitat, and the extent to which it affects the habitat or range of the species.

If, after the status review, we determine that listing is warranted, we will propose critical habitat (see definition at section 3(5)(A) of the Act) for domestic (U.S.) species under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, we also request data and information (submitted as provided for in ADDRESSES, above) for the species listed in Table 2 on:

(1) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range occupied by the species;

(2) Where these features are currently found;

(3) Whether or not any of these features may require special management considerations or protection;

(4) Specific areas outside the geographical area occupied by the species that are “essential for the conservation of the species”; and

(5) What, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat falls within the definition of “critical habitat” at section 3(5) of the Act.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Submissions merely stating support for or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your information concerning these status reviews by one of the methods listed in ADDRESSES. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Contacts

Contact information is provided below in Table 3 for both substantial and not-substantial findings.

Table 3—Contacts Common name Contact person Leopard Janine VanNorman, 703-358-2370; [email protected]. Lesser prairie-chicken Clay Nichols, 817-471-6357; [email protected]. Verde four-nerve daisy Shaula Hedwall, 928-556-2118; [email protected].

If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

Background

Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register.

Our regulations in the Code of Federal Regulations (CFR) establish that the standard for substantial scientific or commercial information with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that a petition presents substantial scientific or commercial information, we are required to promptly commence a review of the status of the species, and we will subsequently summarize the status review in our 12-month finding.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR part 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species because of one or more of the five factors described in section 4(a)(1) of the Act (see Request for Information for Status Reviews, above).

In considering whether conditions described within one or more of the factors might constitute threats, we must look beyond the exposure of the species to those conditions to evaluate whether the species may respond to the conditions in a way that causes actual impacts to the species. If there is exposure to a condition and the species responds negatively, the condition qualifies as a stressor and, during the subsequent status review, we attempt to determine how significant the stressor is. If the stressor is sufficiently significant that it drives, or contributes to, the risk of extinction of the species such that the species may warrant listing as endangered or threatened as those terms are defined in the Act, the stressor constitutes a threat to the species. Thus, the identification of conditions that could affect a species negatively may not be sufficient to compel a finding that the information in the petition and our files is substantial. The information must include evidence sufficient to suggest that these conditions may be operative threats that individually or cumulatively act on the species to a sufficient degree that the species may meet the definition of an endangered or threatened species under the Act.

Evaluation of a Petition To List Tetraneuris verdiensis (Verde Four-nerve Daisy) as an Endangered or Threatened Species Under the Act

Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0132 under the Supporting Documents section.

Species and Range

Tetraneuris verdiensis (Verde four-nerve daisy): Arizona.

Petition History

On April 21, 2016, we received a petition dated March 11, 2016, from the Center for Biological Diversity requesting that Tetraneuris verdiensis be listed as endangered or threatened and that critical habitat be designated for this species under the Act. The petition clearly identified itself as a petition under section 4 of the Act and included the identification information for the petitioner as required at 50 CFR 424.14(a). We responded to the petitioner on June 29, 2016, with an email message acknowledging the receipt of the petition. This finding addresses the petition.

Finding

Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that listing the Tetraneuris verdiensis may be warranted. Because the petition does not present substantial information indicating that listing Tetraneuris verdiensis may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0132 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3, above).

Evaluation of a Petition To Reclassify Leopards Currently Listed as Threatened Species to Endangered Species Under the Act

Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-HQ-ES-2016-0131 under the Supporting Documents section.

Species and Range

Leopard (Panthera pardus): Democratic Republic of the Congo, Gabon, Kenya, and Uganda.

Petition History

On July 26, 2016, we received a petition dated July 25, 2016, from The Humane Society of the United States and the Fund for Animals, requesting that the leopard be reclassified as endangered throughout its range under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

Finding

Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that reclassifying the leopard (Panthera pardus) as endangered throughout its range may be warranted, based on Factors A, B, D, and E (for a listing of the factors, see (2) under Request for Information for Status Reviews, above). However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of an endangered species under section 3(6) of the Act, including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding.

Evaluation of a Petition To List the Lesser Prairie-Chicken as an Endangered Species Under the Act

Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0133 under the Supporting Documents section.

Species and Range

Lesser prairie-chicken (Tympanuchus pallidus): Colorado, Kansas, Oklahoma, New Mexico, Texas.

Petition History

On September 8, 2016, we received a petition dated September 8, 2016, from WildEarth Guardians, Center for Biological Diversity, and Defenders of Wildlife requesting that we list the lesser prairie-chicken (Tympanuchus pallidus) and three distinct population segments as endangered under the Act. The petition additionally requests that the sandsage and the shinnery oak prairie population segments be emergency listed as endangered under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). We reviewed the information presented in the petition and did not find that an emergency listing under section 4(b)(7) of the Act was necessary. This finding addresses the petition.

Finding

Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the lesser prairie-chicken may be warranted, based on Factors A, D, and E (for a listing of the factors, see (2) under Request for Information for Status Reviews, above). However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20) of the Act, including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding.

Conclusion

On the basis of our evaluation of the information presented in the petitions under section 4(b)(3)(A) of the Act, we have determined that the petition summarized above for Tetraneuris verdiensis (Verde four-nerve daisy) does not present substantial scientific or commercial information indicating that the requested action may be warranted. Therefore, we are not initiating a status review for this species.

The petitions summarized above for the leopard and lesser prairie-chicken present substantial scientific or commercial information indicating that the requested actions may be warranted.

Because we have found that these petitions present substantial information indicating that the petitioned actions may be warranted, we are initiating status reviews to determine whether these actions under the Act are warranted. At the conclusion of each status review, we will issue a finding, in accordance with section 4(b)(3)(B) of the Act, as to whether or not the petitioned action is warranted.

It is important to note that the standard for a 90-day finding differs from the Act's standard that applies to a status review to determine whether a petitioned action is warranted. In making a 90-day finding, we consider only the information in the petition and in our files, and we evaluate merely whether that information constitutes “substantial information” indicating that the petitioned action “may be warranted.” In a 12-month finding, we must complete a thorough status review of the species and evaluate the “best scientific and commercial data available” to determine whether a petitioned action “is warranted.” Because the Act's standards for 90-day and 12-month findings are different, a substantial 90-day finding does not mean that the 12-month finding will result in a “warranted” finding.

References Cited

A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the appropriate lead field offices (contact the appropriate person listed in Table 3, above).

Authors

The primary authors of this notice are staff members of the Ecological Services Program, U.S. Fish and Wildlife Service.

Authority

The authority for these actions is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

Dated: November 16, 2016. Daniel M. Ashe, Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-28513 Filed 11-29-16; 8:45 am] BILLING CODE 4333-15-P
81 230 Wednesday, November 30, 2016 Notices DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Document No. AMS-SC-16-0091] National Research, Promotion, and Consumer Information Programs; Request for Extension and Revision of a Currently Approved Information Collection AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Notice and request for comments.

SUMMARY:

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this document announces the Agricultural Marketing Service's (AMS) intention to request approval from the Office of Management and Budget (OMB). AMS requests an extension of and revision to the currently approved information collection 0581-0093 the National Research, Promotion, and Consumer Information Programs.

DATES:

Comments must be received by January 30, 2017.

ADDRESSES:

Interested persons are invited to submit written comments concerning this notice. Comments should be submitted on the Internet at http://www.regulations.gov or to Promotion and Economics Division, Specialty Crops Program, AMS, U.S. Department of Agriculture (USDA), 1400 Independence Avenue SW., Stop 0244, Room 1406-S, Washington, DC 20250-0244. All comments should reference the document number, the date and the page number of this issue of the Federal Register and will be made available for public inspection in the above office during regular business hours or at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Marlene M. Betts, Marketing Specialist, Promotion and Economics Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Stop 0244, Room 1406-S, Washington, DC 20250-0244; telephone at (202) 720-9915, or by email at [email protected]

SUPPLEMENTARY INFORMATION:

Title: National Research, Promotion, and Consumer Information Programs.

OMB Number: 0581-0093.

Expiration Date of Approval: June 30, 2017.

Type of Request: Extension and Revision of a currently approved information collection.

Abstract: National research and promotion programs are designed to strengthen the position of a commodity in the marketplace, maintain and expand existing domestic and foreign markets, and develop new uses and markets for specified agricultural commodities. AMS has the responsibility for implementing and overseeing programs for a variety of commodities including beef, blueberries, cotton, dairy, eggs, fluid milk, Hass avocados, honey, lamb, mangos, mushrooms, paper and paper-based packaging, peanuts, popcorn, pork, potatoes, processed raspberries, softwood lumber, sorghum, soybeans, and watermelons. The enabling legislation includes the Beef Promotion and Research Act of 1985 [7 U.S.C. 2901-2911]; the Cotton Research and Promotion Act of 1966 [7 U.S.C. 2101-2118]; the Dairy Production Stabilization Act of 1983 [7 U.S.C. 4501-4514]; the Fluid Milk Promotion Act of 1990 [7 U.S.C. 6401-6417]; the Egg Research and Consumer Information Act [7 U.S.C. 2701-2718]; the Hass Avocado Promotion, Research, and Information Act [7 U.S.C. 7801-7813]; the Mushroom Promotion, Research, and Consumer Information Act of 1990 [7 U.S.C. 6101-6112]; the Popcorn Promotion, Research, and Consumer Information Act [7 U.S.C. 7481-7491]; the Pork Promotion, Research, and Consumer Information Act of 1985 [7 U.S.C. 4801-4819]; the Potato Research and Promotion Act [7 U.S.C. 2611-2627]; the Soybean Promotion, Research, and consumer Information Act [7 U.S.C. 6301-6311]; the Watermelon Research and Promotion Act [7 U.S.C. 4901-4916]; and the Commodity Promotion, Research, and Information Act of 1996 [7 U.S.C. 7411-7425](which governs the blueberry, honey, lamb, mango, paper and paper-based packaging, peanut, processed raspberry, softwood lumber, and sorghum programs). These programs appear in the Code of Federal Regulations 7 CFR, parts 1150 and 1160, and parts 1205 through 1260.

These programs carry out projects relating to research, consumer information, advertising, sales, promotion, producer information, market development, and product research to assist, improve, or promote the marketing, distribution, and utilization of their respective commodities. Approval of the programs is required through referendum of affected parties. The programs are administered by the industry boards composed of producer, handler, processor, manufacturers, and in some cases, importer and public members appointed by the Secretary of Agriculture. Program funding is generated through assessments on designated industry segments.

The Secretary also approves the board's budgets, plans, and projects. These responsibilities have been delegated to AMS. The applicable commodity program areas within AMS have direct oversight of the respective programs.

The information collection requirements in this request are essential to carry out the intents of the various Acts authorizing such programs, thereby providing a means of administering the programs. The objective in carrying out this responsibility includes assuring the following: (1) Funds are collected and properly accounted for; (2) expenditures of all funds are for the purposes authorized by the enabling legislation; and, (3) the board's administration of programs conforms to USDA policy. The forms covered under this collection require the minimum information necessary to effectively carry out the requirements of the respective orders, and their use is necessary to fulfill the intents of the Acts as expressed in orders. The information collected is used only by authorized employees of the various boards and authorized employees of USDA.

The various boards utilize a variety of forms including: Reports concerning status information such as handler and importer reports; transaction reports; exemption from assessment forms and reimbursement forms; forms and information concerning board nominations and selection and acceptance statements; certification of industry organizations; and recordkeeping requirements. The forms and information covered under this information collection require minimum information necessary to effectively carry out the requirements of the programs and their use is necessary to fulfill the intent of the applicable authority.

AMS is committed to comply with the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

For National Research, Promotion, and Consumer Information Program—0581-0093

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 0.347 hours per response.

Respondents: Producers, processors, handlers, manufacturers, importers, and others in the marketing chain of a variety of agricultural commodities, and recordkeepers.

Estimated Number of Respondents: 117,942.

Estimated Total Annual Responses: 450,673.

Estimated Number of Responses per Respondent: 3.82.

Estimated Total Annual Burden on Respondents: 156,460.

For Paper and Paper-Based Packaging Promotion, Research, and Information (Referendum Ballot)

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 0.25 hours per response.

Respondents: Manufacturers and importers.

Estimated Number of Respondents: 70.

Estimated Number of Responses per Respondent: 1 every 7 years (0.14).

Estimated Total Annual Burden on Respondents: 2.45.

This referendum ballot is being merged into the information collection 0581-0093 the National Research, Promotion, and Consumer Information Programs.

Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of 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 those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

All responses to this document will be summarized and included in the request for OMB approval. All comments will become a matter of public record.

Authority:

44 U.S.C. Chapter 35.

Dated: November 23, 2016. Elanor Starmer, Administrator.
[FR Doc. 2016-28816 Filed 11-29-16; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF AGRICULTURE Forest Service Craig and Thorne Bay Ranger Districts, Tongass National Forest; Alaska; Prince of Wales Landscape Level Analysis Project Environmental Impact Statement AGENCY:

Forest Service, USDA.

ACTION:

Notice of intent to prepare an environmental impact statement.

SUMMARY:

The U.S. Department of Agriculture, Forest Service will prepare an Environmental Impact Statement (EIS) to propose a variety of projects for multiple resource benefits at a landscape level to implement over the course of 10 to 15 years. Both the Craig and Thorne Bay Ranger Districts encompass Prince of Wales Island (POW) and surrounding islands, which serves as the project area for the Prince of Wales Landscape Level Analysis (POW LLA) Project. Our intention is that this project will be a highly collaborative process involving the public at all stages throughout the development of this analysis.

DATES:

Comments concerning the scope of the analysis must be received by December 30, 2016. The publication date of this NOI in the Federal Register is the exclusive means for calculating the comment period for this scoping opportunity. If the comment period ends on a Saturday, Sunday, or Federal holiday, comments will be accepted until the end of the next Federal working day (11:59 p.m.). The POW LLA Project is an activity implementing the forest plan and is subject to 36 CFR 218, subparts A and B. Only individuals or entities who submit timely and specific written comments about this proposed project or activity during this or another public comment period established by the Responsible Official will be eligible to file an objection. The draft environmental impact statement is expected January of 2018 and the final environmental impact statement is expected July of 2018.

ADDRESSES:

Send written comments to Thorne Bay Ranger District, at P.O. Box 19001, Thorne Bay, AK 99919. Comments may also be submitted electronically at https://cara.ecosystem-management.org/Public/CommentInput?project=50337, or via facsimile to (907) 828-3309.

FOR FURTHER INFORMATION CONTACT:

Matthew Anderson, District Ranger, Craig and Thorne Bay Ranger Districts, at 504 9th Street, Craig, AK 99921, by telephone at (907) 826-3271; or Delilah Brigham, Project Leader, at 1312 Federal Way, Thorne Bay, AK 99919, by telephone at (907) 828-3232.

Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.

SUPPLEMENTARY INFORMATION: Purpose and Need for Action

The purpose of the POW LLA Project is to improve forest ecosystem health on Craig and Thorne Bay Ranger Districts, help support community resiliency, and provide economic development through an integrated approach to meet multiple resource objectives.

There is a need to provide a sustainable level of forest products to contribute to the economic viability of the region. There is also a need to provide old-growth timber to help maintain the expertise and infrastructure of the existing timber industry so the forest products industry can prepare for an increasing amount of merchantable young-growth offerings. These businesses are fundamental to both the young-growth and restoration components of the evolving timber program, and to the economic vitality of the region.

Timber stand establishment (TSE) and timber stand improvement (TSI) activities that restore and enhance early seral forests are necessary. This translates to the need for commercial and precommercial treatments of young-growth forests to produce future desired resource values, products, services, and forest health conditions that sustain the diversity and productivity of forested ecosystems.

Past management activities have affected watershed function and fish and wildlife habitat in the project area. There is a need for restoration activities in these watersheds to reestablish self-sustaining habitats that promote viable fish and wildlife populations. These will contribute to subsistence values and the continued traditional and cultural uses by residents of Prince of Wales and surrounding islands.

Providing sustainable recreation opportunities on POW and surrounding islands is critical to maintaining the existing opportunities for residents as well as to expand opportunities for growth in the recreation and tourism business sector. A sustainable program in terms of operations and maintenance is needed in order to maintain infrastructure to an acceptable level.

Proposed Action

The proposed action will be developed through extensive public involvement to meet the Purpose and Needs for the project, with activities that will occur over the course of 10 to 15 years. Input from the tribes and the public will help determine the location and types of activities, and how extensively they will occur across the landscape. Management activities that traditionally meet the needs associated with this project include: (1) Commercial and precommercial young-growth treatments including timber stand improvement activities, timber harvests, planting/interplanting, pruning and slash removal/manipulation; (2) old-growth timber harvests; (3) transportation management activities such as road construction, reconstruction, maintenance, and decommissioning in support of accomplishing other proposed management actions; (4) in-stream restoration work, riparian thinning, improvement of fish passages at road crossings, and improving water quality and both fish and wildlife habitat; and (5) developing and improving recreation infrastructure such as cabins and shelters, trails, winter recreation areas, campgrounds, interpretive sites, and boat launches. The proposed action is not limited to only the above activity types, but will be consistent with the Tongass Land and Resource Management Plan.

Possible Alternatives

Scoping comments will be used to develop a full range of alternatives to the proposed action, in response to significant issues that are identified. A no-action alternative will be analyzed as well, which represents no change and serves as the baseline for the comparison among the action alternatives.

Responsible Official

The Responsible Official for the decision on this project is M. Earl Stewart, Forest Supervisor, Tongass National Forest, Federal Building, 648 Mission Street, Ketchikan, Alaska, 99901.

Nature of Decision To Be Made

Given the purpose and need of the project, the Forest Supervisor will review the no action, the proposed action, other alternatives, and the environmental consequences in order to make decisions including the following: (1) Whether to select the proposed action or another alternative; (2) the locations, design, and scheduling of commercial and precommercial timber treatments, restoration activities, habitat improvements, road construction and reconstruction, and improvements to recreation opportunities; (3) mitigation measures and monitoring requirements; and (4) whether there may be a significant restriction of subsistence uses. No Forest Plan Amendments are anticipated with this decision.

Permits or Licenses Required

All necessary permits will be obtained prior to project implementation, and may include the following:

(1) State of Alaska, Department of Environmental Conservation (DEC), Alaska Pollutant Discharge Elimination System (APDES):

• General permit for Log Transfer Facilities in Alaska;

• Review Spill Prevention Control and Countermeasure Plan;

• Certification of Compliance with Alaska Water Quality Standards (401 Certification) Chapter 20;

• Storm Water Discharge Permit/National Pollutant Discharge Elimination System review (Section 402 of the Clean Water Act);

• Solid Waste Disposal Permit;

(2) U.S. Army Corp of Engineers:

• Approval of discharge of dredged or fill material into the waters of the United States under Section 404 of the Clean Water Act;

• Approval of the construction of structures or work in navigable waters of the United States under Section 10 of the Rivers and Harbors Act of 1899;

(3) State of Alaska, Division of Natural Resources (DNR):

• Authorization for occupancy and use of tidelands and submerged lands.

(4) State of Alaska, Department of Fish and Game (ADF&G)

• Fish Habitat Permit and Concurrence (Title 16)

Scoping Process

This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. The Forest Service will be seeking information, comments, and assistance from Tribal Governments; Federal, State, and local agencies; individuals and organizations interested in or affected by the proposed activities. In addition to this Notice of Intent, legal notices will be placed in the Ketchikan Daily News, the official newspaper of record for this project. There will also be ample public involvement on Prince of Wales Island, including: Public meetings held in various communities, subsistence hearings, information posted in public places and in local publications such as the Island Post, and from the Prince of Wales Landscape Assessment Team, a collaborative group independently formed to provide widely based proposals to be considered by the U.S. Forest Service in the POW LLA Project development and analysis process. Project information and updates, meeting notices, and documents will be provided throughout the process on the project Web page at http://www.fs.usda.gov/project/?project=50337. Individuals may also provide comments and sign up for an electronic mailing list at that site.

It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.

Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered; however, anonymous comments will not provide the Agency with the ability to provide the respondent with subsequent environmental documents.

Dated: November 23, 2016. Tawnya Brummett, Acting Forest Supervisor.
[FR Doc. 2016-28760 Filed 11-29-16; 8:45 am] BILLING CODE 3411-15-P
DEPARTMENT OF COMMERCE Bureau of Industry and Security [Docket No. 161024999-6999-01] Impact of the Implementation of the Chemical Weapons Convention (CWC) on Legitimate Commercial Chemical, Biotechnology, and Pharmaceutical Activities Involving “Schedule 1” Chemicals (Including Schedule 1 Chemicals Produced as Intermediates) Through Calendar Year 2016 AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Notice of inquiry.

SUMMARY:

The Bureau of Industry and Security (BIS) is seeking public comments on the impact that implementation of the Chemical Weapons Convention (CWC), through the Chemical Weapons Convention Implementation Act (CWCIA) and the Chemical Weapons Convention Regulations (CWCR), has had on commercial activities involving “Schedule 1” chemicals during calendar year 2016. The purpose of this notice of inquiry is to collect information to assist BIS in its preparation of the annual certification to Congress on whether the legitimate commercial activities and interests of chemical, biotechnology, and pharmaceutical firms are being harmed by such implementation. This certification is required under Condition 9 of Senate Resolution 75, April 24, 1997, in which the Senate gave its advice and consent to the ratification of the CWC.

DATES:

Comments must be received by December 30, 2016.

ADDRESSES:

You may submit comments by any of the following methods (please refer to RIN 0694-XC034 in all comments and in the subject line of email comments):

Federal rulemaking portal (http://www.regulations.gov)—you can find this notice by searching on its regulations.gov docket number, which is BIS-2016-0038;

Email: [email protected]—include the phrase “Schedule 1 Notice of Inquiry” in the subject line;

Fax: (202) 482-3355 (Attn: Willard Fisher);

• By mail or delivery to Regulatory Policy Division, Bureau of Industry and Security, U.S. Department of Commerce, Room 2099B, 14th Street and Pennsylvania Avenue NW., Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT:

For questions on the Chemical Weapons Convention requirements for “Schedule 1” chemicals, contact Douglas Brown, Treaty Compliance Division, Office of Nonproliferation and Treaty Compliance, Bureau of Industry and Security, U.S. Department of Commerce, Phone: (202) 482-1001. For questions on the submission of comments, contact Willard Fisher, Regulatory Policy Division, Office of Exporter Services, Bureau of Industry and Security, U.S. Department of Commerce, Phone: (202) 482-2440.

SUPPLEMENTARY INFORMATION:

Background

In providing its advice and consent to the ratification of the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and Their Destruction, commonly called the Chemical Weapons Convention (CWC or “the Convention”), the Senate included, in Senate Resolution 75 (S. Res. 75, April 24, 1997), several conditions to its ratification. Condition 9, titled “Protection of Advanced Biotechnology,” calls for the President to certify to Congress on an annual basis that “the legitimate commercial activities and interests of chemical, biotechnology, and pharmaceutical firms in the United States are not being significantly harmed by the limitations of the Convention on access to, and production of, those chemicals and toxins listed in Schedule 1.” On July 8, 2004, President Bush, by Executive Order 13346, delegated his authority to make the annual certification to the Secretary of Commerce.

The CWC is an international arms control treaty that contains certain verification provisions. In order to implement these verification provisions, the CWC established the Organization for the Prohibition of Chemical Weapons (OPCW). The CWC imposes certain obligations on countries that have ratified the Convention (i.e., States Parties), among which are the enactment of legislation to prohibit the production, storage, and use of chemical weapons, and the establishment of a National Authority to serve as the national focal point for effective liaison with the OPCW and other States Parties in order to achieve the object and purpose of the Convention and the implementation of its provisions. The CWC also requires each State Party to implement a comprehensive data declaration and inspection regime to provide transparency and to verify that both the public and private sectors of the State Party are not engaged in activities prohibited under the CWC.

“Schedule 1” chemicals consist of those toxic chemicals and precursors set forth in the CWC “Annex on Chemicals” and in Supplement No. 1 to part 712 of the Chemical Weapons Convention Regulations (CWCR) (15 CFR parts 710-722). The CWC identified these toxic chemicals and precursors as posing a high risk to the object and purpose of the Convention.

The CWC (Part VI of the “Verification Annex”) restricts the production of “Schedule 1” chemicals for protective purposes to two facilities per State Party: a single small-scale facility (SSSF) and a facility for production in quantities not exceeding 10 kg per year. The CWC Article-by-Article Analysis submitted to the Senate in Treaty Doc. 103-21 defined the term “protective purposes” to mean “used for determining the adequacy of defense equipment and measures.” Consistent with this definition and as authorized by Presidential Decision Directive (PDD) 70 (December 17, 1999), which specifies agency and departmental responsibilities as part of the U.S. implementation of the CWC, the Department of Defense (DOD) was assigned the responsibility to operate these two facilities. Although this assignment of responsibility to DOD under PDD-70 effectively precluded commercial production of “Schedule 1” chemicals for protective purposes in the United States, it did not establish any limitations on “Schedule 1” chemical activities that are not prohibited by the CWC. However, DOD does maintain strict controls on “Schedule 1” chemicals produced at its facilities in order to ensure accountability for such chemicals, as well as their proper use, consistent with the object and purpose of the Convention.

The provisions of the CWC that affect commercial activities involving “Schedule 1” chemicals are implemented in the CWCR (see 15 CFR 712) and in the Export Administration Regulations (EAR) (see 15 CFR 742.18 and 15 CFR 745), both of which are administered by the Bureau of Industry and Security (BIS). Pursuant to CWC requirements, the CWCR restrict commercial production of “Schedule 1” chemicals to research, medical, or pharmaceutical purposes (the CWCR prohibit commercial production of “Schedule 1” chemicals for “protective purposes” because such production is effectively precluded per PDD-70, as described above—see 15 CFR 712.2(a)). The CWCR also contain other requirements and prohibitions that apply to “Schedule 1” chemicals and/or “Schedule 1” facilities. Specifically, the CWCR:

(1) Prohibit the import of “Schedule 1” chemicals from States not Party to the Convention (15 CFR 712.2(b));

(2) Require annual declarations by certain facilities engaged in the production of “Schedule 1” chemicals in excess of 100 grams aggregate per calendar year (i.e., declared “Schedule 1” facilities) for purposes not prohibited by the Convention (15 CFR 712.5(a)(1) and (a)(2));

(3) Provide for government approval of “declared Schedule 1” facilities (15 CFR 712.5(f));

(4) Provide that “declared Schedule 1” facilities are subject to initial and routine inspection by the Organization for the Prohibition of Chemical Weapons (15 CFR 712.5(e) and 716.1(b)(1));

(5) Require 200 days advance notification of establishment of new “Schedule 1” production facilities producing greater than 100 grams aggregate of “Schedule 1” chemicals per calendar year (15 CFR 712.4);

(6) Require advance notification and annual reporting of all imports and exports of “Schedule 1” chemicals to, or from, other States Parties to the Convention (15 CFR 712.6, 742.18(a)(1) and 745.1); and

(7) Prohibit the export of “Schedule 1” chemicals to States not Party to the Convention (15 CFR 742.18(a)(1) and (b)(1)(ii)).

For purposes of the CWCR (see 15 CFR 710.1), “production of a Schedule 1 chemical” means the formation of “Schedule 1” chemicals through chemical synthesis, as well as processing to extract and isolate “Schedule 1” chemicals produced biologically. Such production is understood, for CWCR declaration purposes, to include intermediates, by-products, or waste products that are produced and consumed within a defined chemical manufacturing sequence, where such intermediates, by-products, or waste products are chemically stable and therefore exist for a sufficient time to make isolation from the manufacturing stream possible, but where, under normal or design operating conditions, isolation does not occur.

Request for Comments

In order to assist in determining whether the legitimate commercial activities and interests of chemical, biotechnology, and pharmaceutical firms in the United States are significantly harmed by the limitations of the Convention on access to, and production of, “Schedule 1” chemicals as described in this notice, BIS is seeking public comments on any effects that implementation of the Chemical Weapons Convention, through the Chemical Weapons Convention Implementation Act and the Chemical Weapons Convention Regulations, has had on commercial activities involving “Schedule 1” chemicals during calendar year 2016. To allow BIS to properly evaluate the significance of any harm to commercial activities involving “Schedule 1” chemicals, public comments submitted in response to this notice of inquiry should include both a quantitative and qualitative assessment of the impact of the CWC on such activities.

Submission of Comments

All comments must be submitted to one of the addresses indicated in this notice. The Department requires that all comments be submitted in written form.

The Department encourages interested persons who wish to comment to do so at the earliest possible time. The period for submission of comments will close on December 30, 2016. The Department will consider all comments received before the close of the comment period. Comments received after the end of the comment period may not be considered. The Department will not accept comments accompanied by a request that a part or all of the material be treated confidentially because of its business proprietary nature or for any other reason. The Department will return such comments and materials to the persons submitting the comments and will not consider them. All comments submitted in response to this notice will be a matter of public record and will be available for public inspection and copying.

The Office of Administration, Bureau of Industry and Security, U.S. Department of Commerce, displays public comments on the BIS Freedom of Information Act (FOIA) Web site at http://www.bis.doc.gov/foia. This office does not maintain a separate public inspection facility. If you have technical difficulties accessing this Web site, please call BIS's Office of Administration, at (202) 482-1093, for assistance.

Dated: November 23, 2016. Kevin J. Wolf, Assistant Secretary for Export Administration.
[FR Doc. 2016-28799 Filed 11-29-16; 8:45 am] BILLING CODE 3510-33-P
DEPARTMENT OF COMMERCE United States Patent and Trademark Office [Docket No. PTO-P-2016-0051] Notice of Roundtables and Extension of the Period for Comments on Examination Time Goals AGENCY:

United States Patent and Trademark Office, Commerce.

ACTION:

Notice of public roundtables and extension of the comment period.

SUMMARY:

The United States Patent and Trademark Office (Office or USPTO) previously announced information for roundtables in Alexandria, Virginia, and Dallas, Texas, to solicit public feedback as part of an effort to reevaluate its examination time goals. Examination time goals vary by technology and represent the average amount of time that a patent examiner is expected to spend examining a patent application in a particular technology. The Office now is providing information on the additional three roundtables that the Office will be conducting in Detroit, Michigan; Denver, Colorado; and San Jose, California. In addition, the Office is extending the written comment period to ensure that all stakeholders have sufficient opportunity to submit comments on the reevaluation of the Office's examination time goals.

DATES:

Written Comments Deadline: To be ensured of consideration, written comments must be received on or before January 30, 2017.

ADDRESSES:

Written comments should be sent by electronic mail addressed to [email protected] Comments also may be submitted by postal mail addressed to: Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450, marked to the attention of Raul Tamayo, Senior Legal Advisor, Office of Patent Legal Administration, Office of the Deputy Commissioner for Patent Examination Policy.

Although comments may be submitted by postal mail, the Office prefers to receive comments by electronic mail in order to facilitate posting on the USPTO's Internet Web site (http://www.uspto.gov). Electronic comments may be submitted in plain text, ADOBE® portable document format, or MICROSOFT WORD® format. Comments not submitted electronically should be submitted on paper in a format that facilitates digital scanning into ADOBE® portable document format.

The comments will be available for viewing via the USPTO's Internet Web site (http://www.uspto.gov). The comments also will be available for public inspection at the Office of the Commissioner for Patents, currently located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia 22314. Because the comments will be made publicly available, information that the submitter does not desire to make public, such as an address or phone number, should not be included in the comments.

FOR FURTHER INFORMATION CONTACT:

Roundtable information, including roundtable registration information: Elizabeth Magargel, Strategic Planning Project Manager, Office of the Assistant Deputy Commissioner for Patent Operations, by telephone at (571) 270-7248.

Written comments: Raul Tamayo, Senior Legal Advisor, Office of Patent Legal Administration, Office of the Deputy Commissioner for Patent Examination Policy, by telephone at (571) 272-7728.

Examination time goals: Daniel Sullivan, Director Technology Center 1600, by telephone at (571) 272-0900.

SUPPLEMENTARY INFORMATION:

In a Federal Register Notice, Request for Comments on Examination Time Goals, 81 FR 73383 (Oct. 25, 2016), the Office solicited written comments on the reevaluation of the Office's examination time goals. In addition to accepting public feedback through the submission of written comments, the Office provided increased interactive participation through IdeaScale®, a Web-based collaboration tool that allows users to post comments and interact with the posted comments of others; and through roundtables in Alexandria, Detroit, Denver, Dallas, and San Jose. The October 25, 2016 Federal Register Notice provided dates and other information for the Alexandria and Dallas roundtables. The October 25, 2016 Federal Register Notice indicated that dates and other information for the roundtables to be conducted in Detroit, Denver, and San Jose would be forthcoming.

The Office now provides dates and other information for the roundtables to be conducted in Detroit, Denver, and San Jose.

The San Jose roundtable has been scheduled for January 11, 2017, which is after the written comment deadline set forth in the October 25, 2016 Federal Register Notice. To ensure that all roundtable attendees also have the opportunity to provide written comments, the Office hereby is extending the period for submission of written comments until January 30, 2017.

Please visit http://www.uspto.gov/patent/initiatives/eta-external-outreach for more information on the reevaluation of the Office's examination time goals. The Web page includes: Dates and registration information for the roundtables; information on how to use IdeaScale® to comment on examination time goals; and information to help inform public comments responsive to the October 25, 2016 Federal Register Notice requesting comments, such as background material illustrating the use of examination time goals in the context of individual examiner evaluation, and as an input into the model used to forecast pendency and hiring needs. The Office plans to use the public feedback it receives as an input to help ensure that the Office's examination time goals accurately reflect the amount of time needed by examiners to conduct quality examination in a manner that responds to stakeholders' interests.

Detroit, Denver, and San Jose Roundtable Registration Information: Roundtables will be conducted in Detroit, Denver, and San Jose, as detailed below. Registration is required, and early registration is recommended because seating is limited. There is no fee to register for any of the roundtables, and registration will be on a first-come, first-served basis. Registration on the day of the roundtables will be permitted on a space-available basis beginning 30 minutes before each roundtable.

To register, please send an email message to [email protected] and provide the following information: (1) Your name, title, and if applicable, company or organization, address, phone number, and email address; and (2) which roundtable you wish to attend. Each attendee, even if from the same organization, must register separately. If you need special accommodations, e.g., due to a disability, please inform a contact person identified below.

For more information on any of the roundtables, including the agenda for each roundtable and webcast access instructions for the Alexandria roundtable, please visit http://www.uspto.gov/patent/initiatives/eta-external-outreach.

Detroit Roundtable

Detroit Dates: Roundtable Date: The Detroit roundtable will be held on Thursday, December 15, 2016, beginning at 9:00 a.m. Eastern Standard Time (EST) and ending at 11:00 a.m. EST.

Registration Deadline: Registration to attend the Detroit roundtable in person or via webcast is requested by December 8, 2016. See the “Roundtable Registration Information” section of this notice, or visit http://www.uspto.gov/patent/initiatives/eta-external-outreach, for additional details on how to register.

Address of Detroit Roundtable: The Detroit roundtable will be held at the USPTO's Midwest Regional Office in the Stroh Building, 300 River Place Drive, Suite 2900, Detroit, MI, 48207.

Denver Roundtable

Denver Dates: Roundtable Date: The Denver roundtable will be held on Thursday, December 15, 2016, beginning at 10:00 a.m. Mountain Standard Time (MST) and ending at 12:00 p.m. MST.

Registration Deadline: Registration to attend the Denver roundtable is requested by December 8, 2016. See the “Roundtable Registration Information” section of this notice, or visit http://www.uspto.gov/patent/initiatives/eta-external-outreach, for additional details on how to register.

Address of Denver Roundtable: The Denver roundtable will be held at the USPTO's Rocky Mountain Regional Office in the Byron G. Rogers Federal Building, 1961 Stout Street, Longs Peak Conference Room, 2nd Floor, Denver, CO 80296.

San Jose Roundtable

San Jose Dates: Roundtable Date: The San Jose roundtable will be held on Wednesday, January 11, 2017, beginning at 1:00 p.m. Pacific Standard Time (PST) and ending at 3:00 p.m. PST.

Registration Deadline: Registration to attend the San Jose roundtable is requested by January 4, 2017. See the “Roundtable Registration Information” section of this notice, or visit http://www.uspto.gov/patent/initiatives/eta-external-outreach, for additional details on how to register.

Address of San Jose Roundtable: The San Jose roundtable will be held at the San Jose City Hall, 200 E. Santa Clara Street, San Jose, CA 95113.

Dated: November 22, 2016. Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.
[FR Doc. 2016-28689 Filed 11-29-16; 8:45 am] BILLING CODE 3510-16-P
DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #2

Take notice that the Commission received the following electric rate filings:

Docket Numbers: ER12-1265-007.

Applicants: Midcontinent Independent System Operator, Inc.

Description: Compliance filing: 2016-11-22_Order 719 Compliance Filing to be effective 6/12/2012.

Filed Date: 11/22/16.

Accession Number: 20161122-5101.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER13-1943-006.

Applicants: Midcontinent Independent System Operator, Inc.

Description: Compliance filing: 2016-11-22_MISO-PJM JOA Order 1000 Interregional Compliance to be effective 1/1/2014.

Filed Date: 11/22/16.

Accession Number: 20161122-5188.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER17-272-001.

Applicants: Startrans IO, LLC.

Description: Tariff Amendment: Errata to TRBAA 2017 Update to be effective 1/1/2017.

Filed Date: 11/22/16.

Accession Number: 20161122-5178.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER17-404-000.

Applicants: Midcontinent Independent System Operator, Inc., MidAmerican Energy Company, ITC Midwest LLC.

Description: § 205(d) Rate Filing: 2016-11-22_SA 2972 MidAmerican-ITC Midwest FCA (Coulter-Tap) to be effective 11/23/2016.

Filed Date: 11/22/16.

Accession Number: 20161122-5096.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER17-405-000.

Applicants: American Electric Power Service Corporation, PJM Interconnection, L.L.C.

Description: § 205(d) Rate Filing: AEP East Submits OATT H-14 Revisions to be effective 1/1/2017.

Filed Date: 11/22/16.

Accession Number: 20161122-5099.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER17-406-000.

Applicants: American Electric Power Service Corporation, PJM Interconnection, L.L.C.

Description: § 205(d) Rate Filing: AEP submits OATT H-20 Revisions to be effective 1/1/2017.

Filed Date: 11/22/16.

Accession Number: 20161122-5132.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER17-407-000.

Applicants: ISO New England Inc., Central Maine Power Company.

Description: § 205(d) Rate Filing: CMP and ISO-NE Filing of LSA under Schedule 21-CMP of ISO OATT to be effective 8/8/2016.

Filed Date: 11/22/16.

Accession Number: 20161122-5148.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER17-408-000.

Applicants: California Independent System Operator Corporation.

Description: § 205(d) Rate Filing: 2016-11-22 Transferred Frequency Response Agreement with BPA to be effective 12/1/2016.

Filed Date: 11/22/16.

Accession Number: 20161122-5156.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER17-409-000.

Applicants: Mid-Atlantic Interstate Transmission, LLC, PJM Interconnection, L.L.C.

Description: § 205(d) Rate Filing: MAIT submits Agency Agreement No. 4580 among MetEd, Penelec and MAIT to be effective 1/1/2017.

Filed Date: 11/22/16.

Accession Number: 20161122-5159.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER17-410-000.

Applicants: PJM Interconnection, L.L.C.

Description: § 205(d) Rate Filing: Queue #X4-048/Y2-089, First Revised Service Agreement No. 3838 to be effective 10/25/2016.

Filed Date: 11/22/16.

Accession Number: 20161122-5160.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER17-411-000.

Applicants: California Independent System Operator Corporation.

Description: § 205(d) Rate Filing: 2016-11-22 Transferred Frequency Response Agreement with City of Seattle to be effective 12/1/2016.

Filed Date: 11/22/16.

Accession Number: 20161122-5166.

Comments Due: 5 p.m. ET 12/13/16.

The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

Dated: November 22, 2016. Kimberly D. Bose, Secretary.
[FR Doc. 2016-28763 Filed 11-29-16; 8:45 am] BILLING CODE 6717-01-P
DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL17-21-000] Kansas Electric Power Cooperative, Inc. v. Southwest Power Pool, Inc.; Notice of Complaint

Take notice that on November 21, 2016, pursuant to sections 206 and 306 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206 (2016) and section 306 of the Federal Power Act (FPA), 16 U.S.C. 824(e) and 825(e), Kansas Electric Power Cooperative, Inc. (Complainant) filed a formal complaint against Southwest Power Pool, Inc. (Respondent) alleging that, Respondent's direct cost assignment of approximately $6.2 million to Complainant in connection with the Attachment Z2 revenue crediting process is unlawful under Respondent's Open Access Transmission Tariff, all as more fully explained in the complaint.

Complainant certifies that copies of the complaint were served on the contacts for Respondent as listed on the Commission's list of Corporate Officials as well as the Kansas Corporation 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, 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 Complainants.

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 December 12, 2016.

Dated: November 22, 2016. Kimberly D. Bose, Secretary.
[FR Doc. 2016-28765 Filed 11-29-16; 8:45 am] BILLING CODE 6717-01-P
DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER17-382-000] CED Ducor Solar 1, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization

This is a supplemental notice in the above-referenced proceeding CED Ducor Solar 1, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is December 12, 2016.

The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

Dated: November 22, 2016. Kimberly D. Bose, Secretary.
[FR Doc. 2016-28766 Filed 11-29-16; 8:45 am] BILLING CODE 6717-01-P
DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP17-16-000] Gulf South Pipeline Company, LP; Notice of Request Under Blanket Authorization

Take notice that on November 17, 2016 Gulf South Pipeline Company, LP (Gulf South), 9 Greenway Plaza, Suite 2800, Houston, Texas, 77046, filed in the above referenced docket a prior notice application pursuant to sections 157.205 and 157.216(b) of the Federal Energy Regulatory Commission's (Commission) regulations under the Natural Gas Act (NGA), and Gulf South's blanket certificate issued in Docket No. CP82-430-000. Gulf South seeks authorization to abandon in place two 2,000 horsepower (HP) reciprocating units, compressor fuel lines and a fuel meter located at its Bayou Sale Compressor Station (CS) in St. Mary Parish, Louisiana, all as more fully set forth in the application, which is open to the public for 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, please contact FERC Online Support at [email protected] or toll free at (866) 208-3676, or TTY, contact (202) 502-8659.

Any questions concerning this application may be directed to Kathy D. Fort, Manager, Certificates and Tariffs, Gulf South Pipeline Company, LP, 610 West 2nd Street Owensboro, Kentucky, 42301, by phone at (270) 688-6825 or by email at [email protected] or to Juan Eligio Jr., Sr. Regulatory Analyst, Gulf South Pipeline Company, LP, 9 Greenway Plaza, Suite 2800, Houston, Texas, 77046, by phone at (713) 479-3480 or by email at [email protected]

Specifically, Gulf South states that facilities proposed for abandonment were initially installed to receive gas from south Louisiana and Eugene Island, offshore Louisiana; however, there have not been sufficient offshore gas supplies to operate the facilities in over 20 years. Gulf South states that by abandoning compression at Bayou Sale CS, the maximum capacity on this section of Gulf South's system will decrease to 196.7 million cubic feet per day (MMcf/d), while the maximum throughput on this system for the past five years has been 125.7 MMcf/d. Therefore, Gulf South states that the proposed abandonment will have no adverse impact on its system and Gulf South's ability to comply with its contractual obligations.

Any person or the Commission's staff may, within 60 days after 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 and pursuant to section 157.205 of the regulations under the NGA (18 CFR 157.205), 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 filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time 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 commenters 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 commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters 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 will 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 in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and five (5) copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

Dated: November 22, 2016. Kimberly D. Bose, Secretary.
[FR Doc. 2016-28764 Filed 11-29-16; 8:45 am] BILLING CODE 6717-01-P
DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings

Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:

Filings Instituting Proceedings

Docket Number: PR17-4-000.

Applicants: Columbia Gas of Ohio, Inc.

Description: Tariff filing per 284.123(b) + (e) COH SOC to be effective 10/27/2016; Filing Type: 980.

Filed Date: 11/15/16.

Accession Number: 201611155070.

Comments/Protests Due: 5 p.m. ET 12/6/16.

Docket Number: PR17-5-000.

Applicants: NET Mexico Pipeline Partners, LLC.

Description: Tariff filing per 284.123(b) + (e) + (g): Revised Statement of Operating Conditions to be effective 11/16/2016; Filing Type: 1300.

Filed Date: 11/16/2016.

Accession Number: 201611165072.

Comments Due: 5 p.m. ET 12/7/16.

284.123(g) Protests Due: 5 p.m. ET 1/17/17.

Docket Number: PR17-6-000.

Applicants: Enable Illinois Intrastate Transmission, LLC.

Description: Tariff filing per 284.123(e) + (g): Cancellation of SOC to be effective 11/16/2016; Filing Type: 1290.

Filed Date: 11/16/2016.

Accession Number: 201611165131.

Comments Due: 5 p.m. ET 12/7/16.

284.123(g) Protests Due: 5 p.m. ET 1/17/17.

Docket Numbers: RP17-184-000.

Applicants: Southern Natural Gas Company, L.L.C.

Description: Compliance filing Annual Report on Operational Transactions.

Filed Date: 11/17/16.

Accession Number: 20161117-5050.

Comments Due: 5 p.m. ET 11/29/16.

Docket Numbers: RP17-185-000.

Applicants: Tennessee Gas Pipeline Company, L.L.C.

Description: § 4(d) Rate Filing: Volume No. 2—Neg. Rate Agmt—Crestwood Gas Marketing LLC SP39122 to be effective 11/1/2016.

Filed Date: 11/17/16.

Accession Number: 20161117-5077.

Comments Due: 5 p.m. ET 11/29/16.

Docket Numbers: RP17-186-000.

Applicants: Ruby Pipeline, L.L.C.

Description: § 4(d) Rate Filing: Ruby FLU Filing to be effective 1/1/2017.

Filed Date: 11/18/16.

Accession Number: 20161118-5060.

Comments Due: 5 p.m. ET 11/30/16.

Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified date(s). Protests may be considered, but intervention is necessary to become a party to the proceeding.

Filings in Existing Proceedings

Docket Numbers: RP16-1299-001.

Applicants: Kinetica Energy Express, LLC.

Description: Compliance filing: Compliance Filing to be effective 11/1/2016.

Filed Date: 11/18/16.

Accession Number: 20161118-5051.

Comments Due: 5 p.m. ET 11/30/16.

Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.

The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

Dated November 21, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
[FR Doc. 2016-28808 Filed 11-29-16; 8:45 am] BILLING CODE 6717-01-P
DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings

Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:

Filings Instituting Proceedings

Docket Numbers: RP17-187-000.

Applicants: DBM Pipeline, LLC.

Description: § 4(d) Rate Filing: Negotiated Rate Filing to be effective 12/1/2016.

Filed Date: 11/21/16.

Accession Number: 20161121-5064.

Comments Due: 5 p.m. ET 12/5/16.

Docket Numbers: RP17-188-000.

Applicants: Gas Transmission Northwest LLC.

Description: § 4(d) Rate Filing: Annual Fuel Filing 2016 to be effective 1/1/2017.

Filed Date: 11/21/16.

Accession Number: 20161121-5067.

Comments Due: 5 p.m. ET 12/5/16.

Docket Numbers: RP17-189-000.

Applicants: Transcontinental Gas Pipe Line Company,

Description: § 4(d) Rate Filing: LSS and SS-2 Tracker Effective Nov. 1 2016 (National Fuel) to be effective 11/1/2016.

Filed Date: 11/21/16.

Accession Number: 20161121-5087.

Comments Due: 5 p.m. ET 12/5/16.

Docket Numbers: RP17-190-000.

Applicants: Young Gas Storage Company, Ltd.

Description: § 4(d) Rate Filing: Annual FL&U Filing to be effective 1/1/2017.

Filed Date: 11/21/16.

Accession Number: 20161121-5088.

Comments Due: 5 p.m. ET 12/5/16.

Docket Numbers: RP17-191-000.

Applicants: KPC Pipeline, LLC.

Description: Request for Waiver of Tariff Provision Requiring the Filing of an Annual Interruptible Transportation Revenue Crediting Report of KPC Pipeline, LLC.

Filed Date: 11/21/16.

Accession Number: 20161121-5089.

Comments Due: 5 p.m. ET 12/5/16.

Docket Numbers: RP17-192-000.

Applicants: Colorado Interstate Gas Company, L.L.C.

Description: § 4(d) Rate Filing: Quarterly LUF True-up Filing to be effective 1/1/2017.

Filed Date: 11/21/16.

Accession Number: 20161121-5098.

Comments Due: 5 p.m. ET 12/5/16.

Docket Numbers: RP17-193-000.

Applicants: Mojave Pipeline Company, L.L.C.

Description: § 4(d) Rate Filing: Annual FL&U Filing and Operational Purchase and Sales Report to be effective 1/1/2017.

Filed Date: 11/21/16.

Accession Number: 20161121-5113.

Comments Due: 5 p.m. ET 12/5/16.

The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

Dated November 22, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
[FR Doc. 2016-28809 Filed 11-29-16; 8:45 am] BILLING CODE 6717-01-P
DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER17-384-000] CED Ducor Solar 3, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization

This is a supplemental notice in the above-referenced proceeding CED Ducor Solar 3, LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is December 12, 2016.

The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

Dated: November 22, 2016. Kimberly D. Bose, Secretary.
[FR Doc. 2016-28768 Filed 11-29-16; 8:45 am] BILLING CODE 6717-01-P
DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

Take notice that the Commission received the following electric corporate filings:

Docket Numbers: EC17-38-000.

Applicants: Helix Generation, LLC, TC Ravenswood, LLC, TC Ironwood LLC, TransCanada Maine Wind Development Inc., Ocean State Power LLC, TransCanada Power Marketing Ltd.

Description: Joint Application of Helix Generation, LLC, et al. for Approval Under Section 203 of the FPA.

Filed Date: 11/21/16.

Accession Number: 20161121-5263.

Comments Due: 5 p.m. ET 12/12/16.

Take notice that the Commission received the following electric rate filings:

Docket Numbers: ER10-2487-003; ER15-2380-001.

Applicants: Pacific Summit Energy LLC, Willey Battery Utility, LLC.

Description: Notice of Change in Status of Pacific Summit Energy LLC, et al.

Filed Date: 11/21/16.

Accession Number: 20161121-5203.

Comments Due: 5 p.m. ET 12/12/16.

Docket Numbers: ER16-1804-001.

Applicants: Deepwater Block Island Wind, LLC.

Description: Notice of Non-Material Change in Status of Deepwater Block Island Wind, LLC.

Filed Date: 11/21/16.

Accession Number: 20161121-5199.

Comments Due: 5 p.m. ET 12/12/16.

Docket Numbers: ER17-212-001.

Applicants: Upper Michigan Energy Resources Corporation.

Description: Tariff Amendment: Executed UMERC to Crystal Falls FERC Rate Schedule No 4 to be effective 1/1/2017.

Filed Date: 11/21/16.

Accession Number: 20161121-5195.

Comments Due: 5 p.m. ET 12/12/16.

Docket Numbers: ER17-388-000.

Applicants: SunZia Transmission, LLC.

Description: Report on the Open Solicitation and Selection Process for Anchor Customers of SunZia Transmission, LLC.

Filed Date: 11/18/16.

Accession Number: 20161118-5133.

Comments Due: 5 p.m. ET 12/9/16.

Docket Numbers: ER17-401-000.

Applicants: Pacific Summit Energy LLC.

Description: Compliance filing: Notice of Change in Status and Revised MBR Tariff to be effective 1/20/2017.

Filed Date: 11/21/16.

Accession Number: 20161121-5193.

Comments Due: 5 p.m. ET 12/12/16.

Docket Numbers: ER17-402-000.

Applicants: Willey Battery Utility, LLC.

Description: Compliance filing: Notice of Change in Status and Revised MBR Tariff to be effective 1/20/2017.

Filed Date: 11/21/16.

Accession Number: 20161121-5194.

Comments Due: 5 p.m. ET 12/12/16.

Docket Numbers: ER17-403-000.

Applicants: Niagara Mohawk Power Corporation.

Description: Notice of Cancellation of Interconnection Agreement, Rate Schedule No. 200 of Niagara Mohawk Power Corporation.

Filed Date: 11/21/16.

Accession Number: 20161121-5202.

Comments Due: 5 p.m. ET 12/12/16.

The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

Dated: November 22, 2016. Kimberly D. Bose, Secretary.
[FR Doc. 2016-28762 Filed 11-29-16; 8:45 am] BILLING CODE 6717-01-P
DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER17-383-000] CED Ducor Solar 2, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization

This is a supplemental notice in the above-referenced proceeding CED Ducor Solar 2, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is December 12, 2016.

The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

Dated: November 22, 2016. Kimberly D. Bose, Secretary.
[FR Doc. 2016-28767 Filed 11-29-16; 8:45 am] BILLING CODE 6717-01-P
DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings

Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:

Filings Instituting Proceedings

Docket Number: PR17-7-000.

Applicants: NorthWestern Corporation.

Description: Tariff filing per 284.123(b),(e): Revised Rate Schedules for Transportation and Storage Service to be effective 11/1/2016; Filing Type: 1000.

Filed Date: 11/21/2016.

Accession Number: 20161121-5071.

Comments/Protests Due: 5 p.m. ET 12/12/16.

Docket Number: PR17-8-000.

Applicants: Columbia Gas of Maryland, Inc.

Description: Tariff filing per 284.123(b),(e): CMD SOC to be effective 10/27/2016; Filing Type: 980.

Filed Date: 11/21/2016.

Accession Number: 20161121-5185.

Comments/Protests Due: 5 p.m. ET 12/12/16.

Docket Numbers: RP17-194-000.

Applicants: Sierrita Gas Pipeline LLC.

Description: Annual Operational Purchases and Sales Report of Sierrita Gas Pipeline LLC under RP17-194.

Filed Date: 11/22/16.

Accession Number: 20161122-5140.

Comments Due: 5 p.m. ET 12/5/16.

Docket Numbers: RP17-195-000.

Applicants: National Fuel Gas Supply Corporation.

Description: Compliance filing TSCA Informational Filing (11-22-16).

Filed Date: 11/22/16.

Accession Number: 20161122-5173.

Comments Due: 5 p.m. ET 12/5/16.

The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

Dated November 23, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
[FR Doc. 2016-28810 Filed 11-29-16; 8:45 am] BILLING CODE 6717-01-P
DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

Take notice that the Commission received the following electric rate filings:

Docket Numbers: ER10-1874-004; ER10-2881-030; ER10-2882-031; ER10-2883-030; ER10-2884-030.

Applicants: Mankato Energy Center, LLC, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company.

Description: Notification of Non-Material of Change in Status of Mankato Energy Center, LLC, et al.

Filed Date: 11/22/16.

Accession Number: 20161122-5246.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER12-1266-007.

Applicants: Midcontinent Independent System Operator, Inc.

Description: Compliance filing: 2016-11-23_Order 745 Compliance Filing to be effective 6/12/2012.

Filed Date: 11/23/16.

Accession Number: 20161123-5082.

Comments Due: 5 p.m. ET 12/14/16.

Docket Numbers: ER13-1944-005.

Applicants: PJM Interconnection, L.L.C.

Description: Compliance filing: Compliance filing per 10/28/2016 order in Docket No. ER13-1944 to be effective 1/1/2014.

Filed Date: 11/22/16.

Accession Number: 20161122-5198.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER17-392-000.

Applicants: City of Pasadena, California.

Description: City of Pasadena, California tariff filing (Work Paper Filings—Parts 1 and 2).

Filed Date: 11/22/16.

Accession Number: 20161122-5245, 20161122-5244.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER17-412-000.

Applicants: Midcontinent Independent System Operator, Inc.

Description: § 205(d) Rate Filing: 2016-11-22_SA 2898 Termination of Ameren-Ford County Wind Farm GIA (J375) to be effective 1/23/2017.

Filed Date: 11/22/16.

Accession Number: 20161122-5195.

Comments Due: 5 p.m. ET 12/13/16.

Docket Numbers: ER17-413-000.

Applicants: Southern California Edison Company.

Description: § 205(d) Rate Filing: SCE Amendments to WDAT GIP—Smart Inverter & Interconnection Process to be effective 1/23/2017.

Filed Date: 11/23/16.

Accession Number: 20161123-5081.

Comments Due: 5 p.m. ET 12/14/16.

The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

Dated: November 23, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
[FR Doc. 2016-28815 Filed 11-29-16; 8:45 am] BILLING CODE 6717-01-P
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION Sunshine Act Notice November 28, 2016. TIME AND DATE:

10:00 a.m., Thursday, December 8, 2016.

PLACE:

The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (enter from F Street entrance).

STATUS:

Open.

MATTERS TO BE CONSIDERED:

The Commission will consider and act upon the following in open session: Secretary of Labor v. Portable, Inc., Docket No. EAJA 2015-1-M. (Issues include whether the Judge erred by ruling that the Secretary's position was not substantially justified.)

Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).

CONTACT PERSON FOR MORE INFO:

Emogene Johnson (202) 434-9935/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.

PHONE NUMBER FOR LISTENING TO MEETING:

1-(866) 867-4769, Passcode: 129-339.

Sarah L. Stewart, Deputy General Counsel.
[FR Doc. 2016-28864 Filed 11-28-16; 4:15 pm] BILLING CODE 6735-01-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention [30Day-17-16AQM] 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

Presidential Youth Fitness Program Evaluation—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).

Background and Brief Description

In 2013, the Presidential Youth Fitness Program began its first round of funding to elementary, middle and high school PE teachers who applied to the program. A second round of funding began in 2014 and a third in 2015. Each participating school receives support to implement the PYFP for three years. The resources provided to PE teachers include: professional development training, awards for student recognition of fitness achievements, access to a professional learning community and access to FitnessGram® fitness assessment software. For the schools selected to receive PYFP support, the requirements include: (1) Information Technology (IT) manager and PE teacher participation in the FitnessGram® software training, (2) PE teacher participation in PYFP professional development training, (3) conducting FitnessGram® assessments according to the training, (4) recognizing student achievement in fitness and physical activity, (5) confirming continued participation in the program at the end of Years 1 and 2, and (6) participating in evaluation activities, including the submission of required data on an annual basis. The PYFP is designed to supplement the traditional PE course and support physical education (PE) teachers in laying the foundation for students to lead an active life.

CDC plans to conduct the first rigorous evaluation of the PYFP. The evaluation will assess the impact of the program on student, PE teacher and school level outcomes (outcome evaluation) as well as barriers and facilitators to program implementation (process evaluation). Evaluation activities will take place in 11 schools implementing the PYFP and 11 match comparison schools, contributing a total of 82 sixth grade PE classes. Information collection will be conducted in 6 PYFP and 6 match comparison schools in Spring 2017 and 5 PYFP and 5 match comparison schools in Fall 2017. The PYFP schools recruited to participate in the PYFP Evaluation will be identified from a list of schools receiving Round 2 or Round 3 PYFP funding and meeting the following inclusion criteria: (1) Middle school with a sixth grade, (2) sixth grade enrollment of 150 or higher, (3) 50% or more of students receiving free or reduced lunch, and (4) documented completion of PYFP professional development training. Comparison schools will be matched based on criteria 1-3 above as well as location to ensure similar PE policies and standards. The process and outcome evaluation will involve data collection activities with four respondent groups: (1) Students, (2) PE teachers, (3) parents, and (4) school administrators.

The specific aims of the outcome evaluation are to examine how the PYFP impacts student fitness and physical activity, particularly how the program impacts student: (1) Fitness knowledge and health knowledge, (2) attitudes toward physical activity, (3) motivation to be physically active, (4) physical activity levels and (5) fitness. Surveys to be conducted at all schools include the: (1) Paper-based PYFP Student Survey, (2) online PYFP PE Teacher Survey, and (3) online PYFP School Administrator Survey. There are minor differences in the survey instruments depending on whether the school is a PYFP participant or a non-PYFP school. The outcome evaluation will also determine the changes made as a result of the PYFP such as changes at the school level (e.g., improved PE and physical activity policies and practices, increased parent awareness of school PE and physical activity) and changes in PE teaching practices (e.g., integration of fitness education, increased use of fitness assessment tools and improved practices for fitness testing).

The outcome evaluation will include fitness assessments with approximately 2,460 students as part of the standard PE program (1,230 PYFP sixth grade students and 1,230 non-PYFP sixth grade students). Fitness assessments will be conducted at both the beginning and end of the semester using FitnessGram®'s pacer and body composition assessments. Finally, a subset of 6 PYFP and 6 match comparison schools will assess students' physical activity levels by collecting student accelerometry data. Accelerometry will be conducted in a subset of 25 PYFP and 25 non-PYFP classes to capture data from approximately 500 students (250 students from PYFP schools and 250 students from match comparison schools). Accelerometry data collection will involve wearing the device for a week at the beginning and a week at the end of semester and noting hours of wear time and class schedule.

Information collection for the process evaluation will be conducted only in the 11 PYFP schools. The aims of the process evaluation are to describe how PYFP resources were used by teachers and schools, the strategies used by teachers and schools to integrate fitness education and student recognition of fitness achievement into the schools, and barriers and facilitators relevant to PYFP implementation. All PYFP schools will complete cost and time use worksheets. In addition, focus groups with PE teachers, students, and parents will be conducted in a subset of 6 PYFP schools. Focus groups will take place on school grounds during or outside of the school day, depending on availability of a given respondent group.

The information collected for the PYFP evaluation will allow the CDC and partners to assess the impact of the PYFP compared with a traditional PE curriculum and gather information critical for program improvement.

OMB approval is requested for two years. Participation in the PYFP Evaluation is voluntary and there are no costs to respondents other than their time.

Estimated Annualized Burden Hours Type of respondents Form name Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Average
  • burden per
  • response
  • (in hrs)
  • 6th grade students in PYFP Schools FitnessGram® Data Collection Form 615 2 15/60 Accelerometry Log 125 2 30/60 Student Survey (PYFP Schools) 615 1 15/60 Student Focus Group Moderator Guide 30 1 1 PE teachers in PYFP Schools PE Teacher Survey (PYFP Schools) 22 1 25/60 PE Teacher Focus Group Moderator Guide 12 1 1 PYFP Time Use Worksheet 6 1 30/60 School administrators in PYFP Schools School Administrator Survey (PYFP Schools) 6 1 20/60 PYFP Cost Worksheet 6 1 1 Parents of 6th graders enrolled in PE at PYFP Schools Parent Focus Group Moderator Guide 30 1 1 6th grade students in non-PYFP Schools FitnessGram® Data Collection Form 615 2 15/60 Accelerometry Log 125 2 30/60 Student Survey (non-PYFP Schools) 615 1 15/60 PE teachers in non-PYFP Schools PE Teacher Survey (non-PYFP Schools) 22 1 25/60 School Administrators in non-PYFP Schools School Administrator Survey (non-PYFP Schools) 6 1 20/60
    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. 2016-28797 Filed 11-29-16; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention [60Day-17-16BCY; Docket No. CDC-2016-0112] 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 information collection project entitled “Knowledge, Attitudes, and Practices related to a Domestic Readiness Initiative on Zika Virus Disease.” This project consists of telephone interviews with participants in Puerto Rico and the domestic U.S.

    DATES:

    Written comments must be received on or before January 30, 2017.

    ADDRESSES:

    You may submit comments, identified by Docket No. CDC-2016-0112 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 also 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) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (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; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. 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 utilize 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 to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.

    Proposed Project

    Knowledge, Attitudes, and Practices related to a Domestic Readiness Initiative on Zika Virus Disease—New—Office of the Associate Director of Communications (OADC), Centers for Disease Control and Prevention (CDC).

    Background and Brief Description

    Since late 2015, Zika has rapidly spread through Puerto Rico. As of July 2016, there have been 7,286 confirmed cases of Zika in Puerto Rico, with 788 cases among pregnant women and 23 cases of Guillain-Barré caused by Zika. In the continental United States, there have been 1,658 travel-associated cases of Zika. And as of August 2, 2016, there have been 14 locally-acquired Zika cases in Miami, Florida. Due to the urgent nature of this public health emergency, CDC is implementing a Zika prevention communication and education initiative in the continental United States and Puerto Rico.

    The CDC requests approval from the Office of Management and Budget (OMB) to conduct an assessment of a domestic U.S. and Puerto Rico-based communication and education initiative aimed at encouraging at-risk populations to prepare and protect themselves and their families from Zika virus infection. As part of the mission of CDC's Domestic Readiness Initiative on the Zika Virus Disease, CDC will assess the following communication and education objectives: (1) Determine the reach and saturation of the initiative's messages in Puerto Rico and 20 U.S. states and Washington, DC; (2) measure the extent to which messages were communicated clearly across multiple channels to advance knowledge and counter misinformation; and (3) monitor individual and community-level awareness, attitudes and intention to follow recommended behaviors.

    CDC seeks to collect data over the next six months related to Zika prevention efforts that have been and will be implemented in Puerto Rico and the domestic U.S. Specifically, CDC needs this assessment to ensure that Zika prevention campaigns effectively reach target audiences to educate individuals regarding Zika prevention behaviors. On-going evaluation is an important part of this program because it can inform awareness of campaign activities, how people perceive Zika as a health risk, and assess their uptake of recommended health behaviors after the campaign has been implemented.

    These interviews can help articulate motivations for and against engaging in Zika prevention behaviors that are critical for preventing Zika-associated birth defects and morbidities. Implementing changes based on results from this assessment is expected to facilitate program improvement and ensure the most efficient allocation of resources for this public health emergency.

    The goal of this project is to determine knowledge, attitudes, and practices related to a new Domestic Readiness Initiative on Zika Virus Disease being launched in the United States (U.S.) mainland and Puerto Rico.

    Findings will be used to improve planning, implementation, refinements, and demonstrate outcomes of a Zika Domestic Readiness Initiative communication and education effort. The plan is to conduct up to 3,600 interviews in the domestic U.S. (1,200 immediately following OMB approval, and again at three months and 12 months post-launch) and 3,600 in Puerto Rico at similar timepoints.

    As each phase of data is collected, researchers will analyze the data, and generate a report for leaders of the response to offer insights on the delivery of the communication campaign. The information will be used to make recommendations for improving communication and education regarding the prevention and spread of the Zika virus. Information may also be used to develop presentations, reports, and manuscripts to document the communication effort and lessons learned in order to inform future similar communication efforts.

    This information collection will allow CDC to assess core components of its Zika response in communicating prevention behaviors and risk messages to the public about vector control services.

    The following factors will be assessed:

    • Knowledge about Zika virus and related prevention behaviors;

    • Self-efficacy in engaging in Zika prevention behaviors;

    • Engagement in Zika prevention behaviors (e.g., protective clothing use, condom use, and standing water removal);

    • Risk perceptions of Zika.

    CDC will conduct telephone interviews with a mix of closed-ended and open-ended questions with individuals domestically in the U.S. and in Puerto Rico. We estimate 7,200 individuals will participate in the project over a six month period.

    Results of this project will have limited generalizability. However, results of this evaluation should provide information that can be used to enhance and revise the existing program as well as offer lessons learned to inform infectious disease control programs that use education materials. Authorizing legislation comes from Section 301 of the Public Health Service Act (42 U.S.C. 241). There is no cost to respondents other than their time to participate.

    Estimated Annualized Burden Hours Type of respondents Form name Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Average
  • burden
  • per response
  • (in hours)
  • Total burden
  • hours
  • U.S. Domestic Adults Zika Readiness Initiative Survey 3,600 1 12/60 720 Puerto Rico Adults Zika Readiness Initiative Survey 3,600 1 12/60 720 Total 7,200 1,440
    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. 2016-28798 Filed 11-29-16; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children and Families [CFDA Number: 93.645] Notice of Allotment Percentages to States for Child Welfare Services State Grants AGENCY:

    Children's Bureau, Administration on Children, Youth and Families, Administration for Children and Families, Department of Health and Human Services.

    ACTION:

    Biennial publication of allotment percentages for states under the title IV-B subpart 1, Child Welfare Services State Grants Program.

    SUMMARY:

    As required by section 423(c) of the Social Security Act (42 U.S.C. 623(c)), the Department of Health and Human Services is publishing the allotment percentage for each state under the title IV-B subpart 1, Child Welfare Services State Grants Program. Under section 423(a), the allotment percentages are one of the factors used in the computation of the federal grants awarded under the program.

    DATES:

    The allotment percentages will be effective for federal fiscal years 2018 and 2019.

    FOR FURTHER INFORMATION CONTACT:

    Deborah Bell, Grants Fiscal Management Specialist, Office of Grants Management, Office of Administration, Administration for Children and Families, telephone (202) 401-4611.

    SUPPLEMENTARY INFORMATION:

    The allotment percentage for each state is determined on the basis of paragraphs (b) and (c) of section 423 of the Act. These figures are available on the ACF Internet homepage at: http://www.acf.dhhs.gov/programs/cb/. The allotment percentage for each State is as follows:

    State Allotment
  • percentage **
  • Alabama 59.23 Alaska * 41.66 Arizona 58.86 Arkansas 58.95 California 45.44 Colorado 47.15 Connecticut 1 30.00 Delaware 49.75 District of Columbia 1 30.00 Florida 53.62 Georgia 57.61 Hawaii * 50.02 Idaho 60.23 Illinois 48.03 Indiana 56.98 Iowa 51.63 Kansas 51.11 Kentucky 59.34 Louisiana 54.36 Maine 55.71 Maryland 41.06 Massachusetts 36.19 Michigan 55.72 Minnesota 46.82 Mississippi 62.54 Missouri 54.87 Montana 56.55 Nebraska 48.68 Nevada 55.79 New Hampshire 42.77 New Jersey 37.54 New Mexico 59.90 New York 39.59 North Carolina 57.44 North Dakota 40.45 Ohio 54.23 Oklahoma 53.00 Oregon 55.26 Pennsylvania 48.29 Rhode Island 47.67 South Carolina 60.12 South Dakota 51.12 Tennessee 55.91 Texas 50.70 Utah 59.01 Vermont 49.65 Virginia 45.19 Washington 46.36 West Virginia 60.79 Wisconsin 52.03 Wyoming 41.49 American Samoa 70.00 Guam 70.00 Puerto Rico 70.00 N. Mariana Islands 70.00 Virgin Islands 70.00 * State Percentage = 50 percent of year average divided by the National United States 3-year average. ** State Percentage minus 100 percent yields the IV-B1 allotment percentage. 1 Allotment Percentage has been adjusted in accordance with Section 423(b)(1).
    Statutory Authority:

    Section 423(c) of the Social Security Act (42 U.S.C. 623(c)).

    Mary M. Wayland, Senior Grants Policy Specialist, Division of Grants Policy, Office of Administration.
    [FR Doc. 2016-28770 Filed 11-29-16; 8:45 am] BILLING CODE 4184-01-P
    DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection Notice of Issuance of Final Determination Concerning Country of Origin of Computer Notebook Hard Disk Drives AGENCY:

    U.S. Customs and Border Protection, Department of Homeland Security.

    ACTION:

    Notice of final determination.

    SUMMARY:

    This document provides notice that U.S. Customs and Border Protection (“CBP”) has issued a final determination concerning the country of origin of computer notebook hard disk drives.

    DATES:

    The final determination was issued on November 22, 2016. A copy of the final determination is attached. Any party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial review of this final determination within December 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Robert Dinerstein, Valuation and Special Programs Branch, Regulations and Rulings, Office of Trade (202-325-0132).

    SUPPLEMENTARY INFORMATION:

    Notice is hereby given that on November 22, 2016, pursuant to subpart B of Part 177, Customs and Border Protection (CBP) Regulations (19 CFR part 177, subpart B), CBP issued a final determination concerning the country of origin of computer notebook hard disk drives which may be offered to the United States Government under an undesignated government procurement contract. This final determination, HQ H261623, was issued at the request of Seagate Technology under procedures set forth at 19 CFR part 177, subpart B, which implements Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511-18). In the final determination, CBP was presented with two scenarios on how the hard disk drives are produced. In the first scenario, the firmware for the hard disk drives is primarily written and installed onto the hard disk drives in the same country. CBP concluded for purposes of U.S. Government procurement, that the country of origin of the notebook hard disk drives will either be Singapore or South Korea. In the second scenario, the firmware is written in a different country from where it is downloaded. In the second scenario, for purposes of U.S. Government procurement, the country of origin of the notebook hard disk drives will be the country where the components for the devices are finally assembled, either [redacted].

    Section 177.29, CBP Regulations (19 CFR 177.29), provides that notice of final determinations shall be published in the Federal Register within 60 days of the date the final determination is issued. Section 177.30, CBP Regulations (19 CFR 177.30), provides that any party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial review of a final determination within 30 days of publication of such determination in the Federal Register.

    Dated: November 22, 2016. Myles B. Harmon, Acting Executive Director, Regulations and Rulings, Office of Trade. HQ H261623 November 22, 2016 OT:RR:CTF:VS H261623 RSD CATEGORY: Origin Stuart P. Seidel, Esq. Baker & McKenzie 815 Connecticut Avenue, N.W. Washington, D.C. 20006 RE: U.S. Government Procurement; Country of Origin of Computer Notebook Hard Disk Drives; Substantial Transformation Dear Mr. Seidel:

    This is in response to your letter dated February 6, 2015, on behalf of Seagate Technology (Seagate), of Cupertino, California, requesting a final determination pursuant to subpart B of Part 177 of the U.S. Customs and Border Protection (“CBP”) Regulations (19 CFR Part 177, subpart B). Under these regulations, which implement Title III of the Trade Agreements Act of 1979 (“TAA”), as amended (19 U.S.C. 2511 et seq.), CBP issues country of origin advisory rulings and final determinations as to whether an article is or would be a product of a designated country or instrumentality for the purposes of granting waivers of certain “Buy American” restrictions in U.S. law or for products offered for sale to the U.S. Government. This final determination concerns the country of origin of the “Notebook” family of hard disk storage devices under two scenarios. As a U.S. importer, Seagate is a party-at-interest within the meaning of 19 CFR 177.22(d)(1) and is entitled to request this final determination. In addition, we have reviewed and granted the importer's request for confidentiality pursuant to section 177.2(b)(7) of the CBP Regulations (19 CFR 177.2(b)(7)), with respect to certain information submitted.

    FACTS:

    The products at issue in this final determination are a family of hard disk drives (HDD) known as “Notebook” (“NS”). The NS line currently consists of the following brand names: Ultra Mobile HDD, Laptop Ultrathin HDD, Laptop HDD, and Samsung Spinpoint. You describe two scenarios in which the HDDs will be produced. The HDDs use mechanical and electromagnetic components that are designed or specified by Seagate in one or more of Seagate's five design centers located in the United States. Each family of HDDs consists of approximately ten products offered each year. The annual person hours required to fully design an average recording head and recording media (media), fit for integration into the HDD, was provided along with the various countries that contribute to the design. The design of the head incorporates semiconductor design, magnetic design, mechanical design, and a manufacturing process design into an integrated recording reader and writer. The design of the media integrates thin film magnetics mechanical surface design, and a manufacturing process design. On average, three heads and two media are assembled into a HDD.

    The design of each family of HDDs integrates electromagnetic recording position engineering firmware design, ASIC design, and overall system design. Manufacturing and test engineering is also sourced from the design centers. The design for the NS laptop product is mostly conducted by the Singapore Science Park with support from the United States. The design of the Spinpoint product is mostly conducted by the South Korea Design Center with support from the United States.

    The HDD components are manufactured internally by Seagate factories located throughout Asia, or externally at Seagate's supply partners throughout Asia. These components are shipped to a HDD assembly site in [    ]. The head disk assembly is assembled from the raw components of magnetic media, read write heads, a head actuator assembly, and an airtight metal enclosure. This assembly takes only a matter of minutes to perform. The head disk assembly is mated to a printed circuit board assembly containing the disc drive electronics. This assembly takes a few seconds. Next, the drive is loaded into the factory testing system and tested. Firmware is downloaded into the drive to facilitate media certification. At this point, the drive is only functional for testing and it can perform no useful disc drive functions at the computer interface. The drive stays in a sequence of a media certification operation for one day depending upon the capacity of the media.

    Following successful media qualifications, the drive testing firmware is replaced with a generic basic disc drive firmware solely to allow the drive computer interface functions to be tested. With this firmware, the operation of the disc drive interface is tested. The basic disc drive firmware in the previous step is removed, rendering the device useless for any functional disc drive purpose. After completion of the interface testing, the drive is “forced blocked” from label and shipment (so that it is no longer treated as the standard HDD). The drive as shipped from [    ] does not function as a HDD because it lacks firmware and does not have the ability to serve as a storage device without loading the final firmware.

    Final assembly and configuration are done in Singapore or South Korea for Scenario I, or in the United States for the second scenario. Once the disk drives have been imported into Singapore, Korea, or the United States, Seagate employees perform: security preparation, visual mechanical inspection, and installation of the firmware for each HDD. The firmware will have all features and functions of the firmware for a standard HDD. The firmware will also include additional code required to configure the firmware to the customer's specifications and requirements. In addition, certain models will have additional security programming such as encryption. The architecture for encryption features was designed in the United States. The encryption installation is performed in Singapore or the United States during the firmware installation. During this time period, the drive is processed for security preparation and the encryption is enabled, the security interface is enabled, debug ports are locked, credentials are loaded, and the certificates are loaded. The firmware, primarily developed and programmed in the United States and South Korea, is installed and tested. After completion of the firmware loading and testing, a final quality assurance inspection is performed; the drive receives a new part number and a label; and it is shipped to Seagate. You explain that a drive cannot function until the firmware is loaded onto it. According to your submission, the purchased value of a fully assembled HDD is approximately 16 to 66 times the value of an assembled recording head, depending on the family, capacity, and the security features.

    ISSUE:

    What is the country of origin of the Notebook HDDs for purposes of U.S. government procurement in the two described scenarios?

    LAW AND ANALYSIS:

    Pursuant to subpart B of Part 177, 19 CFR 177.21 et seq., which implements Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511 et seq.), CBP issues country of origin advisory rulings and final determinations as to whether an article is or would be a product of a designated country or instrumentality for the purposes of granting waivers of certain “Buy American” restrictions in U.S. law or practice for products offered for sale to the U.S. Government.

    Under the rule of origin set forth under 19 U.S.C. 2518(4)(B):

    An article is a product of a country or instrumentality only if (i) it is wholly the growth, product, or manufacture of that country or instrumentality, or (ii) in the case of an article which consists in whole or in part of materials from another country or instrumentality, it has been substantially transformed into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed.

    See also 19 CFR 177.22(a).

    “The term ‘character’ is defined as ‘one of the essentials of structure, form, materials, or function that together make up and usually distinguish the individual.’ ” Uniden America Corporation v. United States, 120 F. Supp. 2d. 1091, 1096 (citations omitted) (Ct. Int'l Trade 2000), citing National Hand Tool Corp. v. United States, 16 Ct. Int'l Trade 308, 311 (1992). In Uniden, concerning whether the assembly of cordless telephones and the installation of their detachable A/C (alternating current) adapters constituted instances of substantial transformation, the Court of International Trade applied the “essence test” and found that “[t]he essence of the telephone is housed in the base and the handset.”

    In Data General v. United States, 4 Ct. Int'l Trade 182 (1982), the court determined that for purposes of determining eligibility under item 807.00, Tariff Schedules of the United States (predecessor to subheading 9802.00.80, Harmonized Tariff Schedule of the United States), the programming of a foreign PROM (Programmable Read-Only Memory chip) in the United States substantially transformed the PROM into a U.S. article. In programming the imported PROMs, the U.S. engineers systematically caused various distinct electronic interconnections to be formed within each integrated circuit. The programming bestowed upon each circuit its electronic function, that is, its “memory” which could be retrieved. A distinct physical change was effected in the PROM by the opening or closing of the fuses, depending on the method of programming. This physical alteration, not visible to the naked eye, could be discerned by electronic testing of the PROM. The court noted that the programs were designed by a U.S. project engineer with many years of experience in “designing and building hardware.” In addition, the court noted that while replicating the program pattern from a “master” PROM may be a quick one-step process, the development of the pattern and the production of the “master” PROM required much time and expertise. The court noted that it was undisputed that programming altered the character of a PROM. The essence of the article, its interconnections or stored memory, was established by programming. The court concluded that altering the non-functioning circuitry comprising a PROM through technological expertise in order to produce a functioning read only memory device, possessing a desired distinctive circuit pattern, was no less a “substantial transformation” than the manual interconnection of transistors, resistors and diodes upon a circuit board creating a similar pattern.

    In C.S.D. 84-85, 18 Cust. B. & Dec. 1044, CBP stated:

    We are of the opinion that the rationale of the court in the Data General case may be applied in the present case to support the principle that the essence of an integrated circuit memory storage device is established by programming; . . . [W]e are of the opinion that the programming (or reprogramming) of an EPROM results in a new and different article of commerce which would be considered to be a product of the country where the programming or reprogramming takes place.

    In Texas Instruments v. United States, 681 F.2d 778, 782 (CCPA 1982), the court observed that the substantial transformation issue is a “mixed question of technology and customs law.” Accordingly, the programming of a device that confers its identity as well as defines its use generally constitutes substantial transformation. See also Headquarters Ruling Letter (“HQ”) 558868, dated February 23, 1995 (programming of SecureID Card substantially transforms the card because it gives the card its character and use as part of a security system, and the programming is a permanent change that cannot be undone); HQ 735027, dated September 7, 1993 (programming blank media (EEPROM) with instructions that allow it to perform certain functions that prevent piracy of software constitutes substantial transformation); and, HQ 733085, dated July 13, 1990; but see HQ 732870, dated March 19, 1990 (formatting a blank diskette does not constitute substantial transformation because it does not add value, does not involve complex or highly technical operations, and does not create a new or different product); and, HQ 734518, dated June 28, 1993 (motherboards are not substantially transformed by the implanting of the central processing unit on the board because, whereas in Data General use was being assigned to the PROM, the use of the motherboard has already been determined when the importer imported it).

    Essentially, programming an information processing device will not in every case result in a substantial transformation of the device. It will depend on the nature of the programming, as compared to the nature and complexity of the information processing device on which the programming is completed. In other words, installing a relatively simple program on a complex information technology device will generally, by itself, not result in a substantial transformation of the device.

    In this case, firmware is installed on the HDDs to enable to them operate. The website “techterms.com” explains firmware as follows:

    Firmware is a software program or set of instructions programmed on a hardware device. It provides the necessary instructions for how the device communicates with the other computer hardware. But how can software be programmed onto hardware? Good question. Firmware is typically stored in the flash ROM of a hardware device. While ROM is read-only memory, flash ROM can be erased and rewritten because it is actually a type of flash memory. Additionally, the website http://pcsupport.about.com/od/termsf/g/Firmware.htm, notes that firmware is software that is embedded in a piece of hardware. Firmware is simply “software for hardware.”

    In HQ H241362, dated August 14, 2013 published in the Federal Register on August 21, 2013, (78 Fed. Reg. 51737), CBP considered whether the programming of HDDs resulted in a substantial transformation of the HDDs. In that particular instance, CBP issued a final determination concerning the country of origin of HDDs and self-encrypting drives produced by Seagate. In that case, Seagate imported fully assembled HDDs from two different countries. The HDDs were designed in the United States, but assembled in one of two other countries from components manufactured by Seagate outside of the United States or obtained by Seagate from a supplier in Asia. The fully assembled HDDs were shipped to the United States, and in their imported condition they could not function as storage media devices. The disk heads could not move, they could not store or retrieve data, and they could not be recognized or listed on a computer system or a network in the United States. In the United States, the imported HDD was unblocked and programmed with two types of firmware. The first type of firmware was Servo firmware, which controlled all motor, preamp and servo function without which the motors media and heads would not operate and the HDD would not work. The second type of firmware was non-security controller firmware which managed all communication between the host and target drives, as well as all data within the drive. This type of firmware permitted data files to be stored on the HDDs media so that the data files could be found and listed within a particular application and allowed the stored data to be saved, retrieved, and overwritten. Consequently, we determined that the firmware caused the imported HDDs to function as digital storage devices. Approximately 80 percent of the work hours spent on combined firmware design was allocated to work in the United States at Seagate's design center, and approximately 20 percent in another country. Combined, the compiled firmware code was approximately 2 MB in size and contained approximately one million lines of code. The firmware loaded onto the HDDs in the United States made them fully functioning generic storage devices. In addition, some of the HDDs were programmed with security controller firmware to allow them to be secured through encryption. The security controller firmware was mostly written in the United States. Because of the nature and the complexity of the firmware, CBP found in HQ H241362 that the installation of the firmware significantly altered the character of the Seagate HDDs. Therefore, the HDDs were considered products of the United States for purposes of U.S. Government procurement.

    CBP has also considered a scenario (in HQ H241177 dated December 3, 2013) in which a device was manufactured in one country, the software used to permit that device to operate was written in another country, and the installation of that software occurred in a third country. In that case, switches were assembled to completion in Malaysia and then shipped to Singapore, where EOS software developed in the United States was downloaded. It was claimed that the EOS software enabled the imported switches to interact with other network switches through network switching and routing, and allowed for the management of functions such as network performance monitoring and security, and access control; without this software, the imported devices could not function as Ethernet switches. But, CBP found that the software downloading performed in Singapore did not amount to programming. We explained that programming involves writing, testing and implementing code necessary to make a computer function in a certain way. See Data General, supra; see also “computer program”, Encyclopedia Britannica (2013), (9/19/2013) http://www.britannica.com/EBchecked/topic/130654/computer-program, which explains, in part, that “a program is prepared by first formulating a task and then expressing it in an appropriate computer language, presumably one suited to the application.” While the programming occurred in the United States, the downloading occurred in Singapore. Given these facts, we found that the country where the last substantial transformation occurred was Malaysia, namely, where the major assembly processes were performed. Therefore, we found that the country of origin for purposes of U.S. Government procurement was Malaysia.

    In HQ H240199 dated March 10, 2015, four different scenarios for the production of a computer were presented. In the third scenario, all of the hardware components were assembled in Country A and imported into Country F. The operations that occurred in Country F were that the BIOS and the OS were downloaded. The issue was whether the downloading of the BIOS and OS substantially transformed the notebook computer. We reiterated that programming a device that defines its use generally constitutes a substantial transformation. Software downloading, however, does not amount to programming. Consistent with previous CBP rulings cited above, we found that the BIOS and OS downloading did not result in a substantial transformation in Country F. Given these facts, we found that the country where the last substantial transformation occurred was Country A, where the major assembly processes were performed.

    The facts involved in this case are very similar to the facts described in HQ H241362, except that in the second scenario presented, the firmware that is installed on the HDDs is largely written in a country other than the country where it will be installed. Although some of the work in writing the firmware is done in the United States, the overwhelming majority of the time and money expended in developing the firmware was expended in Singapore and not in the United States. In fact, according to the submission, in developing the firmware, more than five times the amount of time and money is expended in Singapore than in the United States. In the second scenario the only major operation that occurs in the United States to produce the finished HDDs, is the installation of the largely foreign written firmware.

    For the first scenario, we find that the country of origin of the HDDs will be the country where the firmware is largely written and installed onto the HDDs, Singapore for the NS drives, and South Korea for the Samsung Spinpoint. As in H241362, the firmware, mostly created in either Singapore or South Korea and downloaded in those countries, imparts the essential character of the HDDs. The use of the HDDs is solely dictated by the firmware and it otherwise has no use. However, in the second scenario, the HDDs are assembled in one country, the firmware is largely written in another country, and downloaded in a third country, the United States. While counsel contends that the country of origin of the HDDs should similarly be the country where the firmware is downloaded because the HDD cannot function without the firmware being installed, that is not the correct test used to determine the country of origin of a product. The country of origin of a product is determined based on where the last substantial transformation occurs. As the holdings of HQ H241177 and HQ H240199 make clear, it is CBP's position that mere downloading of software that is written in another country onto an information processing device is not sufficient to be considered a substantial transformation of that device. While the downloading does make the HDD functional, the country where that occurs is not where a substantial transformation occurs. As the entire assembly process occurs in either [    ], we find that the country of origin of the HDDs will either be [    ]. This finding regarding the country of origin of the HDDs will apply both for purposes of government procurement, as well as for country of origin marking.

    HOLDING:

    Based on the facts of this case, in first scenario, we find for purposes of U.S. Government procurement, the country of origin of the Notebook HDDs will either be Singapore or South Korea, where the firmware is both written and installed onto the HDDs. In the second scenario, where the firmware is written in a different country from where it is downloaded onto the HDDs, for purposes of U.S. Government procurement and country of origin marking, the country of origin of the Notebook HDDs will be the country where the last substantial transformation takes place, namely the country where the device components are finally assembled, which in this case will either be [    ].

    Notice of this final determination will be given in the Federal Register, as required by 19 CFR 177.29. Any party-at-interest other than the party which requested this final determination may request, pursuant to 19 CFR 177.31, that CBP reexamine the matter anew and issue a new final determination. Pursuant to 19 CFR 177.30, any party-at-interest may, within 30 days of publication of the Federal Register Notice referenced above, seek judicial review of this final determination before the Court of International Trade.

    Sincerely,

    Myles B. Harmon, Acting Executive Director Regulations and Rulings Office of Trade.
    [FR Doc. 2016-28790 Filed 11-29-16; 8:45 am] BILLING CODE 9111-14-P
    DEPARTMENT OF THE INTERIOR [FWS-R4-FHC-2016-N208; FVHC98210408710-XXX-FF04G01000] Deepwater Horizon Oil Spill; Draft Louisiana Trustee Implementation Group Restoration Plan #1: Restoration of Wetlands, Coastal, and Nearshore Habitats; Habitat Projects on Federally Managed Lands; and Birds AGENCY:

    Department of the Interior.

    ACTION:

    Notice of availability; reopening of public comment period.

    SUMMARY:

    We are reopening the public comment period on the Louisiana Trustee Implementation Group Draft Restoration Plan #1: Restoration of Wetlands, Coastal, and Nearshore Habitats; Habitat Projects on Federally Managed Lands; and Birds (Draft Restoration Plan #1). We opened the public comment period via a November 1, 2016, notice of availability. The public comment period closed on November 28, 2016.

    DATES:

    Comments Due Date: We will consider public comments received November 1, 2016 through December 9, 2016.

    ADDRESSES:

    Obtaining Documents: You may download the Louisiana Trustee Implementation Group Draft Restoration Plan 1: Restoration of Wetlands, Coastal, and Nearshore Habitats; Habitat Projects on Federally Managed Lands; and Birds at any of the following sites:

    http://www.gulfspillrestoration.noaa.gov http://www.doi.gov/deepwaterhorizon http://la-dwh.com

    Alternatively, you may request a CD of the Draft Restoration Plan 1 (see FOR FURTHER INFORMATION CONTACT). You may also view the document at any of the public facilities listed at http://www.gulfspillrestoration.noaa.gov.

    Submitting Comments: You may submit comments on the draft document by one of following methods:

    Via the Web: http://www.gulfspillrestoration.noaa.gov/restoration-areas/louisiana.

    Via U.S. Mail: U.S. Fish and Wildlife Service, P.O. Box 49567, Atlanta, GA 30345.

    • Louisiana Coastal Protection & Restoration Authority, ATTN: Liz Williams, P.O. Box 44027, Baton Rouge, LA 70804.

    FOR FURTHER INFORMATION CONTACT:

    Liz Williams at LATIG.la.gov.

    SUPPLEMENTARY INFORMATION: Introduction

    In accordance with the Oil Pollution Act of 1990 (OPA), the National Environmental Policy Act (NEPA), the Consent Decree, and the Final Programmatic Damage Assessment Restoration Plan and Final Programmatic Environmental Impact Statement, the Federal and State natural resource trustee agencies for the Louisiana Trustee Implementation Group (Trustees) have prepared a Draft Restoration Plan 1: Restoration of Wetlands, Coastal, and Nearshore Habitats; Habitat Projects on Federally Managed Lands; and Birds (Draft Restoration Plan 1). Draft Restoration Plan 1 describes and proposes engineering and design activities for restoration projects intended to continue the process of restoring natural resources and services injured or lost as a result of the Deepwater Horizon oil spill, which occurred on or about April 20, 2010, in the Gulf of Mexico.

    Background

    For additional background information, see our original Federal Register notice, which opened the comment period (November 1, 2016; 81 FR 75840).

    Invitation To Comment

    The Trustees seek public review and comment on the proposed projects and supporting analysis included in the Draft Restoration Plan 1. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time.

    Authority

    The authority of this action is the Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.) and the implementing Natural Resource Damage Assessment regulations found at 15 CFR 990.

    Kevin D. Reynolds, Department of the Interior Deepwater Horizon Case Manager.
    [FR Doc. 2016-28675 Filed 11-29-16; 8:45 am] BILLING CODE 4310-55-P
    DEPARTMENT OF THE INTERIOR Bureau of Land Management [LLCON04000 L16100000.DP0000-16X] Notice of Availability of the Record of Decision Adopting U.S. Forest Service's Final Environmental Impact Statement for Oil and Gas Leasing on Lands Administered by the White River National Forest, CO AGENCY:

    Bureau of Land Management, Interior.

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the National Environmental Policy Act of 1969 (NEPA), the Bureau of Land Management (BLM) announces the availability of the Record of Decision (ROD) adopting the Final United States Forest Service's (USFS) “White River National Forest Oil and Gas Leasing Final Environmental Impact Statement (EIS),” which identifies the lands available for oil and gas leasing in the White River National Forest, including stipulations to protect surface resources.

    ADDRESSES:

    Copies of the ROD are available for public inspection at the BLM Colorado River Valley Field Office, 2300 River Frontage Road, Silt, CO 81652. Interested persons may also review the ROD on the project Web site at https://eplanning.blm.gov/epl-front-office/eplanning/nepa/nepa_register.do.

    FOR FURTHER INFORMATION CONTACT:

    Greg Larson, Project Manager, at the address above, by telephone at 970-876-9000, or by email at [email protected] Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FRS is available 24 hours a day, seven days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.

    SUPPLEMENTARY INFORMATION:

    The BLM's ROD formally adopts the USFS, December 2014, White River National Forest Oil and Gas Leasing Final EIS. The Department of the Interior (DOI) and the BLM concur with the selection of a combination of Alternatives B and C as described in the USFS ROD (December 3, 2015). As identified in 40 CFR 1506.3(a), “[a]n agency may adopt a Federal draft or final . . . [EIS] or portion thereof provided that the statement or portion thereof meets the standards for an adequate statement under these [the Council on Environmental Quality (CEQ)] regulations.” The BLM affirms that this Final EIS meets all requirements of the CEQ, DOI and BLM for preparation of an EIS.

    Oil and gas leasing on National Forest System Lands is a collaborative process between the USFS and the BLM. The USFS is responsible for making land availability decisions, while the BLM is responsible for issuing and managing oil and gas leases, as described in the Federal Onshore Oil and Gas Leasing Reform Act.

    The BLM was a Cooperating Agency in the preparation of the USFS's Final EIS. Per 40 CFR 1506.3(c), the BLM adopts the Final EIS without re-circulating, as the BLM has concluded that its comments and suggestions were incorporated during the NEPA process.

    This decision is approved by the Deputy Secretary of DOI; therefore, it is not subject to administrative appeal (43 CFR 4.410(a)(3)).

    Authority:

    40 CFR 1506.6, 40 CFR 1506.10.

    Ruth Welch, BLM Colorado State Director.
    [FR Doc. 2016-28806 Filed 11-29-16; 8:45 am] BILLING CODE 4310-JB-P
    DEPARTMENT OF THE INTERIOR Bureau of Land Management [LLCON04000 L16100000.DP0000-16X] Notice of Availability of the Record of Decision for the Previously Issued Oil and Gas Leases in the White River National Forest, CO AGENCY:

    Bureau of Land Management, Interior.

    ACTION:

    Notice.

    SUMMARY:

    The Bureau of Land Management (BLM) has prepared a Record of Decision (ROD) based on the analysis in the “Previously Issued Oil and Gas Leases in the White River National Forest Final Environmental Impact Statement (EIS).” That EIS addressed the treatment of 65 previously issued oil and gas leases on lands within the White River National Forest (WRNF). By this notice the BLM is announcing the availability of the ROD. On November 17, 2016, the BLM Colorado State Director signed and the Deputy Secretary of the Department of the Interior approved the ROD.

    ADDRESSES:

    Copies of the ROD are available for public inspection at the BLM Colorado River Valley Field Office, 2300 River Frontage Road, Silt, CO 81652. Interested persons may also review the ROD on the project Web site at https://eplanning.blm.gov/epl-front-office/eplanning/nepa/nepa_register.do.

    FOR FURTHER INFORMATION CONTACT:

    Greg Larson, Project Manager, at the address above, by telephone at (970) 876-9000, or by email at [email protected] Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.

    SUPPLEMENTARY INFORMATION:

    The BLM has developed the Previously Issued Oil and Gas Leases in the White River National Forest EIS (Previously Issued Leases in the WRNF EIS) to address a National Environmental Policy Act (NEPA) deficiency identified by the Interior Board of Land Appeals (IBLA) related to the issuance of oil and gas leases on WRNF lands between the years of 1995 to 2004. In 2007, the IBLA ruled that before including WRNF parcels in an oil and gas lease sale, the BLM must either formally adopt the NEPA analysis completed by the U.S. Forest Service (USFS) or conduct its own NEPA analysis (Board of Commissioners of Pitkin County, 173 IBLA 173 (2007)). The BLM canceled the three leases at issue in that case and identified 65 additional leases with effective dates ranging from 1995 to 2012 that the BLM had leased without either adopting applicable USFS NEPA, or preparing its own NEPA analysis. For these 65 existing leases, the most recent USFS decision to make these lands available for oil and gas leasing was analyzed and put forth in the USFS's 1993 Oil and Gas Leasing EIS and ROD. The USFS then adopted its 1993 Oil and Gas Leasing EIS in its 2002 White River National Forest Land and Resource Management Plan.

    While the BLM obtained USFS consent before offering and subsequently issuing the 65 leases at issue, it did not adopt the USFS' NEPA analysis or prepare its own analysis. As a result, the BLM determined that the issuance of the leases in question was not in compliance with applicable NEPA requirements, rendering the leases voidable. The BLM therefore determined that additional actions were necessary to reaffirm, modify, or cancel those leases. As part of that determination, the BLM determined that the available USFS NEPA analysis relevant to the 65 leases was no longer adequate due to changes in laws, regulations, policies and conditions since that analysis was finalized in 1993. As a result, the BLM prepared the Previously Issued Leases in the WRNF EIS to determine whether these 65 leases should be cancelled, reaffirmed, or modified with additional or different terms. The ROD announced by this Notice is based on that EIS analysis.

    Distinct from this effort, the USFS recently updated its 1993 Oil and Gas Leasing EIS to address future oil and gas leasing availability on WRNF lands and issued a new EIS, the White River National Forest Oil and Gas Leasing Final Environmental Impact Statement (USFS WRNF Oil and Gas Leasing EIS), in December 2014. The USFS signed their Final ROD for this new EIS in December 2015. The recently issued USFS EIS and ROD are forward-looking and do not affect the 65 previously issued leases that the BLM is reexamining; however, the information generated as part of that process was relevant to the BLM's analysis. Therefore, as part of its process, the BLM has incorporated the new USFS analysis into its analysis of the previously issued leases, to the extent practicable.

    The BLM considered six alternatives in the Previously Issued Leases in the WRNF EIS, including a No Action Alternative. The No Action Alternative would reaffirm the lease stipulations on the 65 leases as they were issued. Under this alternative, the BLM would take no action by continuing to administer the leases with their current stipulations. Alternative 2 would address inconsistencies in some of the existing leases by adding stipulations identified in the USFS 1993 Oil and Gas Leasing EIS that were not attached to eight leases when they were issued. Alternative 3 would modify the 65 leases to match the stipulations identified for future leasing in the 2014 USFS WRNF Oil and Gas Leasing Final EIS Proposed Action. Alternative 4 (BLM's Proposed Action) would modify or cancel the 65 leases to match the stipulations and availability decision in the USFS ROD. In areas the USFS identified as open to future leasing, stipulations would be modified to track those found in the most recent USFS decision and all or part of 25 existing leases in areas identified as closed would be cancelled. Alternative 5 would cancel all 65 leases. For purposes of the BLM's Previously Issued Oil and Gas Leases in the WRNF Final EIS, the BLM identified a combination of Alternatives 2 and 4 as its Preferred Alternative. Under this Preferred Alternative, the BLM would cancel in their entirety 25 leases that are not producing or committed to a unit or communitization agreement, and which overlap with the area identified as closed to future leasing by the USFS Final ROD. The BLM would apply Alternative 4 stipulations (i.e., those that were identified in the 2015 USFS ROD) to 12 undeveloped (as of Final EIS publication) leases that are within parts of the WRNF identified as open to future leasing, including one expired lease under appeal. It would apply Alternative 2 stipulations to 27 leases that were producing or committed to a unit agreement or communitization agreement as of Final EIS publication, including four expired leases currently under appeal that had previously been part of the Willow Creek Unit. In addition, one expired lease not subject to appeal would receive no decision. As with Alternative 4, the lessee would have to either accept the new stipulations or have the lease cancelled. Cancellation would be accomplished through an administrative process and would require reimbursement of bonus bids and rental payments.

    The BLM released the Draft Previously Issued Leases in the WRNF EIS on November 20, 2015 (80 FR 72733), for a 49-day public comment period. During that period, the BLM held three public meetings in communities near the project area: Glenwood Springs, DeBeque and Carbondale, Colorado. The BLM received 60,515 comments during the formal comment period. The BLM worked with cooperating agencies (including the Environmental Protection Agency; USFS; the Colorado Department of Natural Resources, including Colorado Parks and Wildlife; Garfield, Mesa, Pitkin and Rio Blanco counties; the Cities of Glenwood Springs and Rifle; and the Towns of Carbondale, New Castle, Parachute and Silt) to prepare the Previously Issued Leases in the WRNF EIS. The BLM also consulted with the U.S. Fish and Wildlife Service (Service) informally and through a Biological Assessment. In response, the Service issued a consultation memorandum on May 19, 2016, concurring with the BLM effects determinations of “may affect, but is not likely to adversely affect” for the following species: Ute ladies'-tresses orchid, Colorado hookless cactus and its critical habitat, Western yellow-billed cuckoo, Green-lineage cutthroat trout, Colorado pikeminnow and its critical habitat, Razorback sucker and its critical habitat, Humpback chub and its critical habitat, Bonytail and its critical habitat, and Canada lynx. In addition, the BLM notified the Colorado State Historic Preservation Office (SHPO) via an informational letter that, pursuant to the 2014 Protocol agreement between the BLM Colorado and the SHPO, this undertaking does not exceed any of the review thresholds requiring SHPO concurrence, and that there will be no adverse effect to historic properties. Finally, the BLM began tribal consultation for the project in April 2014 when the field manager sent a scoping letter via certified mail to the Ute Indian Tribe (Uintah and Ouray Reservation), Ute Mountain Ute Tribe, and Southern Ute Indian Tribe. Consultation and outreach continued through April 22, 2016, when the BLM sent the tribes a letter that identified the Preferred Alternative and summarized cultural resource records within the area of potential effect (including potential Traditional Cultural Properties). The letter also offered the opportunity for comments or clarifications. The BLM will continue to offer opportunities for tribes that may be affected by potential future development of these leases as stipulated under E.O. 13175, November 6, 2000.

    The BLM published the Notice of Availability of the Final Previously Issued Leases in the WRNF EIS in the Federal Register on August 5, 2016 (81 FR 51936). Publication of the Notice of Availability initiated a 30-day availability period. Even though there was no comment period on the Final EIS, the BLM received a number of comments, all of which were addressed in the ROD as appropriate.

    The BLM's ROD for the Previously Issued Leases in the WRNF EIS implements a slightly modified version of the Preferred Alternative, which combines portions of Alternatives 2 and 4. The decision applies stipulations described under Alternative 2 (including minor updates to reflect the 1993 USFS ROD stipulations) to all leases within the analysis area that are producing or committed to a unit or agreement. For those leases within the analysis area that are not producing or committed to a unit, Alternative 4 applies (canceling or modifying leases to match the 2015 USFS Final ROD) with one exception: The decision cancels in their entirety all undeveloped leases that overlap the area identified as closed to future leasing by the USFS's 2015 Final ROD. The difference between lease cancellations under Alternative 4 in the BLM's Previously Issued Leases in the WRNF EIS and this ROD is that seven leases having acres retained under Alternative 4 are cancelled in full under the ROD. There are no partial lease cancellations. On August 15, 2016, the Middleton Creek Unit was automatically contracted, retroactively effective August 20, 2015, according to Section 2(e) of the unit agreement and as per BLM regulation at 43 CFR 3186.1. As a result of the contraction, three leases (COC67147, COC70013, and COC70361) considered producing in the Final EIS are now considered undeveloped, and thus will be offered modified lease terms consistent with Alternative 4 of the Final EIS.

    Under the BLM's Previously Issued Oil and Gas Lease ROD, 25 undeveloped leases are administratively cancelled in full, 12 undeveloped leases remain open with new stipulations applied under Alternative 4 (with lessee consent), 20 producing or committed leases are reaffirmed or modified as described under Alternative 2, four expired leases currently under appeal that had previously been part of the Willow Creek Unit (held by production) would have Alternative 2 applied if the appeal is successful, and one expired lease subject to appeal would have Alternative 4 stipulations applied if it were reauthorized. No decision is made for three leases that have expired or terminated and are not subject to appeal.

    The BLM's Previously Issued Oil and Gas Lease ROD takes agency and public comments into account and best meets the BLM's mandate to protect important resources while allowing oil and gas development. For reaffirmed or modified leases, upon receiving an application to approve an action on the ground, the BLM will conduct site-specific analysis of impacts through the subsequent NEPA reviews and analyses that will be necessary before the BLM issues any permit or approval for oil and gas development.

    This decision is approved by the Deputy Secretary for the U.S. Department of the Interior; therefore it is not subject to administrative appeal (43 CFR 4.410(a)(3)).

    Authority:

    40 CFR 1506.6, 40 CFR 1506.10.

    Gregory P. Shoop, BLM Colorado Associate State Director.
    [FR Doc. 2016-28807 Filed 11-29-16; 8:45 am] BILLING CODE 4310-JB-P
    JUDICIAL CONFERENCE OF THE UNITED STATES Meeting of the Judicial Conference Committee on Rules of Practice and Procedure AGENCY:

    Judicial Conference of the United States, Committee on Rules of Practice and Procedure.

    ACTION:

    Notice of open meeting.

    SUMMARY:

    The Committee on Rules of Practice and Procedure will hold a meeting on January 3, 2017. The meeting will be open to public observation but not participation. An agenda and supporting materials will be posted at least 7 days in advance of the meeting at: http://www.uscourts.gov/rules-policies/records-and-archives-rules-committees/agenda-books.

    DATES:

    January 3, 2017.

    TIME:

    9:00 a.m.-5:00 p.m.

    ADDRESSES:

    Special Proceedings Courtroom, U.S. District Court, 401 Washington Street, Phoenix, Arizona 85003.

    FOR FURTHER INFORMATION CONTACT:

    Rebecca A. Womeldorf, Rules Committee Secretary, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.

    Dated: November 23, 2016. Rebecca A. Womeldorf, Rules Committee Secretary.
    [FR Doc. 2016-28761 Filed 11-29-16; 8:45 am] BILLING CODE 2210-55-P
    DEPARTMENT OF JUSTICE Foreign Claims Settlement Commission [F.C.S.C. Meeting and Hearing Notice No. 10-16] Sunshine Act Meeting

    The Foreign Claims Settlement Commission, pursuant to its regulations (45 CFR part 503.25) and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of open meetings as follows:

    Wednesday, December 14, 2016: 10:00 a.m.—Consolidated oral hearing on Objection to Commission's Proposed Decisions in Claim Nos. LIB-III-036, LIB-III-037, LIB-III-038, LIB-III-039, LIB-III-040, LIB-III-041, LIB-III-042, LIB-III-043, LIB-III-044, LIB-III-045, LIB-III-046, LIB-III-047, LIB-III-048, LIB-III-049, LIB-III-050, LIB-III-051, LIB-III-052, LIB-III-053, LIB-III-054, LIB-III-055, LIB-III-056, LIB-III-057, LIB-III-058, LIB-III-059, LIB-III-060, LIB-III-061, LIB-III-062, LIB-III-063, LIB-III-064, LIB-III-065, LIB-III-066, LIB-III-068, LIB-III-069, LIB-III-070, LIB-III-071, LIB-III-072, LIB-III-073, LIB-III-074, LIB-III-075, LIB-III-076, LIB-III-077, LIB-III-078, LIB-III-079, LIB-III-080, LIB-III-081, LIB-III-082, LIB-III-083, LIB-III-084, LIB-III-086 and LIB-III-087.

    Status: Open.

    All meetings are held at the Foreign Claims Settlement Commission, 600 E Street NW., Washington, DC. Requests for information, or advance notices of intention to observe an open meeting, may be directed to: Patricia M. Hall, Foreign Claims Settlement Commission, 600 E Street NW., Suite 6002, Washington, DC 20579. Telephone: (202) 616-6975.

    Brian M. Simkin, Chief Counsel.
    [FR Doc. 2016-28898 Filed 11-28-16; 4:15 pm] BILLING CODE 4410-BA-P
    DEPARTMENT OF LABOR Office of the Secretary Agency Information Collection Activities; Submission for OMB Review; Comment Request; Leave Supplement to the American Time Use Survey ACTION:

    Notice.

    SUMMARY:

    The Department of Labor (DOL) is submitting the Bureau of Labor Statistics (BLS) sponsored information collection request (ICR) proposal titled, “Leave Supplement to the American Time Use Survey,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.). Public comments on the ICR are invited.

    DATES:

    The OMB will consider all written comments that agency receives on or before December 30, 2016.

    ADDRESSES:

    A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201607-1220-004 (this link will only become active on the day following publication of this notice) or by contacting Michel Smyth by telephone at 202-693-4129 (this is not a toll-free number) or by email at [email protected]

    Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-BLS, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email: [email protected] Commenters are encouraged, but not required, to send a courtesy copy of any comments by mail or courier to the U.S. Department of Labor-OASAM, Office of the Chief Information Officer, Attn: Departmental Information Compliance Management Program, Room N1301, 200 Constitution Avenue NW., Washington, DC 20210; or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Michel Smyth by telephone at 202-693-4129 (this is not a toll-free number) or by email at [email protected]

    Authority:

    44 U.S.C. 3507(a)(1)(D).

    SUPPLEMENTARY INFORMATION:

    This ICR seeks PRA authority for the Leave Supplement to the American Time Use Survey (ATUS) information collection. The leave supplement includes questions about workers' access to and use of paid and unpaid leave, job flexibility, and their work schedules. Information collected in the supplement will be published as a public use data set to facilitate research on numerous topics, such as: The characteristics of people with paid and unpaid leave; occupations with the greatest and least access to paid leave; reasons workers are able to take leave from their jobs; how many workers have access to job flexibilities such as the ability to work from home or adjust their start and stop times; and the relationship between workers' time use and their access to job flexibilities. The supplement would survey eligible wage and salary workers aged 15-years and up from a nationally representative sample of approximately 2,060 sample households each month. The BLS Authorizing Statue authorizes this information collection. See 29 U.S.C. 1.

    This proposed information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6. For additional information, see the related notice published in the Federal Register on July 26, 2016 (81 FR 48850).

    Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the ADDRESSES section within thirty (30) days of publication of this notice in the Federal Register. In order to help ensure appropriate consideration, comments should mention OMB ICR Reference Number 201607-1220-004. The OMB is particularly interested in comments that:

    • 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;

    • 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;

    • 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.

    Agency: DOL-BLS.

    Title of Collection: Leave Supplement to the American Time Use Survey.

    OMB ICR Reference Number: 201607-1220-004.

    Affected Public: Individuals or Households.

    Total Estimated Number of Respondents: 5,950.

    Total Estimated Number of Responses: 5,950.

    Total Estimated Annual Time Burden: 496 hours.

    Total Estimated Annual Other Costs Burden: $0.

    Dated: November 25, 2016. Michel Smyth, Departmental Clearance Officer.
    [FR Doc. 2016-28820 Filed 11-29-16; 8:45 am] BILLING CODE 4510-24-P
    DEPARTMENT OF LABOR Office of the Secretary Agency Information Collection Activities; Submission for OMB Review; Comment Request; Work Opportunity Tax Credit ACTION:

    Notice.

    SUMMARY:

    On November 30, 2016, the Department of Labor (DOL) will submit the Employment and Training Administration (ETA) sponsored information collection request (ICR) revision titled, “Work Opportunity Tax Credit,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.). Public comments on the ICR are invited.

    DATES:

    The OMB will consider all written comments that agency receives on or before December 30, 2016.

    ADDRESSES:

    A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201611-1205-003 (this link will only become active on the day following publication of this notice) or by contacting Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to [email protected]

    Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email: [email protected] Commenters are encouraged, but not required, to send a courtesy copy of any comments by mail or courier to the U.S. Department of Labor-OASAM, Office of the Chief Information Officer, Attn: Departmental Information Compliance Management Program, Room N1301, 200 Constitution Avenue NW., Washington, DC 20210; or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Contact Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to [email protected]

    Authority:

    44 U.S.C. 3507(a)(1)(D).

    SUPPLEMENTARY INFORMATION:

    This ICR seeks approval under the PRA for revisions to the Work Opportunity Tax Credit (WOTC) information collection. The WOTC is a Federal tax credit available to employers for hiring individuals from certain target groups who have consistently faced significant barriers to employment. The data collected under this submission are necessary for effective Federal administration of the WOTC program, including allowing the ETA and Internal Revenue Service (IRS) to oversee state administration of the tax credit. This ICR covers six WOTC processing and administrative program forms: (1) Form ETA-9058, Report 1—Certification Workload and Characteristics of Certified Individuals; (2) Form ETA 9061, Individual Characteristics; (3) Form ETA-9062, Conditional Certification; (4) Form ETA-9063, Employer Certification; (5) Form ETA-9065, Agency Declaration of Verification Results Worksheet; and (6) Form ETA-9175, Long-term Unemployment Recipient Self-Attestation. This information collection has been classified as a revision, because the ETA has modified two of the forms. Form ETA-9160 changes would combine certain questions, clarify instructions by referencing a recent IRS Notice, and update Empowerment Zone information. Form ETA-9175 updates would remove questions related to date of birth and Federal Employer Identification Number. Internal Revenue Code sections 51 and 3111(e) authorize the WOTC program. See 26 U.S.C. 51 and 3111(e).

    This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6. The DOL obtains OMB approval for this information collection under Control Number 1205-0371. The current approval is scheduled to expire on November 30, 2016; however, the DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. New requirements would only take effect upon OMB approval. For additional substantive information about this ICR, see the related notice published in the Federal Register on August 4, 2016 (81 FR 51497).

    Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the ADDRESSES section within thirty (30) days of publication of this notice in the Federal Register. In order to help ensure appropriate consideration, comments should mention OMB Control Number 1205-0371. The OMB is particularly interested in comments that:

    • 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;

    • 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;

    • 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.

    Agency: DOL-ETA.

    Title of Collection: Work Opportunity Tax Credit.

    OMB Control Number: 1205-0371.

    Affected Public: State, Local, and Tribal Governments; Individuals or Households; and Private Sector—businesses or other for-profits, farms, and not-for-profit institutions.

    Total Estimated Number of Respondents: 2,010,874.

    Total Estimated Number of Responses: 5,840,620.

    Total Estimated Annual Time Burden: 1,960,777 hours.

    Total Estimated Annual Other Costs Burden: $0.

    Dated: November 23, 2016. Michel Smyth, Departmental Clearance Officer.
    [FR Doc. 2016-28803 Filed 11-29-16; 8:45 am] BILLING CODE 4510-FN-P
    NATIONAL SCIENCE FOUNDATION Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978 AGENCY:

    National Science Foundation.

    ACTION:

    Notice of permit applications received under the Antarctic Conservation Act of 1978, Public Law 95-541.

    SUMMARY:

    The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at Title 45 Part 670 of the Code of Federal Regulations. This is the required notice of permit applications received.

    DATES:

    Interested parties are invited to submit written data, comments, or views with respect to this permit application by December 30, 2016. This application may be inspected by interested parties at the Permit Office, address below.

    ADDRESSES:

    Comments should be addressed to Permit Office, Room 755, Division of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.

    FOR FURTHER INFORMATION CONTACT:

    Nature McGinn, ACA Permit Officer, at the above address or [email protected].

    SUPPLEMENTARY INFORMATION:

    The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.

    APPLICATION DETAILS:

    Permit Application: 2017-032.

    Applicant: James Droney, Vice President, Itinerary and Destination Planning, The World of Residense II, Ltd., 1551 Sawgrass Corporate Parkway, Suite 200, Fort Lauderdale, FL 33323.

    Activity for Which Permit is Requested: Enter Antarctic Specially Protected Area. The applicant proposes to enter Antarctic Specially Protected Area (ASPA) No. 155, Cape Evans, Ross Island; ASPA No. 157 Backdoor Bay, Cape Royds, Ross Island; ASPA No. 158, Hut Point, Ross Island; and ASPA No. 159, Cape Adare, Borchgrevink Coast in order to visit the Historic Sites and Monuments from the Heroic Age of Antarctic exploration located within the ASPAs. The applicant is planning a voyage to the Ross Sea region aboard M/V THE WORLD and will offer visits to the ASPAs listed above as shore excursions. Experienced expedition staff will supervise groups of no more than 40 people at any time in the ASPAs. The visits will be conducted according to the ASPA management plans and codes of conduct. No more than eight people at a time will enter the huts at Cape Evans, Cape Royds, and Hut Point; no more than four people at a time will enter Borchgrevink's hut at Cape Adare. No food products will be taken into the ASPAs. Care will be taken to avoid damage to historic artifacts and to avoid disturbance of any wildlife in the ASPAs. Entry into ASPAs will be on foot. When visiting ASPA 157, entry into the terrestrial and marine areas of ASPA 121 will be avoided.

    Location: ASPA No. 155, Cape Evans, Ross Island; ASPA No. 157 Backdoor Bay, Cape Royds, Ross Island; ASPA No. 158, Hut Point, Ross Island; and ASPA No. 159, Cape Adare, Borchgrevink Coast.

    Dates: January 20-31, 2017.

    Nadene G. Kennedy, Polar Coordination Specialist, Division of Polar Programs.
    [FR Doc. 2016-28753 Filed 11-29-16; 8:45 am] BILLING CODE 7555-01-P
    NUCLEAR REGULATORY COMMISSION [NRC-2016-0016] Information Collection: NRC Forms 366, 366A, and 366B, “Licensee Event Report” AGENCY:

    Nuclear Regulatory Commission.

    ACTION:

    Notice of submission to the Office of Management and Budget; request for comment.

    SUMMARY:

    The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, NRC Forms 366, 366A, and 366B, “Licensee Event Report.”

    DATES:

    Submit comments by December 30, 2016.

    ADDRESSES:

    Submit comments directly to the OMB reviewer at: Vlad Dorjets, Desk Officer, Office of Information and Regulatory Affairs (3150-0104), NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: 202-395-7315, email: [email protected].

    FOR FURTHER INFORMATION CONTACT:

    David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email: [email protected].

    SUPPLEMENTARY INFORMATION: I. Obtaining Information and Submitting Comments A. Obtaining Information

    Please refer to Docket ID NRC-2016-0016 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

    Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0016.

    NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected]. A copy of the collection of information and related instructions may be obtained without charge by accessing ADAMS Accession No. ML16235A382. The supporting statement and NRC Forms 366, 366A, and 366B, “Licensee Event Report,” are available in ADAMS under Accession No. ML16273A113.

    NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

    NRC's Clearance Officer: A copy of the collection of information and related instructions may be obtained without charge by contacting the NRC's Clearance Officer, David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email: [email protected].

    B. Submitting Comments

    The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at http://www.regulations.gov and entered into ADAMS. Comment submissions are not routinely edited to remove identifying or contact information.

    If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

    II. Background

    Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, NRC Forms 366, 366A, and 366B, “Licensee Event Report.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    The NRC published a Federal Register notice with a 60-day comment period on this information collection on July 27, 2016 (81 FR 49280).

    1. The title of the information collection: NRC Forms 366, 366A, and 366B, “Licensee Event Report”.

    2. OMB approval number: 3150-0104.

    3. Type of submission: Extension.

    4. The form number if applicable: NRC Forms 366, 366A, and 366B.

    5. How often the collection is required or requested: As needed per § 50.73 of title 10 of the Code of Federal Regulations (10 CFR), “Licensee event report system.” The total number of reports is estimated to be 350 per year.

    6. Who will be required or asked to respond: The holder of an operating license under 10 CFR part 50 or a combined license under 10 CFR part 52 (after the Commission has made the finding under § 52.103(g)).

    7. The estimated number of annual responses: The total number of reports is estimated to be 350 per year.

    8. The estimated number of annual respondents: 100.

    9. An estimate of the total number of hours needed annually to comply with the information collection requirement or request: The total estimated burden for completing Licensee Event Reports is 28,000 hours (based on 80 hours for each of 350 reports).

    10. Abstract: Part of the NRC's function is to license and regulate the operation of commercial nuclear power plants to ensure protection of public health and safety and the environment in accordance with the Atomic Energy Act of 1954 (the Act) as amended. In order for the NRC to carry out these responsibilities, licensees must report significant events in accordance with § 50.73, so that the NRC can evaluate the events to determine what actions, if any, are warranted to ensure protection of public health and safety or the environment. Section 50.73 requires reporting on NRC Forms 366, 366A, and 366B.

    Dated at Rockville, Maryland, this 22nd day of November, 2016.

    For the Nuclear Regulatory Commission.

    David Cullison, NRC Clearance Officer, Office of the Chief Information Officer.
    [FR Doc. 2016-28812 Filed 11-29-16; 8:45 am] BILLING CODE 7590-01-P
    NUCLEAR REGULATORY COMMISSION [NRC-2016-0001] Sunshine Act Meeting Notice DATE:

    Week of November 28, 2016.

    PLACE:

    OWFN 18 B11, 11555 Rockville Pike, Rockville, Maryland.

    STATUS:

    Closed.

    Week of November 28, 2016 Monday, November 28, 2016 10:00 a.m. Discussion of Management and Personnel Issues (Closed Ex. 2 & 9)

    The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 or via email at [email protected].

    Additional Information

    By a vote of 3-0 on November 23, 2016, the Commission determined pursuant to U.S.C. 552b(e) and '9.107(a) of the Commission's rules that the above referenced Affirmation Session be held with less than one week notice to the public. The meeting was held on November 28, 2016.

    The NRC Commission Meeting Schedule can be found on the Internet at: http://www.nrc.gov/public-involve/public-meetings/schedule.html.

    The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify Kimberly Meyer, NRC Disability Program Manager, at 301-287-0739, by videophone at 240-428-3217, or by email at [email protected]. Determinations on requests for reasonable accommodation will be made on a case-by-case basis.

    Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or email [email protected] or [email protected].

    Dated: November 28, 2016. Denise L. McGovern, Policy Coordinator, Office of the Secretary.
    [FR Doc. 2016-28840 Filed 11-28-16; 11:15 am] BILLING CODE 7590-01-P
    OFFICE OF PERSONNEL MANAGEMENT Hispanic Council on Federal Employment AGENCY:

    U.S. Office of Personnel Management.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Hispanic Council on Federal Employment (Council) meeting will be held on Tuesday, December 20, 2016 at the following time and location shown below:

    Time: 11:00 a.m. to 12:30 p.m.

    Location: Via Teleconference, Dial-in Number: (866) 858-3615, Participant Passcode: 41624240.

    The Council is an advisory committee composed of representatives from Hispanic organizations and senior government officials. Along with its other responsibilities, the Council shall advise the Director of the Office of Personnel Management on matters involving the recruitment, hiring, and advancement of Hispanics in the Federal workforce. The Council is co-chaired by the Director of the Office of Personnel Management and the Chair of the National Hispanic Leadership Agenda (NHLA).

    The meeting is open to the public. Please contact the Office of Personnel Management at the address shown below if you wish to present material to the Council at any of the meetings. The manner and time prescribed for presentations may be limited, depending upon the number of parties that express interest in presenting information.

    FOR FURTHER INFORMATION CONTACT:

    Zina Sutch, Director, for the Office of Diversity and Inclusion, Office of Personnel Management, 1900 E St. NW., Suite 5H35, Washington, DC 20415. Phone (202) 606-2433 FAX (202) 606-6012 or email at [email protected].

    U.S. Office of Personnel Management. Beth F. Cobert, Acting Director.
    [FR Doc. 2016-28786 Filed 11-29-16; 8:45 am] BILLING CODE 6820-B2-P
    OFFICE OF PERSONNEL MANAGEMENT OMB Emergency Review and 60-Day Notice for Comment for Existing Information Collection Request: OPM Form 1203-FX, Occupational Questionnaire OMB No. 3206-0040 AGENCY:

    Office of Personnel Management (OPM).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces the Office of Personnel Management (OPM) has submitted to the Office of Management and Budget (OMB) a request for emergency clearance and review for existing information collection request for the OPM Form 1203-FX, Occupational Questionnaire. Approval of the Occupational Questionnaire, OPM Form 1203-FX is necessary to collect information from applicants to determine their level of qualification when applying for Federal employment. This also serves as the 60-Day Notice for review for full clearance.

    DATES:

    Comments on this proposal for emergency review must be received on or before January 30, 2017. We respectfully request OMB take action within five (5) calendar days from the close of this Federal Register Notice on the request for emergency review. Comments are encouraged and will be accepted until December 31, 2016.

    ADDRESSES:

    Send or deliver comments to: Program Management Office (ICR), Automated System Management Group, U.S. Office of Personnel Management, 1900 E Street NW., Room 2445A, Washington, DC 20415.

    For Information Regarding Administrative Coordination Contact: Charles Cutshall, Office of Management and Budget, Office of Information and Regulatory Affairs, New Executive Office Building NW., Room 10235, Washington, DC 20503.

    FOR FURTHER INFORMATION CONTACT:

    For copies of this proposal, contact the Automated Systems Management Group, Office of Personnel Management, 1900 E. Street NW., Washington, DC 20415, Attention: Program Management Office (ICR) or via email to [email protected] Please include your complete mailing address or email address with your request.

    SUPPLEMENTARY INFORMATION:

    Emergency clearance is requested given the current form expires December 2016 and continuation of operations is necessary.

    Approximately 11,400,000 respondents will complete the Occupational Questionnaire. We estimate it takes 40 minutes to complete the OPM 1203-FX. Electronic submissions are processed through secure Government Web sites maintained by OPM, and in cases where respondents are unable to submit via Web site, via a fax server for electronic processing. The total annual estimated burden is 7,600,000 hours.

    Comments are particularly invited on:

    • Whether this information is necessary for the proper performance of functions on the Office of Personnel Management, and whether it will have practical utility;

    • whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; and

    • ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.

    Beth Cobert, Acting Director, U.S. Office of Personnel Management.
    [FR Doc. 2016-28785 Filed 11-29-16; 8:45 am] BILLING CODE 6325-38-P
    POSTAL SERVICE Product Change—Priority Mail and First-Class Package Service Negotiated Service Agreement AGENCY:

    Postal ServiceTM.

    ACTION:

    Notice.

    SUMMARY:

    The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.

    DATES:

    Effective date: November 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Elizabeth A. Reed, 202-268-3179.

    SUPPLEMENTARY INFORMATION:

    The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 22, 2016, it filed with the Postal Regulatory Commission a Request of the United States Postal Service to Add Priority Mail & First-Class Package Service Contract 36 to Competitive Product List. Documents are available at www.prc.gov, Docket Nos. MC2017-24, CP2017-44.

    Stanley F. Mires, Attorney, Federal Compliance.
    [FR Doc. 2016-28793 Filed 11-29-16; 8:45 am] BILLING CODE 7710-12-P
    POSTAL SERVICE Product Change—Priority Mail and First-Class Package Service Negotiated Service Agreement AGENCY:

    Postal ServiceTM.

    ACTION:

    Notice.

    SUMMARY:

    The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.

    DATES:

    Effective date: November 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Elizabeth A. Reed, 202-268-3179.

    SUPPLEMENTARY INFORMATION:

    The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 22, 2016, it filed with the Postal Regulatory Commission a Request of the United States Postal Service to Add Priority Mail & First-Class Package Service Contract 35 to Competitive Product List. Documents are available at www.prc.gov, Docket Nos. MC2017-23, CP2017-43.

    Stanley F. Mires, Attorney, Federal Compliance.
    [FR Doc. 2016-28792 Filed 11-29-16; 8:45 am] BILLING CODE 7710-12-P
    POSTAL SERVICE Product Change—Priority Mail Express, Priority Mail, & First-Class Package Service Negotiated Service Agreement AGENCY:

    Postal ServiceTM.

    ACTION:

    Notice.

    SUMMARY:

    The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.

    DATES:

    Effective date: November 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Elizabeth A. Reed, 202-268-3179.

    SUPPLEMENTARY INFORMATION:

    The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 22, 2016, it filed with the Postal Regulatory Commission a Request of the United States Postal Service to Add Priority Mail Express, Priority Mail, & First-Class Package Service Contract 13 to Competitive Product List. Documents are available at www.prc.gov, Docket Nos. MC2017-22, CP2017-42.

    Stanley F. Mires, Attorney, Federal Compliance.
    [FR Doc. 2016-28791 Filed 11-29-16; 8:45 am] BILLING CODE 7710-12-P
    POSTAL SERVICE Product Change—Priority Mail and First-Class Package Service Negotiated Service Agreement AGENCY:

    Postal ServiceTM.

    ACTION:

    Notice.

    SUMMARY:

    The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.

    DATES:

    Effective date: December 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Elizabeth A. Reed, 202-268-3179.

    SUPPLEMENTARY INFORMATION:

    The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 22, 2016, it filed with the Postal Regulatory Commission a Request of the United States Postal Service to Add Priority Mail & First-Class Package Service Contract 37 to Competitive Product List. Documents are available at www.prc.gov, Docket Nos. MC2017-25, CP2017-45.

    Stanley F. Mires, Attorney, Federal Compliance.
    [FR Doc. 2016-28794 Filed 11-29-16; 8:45 am] BILLING CODE 7710-12-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79386; File No. SR-BatsBYX-2016-35] Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Make Ministerial and Corrective Changes to Rules 11.9, 11.13, 11.16, 11.22, and 11.27 November 23, 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 16, 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 Exchange has designated this proposal as a “non-controversial” proposed rule change pursuant to Section 19(b)(3)(A) of the Act 3 and Rule 19b-4(f)(6)(iii) thereunder,4 which renders it effective upon filing with the Commission. 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.

    3 15 U.S.C. 78s(b)(3)(A).

    4 17 CFR 240.19b-4(f)(6)(iii).

    I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change

    The Exchange filed a proposal to make ministerial and corrective changes to Exchange Rules 11.9(a)(2), 11.13(b), 11.16(g)(4), 11.22(f), and 11.27(a)(7)(A)(i)2.

    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 Statutory Basis for, the Proposed Rule Change 1. Purpose

    The Exchange proposes to make ministerial and corrective changes to Exchange Rules 11.9(a)(2), 11.13(b), 11.16(g)(4), 11.22(f), and 11.27(a)(7)(A)(i)2. First, the exchange proposes to harmonize the description of BYX Market Orders under Exchange Rule 11.9(a)(2) with the description of an identical order type on the Exchange's affiliate, Bats BZX Exchange, Inc. (“BZX”). Exchange Rule 11.9(a)(2) currently states that a BYX Market Order that is designated as BYX Only 5 with a time-in-force of Day 6 will be cancelled if, when reaching the Exchange, it cannot be executed on the System 7 in accordance with Exchange Rule 11.13(a)(4) unless the reason that such BYX Market Order cannot be executed is because it is entered into the System and the NBO (NBB) is greater (less) than the Upper (Lower) Price Band, in which case such order will be posted by the System to the BYX Book, and priced at the Upper (Lower) Price Band, and re-priced as set forth in Rule 11.18(e)(5)(B). This mirrors the description of BZX Market Orders under BZX Rule 11.9(a)(2), but for the BZX rule stating that the BZX Market Order in the circumstance described in the text would be posted by the System to the BZX Book, and displayed at the Upper (Lower) Price Band. Therefore, in order to make the description of market orders identical under both rules, the Exchange proposes to replace the phrase “and priced” with the term “displayed.8

    5See Exchange Rule 11.9(c)(4).

    6See Exchange Rule 11.9(b)(2).

    7See Exchange Rule 1.5(aa).

    8See Securities Exchange Act Release No. 73875 (December 18, 2014), 79 FR 77552 (December 24, 2014) (SR-BATS-2014-068).

    Second, the Exchange proposed to amend Rule 11.13(b) to correct an incorrect cross reference. Exchange Rule 11.13(b) states that depending on the instructions set by the User 9 when the incoming order was originally entered, if a market or marketable limit order has not been executed in its entirety pursuant to Exchange Rule 11.13(a) above, the order shall be eligible for additional processing under one or more of the routing options listed under paragraph (a)(3) of Rule 11.13. The reference to paragraph (a)(3) of Rule 11.13 is incorrect as the routing options are listing under paragraph (b)(3) of Rule 11.13. Therefore, the Exchange proposes to replace reference to paragraph (a)(3) with paragraph (b)(3).

    9See Exchange Rule 1.5(cc).

    Third, the Exchange proposes to amend Rule 11.16(g)(4) to delete an unnecessary cross reference. Exchange Rule 11.16(a)(4) states that “[t]he pass-through of any compensation to a Member in accordance with this subparagraph (g) is unrelated to any other claims for compensation that are made in accordance with, and subject to the limits of, subparagraph (d) of this Rule 11.16.” The Exchange now proposes to delete reference to “11.16” as a specific reference to the rule is not integral nor necessary to the meaning or application of Rule 11.16 generally.10

    10 Removal of the rule reference would also harmonize the rule language with similar rule of the Exchange's affiliates, Bats EDGA Exchange, Inc. and Bats EDGX Exchange, Inc. SR-Bats-EDGX-2016-65 and SR-BatsEDGA-2016-28.

    Fourth, the Exchange proposes to amend Rule 11.22(f) to delete a description of the Latency Monitoring data product, which the Exchange ceased to offer in May 2015. The Exchange determined that the customer demand at that time did not warrant the infrastructure and ongoing maintenance expense required to support the product.

    Lastly, the Exchange proposes to amend Rule 11.27(a)(7)(A)(i)2. to correct a typographical error by replacing the phrase “one of more” with “one or more”.

    2. Statutory Basis

    The Exchange believes that its proposal is consistent with Section 6(b) of the Act 11 in general, and furthers the objectives of Section 6(b)(5) of the Act 12 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. The Exchange believes the proposed changes 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 because they seek to correct an incorrect cross-reference and typographical error, harmonize identical rules with the Exchange's affiliates, as well as eliminate a reference to a market data product that is no longer provided. The Exchange notes the changes to Exchange Rules 11.9(a)(2), 11.13(b), 11.16(a)(4), and 11.27(a)(7)(A)(i)2. are ministerial and do not alter the applications of each rule. In addition, the deletion of references to the Latency Monitoring Data product removes references to a product the Exchange no longer provides and that the Exchange is not required by any rule or regulation to offer. As such, the proposed amendments would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national market system.

    11 15 U.S.C. 78f(b).

    12 15 U.S.C. 78f(b)(5).

    (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 that is not necessary or appropriate in furtherance of the purposes of the Act. On the contrary, the proposed rule change will have no impact on competition as it is simply makes ministerial and corrective changes while not altering the meaning or application of each rule.

    (C) Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others

    The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.

    III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

    Because the foregoing proposed rule change does not: (A) Significantly affect the protection of investors or the public interest; (B) impose any significant burden on competition; and (C) by its terms, become operative for 30 days from the date on which it was filed or such shorter time as the Commission may designate it has become effective pursuant to Section 19(b)(3)(A) of the Act 13 and paragraph (f)(6) of Rule 19b-4 thereunder,14 the Exchange has designated this rule filing as non-controversial. The Exchange has given the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission.

    13 15 U.S.C. 78s(b)(3)(A).

    14 17 CFR 240.19b-4.

    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: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) 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 proposal 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 No. SR-BatsBYX-2016-35 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 No. SR-BatsBYX-2016-35. 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 will also 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 No. SR-BatsBYX-2016-35 and should be submitted on or before December 21, 2016.

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.15

    15 17 CFR 200.30-3(a)(12).

    Robert W. Errett, Deputy Secretary.
    [FR Doc. 2016-28776 Filed 11-29-16; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79391; File No. SR-NSCC-2016-803] Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of Filing of Advance Notice To Accelerate Its Trade Guaranty, Add New Clearing Fund Components, Enhance Its Intraday Risk Management, Provide for Loss Allocation of “Off-the-Market Transactions,” and Make Other Changes November 23, 2016.

    Pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act entitled the Payment, Clearing, and Settlement Supervision Act of 2010 (“Clearing Supervision Act”) 1 and Rule 19b-4(n)(1)(i) under the Securities Exchange Act of 1934 (“Act”),2 notice is hereby given that on October 25, 2016, National Securities Clearing Corporation (“NSCC” or the “Corporation”) filed with the Securities and Exchange Commission (“Commission”) the advance notice SR-NSCC-2016-803 (“Advance Notice”) as described in Items I, II and III below, which Items have been prepared primarily by the clearing agency.3 The Commission is publishing this notice to solicit comments on the Advance Notice from interested persons.

    1 12 U.S.C. 5465(e)(1).

    2 17 CFR 240.19b-4(n)(1)(i).

    3 On October 25, 2016, NSCC filed this Advance Notice as a proposed rule change (SR-NSCC-2016-005) with the Commission pursuant to Section 19(b)(1) of the Act, 15 U.S.C. 78s(b)(1) and Rule 19b-4, 17 CFR 240.19b-4. A copy of the proposed rule change is available at http://www.dtcc.com/legal/sec-rule-filings.aspx.

    I. Clearing Agency's Statement of the Terms of Substance of the Advance Notice

    This Advance Notice consists of amendments to NSCC's Rules & Procedures (“Rules”) 4 in order to (i) accelerate NSCC's trade guaranty from midnight of one day after trade date (“T+1”) to the point of trade comparison and validation for bilateral submissions or to the point of trade validation for locked-in submissions, (ii) add three new components to the Clearing Fund formula and eliminate the current Specified Activity charge from the Clearing Fund formula, (iii) amend Procedure II to remove language that permits NSCC to delay processing and reporting for certain index receipt transactions, (iv) enhance NSCC's current intraday mark-to-market margin process and clarify the circumstances and criteria for its intraday risk management monitoring and intraday collections of mark-to-market margin, (v) introduce a new loss allocation provision for any trades that fall within the proposed definition of “Off-the-Market Transactions” and (vi) make a technical change to Procedure XV to remove the reference to ID Net Subscribers, as described below.

    4 Capitalized terms not defined herein are defined in the Rules, available at http://dtcc.com/~/media/Files/Downloads/legal/rules/nscc_rules.pdf.

    II. Clearing Agency's Statement of the Purpose of, and Statutory Basis for, the Advance Notice

    In its filing with the Commission, the clearing agency included statements concerning the purpose of and basis for the Advance Notice and discussed any comments it received on the Advance Notice. The text of these statements may be examined at the places specified in Item IV below. The clearing agency has prepared summaries, set forth in sections A and B below, of the most significant aspects of such statements.

    (A) Clearing Agency's Statement on Comments on the Advance Notice Received From Members, Participants, or Others

    NSCC has not received any written comments relating to this proposed rule change. NSCC will notify the Commission of any written comments it receives.

    (B) Advance Notice Filed Pursuant to Section 806(e) of the Payment, Clearing and Settlement Supervision Act Description of Change (i) Accelerate the NSCC Trade Guaranty

    Pursuant to Addendum K of the Rules, NSCC currently guarantees the completion of trades that are cleared and settled through NSCC's Continuous Net Settlement (“CNS”) 5 system (“CNS trades”) and through its Balance Order Accounting Operation 6 (“Balance Order trades”) that have reached the later of midnight of T+1 or midnight of the day they are reported to Members.7 NSCC proposes to amend its Rules in order to guarantee the completion of CNS trades and Balance Order trades upon comparison and validation for bilateral submissions to NSCC or upon validation for locked-in submissions to NSCC. Validation refers to the process whereby NSCC validates a locked-in trade, or compares and validates a bilateral trade, to confirm such trade has sufficient and correct information for clearance and settlement processing. For purposes of this description in the proposed rule change, the process of comparing and validating bilateral submissions and the process for validating locked-in submissions are collectively referred to as “trade validation.”

    5 CNS and its operation are described in Rule 11 and Procedure VII.

    6 The Balance Order Accounting Operation is described in Rule 5 and Procedure V. NSCC does not become a counterparty to Balance Order trades, but it does provide a trade guaranty to the receive and deliver parties that remains effective through close of business on the originally scheduled settlement date.

    7 Today, shortened process trades, such as same-day and next-day settling trades, are already guaranteed upon comparison or trade recording processing.

    NSCC has previously shortened the time at which its trade guaranty applied to trades in response to processing developments and risk management considerations and to follow industry settlement cycles.8 Since implementation of the current trade guaranty policy, the marketplace has experienced significant change. The proposed accelerated trade guaranty and related proposed changes described herein would benefit the industry by mitigating counterparty risk and enhancing counterparties' ability to assess that risk by having NSCC become the central counterparty to CNS trades and by applying the trade guaranty to Balance Order trades at an earlier point in the settlement cycle.

    8See Securities Exchange Act Release Nos. 44648 (August 2, 2001), 66 FR 42245 (August 10, 2001) (SR-NSCC-2001-11); 35442 (March 3, 1995), 60 FR 13197 (March 10, 1995) (SR-NSCC-95-02); 35807 (June 5, 1995), 60 FR 31177 (June 13, 1995) (SR-NSCC-95-03); and 27192 (August 29, 1989), 54 FR 37010 (approving SR-NSCC-87-04, SR-MCC-87-03, and SR-SCCP-87-03 until December 31, 1990).

    The transfer of counterparty credit risk from Members to NSCC at an earlier point in the settlement cycle facilitates a shortened holding period of bilateral credit risk for counterparties by transferring the obligation onto NSCC, which is better equipped to manage that counterparty credit risk, including potential systemic impact, compared to the counterparties themselves.

    In order to implement this proposed change, NSCC would amend Addendum K of its Rules 9 to provide that CNS trades and Balance Order trades would be guaranteed by NSCC at the point of trade validation.10

    9Supra note 4.

    10 The proposed accelerated trade guaranty would not apply to items not currently guaranteed today.

    NSCC also proposes to clarify in Addendum K 11 that the guaranty of obligations arising out of the exercise or assignment of options that are settled at NSCC is not governed by Addendum K 12 but by a separate arrangement between NSCC and The Options Clearing Corporation, as referred to in Procedure III of the Rules.13

    11Supra note 4.

    12Id.

    13Id.

    (ii) Proposed Enhancements to NSCC's Clearing Fund Formula

    In conjunction with accelerating the trade guaranty, NSCC would enhance its Clearing Fund formula to address the risks posed by the expanded trade guaranty. Specifically, NSCC proposes to amend Procedure XV 14 (Clearing Fund Formula and Other Matters) to include three new components: The Margin Requirement Differential (“MRD”), the Coverage Component and the Intraday Backtesting Charge.

    14Id.

    NSCC also proposes to add to Procedure XV 15 a description of the enhanced intraday mark-to-market component of the Clearing Fund formula that clarifies the circumstances and criteria for the assessment of an intraday mark-to-market call. In addition, NSCC proposes to delete the Specified Activity charge, a component of the Clearing Fund formula that mitigates shortened cycle risk (that is, the risk of the trade guaranty attaching prior to collection of daily Clearing Fund). This charge would no longer be necessary because the MRD would mitigate those same risks.

    15Id.

    A more detailed description of the foregoing changes follows:

    A. The Required Deposit and the Accelerated Trade Guaranty

    NSCC collects Required Deposits from all Members as margin to protect NSCC against losses in the event of a Member's default. The objective of the Required Deposit is to mitigate potential losses to NSCC associated with liquidation of the Member's portfolio if NSCC ceases to act for a Member (hereinafter referred to as a “default”). NSCC determines Required Deposit amounts using a risk-based margin methodology that is intended to capture market price risk. The methodology uses historical market moves to project or forecast the potential gains or losses on the liquidation of a defaulting Member's portfolio, assuming that a portfolio would take three days to liquidate or hedge in normal market conditions. The projected liquidation gains or losses are used to determine the Member's Required Deposit, which is calculated to cover projected liquidation losses to be at or above a 99 percent confidence level (the “Coverage Target”). The aggregate of all Members' Required Deposits constitutes NSCC's Clearing Fund, which NSCC would be able to access if a defaulting Member's own Required Deposit is insufficient to satisfy losses to NSCC caused by the liquidation of the Member's portfolio.

    NSCC calculates and collects Required Deposits from Members daily. Each Member's daily Required Deposit is calculated based on the end-of-day positions from the prior day and is generally collected by 10:00 a.m. ET. NSCC's current trade guaranty does not generally attach to trades until midnight of T+1, after Required Deposits reflecting these trades have been collected. Therefore, Members' Required Deposits are generally sufficient to cover projected liquidation losses for guaranteed trades. However, under the accelerated trade guaranty proposal, NSCC's trade guaranty would attach to current-day trades immediately upon trade validation, before Required Deposits reflecting these trades have been collected (which NSCC refers to herein as the “coverage gap”).16 Therefore, Members' Required Deposits may not be sufficient to cover the projected liquidation losses of trades guaranteed by NSCC upon trade validation, and NSCC, absent the proposed Clearing Fund formula enhancements, could incur a loss associated with those trades if it ceases to act for a Member.

    16 The coverage gap is the period between the time that NSCC would guarantee a trade and the time that NSCC would collect additional margin to cover such trade.

    B. Addition of the MRD to the Clearing Fund Formula

    The MRD is designed to help mitigate the risks posed to the Corporation by day-over-day fluctuations in a Member's portfolio by forecasting future changes in a Member's portfolio based on a historical look-back at each Member's portfolio over a given time period. A Member's portfolio may fluctuate significantly from one trading day to the next as the Member executes trades throughout the day. Currently, daily fluctuations in a Member's portfolio resulting from such trades do not pose any additional or different risk to NSCC because those trades are not guaranteed by NSCC until a Required Deposit reflecting such trades is collected by NSCC. However, under the accelerated trade guaranty proposal, trades would be guaranteed by NSCC upon trade validation and therefore may result in large un-margined intraday portfolio fluctuations during the coverage gap. The MRD would increase Members' Required Deposits by an amount calculated to cover forecasted fluctuations in Members' portfolios, based upon historical activity.

    The MRD would be calculated and charged on a daily basis as a part of each Member's Required Deposit and consists of two components: The “MRD VaR” and the “MRD MTM.” The MRD VaR looks at historical day-over-day positive changes in the start of day (“SOD”) volatility component of a Member's Required Deposit 17 (“Volatility Charge”) over a 100-day look-back period and would be calculated to equal the exponentially weighted moving average (“EWMA”) of such changes to the Member's Volatility Charge during the look-back period. The MRD MTM looks at historical day-over-day increases to the SOD mark-to-market component of a Member's Required Deposit 18 over a 100-day look-back period and would be calculated to equal the EWMA of such changes to the Member's SOD mark-to-market component during the look-back period. The MRD is calculated to equal the sum of MRD VaR and MRD MTM times a multiplier calibrated based on backtesting results. NSCC has determined that a 100-day look-back period would provide it with a sufficient time series to reflect current market conditions.

    17 The volatility component of the Clearing Fund formula for CNS trades and Balance Order trades is described in Procedure XV, Sections I.(A)(1)(a) and I.(A)(2)(a), respectively.

    18 The SOD mark-to-market component of the Clearing Fund formula for CNS trades consists of Regular Mark-to-Market and ID Net Mark-to-Market, which are described in Procedure XV, Sections I.(A)(1)(b) and I.(A)(1)(c), respectively. The SOD mark-to-market component of the Clearing Fund formula for Balance Order trades is described in Procedure XV, Section I.(A)(2)(b).

    By addressing the day-over-day changes to each Member's SOD Volatility Charge and SOD mark-to-market component, the MRD would help mitigate the risks posed to the Corporation by un-margined day-over-day fluctuations to a Member's portfolio resulting from intraday trading activity that would be guaranteed during the coverage gap.

    C. Addition of the Coverage Component to the Clearing Fund Formula

    The “Coverage Component” is designed to mitigate the risks associated with a Member's Required Deposit being insufficient to cover projected liquidation losses to the Coverage Target by adjusting a Member's Required Deposit towards the Coverage Target. The Corporation would face increased exposure to a Member's un-margined portfolio as a result of the proposed accelerated trade guaranty and would have an increased need to have each Member's Required Deposit meet the Coverage Target. The Coverage Component would supplement the MRD by preemptively increasing a Member's Required Deposit in an amount calculated to forecast potential deficiencies in the margin coverage of a Member's guaranteed portfolio. The preemptive nature of the Coverage Component differentiates it from the Regular Backtesting Charge and the Intraday Backtesting Charge, both of which are reactive measures to increase the Member's Required Deposit to above the Coverage Target.

    The Coverage Component would be calculated and charged on a daily basis as a part of each Member's Required Deposit. To calculate the Coverage Component, NSCC would compare the simulated liquidation profit and loss of a Member's portfolio, using the actual positions in the Member's portfolio and the actual historical returns on the security positions in the portfolio, against the sum of each of the following components of the Clearing Fund formula: The Volatility Charge, the MRD, the Illiquid Charge and the Market Maker domination charge (collectively, the “Market Risk Components”), to determine if there were any deficiencies between the amounts collected by these components and the simulated profit and loss of the Member's portfolio that would have been realized had it been liquidated during a 100-day look-back period. NSCC would then determine a daily “peak deficiency” amount for each Member equal to the maximum deficiency over a rolling 10 business day period for the preceding 100 days. The Coverage Component would be calculated to equal the EWMA of the peak deficiencies over the 100-day look-back period.

    In working to bring each Member's Required Deposit towards the Coverage Target by preemptively collecting an amount designed to cover projected liquidation profit and loss of a Member's portfolio, including the trades guaranteed during the coverage gap, NSCC would further mitigate the risks posed to it by the proposed accelerated trade guaranty.

    D. Addition of the Intraday Backtesting Charge to the Clearing Fund Formula

    NSCC employs daily backtesting to determine the adequacy of each Member's Required Deposit. NSCC compares the Required Deposit 19 for each Member with the simulated liquidation profit and loss using the actual positions in the Member's portfolio and the actual historical returns on the security positions in the portfolio. NSCC investigates the cause(s) of any backtesting deficiencies. As a part of this investigation, NSCC pays particular attention to Members with backtesting deficiencies that bring the results for that Member below the Coverage Target to determine if there is an identifiable cause of repeat backtesting deficiencies. NSCC also evaluates whether multiple Members experience backtesting deficiencies for the same underlying reason. Upon implementation of the accelerated trade guaranty, NSCC would employ a similar backtesting process on an intraday basis to determine the adequacy of each Member's Required Deposit. However, instead of backtesting a Member's Required Deposit against the Member's SOD portfolio, NSCC would use portfolios from two intraday time slices.20

    19 For backtesting comparisons, NSCC uses the Required Deposit amount without regard to the actual collateral posted by the Member.

    20 Intraday time slices are subject to change based upon market conditions and would include the positions from SOD plus any additional positions up to that time.

    1. Calculation of the Intraday Backtesting Charge

    The objective of the Intraday Backtesting Charge is to increase Required Deposits for Members that are likely to experience intraday backtesting deficiencies on the basis described above by an amount sufficient to maintain such Member's intraday backtesting coverage above the Coverage Target. Members that maintain consistent end of day positions but have a high level of intraday trading activity pose risk to NSCC if they were to default intraday.

    Because the intraday trading activity and size of the intraday backtesting deficiencies vary among impacted Members, NSCC must assess an Intraday Backtesting Charge that is specific to each impacted Member. To do so, NSCC examines each impacted Member's historical intraday backtesting deficiencies observed over the prior 12-month period to identify the five largest intraday backtesting deficiencies that have occurred during that time. The presumptive Intraday Backtesting Charge amount would equal that Member's fifth largest historical intraday backtesting deficiency, subject to adjustment as further described below. NSCC believes that applying an additional margin charge equal to the fifth largest historical intraday backtesting deficiency to a Member's Required Deposit would have brought the Member's historically observed intraday backtesting coverage above the Coverage Target.21

    21 Intraday backtesting would include 500 observations per year (twice per day over 250 observation days). Each occurrence of a backtesting deficiency would reduce a Member's overall backtesting coverage by 0.2 percent (1 exception/500 observations). Accordingly, an Intraday Backtesting Charge equal to the fifth largest backtesting deficiency would have brought backtesting coverage up to 99.2 percent.

    The Intraday Backtesting Charge would only be applicable to those Members whose overall 12-month trailing intraday backtesting coverage falls below the Coverage Target.

    Although the fifth largest historical backtesting deficiency for a Member would be used as the Intraday Backtesting Charge in most cases, NSCC would retain discretion to adjust the charge amount based on other circumstances that might be relevant for assessing whether an impacted Member is likely to experience future backtesting deficiencies and the estimated size of such deficiencies. Examples of relevant circumstances that could be considered by NSCC in calculating the final, applicable Intraday Backtesting Charge amount include material differences among the Member's five largest intraday backtesting deficiencies observed over the prior 12-month period, variability in the net settlement activity after the collection of the Member's Required Deposit and observed market price volatility in excess of the Member's historical Volatility Charge. Based on NSCC's assessment of the impact of these circumstances on the likelihood, and estimated size, of future intraday backtesting deficiencies for a Member, NSCC may, in its discretion, adjust the Intraday Backtesting Charge for such Member in an amount that NSCC determines to be more appropriate for maintaining such Member's intraday backtesting results above the Coverage Target.

    The resulting Intraday Backtesting Charge would be added to the Required Deposit for such Member and would be imposed on a daily basis for a one-month period.

    In order to differentiate the Backtesting Charge assessed on the start of the day portfolio from the Backtesting Charge assessed on an intraday basis, NSCC would amend the Rules by adding a defined term “Regular Backtesting Charge” to Procedure XV, Section I.(B)(3).22

    22Supra note 4.

    2. Communication With Members and Imposition of the Intraday Backtesting Charge

    If NSCC determines that an Intraday Backtesting Charge should apply to a Member who was not assessed an Intraday Backtesting Charge during the immediately preceding month or that the Intraday Backtesting Charge applied to a Member during the previous month should be increased, NSCC would notify the Member on or around the 25th calendar day of the month prior to the assessment of the Intraday Backtesting Charge or prior to the increase to the Intraday Backtesting Charge, as applicable, if not earlier.

    NSCC would impose the Intraday Backtesting Charge as an additional charge applied to each impacted Member's Required Deposit on a daily basis for a one-month period and would review each applied Intraday Backtesting Charge each month. If an impacted Member's trailing 12-month intraday backtesting coverage exceeds the Coverage Target (without taking into account historically imposed Intraday Backtesting Charges), the Intraday Backtesting Charge would be removed.

    E. Removal of the Specified Activity Charge From the Clearing Fund Formula

    Currently, NSCC collects a Specified Activity charge, which is designed to cover the risk posed to NSCC by transactions that settle on a shortened cycle.23 Such transactions pose an increased risk to NSCC because these trades settle on a shortened settlement cycle and may be guaranteed by NSCC prior to the collection of margin on them. The Specified Activity charge currently mitigates this risk by increasing the Required Deposit for a Member in relation to the number of Specified Activity trades submitted by the Member to NSCC over a 100-day look-back period. However, the risk posed to NSCC by Specified Activity would no longer be unique to such trade activity—the proposed accelerated trade guaranty would result in a similar risk to NSCC. The addition of the MRD and Coverage Components to the Clearing Fund formula would mitigate the risks posed by trades guaranteed by NSCC prior to the collection of margin on those trades. As a result, NSCC proposes to eliminate the Specified Activity charge because imposing a separate Specified Activity charge would no longer be necessary once the MRD and Coverage Components are added to the Clearing Fund formula.

    23 Examples of these trades can include next day settling trades, same day settling trades, cash trades or sellers' options.

    F. Enhanced Intraday Mark-to-Market Margining

    NSCC proposes to enhance its current intraday margining to further mitigate the intraday coverage gap risk that may be introduced to the Corporation as a result of the proposed accelerated trade guaranty. By way of background, NSCC currently collects a SOD mark-to-market margin, which is designed to mitigate the risk arising out of the value change between the contract/settlement value of a Member's open positions and the current market value, as part of its Clearing Fund formula. A Member's SOD mark-to-market margin is calculated and collected as part of a Member's daily Required Deposit based on the Member's prior end-of-day positions. The SOD mark-to-market component of the daily Required Deposit is calculated to cover a Member's exposure due to market moves and/or trading and settlement activity by bringing the portfolio of open positions up to the current market value. However, because the SOD mark-to-market component is calculated only once daily using the prior end-of-day positions and prices, it will not cover a Member's exposure arising out of any intraday changes to position and market value in a Member's portfolio. Accordingly, NSCC currently collects intraday mark-to-market margin from Members to cover additional risk exposure arising out of intraday position and market value changes to the Member's portfolio if the additional risks are sufficiently large to warrant the collection of an intraday margin.

    NSCC has determined that it is not necessary to collect intraday margin from every Member that experiences an intraday mark-to-market change because the Volatility Charge already collected as part of Members' daily Required Deposits is calculated to cover projected changes in the contract/settlement value of a Member's portfolio and likely cover intraday changes to a Member's portfolio. However, in certain instances, Members may have intraday mark-to-market changes that are significant enough that NSCC is exposed to an increased risk of loss as a result of such Member's intraday activities. In particular, NSCC measures each Member's intraday mark-to-market exposure against the Volatility Charge. NSCC collects an intraday mark-to-market amount from any Member that has an intraday mark-to-market exposure that meets or exceeds a threshold percentage as compared to the Member's Volatility Charge. NSCC believes that such Members pose an increased risk of loss to the Corporation because the coverage provided by the Volatility Charge, which is designed to cover estimated losses to a portfolio over a specified time period, would be exhausted by an intraday mark-to-market exposure so large that the Member's Required Deposit would potentially be unable to absorb further intraday losses to the Member's portfolio.

    In order to further mitigate the risk posed to NSCC by the proposed accelerated trade guaranty, NSCC is proposing to enhance its collection of intraday mark-to-market margin. NSCC would impose the intraday mark-to-market margin amount at a lower threshold. Currently, NSCC makes an intraday mark-to-market margin call if a Member's intraday mark-to-market exposure meets or exceeds 100 percent of such Member's Volatility Charge; however, such threshold may be reduced by NSCC during volatile market conditions. With this proposal, NSCC would make an intraday margin call if a Member's intraday mark-to-market exposure meets or exceeds 80 percent of such Member's Volatility Charge, where such threshold may still be reduced by NSCC during volatile market conditions. This proposed change would serve to collect intraday margin earlier and more proactively preserve the coverage provided by a Member's Volatility Charge and Required Deposit.

    In addition, NSCC would monitor intraday changes to Member's mark-to-market exposure at regular intervals to further mitigate the risk posed to NSCC by the accelerated trade guaranty. By doing so, NSCC would be able to make intraday margin calls more frequently to those Members whose intraday mark-to-market exposures exceed the Volatility Charge threshold. Enhancing the collection of the intraday mark-to-market amount so that it occurs earlier and more frequently would allow NSCC to reduce the amount of uncovered risk during the coverage gap and would therefore further mitigate the risk posed to the Corporation by the accelerated trade guaranty.

    NSCC proposes to amend Procedure XV to include a description of the enhanced intraday mark-to-market margin charge that clarifies the circumstances and criteria for the assessment of an intraday mark-to-market call. This would ensure that Members are aware that the Corporation regularly monitors and considers intraday mark-to-market as part of its regular Clearing Fund formula.

    G. Adjustments to the Calculation of the Excess Capital Premium Component

    The Excess Capital Premium 24 is designed to address spikes in a Member's Required Deposit based upon any one day of activity. It is not designed to provide additional Required Deposits over an extended period of time. Currently, the Excess Capital Premium for a Member is calculated based upon the Member's Clearing Fund Required Deposit and the Member's excess net capital. With the addition of the MRD and the Coverage Component, NSCC proposes to exclude these charges from the calculation of the Excess Capital Premium. The MRD and the Coverage Component all utilize a historical look-back period, which accounts for the risk of such activity well after the relevant trades have settled. Risks related to such trades would be reflected in increased amounts assessed for these components over the subsequent time periods. If these components are included in the calculation of the Excess Capital Premium, especially during periods following an increase in activity, then the increased MRD and Coverage Component could lead to more frequent Excess Capital Premium charges over an extended period of time. This is not the intended purpose of the Excess Capital Premium and could place an unnecessary burden on Members.

    24 The Excess Capital Premium is a charge imposed on a Member when the Member's Required Deposit exceeds its excess net capital, as described in Procedure XV.

    (iii) Proposed Changes to Procedure II (Trade Comparison and Recording Service)

    Next day settling index receipts may be guaranteed prior to the collection of margin reflecting such trades and thus carry a very similar risk as Specified Activity trades described above. More specifically, because these trades are settled on the day after they are received and validated by NSCC, NSCC currently attaches its guaranty to them at the time of validation, prior to the collection of a Required Deposit that reflects such trades. Unlike the risk from Specified Activity trades, which is mitigated by the Specified Activity charge, the risk for next day settling index receipts is currently mitigated by permitting NSCC to delay the processing and reporting of these trades if a Member's Required Deposit is not paid on time. However, like the risk associated with Specified Activity, under the proposed rule change, this risk would generally be mitigated by the addition of the MRD and the Coverage Component. Therefore, NSCC proposes to amend Procedure II 25 (Trade Comparison and Recording Service) to remove the language that permits NSCC to delay the processing and reporting of next day settling index receipts until the applicable margin on these transactions is paid.

    25Supra note 4.

    (iv) Loss Allocation Provision for Off-the-Market Transactions

    NSCC proposes to introduce a new loss allocation provision for any trades that fall within the proposed definition of “Off-the-Market Transactions” in order to limit NSCC's exposure to certain trades that have a price that differs significantly from the prevailing market price for the underlying security at the time the trade is executed. This provision would apply in the event that NSCC ceases to act for a Member that engaged in Off-the-Market Transactions and only to the extent that NSCC incurs a net loss in the liquidation of such Transactions.26

    26 A net loss on liquidation of the Off-the-Market Transaction means that the loss on liquidation of the Member's portfolio exceeds the collected Required Deposit of the Member and such loss is attributed to the Off-the-Market Transaction. Such loss would be allocated directly and entirely to the Member that submitted the Off-the-Market Transaction, or on whose behalf the Off-the-Market Transaction was submitted, to NSCC; however, no allocation would be made if such Member has satisfied all applicable intraday mark-to-market margin charges assessed by NSCC with respect to the Off-the-Market Transaction.

    NSCC would define “Off-the-Market Transactions” as either a single transaction or a series of transactions settled within the same cycle with greater than $1 million in gross proceeds and either higher or lower than the most recently observed market price by a percentage amount based on market conditions and factors that impact trading behavior of the underlying security, including volatility, liquidity and other characteristics of such security.

    The proposed rule change would establish the loss allocation for Off-the-Market Transactions. NSCC would allocate any losses to NSCC resulting from the liquidation of any guaranteed, open Off-the-Market Transaction of a defaulted Member directly and entirely to the surviving counterparty to that transaction. Losses would be allocated to counterparties in proportion to their specific Off-the-Market Transaction gain and would be allocated only to the extent of NSCC's loss; however, no allocation shall be made if the defaulted Member has satisfied all requisite intraday mark-to-market margin assessed by NSCC with respect to the Off-the-Market Transaction.27

    27 A Member's Off-the-Market Transaction that has been marked to market is, by definition, no longer an Off-the-Market Transaction when the mark-to-market component of the Member's Required Deposit is satisfied.

    This proposed change would allow NSCC to mitigate the risk of loss associated with guaranteeing these Off-the-Market Transactions. The proposal recognizes that applying the accelerated trade guaranty to transactions whose price significantly differs from the most recently observed market price could inappropriately increase the loss that NSCC may incur if a Member that has engaged in Off-the-Market Transactions defaults and its open, guaranteed positions are liquidated. Members not involved in Off-the-Market Transactions, or not involved in Off-the-Market Transactions that result in losses to NSCC, would not be included in this process. This exclusion would apply only to losses that are attributable to Off-the-Market Transactions and would not exclude Members from other obligations that may result from any loss or liabilities incurred by NSCC from a Member default.

    In order to implement this proposed change, NSCC would amend Rule 4 28 (Clearing Fund) to provide that, if a loss or liability of NSCC is determined by NSCC to arise in connection with the liquidation of any Off-the-Market Transactions, such loss or liability would be allocated directly to the surviving counterparty to the Off-the-Market Transaction that submitted the transaction to NSCC for clearing. NSCC would also amend Rule 1 29 (Definitions and Descriptions) to include a definition of Off-the-Market Transactions.

    28Supra note 4.

    29Id.

    (v) Technical Proposed Rule Change

    NSCC is proposing a change to Procedure XV 30 to clarify the calculation of the Regular Mark-to-Market component for CNS transactions. NSCC's historical and current policy for the calculation of any mark-to-market component of the Clearing Fund calculation for CNS trades and Balance Order trades is that where a credit is derived from a Member's mark-to-market calculation, the value of the calculation is adjusted to zero. When NSCC implemented the ID Net service,31 a provision was added to Procedure XV 32 that explicitly stated this policy as it relates to CNS transactions of subscribers to the ID Net service. This change inadvertently created an implication that the calculation of Regular Mark-to-Market credit for Members who were not ID Net Subscribers would not be set to zero. NSCC is proposing to revise the applicable provision to remove the reference to ID Net Subscribers.

    30Id.

    31 NSCC's ID Net service is defined further in Rule 65. Rules, supra note 4. See Securities Exchange Act Release No. 57901 (June 2, 2008), 73 FR 32373 (June 6, 2008) (SR-NSCC-2007-14).

    32Supra note 4.

    Expected Effect on Risks to the Clearing Agency, Its Participants and the Market

    The proposed rule changes would mitigate Member's counterparty risks and would enhance Members' ability to assess that risk by having NSCC become the central counterparty to CNS trades and by applying the trade guaranty to Balance Order trades at an earlier point in the settlement cycle.

    Although the transfer of counterparty credit risk from Members to NSCC at an earlier point in the settlement cycle facilitates a shortened holding period of bilateral credit risk for the Members, it does increase risk to NSCC. However, as discussed below, NSCC believes that it is better equipped to manage that counterparty credit risk, including potential systemic impact, compared to the counterparties themselves.

    Management of Identified Risks

    The proposal is designed to mitigate counterparty risk while still protecting NSCC and its membership.

    The proposed rule changes to (i) add the new components to the Clearing Fund formula and (ii) enhance the intraday mark-to-market margin process would allow NSCC to appropriately collect additional margin to mitigate the exposure presented to NSCC by the accelerated trade guaranty. The proposal to introduce a new loss allocation provision for Off-the-Market Transactions would help NSCC to limit its exposure to Off-the-Market Transactions.

    Specifically, the proposal to add the MRD, the Coverage Component and the Intraday Backtesting Charge to the Clearing Fund formula and to collect intraday mark-to-market margin at a lower threshold would mitigate the exposure presented to NSCC by the accelerated trade guaranty and permit NSCC to enhance its margin requirements to better limit its credit exposures to participants under normal market conditions.

    In addition, NSCC's proposal to expand its current intraday margin collection to include (a) the collection of intraday mark-to-market margin at a lower threshold and (b) the collection of the Intraday Backtesting Charge would further enhance its intraday monitoring and its ability to measure credit exposures at least once a day.

    Similarly, the proposed rule changes to introduce a new loss allocation provision for any trades that fall within the proposed definition of Off-the-Market Transactions would help NSCC to limit its exposure to certain trades that have a price that differs significantly from the most recently observed market price for the underlying security. Therefore, the reduction of NSCC's exposure to Off-the-Market Transactions would assist NSCC in responding to a Member default and would minimize potential losses to NSCC and its non-defaulting Members.

    NSCC has also taken actions outside of the proposals described in this filing to strengthen its liquidity resources and to enable it to cover its total liquidity needs, including any liquidity needs that would arise from the accelerated trade guaranty. NSCC calculates its liquidity need by assuming the failure of the Member (including the simultaneous default of the Member's affiliated family) that has the largest net settlement debit in extreme but plausible market conditions.33 Although the proposal would increase the number of days for which NSCC would be required, under its Rules, to guarantee settlement to include T and T+1 trades, the Rules currently provide that it may, although it is not legally obligated to, optionally guarantee these trades. Given NSCC's role in promoting safety, soundness and stability in the U.S. equities markets, NSCC currently includes these trades in its daily liquidity need analyses to account for the circumstances where this optional guaranty would be called upon. NSCC has never actually experienced a liquidity shortfall in the close out of a defaulted Member.

    33 Every day NSCC measures the liquidity obligations of each of NSCC's Members by taking the sum of their purchase obligations on that day from CNS and for the following three settlement days, and then, taking into account certain adjustments, assumptions and offsets, NSCC identifies the largest Member liquidity need on each day and, determines if the available liquidity resources are adequate to cover that largest liquidity need or if there is a projected liquidity shortfall.

    NSCC measures the potential liquidity impact of the accelerated trade guaranty on a daily basis. NSCC has enhanced its liquidity resources through the implementation of NSCC's supplemental liquidity deposit (“SLD”) requirements.34 NSCC's SLD requirements were designed to require Members with historically elevated options activity to provide supplemental liquidity deposits in advance of and in anticipation of options expiry periods, as well as to accept voluntary pre-funded supplemental liquidity deposits from other Members who anticipate elevated liquidity needs during these periods. As such, the SLD requirements provide NSCC with the needed liquidity resources to address any liquidity shortfalls that may be experienced under the accelerated trade guaranty settlement cycle. Furthermore, NSCC has established a liquidity program to raise prefunded liquidity through the issuance and private placement of short-term, unsecured notes (“Prefunded Liquidity Program”), which may consist of a combination of commercial paper notes and extendible notes.35 Proceeds from the Prefunded Liquidity Program further supplement NSCC's existing default liquidity risk management resources.

    34 Securities Exchange Act Release No. 70999 (December 5, 2013), 78 FR 75413 (December 11, 2013) (SR-NSCC-2013-02).

    35 Securities Exchange Act Release No. 75730 (August 19, 2015), 80 FR 51638 (August 25, 2015) (SR-NSCC-2015-802).

    Consistency With the Clearing Supervision Act

    The objectives and principles of the Clearing Supervision Act are to promote robust risk management, promote safety and soundness, reduce systemic risks, and support the stability of the broader financial system.36

    36 12 U.S.C. 5464(b).

    The proposal to accelerate the time that NSCC's trade guaranty attaches to trades submitted to it for clearing has been designed to promote robust risk management, promote safety and soundness, reduce systemic risks and support the stability of the broader financial system in furtherance of the Clearing Supervision Act.

    Specifically, NSCC would provide a trade guaranty to CNS trades and Balance Order trades at an earlier point in the settlement cycle. The proposed rule changes would mitigate counterparty risk and would enhance NSCC Members' ability to assess that risk by having NSCC become the central counterparty to CNS trades and by applying the trade guaranty to Balance Order trades at an earlier point in the settlement cycle. The transfer of counterparty credit risk from Members to NSCC at an earlier point in the settlement cycle facilitates a shortened holding period of bilateral credit risk for the counterparties by transferring the obligation onto NSCC, which is better equipped to manage that counterparty credit risk, including potential systemic impact, compared to the counterparties themselves. Therefore, NSCC believes the proposal to accelerate the trade guaranty would promote robust risk management, promote safety and soundness, reduce systemic risks and support the stability of the broader financial system, consistent with the objectives and principles of Section 805(b) of the Clearing Supervision Act cited above.

    The proposed rule changes to enhance the Clearing Fund formula and to introduce a new loss allocation provision for Off-the-Market Transactions have been designed to promote robust risk management and promote safety and soundness in furtherance of the Clearing Supervision Act. In conjunction with the enhanced trade processing in the form of the accelerated trade guaranty, the proposed additional Clearing Fund components and enhancements to NSCC's current intraday mark-to-market margin process would allow NSCC to appropriately manage its risk by collecting additional margin to mitigate the exposure presented to NSCC by the accelerated trade guaranty. Additionally, the proposal to introduce a new loss allocation provision for any trades that fall within a proposed definition of “Off-the-Market Transactions” would help NSCC to limit its exposure to certain trades that have a price that differs significantly from the most recently observed market price for the underlying security. Together, the collection of additional margin and the reduction of NSCC's exposures to “Off-the-Market Transactions” would assist NSCC in responding to a Member default and would minimize potential losses to NSCC and its non-defaulting Members. Therefore, NSCC believes the proposed enhancements to the Clearing Fund formula and the introduction of an Off-the-Market Transaction allocation process would also promote robust risk management and promote safety and soundness, consistent with objectives and principles of Section 805(b) of the Clearing Supervision Act, cited above.

    NSCC believes that the proposal is also consistent with Rules 17Ad-22(b)(1) and (b)(2), promulgated under the Act. Rule 17Ad-22(b)(1) requires NSCC to establish, implement, maintain and enforce written policies and procedures reasonably designed to measure its credit exposures to its participants at least once a day and limit its exposures to potential losses from defaults by its participants under normal market conditions so that the operations of NSCC would not be disrupted and non-defaulting participants would not be exposed to losses that they cannot anticipate or control.37 NSCC's proposal to expand its current intraday margin collection to include (a) the collection of intraday mark-to-market margin at a lower threshold and (b) the collection of the Intraday Backtesting Charge would further enhance its intraday monitoring and its ability to measure credit exposures at least once a day. The proposal to enhance the amount of margin collected from each Member would help NSCC to limit its exposure to potential losses from defaults by its participants under normal market conditions and reduce risk of loss mutualization to the NSCC membership. Similarly, the proposal to introduce a new loss allocation provision for Off-the-Market Transactions would also help NSCC to limit its exposure to potential losses from defaults by its participants under normal market conditions. Therefore, NSCC believes the proposals are consistent with the requirements of Rule 17Ad-22(b)(1), promulgated under the Act, cited above.

    37 17 CFR 240.17Ad-22(b)(1).

    Rule 17Ad-22(b)(2) requires NSCC to establish, implement, maintain and enforce written policies and procedures reasonably designed to “use margin requirements to limit its credit exposures to participants under normal market conditions and use risk-based models and parameters to set margin requirements.” 38 The proposal to add the MRD, the Coverage Component and the Intraday Backtesting Charge to the Clearing Fund formula and to collect intraday mark-to-market margin at a lower threshold in order to mitigate the exposure presented to NSCC by the accelerated trade guaranty would enable NSCC to enhance its margin requirements to better limit its credit exposures to participants under normal market conditions. Therefore, NSCC believes the proposed changes are consistent with the requirements of Rule 17Ad-22(b)(2), promulgated under the Act, cited above.

    38 17 CFR 240.17Ad-22(b)(2).

    The proposed changes to NSCC's Clearing Fund formula and the intraday margin process are also designed to be consistent with Rules 17Ad-22(e)(4) and (e)(6) of the Act, which were recently adopted by the Commission.39 Rule 17Ad-22(e)(4) will require NSCC to establish, implement, maintain and enforce written policies and procedures reasonably designed to effectively identify, measure, monitor, and manage its credit exposures to participants and those exposures arising from its payment, clearing, and settlement processes.40 NSCC's proposal to expand its current intraday margin collection to include (a) the collection of intraday mark-to-market margin at a lower threshold and (b) the collection of the Intraday Backtesting Charge would enhance its ability to identify, measure, monitor and manage its credit exposures to participants. The proposal to enhance the amount of margin NSCC collected from each Member and to introduce a new loss allocation provision for Off-the-Market Transactions would further help NSCC to manage its credit exposures to participants and those exposures arising from its payment, clearing, and settlement processes. Therefore, NSCC believes these proposals are consistent with the requirements of Rule 17Ad-22(e)(4), promulgated under the Act, cited above.

    39 The Commission adopted amendments to Rule 17Ad-22, including the addition of new section 17Ad-22(e), on September 28, 2016. See Securities Exchange Act Release No. 78961 (September 28, 2016), 81 FR 70786 (October 13, 2016) (S7-03-14). The amendments to Rule 17Ad-22 become effective on December 12, 2016. Id. NSCC is a “covered clearing agency” as defined in Rule 17Ad-22(a)(5) and must comply with new section (e) of Rule 17Ad-22 by April 11, 2017. Id.

    40See Securities Exchange Act Release No. 78961 (September 28, 2016), 81 FR 70786 (October 13, 2016) (S7-03-14).

    Rule 17Ad-22(e)(6) will require NSCC to establish, implement, maintain and enforce written policies and procedures reasonably designed to cover its credit exposures to its participants by establishing a risk-based margin system that is monitored by management on an ongoing basis and regularly reviewed, tested, and verified.41 The proposal to add the MRD, the Coverage Component and the Intraday Backtesting Charge to the Clearing Fund formula and to collect intraday mark-to-market margin at a lower threshold would help NSCC to cover its credit exposures to its participants by establishing a risk-based margin system that is monitored by management on an ongoing basis and regularly reviewed, tested, and verified. Therefore, NSCC believes this proposal is consistent with the requirements of Rule 17Ad-22(e)(6), promulgated under the Act, cited above.

    41Id.

    Implementation Timeframe

    Pending Commission approval, Members would be advised of the implementation date of this proposal through issuance of an NSCC Important Notice. NSCC expects to run the proposed changes in a test environment for a parallel period of at least three months prior to implementation. Details and dates regarding such test period would be communicated to Members through an NSCC Important Notice.

    III. Date of Effectiveness of the Advance Notice, and Timing for Commission Action

    The proposed change may be implemented if the Commission does not object to the proposed change within 60 days of the later of (i) the date that the proposed change was filed with the Commission or (ii) the date that any additional information requested by the Commission is received. The clearing agency shall not implement the proposed change if the Commission has any objection to the proposed change.

    The Commission may extend the period for review by an additional 60 days if the proposed change raises novel or complex issues, subject to the Commission providing the clearing agency with prompt written notice of the extension. A proposed change may be implemented in less than 60 days from the date the advance notice is filed, or the date further information requested by the Commission is received, if the Commission notifies the clearing agency in writing that it does not object to the proposed change and authorizes the clearing agency to implement the proposed change on an earlier date, subject to any conditions imposed by the Commission.

    The clearing agency shall post notice on its Web site of proposed changes that are implemented.

    The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.

    IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the Advance Notice is consistent with the Clearing Supervision 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-NSCC-2016-803 on the subject line.

    Paper Comments

    • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.

    All submissions should refer to File Number SR-NSCC-2016-803. 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 Advance Notice that are filed with the Commission, and all written communications relating to the Advance Notice 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 NSCC and on DTCC's Web site (http://dtcc.com/legal/sec-rule-filings.aspx). 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-NSCC-2016-803 and should be submitted on or before December 15, 2016.

    By the Commission.

    Brent J. Fields, Secretary.
    [FR Doc. 2016-28771 Filed 11-29-16; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79387; File No. SR-NYSEArca-2016-150] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending NYSE Arca Equities Rule 7.16 November 23, 2016.

    Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (the “Act”) 2 and Rule 19b-4 thereunder,3 notice is hereby given that, on November 15, 2016, NYSE Arca, Inc. (the “Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (the “Commission”) the proposed rule change as described in Items I and II below, which Items have been prepared by the self-regulatory organization. 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 15 U.S.C. 78a.

    3 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 amend NYSE Arca Equities Rule 7.16 (Short Sales) to eliminate the option for a short sale order to include an instruction that it be rejected or cancelled if it is required to be re-priced. The proposed rule change is available on the Exchange's Web site at www.nyse.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 self-regulatory organization 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 those 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 proposes to amend NYSE Arca Equities Rule 7.16 (Short Sales) (“Rule 7.16”) to eliminate the option for a short sale order to include an instruction that it be rejected or cancelled if it is required to be re-priced.

    Rule 7.16(f)(5)(B) currently provides that an ETP Holder may mark individual short sale orders to be rejected on arrival, or cancelled if resting, if required to be adjusted to a Permitted Price while a symbol is subject to the Short Sale Price Test.4 The Exchange adopted the current functionality in its rules in 2015 and implemented it when the Exchange migrated to the Pillar technology trading platform in 2016.5 Prior to operating on the Pillar platform, this option was available only to arriving orders.6

    4 The term “Permitted Price” is defined in Rule 7.16(f)(5)(A) and the term “Short Sale Price Test” is defined in Rule 7.16(f)(2).

    5See Securities Exchange Act Release Nos. 76198 (October 20, 2015), 80 FR 65274 (October 26, 2015) (Approval Order) and 75467 (July 16, 2015), 80 FR 43515 (July 22, 2015) (Notice) (SR-NYSEArca-2016-58).

    6See Notice supra note 5 at 43521.

    The Exchange proposes to simplify how short sale orders are processed by eliminating the current optional functionality described in Rule 7.16(f)(5)(B). The Exchange does not believe that removing this optional functionality will significantly affect investors or the public because it is a little-used feature.7 In addition, to reflect the deletion of the text currently set forth in Rule 7.16(f)(5)(B), the Exchange proposes a non-substantive change to renumber current Rules 7.16(f)(5)(C)-(J) as proposed Rules 7.16(f)(5)(B)-(I).

    7 For the three-month period of August 1, 2016 through October 31, 2016, only 0.16% of all sell short orders included the optional instruction.

    Because of the technology changes associated with this proposed rule change, the Exchange will announce by Trader Update the implementation date.

    2. Statutory Basis

    The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),8 in general, and furthers the objectives of Section 6(b)(5),9 in particular, because it 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 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.

    8 15 U.S.C. 78f(b).

    9 15 U.S.C. 78f(b)(5).

    Specifically, the Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market and a national market system by simplifying the operation of short sale orders on the Exchange. The Exchange proposes to eliminate an optional feature that provides that if so instructed, during a Short Sale Price Test, an individual short sale order would reject (on arrival) or cancel (if resting) if such order were required to be adjusted to a Permitted Price. Because this is infrequently-used optional functionality, the Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market and a national market system by simplifying the Exchange's operations and reducing complexity. The Exchange further believes that renumbering the remaining paragraphs of Rule 7.16(f)(5) would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would promote transparency in Exchange rules by conforming the rule numbering of the remaining rule text of Rule 7.16(f)(5).

    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 that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed rule change would not impose any burden on competition because it is not designed to address any competitive issues. Rather, the proposed rule change is designed to simplify the Exchange's offerings and reduce complexity by eliminating an infrequently-used optional feature.

    C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the proposed rule change.

    III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

    Because the 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, it has become effective pursuant to Section 19(b)(3)(A) of the Act 10 and Rule 19b-4(f)(6) thereunder.11

    10 15 U.S.C. 78s(b)(3)(A).

    11 17 CFR 240.19b-4(f)(6). As required under Rule 19b-4(f)(6)(iii), the Exchange provided the Commission with written notice of its intent to file the proposed rule change, along with a brief description and the text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission.

    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act 12 normally does not become operative for 30 days after the date of its filing. However, Rule 19b-4(f)(6)(iii) 13 permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. According to the Exchange, the proposal would eliminate an infrequently-used optional functionality and would have little impact on ETP Holders. In addition, the Exchange anticipates that the technology supporting the change will be available in less than 30 days after filing. The Commission believes the waiver of the operative delay is consistent with the protection of investors and the public interest. Therefore, the Commission hereby waives the operative delay and designates the proposal operative upon filing.14

    12 17 CFR 240.19b-4(f)(6).

    13 17 CFR 240.19b-4(f)(6)(iii).

    14 For purposes only of waiving the 30-day operative delay, the Commission has also 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 necessary or appropriate in the public interest, for the protection of investors, or 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 change 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-NYSEArca-2016-150 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-NYSEArca-2016-150. 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-NYSEArca-2016-150 and should be submitted on or before December 21, 2016.

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.15

    15 17 CFR 200.30-3(a)(12).

    Robert W. Errett, Deputy Secretary.
    [FR Doc. 2016-28777 Filed 11-29-16; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79392; File No. SR-NYSEArca-2016-151] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 7.31 November 23, 2016.

    Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (the “Act”) 2 and Rule 19b-4 thereunder,3 notice is hereby given that, on November 15, 2016, NYSE Arca, Inc. (the “Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (the “Commission”) the proposed rule change as described in Items I and II below, which Items have been prepared by the self-regulatory organization. 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 15 U.S.C. 78a.

    3 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 amend Rule 7.31 (Orders and Modifiers). The proposed rule change is available on the Exchange's Web site at www.nyse.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 self-regulatory organization 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 those 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 proposes to amend Rule 7.31 (Orders and Modifiers). Specifically, Rule 7.31(d)(1)(C) provides that a Reserve Order must be designated Day and may be combined with an Arca Only Order, a Primary Pegged Order or a Q Order as each such order is a displayed order. However, given the lack of participation of Reserve Orders that are combined with Q Orders, the Exchange proposes to delete from its rules that a Reserve Order may be combined with a Q Order.4 The Exchange believes the proposed change will streamline the operation of Reserve Orders on the Exchange by limiting the functionality to features that are actually utilized by market participants.

    4 The Exchange has not received any Reserve Orders combined with a Q Order since the Exchange introduced the Pillar trading platform on February 22, 2016.

    2. Statutory Basis

    The proposed rule change is consistent with Section 6(b) of the Act,5 in general, and furthers the objectives of Section 6(b)(5),6 in particular, because it 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 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.

    5 15 U.S.C. 78f(b).

    6 15 U.S.C. 78f(b)(5).

    Specifically, the Exchange believes that removing the ability for market participants to combine Reserve Orders with Q Orders would remove impediments to and perfect the mechanism of a free and open market and a national market system because the proposed change would eliminate functionality not used by market participants and thereby, streamline the operation of Reserve Orders on the Exchange.

    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 that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed change is not designed to address any competitive issue but rather to make amendments to Exchange rules to streamline the operation of Reserve Orders on the Exchange by removing little-used functionality that allowed Reserve Orders to be combined with Q Orders.

    C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the proposed rule change.

    III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

    Because the 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, it has become effective pursuant to Section 19(b)(3)(A) of the Act 7 and Rule 19b-4(f)(6) thereunder.8

    7 15 U.S.C. 78s(b)(3)(A).

    8 17 CFR 240.19b-4(f)(6). As required under Rule 19b-4(f)(6)(iii), the Exchange provided the Commission with written notice of its intent to file the proposed rule change, along with a brief description and the text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission.

    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act 9 normally does not become operative for 30 days after the date of its filing. However, Rule 19b-4(f)(6)(iii) 10 permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. According to the Exchange, this proposal would eliminate functionality not used by market participants, and the Exchange anticipates that the technology supporting the change will be available in less than 30 days after filing. The Commission believes the waiver of the operative delay is consistent with the protection of investors and the public interest. Therefore, the Commission hereby waives the operative delay and designates the proposal operative upon filing.11

    9 17 CFR 240.19b-4(f)(6).

    10 17 CFR 240.19b-4(f)(6)(iii).

    11 For purposes only of waiving the 30-day operative delay, the Commission has also 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 necessary or appropriate in the public interest, for the protection of investors, or 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 change 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-NYSEArca-2016-151 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-NYSEArca-2016-151. 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-NYSEArca-2016-151 and should be submitted on or before December 21, 2016.

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.12

    12 17 CFR 200.30-3(a)(12).

    Robert W. Errett, Deputy Secretary.
    [FR Doc. 2016-28781 Filed 11-29-16; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79385; File No. SR-BatsBZX-2016-77] Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Make Ministerial and Corrective Changes to Exchange Rules 11.13, 11.16, 11.22, and 11.27 November 23, 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 16, 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 Exchange has designated this proposal as a “non-controversial” proposed rule change pursuant to Section 19(b)(3)(A) of the Act 3 and Rule 19b-4(f)(6)(iii) thereunder,4 which renders it effective upon filing with the Commission. 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.

    3 15 U.S.C. 78s(b)(3)(A).

    4 17 CFR 240.19b-4(f)(6)(iii).

    I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change

    The Exchange filed a proposal to make ministerial and corrective changes to Exchange Rules 11.13(b), 11.16(g)(4), 11.22(f), and 11.27(a)(7)(A)(i)2.

    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 Statutory Basis for, the Proposed Rule Change 1. Purpose

    The Exchange proposes to make ministerial and corrective changes to Exchange Rules 11.13(b), 11.16(g)(4), 11.22(f), and 11.27(a)(7)(A)(i)2. First, the Exchange proposed to amend Rule 11.13(b) to correct an incorrect cross reference. Exchange Rule 11.13(b) states that depending on the instructions set by the User 5 when the incoming order was originally entered, if a market or marketable limit order has not been executed in its entirety pursuant to Exchange Rule 11.13(a) above, the order shall be eligible for additional processing under one or more of the routing options listed under paragraph (a)(3) of Rule 11.13. The reference to paragraph (a)(3) of Rule 11.13 is incorrect as the routing options are listing under paragraph (b)(3) of Rule 11.13. Therefore, the Exchange proposes to replace reference to paragraph (a)(3) with paragraph (b)(3).

    5See Exchange Rule 1.5(cc).

    Second, the Exchange proposes to amend Rule 11.16(g)(4) to delete an unnecessary cross reference. Exchange Rule 11.16(a)(4) states that “[t]he pass-through of any compensation to a Member in accordance with this subparagraph (g) is unrelated to any other claims for compensation that are made in accordance with, and subject to the limits of, subparagraph (d) of this Rule 11.16.” The Exchange now proposes to delete reference to “11.16” as a specific reference to the rule is not integral nor necessary to the meaning or application of Rule 11.16 generally.6

    6 Removal of the rule reference would also harmonize the rule language with similar rule of the Exchange's affiliates, Bats EDGA Exchange, Inc. and Bats EDGX Exchange, Inc. SR-Bats-EDGX-2016-65 and SR-BatsEDGA-2016-28.

    Third, the Exchange proposes to amend Rule 11.22(f) to delete a description of the Latency Monitoring data product, which the Exchange ceased to offer in May 2015. The Exchange determined that the customer demand at that time did not warrant the infrastructure and ongoing maintenance expense required to support the product.

    Lastly, the Exchange proposes to amend Rule 11.27(a)(7)(A)(i)2 to correct a typographical error by replacing the phrase “one of more” with “one or more”.

    2. Statutory Basis

    The Exchange believes that its proposal is consistent with Section 6(b) of the Act 7 in general, and furthers the objectives of Section 6(b)(5) of the Act 8 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.

    7 15 U.S.C. 78f(b).

    8 15 U.S.C. 78f(b)(5).

    The Exchange believes the proposed changes 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 because they seek to correct an incorrect cross-reference and typographical error, harmonize identical rules with the Exchange's affiliates, as well as eliminate a reference [sic] a market data product that is no longer provided. The Exchange notes the changes to Exchange Rules 11.13(b), 11.16(a)(4), and 11.27(a)(7)(A)(i)2 are ministerial and do not alter the applications of each rule. In addition, the deletion of references to the Latency Monitoring Data product removes references to a product the Exchange no longer provides and that the Exchange is not required by any rule or regulation to offer. As such, the proposed amendments would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national market system.

    (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 that is not necessary or appropriate in furtherance of the purposes of the Act. On the contrary, the proposed rule change will have no impact on competition as it is simply makes ministerial and corrective changes while not altering the meaning or application of each rule.

    (C) Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others

    The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.

    III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

    Because the foregoing proposed rule change does not: (A) Significantly affect the protection of investors or the public interest; (B) impose any significant burden on competition; and (C) by its terms, become operative for 30 days from the date on which it was filed or such shorter time as the Commission may designate it has become effective pursuant to Section 19(b)(3)(A) of the Act 9 and paragraph (f)(6) of Rule 19b-4 thereunder,10 the Exchange has designated this rule filing as non-controversial. The Exchange has given the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission.

    9 15 U.S.C. 78s(b)(3)(A).

    10 17 CFR 240.19b-4.

    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: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) 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 proposal 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 No. SR-BatsBZX-2016-77 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 No. SR-BatsBZX-2016-77. 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 will also 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 No. SR-BatsBZX-2016-77 and should be submitted on or before December 21, 2016.

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.11

    11 17 CFR 200.30-3(a)(12).

    Robert W. Errett, Deputy Secretary.
    [FR Doc. 2016-28775 Filed 11-29-16; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79384; File No. SR-NYSEArca-2016-70] Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of Proposed Rule Proposed Rule Change, as Modified by Amendment Nos. 1 and 2 Thereto, Regarding Use of Rule 144A Securities by the Fidelity Corporate Bond ETF, Fidelity Investment Grade Bond ETF, Fidelity Limited Term Bond ETF, and Fidelity Total Bond ETF November 23, 2016. I. Introduction

    On May 11, 2016, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”) 1 and Rule 19b-4 thereunder,2 a proposed rule change to permit the Fidelity Corporate Bond ETF, Fidelity Investment Grade Bond ETF, Fidelity Limited Term Bond ETF, and Fidelity Total Bond ETF (individually, “Fund,” and collectively, “Funds”) to consider securities issued pursuant to Rule 144A under the Securities Act of 1933 (“Securities Act”) as debt securities eligible for principal investment. The proposed rule change was published for comment in the Federal Register on May 31, 2016.3 On June 30, 2016, pursuant to Section 19(b)(2) of the Act,4 the Commission designated a longer period within which to approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether to disapprove the proposed rule change.5 On July 26, 2016, the Exchange filed Amendment No. 1 to the proposed rule change.6 On August 29, 2016, the Commission instituted proceedings under Section 19(b)(2)(B) of the Act 7 to determine whether to approve or disapprove the proposed rule change, as modified by Amendment No. 1 thereto.8 In the Order Instituting Proceedings, the Commission solicited comments to specified matters related to the proposal.9 On November 22, 2016, the Exchange filed Amendment No. 2 to the proposed rule change.10 The Commission has received no comments on the proposed rule change. This order grants approval of the proposed rule change, as modified by Amendment Nos. 1 and 2 thereto.

    1 15 U.S.C. 78s(b)(1).

    2 17 CFR 240.19b-4.

    3See Securities Exchange Act Release No. 77891 (May 24, 2016), 81 FR 34388 (“Notice”).

    4 15 U.S.C. 78s(b)(2).

    5See Securities Exchange Act Release No. 78207, 81 FR 44338 (Jul. 7, 2016). The Commission designated August 29, 2016 as the date by which the Commission shall either approve or disapprove, or institute proceedings to determine whether to disapprove, the proposed rule change.

    6 In Amendment No. 1, which amended and replaced the proposed rule change in its entirety, the Exchange: (a) corrected certain aspects of the the investment descriptions for each Fund in accordance with the Prior Corporate Bond Releases and Prior Total Bond Releases (as defined herein); (b) confirmed that all of the Rule 144A securities in which a Fund invests will be corporate debt securities for which transactions are reported to TRACE (as defined herein); and (c) confirmed that FINRA (as defined herein), on behalf of the Exchange, is able to access, as needed, trade information for the Rule 144A securities as well as certain other fixed income securities held by the Funds reported to TRACE. Amendment No. 1 is available at: https://www.sec.gov/comments/sr-nysearca-2016-70/nysearca201670-1.pdf. Because Amendment No. 1 to the proposed rule change does not materially alter the substance of the proposed rule change or raise unique or novel regulatory issues, Amendment No. 1 is not subject to notice and comment.

    7 15 U.S.C. 78s(b)(2)(B).

    8See Securities Exchange Act Release No. 78712, 81 FR 60759 (Sept. 2, 2016) (“Order Instituting Proceedings”). Specifically, the Commission instituted proceedings to allow for additional analysis of the proposed rule change's consistency with Section 6(b)(5) of the Act, which requires, among other things, that the rules of a national securities exchange be “designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade,” and “to protect investors and the public interest.” See id., 81 FR at 60764.

    9See id.

    10 In Amendment No. 2, which amended and replaced the proposed rule change in its entirety, the Exchange clarified that no more than 35% of a Fund's assets may be invested in Rule 144A securities. Amendment No. 2 is available at: https://www.sec.gov/comments/sr-nysearca-2016-70/nysearca201670-2.pdf. Because Amendment No. 2 to the proposed rule change does not materially alter the substance of the proposed rule change or raise unique or novel regulatory issues, Amendment No. 2 is not subject to notice and comment.

    II. Exchange's Description of the Proposal

    The Commission approved the listing and trading of shares (“Shares”) of the Funds under NYSE Arca Equities Rule 8.600,11 which governs the listing and trading of Managed Fund Shares. The Exchange proposes to amend the representation in the Prior Corporate Bond Notice and Prior Total Bond Notice to provide that each Fund may include Rule 144A securities within a Fund's principal investments in debt securities (i.e., debt securities in which at least 80% of a Fund's assets are invested), provided that no more than 35% of a Fund's assets may be invested in Rule 144A securities.

    11See Securities Exchange Act Release Nos. 72068 (May 1, 2014), 79 FR 25923 (May 6, 2014) (SR-NYSEArca-2014-47) (notice of filing of proposed rule change relating to listing and trading of Shares of Fidelity Corporate Bond ETF Managed Shares under NYSE Arca Equities Rule 8.600) (“Prior Corporate Bond Notice”); 72439 (Jun. 20, 2014), 79 FR 36361 (Jun. 26, 2014) (SR-NYSEArca-2014-47) (order approving proposed rule change relating to listing and trading of Shares of Fidelity Corporate Bond ETF Managed Shares under NYSE Arca Equities Rule 8.600) (“Prior Corporate Bond Order” and, together with the Prior Corporate Bond Notice, “Prior Corporate Bond Releases”); 72064 (May 1, 2014), 79 FR 25908 (May 6, 2014) (SR-NYSEArca-2014-46) (notice of filing of proposed rule change relating to listing and trading of Shares of Fidelity Investment Grade Bond ETF; Fidelity Limited Term Bond ETF; and Fidelity Total Bond ETF under NYSE Arca Equities Rule 8.600) (“Prior Total Bond Notice”); 72748 (Aug. 4, 2014), 79 FR 46484 (Aug. 8, 2014) (SR-NYSEArca-2014-46) (order approving proposed rule change relating to listing and trading of Shares of the Fidelity Investment Grade Bond ETF, Fidelity Limited Term Bond ETF, and Fidelity Total Bond ETF under NYSE Arca Equities Rule 8.600) (“Prior Total Bond ETF Order” and, together with the Prior Total Bond Notice, “Prior Total Bond Releases”).

    A. Exchange's Description of the Funds

    Fidelity Investments Money Management, Inc. (“FIMM”), an affiliate of Fidelity Management & Research Company (“FMR”), is the manager (“Manager”) of each Fund. FMR Co., Inc. (“FMRC”) serves as a sub-adviser for the Fidelity Total Bond ETF. FMRC has day-to-day responsibility for choosing certain types of investments of foreign and domestic issuers for Fidelity Total Bond ETF. Other investment advisers, which also are affiliates of FMR, serve as sub-advisers to the Funds and assist FIMM with foreign investments, including Fidelity Management & Research (U.K.) Inc., Fidelity Management & Research (Hong Kong) Limited, and Fidelity Management & Research (Japan) Inc. (individually, “Sub-Adviser,” and together with FMRC, collectively “Sub-Advisers”). Fidelity Distributors Corporation is the distributor for the Funds' Shares.

    The Funds are funds of Fidelity Merrimack Street Trust (“Trust”), a Massachusetts business trust.12 The Exchange represents that the Shares of the Fidelity Corporate Bond ETF, Fidelity Limited Term Bond ETF, and Fidelity Total Bond ETF are currently trading on the Exchange.

    12 The Trust is registered under the Investment Company Act of 1940 (“1940 Act”). According to the Exchange, on December 29, 2015, the Trust filed with the Commission an amendment to its registration statement on Form N-1A under the Securities Act and the 1940 Act relating to the Funds (File Nos. 333-186372 and 811-22796) (“Registration Statement”). In addition, the Exchange states that the Trust has obtained certain exemptive relief under the 1940 Act. See Investment Company Act Release No. 30513 (May 10, 2013) (File No. 812-14104).

    1. Fidelity Corporate Bond ETF

    As described in the Prior Corporate Bond Notice, the Fidelity Corporate Bond ETF seeks a high level of current income. The Manager normally invests at least 80% of Fidelity Corporate Bond ETF assets in investment-grade corporate bonds and other corporate debt securities.13 Corporate debt securities are bonds and other debt securities issued by corporations and other business structures, as described in the Prior Corporate Bond Notice.

    13 According to the Exchange, investment-grade debt securities include all types of debt instruments, including corporate debt securities that are of medium and high-quality. An investment-grade rating means the security or issuer is rated investment-grade by a credit rating agency registered as a nationally recognized statistical rating organization with the Commission (for example, Moody's Investors Service, Inc.), or is unrated but considered to be of equivalent quality by the Fidelity Corporate Bond ETF's Manager or Sub-Advisers.

    The Fidelity Corporate Bond ETF may hold uninvested cash or may invest it in cash equivalents such as money market securities, or shares of short-term bond exchanged-traded funds registered under the 1940 Act (“ETFs”), or mutual funds or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients). The Manager uses the Barclays U.S. Credit Bond Index as a guide in structuring the Fund and selecting its investments. FIMM manages the Fund to have similar overall interest rate risk to the Barclays U.S. Credit Bond Index.

    As stated in the Prior Corporate Bond Releases, in buying and selling securities for the Fund, the Manager analyzes the credit quality of the issuer, security-specific features, current valuation relative to alternatives in the market, short-term trading opportunities resulting from market inefficiencies, and potential future valuation. In managing the Fund's exposure to various risks, including interest rate risk, the Manager considers, among other things, the market's overall risk characteristics, the market's current pricing of those risks, information on the Fund's competitive universe and internal views of potential future market conditions.

    While the Manager normally invests at least 80% of assets of the Fund in investment grade corporate bonds and other corporate debt securities, as described above, the Manager may invest up to 20% of the Fund's assets in other securities and financial instruments, as summarized below.

    In addition to corporate debt securities, the debt securities in which the Fund may invest are U.S. Government securities; repurchase agreements and reverse repurchase agreements; mortgage- and other asset-backed securities; loans; loan participations, loan assignments, and other evidences of indebtedness, including letters of credit, revolving credit facilities, and other standby financing commitments; structured securities; stripped securities; municipal securities; sovereign debt obligations; obligations of international agencies or supranational entities; and other securities believed to have debt-like characteristics, including hybrid securities, which may offer characteristics similar to those of a bond security such as stated maturity and preference over equity in bankruptcy.

    The Fund may invest in restricted securities, which are subject to legal restrictions on their sale. Restricted securities generally can be sold in privately negotiated transactions, pursuant to an exemption from registration under the Securities Act, or in a registered public offering.

    2. Fidelity Investment Grade Bond ETF

    As described in the Prior Total Bond Notice, the Fidelity Investment Grade Bond ETF (which has not yet commenced operation) will seek a high level of current income. The Manager normally will invest at least 80% of the Fund's assets in investment-grade debt securities (those of medium and high quality). The debt securities in which the Fund may invest are corporate debt securities; U.S. Government securities; repurchase agreements and reverse repurchase agreements; money market securities; mortgage- and other asset-backed securities; senior loans; loan participations and loan assignments and other evidences of indebtedness, including letters of credit, revolving credit facilities and other standby financing commitments; stripped securities; municipal securities; sovereign debt obligations; and obligations of international agencies or supranational entities (collectively, “Debt Securities”).

    As described in the Prior Total Bond Notice, the Fidelity Investment Grade Bond ETF may hold uninvested cash or may invest it in cash equivalents such as repurchase agreements, shares of short term bond ETFs, mutual funds, or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients). The Manager will use the Barclays U.S. Aggregate Bond Index (“Aggregate Index”) as a guide in structuring the Fund and selecting its investments, and will manage the Fund to have similar overall interest rate risk to the Aggregate Index.

    As described in the Prior Total Bond Notice, the Manager will consider other factors when selecting the Fidelity Investment Grade Bond ETF's investments, including the credit quality of the issuer, security-specific features, current valuation relative to alternatives in the market, short-term trading opportunities resulting from market inefficiencies, and potential future valuation. In managing the Fidelity Investment Grade Bond ETF's exposure to various risks, including interest rate risk, the Manager will consider, among other things, the market's overall risk characteristics, the market's current pricing of those risks, information on the Fidelity Investment Grade Bond ETF's competitive universe, and internal views of potential future market conditions.

    3. Fidelity Limited Term Bond ETF

    As described in the Prior Total Bond Notice, the Fidelity Limited Term Bond ETF seeks to provide a high rate of income. The Manager normally invests at least 80% of the Fidelity Limited Term Bond ETF's assets in investment-grade Debt Securities (those of medium and high quality).

    The Fidelity Limited Term Bond ETF may hold uninvested cash or may invest it in cash equivalents such as repurchase agreements, shares of short term bond ETFs, mutual funds, or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients). The Manager uses the Fidelity Limited Term Composite Index (“Composite Index”) as a guide in structuring the Fund and selecting its investments. The Manager manages the Fidelity Limited Term Bond ETF to have similar overall interest rate risk to the Composite Index.

    The Manager considers other factors when selecting the Fidelity Limited Term Bond ETF's investments, including the credit quality of the issuer, security-specific features, current valuation relative to alternatives in the market, short-term trading opportunities resulting from market inefficiencies, and potential future valuation. In managing the Fidelity Limited Term Bond ETF's exposure to various risks, including interest rate risk, the Manager considers, among other things, the market's overall risk characteristics, the market's current pricing of those risks, information on the Fund's competitive universe, and internal views of potential future market conditions.

    4. Fidelity Total Bond ETF

    As described in the Prior Total Bond Notice, the Fidelity Total Bond ETF seeks a high level of current income. The Manager normally invests at least 80% of the Fidelity Total Bond ETF's assets in Debt Securities. The Manager allocates the Fidelity Total Bond ETF's assets across investment-grade, high yield, and emerging market Debt Securities. The Manager may invest up to 20% of the Fund's assets in lower-quality Debt Securities.

    The Fidelity Total Bond ETF may hold uninvested cash or may invest it in cash equivalents such as repurchase agreements, shares of short term bond ETFs, mutual funds, or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients).

    The Manager uses the Barclays U.S. Universal Bond Index (“Universal Index”) as a guide in structuring and selecting the investments of the Fidelity Total Bond ETF and selecting its investments, and in allocating the Fidelity Total Bond ETF's assets across the investment-grade, high yield, and emerging market asset classes. The Manager manages the Fidelity Total Bond ETF to have similar overall interest rate risk to the Universal Index. The Manager considers other factors when selecting the Fund's investments, including the credit quality of the issuer, security-specific features, current valuation relative to alternatives in the market, short-term trading opportunities resulting from market inefficiencies, and potential future valuation. In managing the Fund's exposure to various risks, including interest rate risk, the Manager considers, among other things, the market's overall risk characteristics, the market's current pricing of those risks, information on the Fund's competitive universe, and internal views of potential future market conditions.

    As described in the Prior Total Bond Notice, the Manager may invest the Fidelity Total Bond ETF's assets in Debt Securities of foreign issuers in addition to securities of domestic issuers.

    5. Other Investments of the Funds

    While, as described above, the Manager normally invests at least 80% of assets of Fidelity Limited Term Bond ETF in investment-grade Debt Securities (and will normally invest at least 80% of assets of the Fidelity Investment Grade Bond ETF in investment-grade Debt Securities), and the Manager normally invests at least 80% of assets of the Fidelity Total Bond ETF in Debt Securities, the Manager may invest up to 20% of a Fund's assets in other securities and financial instruments (“Other Investments,” as described in the Prior Total Bond Notice). As described in the Prior Corporate Bond Notice and Prior Total Bond Notice, as part of a Fund's Other Investments, (i.e., up to 20% of a Fund's assets), each Fund may invest in restricted securities, which are subject to legal restrictions on their sale.14

    14 Restricted securities are subject to legal restrictions on their sale. Restricted securities generally can be sold in privately negotiated transactions, pursuant to an exemption from registration under the Securities Act, or in a registered public offering. Rule 144A securities are securities which, while privately placed, are eligible for purchase and resale pursuant to Rule 144A. Rule 144A permits certain qualified institutional buyers, such as a Fund, to trade in privately placed securities even though such securities are not registered under the Securities Act.

    B. Exchange's Description of the Proposed Change to the Principal Investments of the Funds

    The Exchange proposes that each Fund may include Rule 144A securities within a Fund's principal investments in debt securities (i.e., debt securities in which at least 80% of a Fund's assets are invested), provided that no more than 35% of a Fund's assets may be invested in Rule 144A securities. As discussed below, the Exchange believes it is appropriate for Rule 144A securities to be included as principal investments of a Fund, subject to the 35% limitation referenced above, in view of (1) the high level of liquidity in the market for such securities compared to other debt securities asset classes, and (2) the high level of transparency in the market for Rule 144A securities, particularly in light of reporting of transaction data in such securities through the Trade Reporting and Compliance Engine (“TRACE”) operated by the Financial Industry Regulatory Authority (“FINRA”). All of the Rule 144A securities in which a Fund invests will be corporate debt securities for which transactions are reported in TRACE.

    FMR has represented to the Exchange that Rule 144A securities account for approximately 20% of daily trading volume in U.S. corporate bonds. Dealers trade and report transactions in Rule 144A securities in the same manner as registered corporate bonds. While the average number of daily trades and U.S. dollar volume in registered corporate bonds is much higher than in Rule 144A securities, the average lot size is higher for Rule 144A securities.15 Specifically, the average lot size for 144A securities for the period January 1, 2015 through August 31, 2015 was approximately $2.2 million, compared to an average lot size for the same period of approximately $500,000 for registered corporate bonds.

    15 Source: MarketAxess Trace Data. For example, for the period January 1, 2015 through August 31, 2015, for registered bonds and Rule 144A securities with $1 billion to $1.999 billion the average daily dollar volume outstanding was approximately $6.8 billion and $1.7 billion, respectively, and the average lot size was $666,647 and $2,398,292, respectively.

    The Exchange notes that, in 2013, the Commission approved FINRA rules relating to dissemination of information regarding transactions in Rule 144A securities in TRACE.16 Transactions executed by FINRA members became subject to dissemination through FINRA's TRACE on June 30, 2014, thus providing a level of transparency to the Rule 144A market comparable to that of registered bonds.17

    16See Securities Exchange Act Release Nos. 70009 (Jul. 19, 2013), 78 FR 44997 (Jul. 25, 2103) (SR-FINRA-2013-029) (notice of filing of a proposed rule change relating to the dissemination of transactions in TRACE-Eligible securities effected pursuant to Rule 144A); 70345 (Sept. 6, 2013), 78 FR 56251 (Sept. 12, 2013) (SR-FINRA-2013-029) (order approving proposed rule change relating to the dissemination of transactions in TRACE-Eligible securities effected pursuant to Rule 144A). In the proposed rule change, FINRA proposed to amend FINRA Rule 6750 to provide for the dissemination of Rule 144A transactions, provided the asset type (e.g., corporate bonds) currently is subject to dissemination under FINRA Rule 6750; to amend the dissemination protocols to extend the dissemination caps currently applicable to the non-Rule 144A transactions in such asset type (e.g., non-Rule 144A corporate bond transactions) to Rule 144A transactions in such securities; to amend FINRA Rule 7730 to establish a data set for real-time Rule 144A transaction data and a second data set for historic Rule 144A transaction data; to amend the definition of “Historic TRACE Data” to reference the three data sets currently included therein and the proposed fourth data set; and to make other clarifying and technical amendments. FINRA Rule 6730(a) requires any transaction in a TRACE-Eligible security to be reported to TRACE as soon as practicable, but no later than within 15 minutes of the transaction, subject to specified exceptions. FINRA Rule 6730(c) requires the trade report to contain information on size, price, time of execution, amount of commission, the date of settlement, and other information.

    17 The Exchange notes that in a June 30, 2014 press release “FINRA Brings 144A Corporate Debt Transactions Into the Light,” FINRA stated: “144A transactions—resales of restricted corporate debt securities to large institutions called qualified institutional buyers (QIBs)—account for a significant portion of the volume in corporate debt securities. In the first quarter of 2014, 144A transactions comprised nearly 13 percent of the average daily volume in investment-grade corporate debt, and nearly 30 percent of the average daily volume in high-yield corporate debt. 144A transactions comprised nearly 20 percent of the average daily volume in the corporate debt market as a whole. Through the Trade Reporting and Compliance Engine (TRACE), FINRA will disseminate 144A transactions subject to the same dissemination caps that are currently in effect for non-144A transactions. The same dissemination cap for investment-grade corporate bonds ($5 million) applies to both 144A and non-144A corporate bond transactions, and the $1 million dissemination cap for high-yield corporate bonds similarly applies to both 144A and non-144A transactions. 144A transactions are also subject to the same 15-minute reporting requirement as non-144A corporate debt transactions.” See also FINRA Regulatory Notice 13-35 October 2013.

    The Exchange further notes that, while the proposed rule change would categorize Rule 144A securities within a Fund's principal investments in debt securities (subject to a limitation of investments in Rule 144A securities to 35% of a Fund's assets), any investments in Rule 144A securities, of course, would be required to comply with restrictions under the 1940 Act and rules thereunder relating to investment in illiquid assets. As stated in the Prior Corporate Bond Notice and Prior Total Bond Notice, each Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Manager or Sub-Advisers. Each Fund monitors its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of a Fund's net assets are held in illiquid assets. Illiquid assets include assets subject to contractual or other restrictions on resale and other instruments that lack readily available markets as determined in accordance with Commission staff guidance.18

    18 The Exchange notes that in a recent rulemaking proposal relating to open-end fund liquidity risk management programs, the Commission stated that “[s]ecurities offered pursuant to rule 144A under the Securities Act may be considered liquid depending on certain factors.” The Commission, citing to the “Statement Regarding `Restricted Securities' ” noted: “The Commission stated [in the “Statement Regarding `Restricted Securities' ”] that `determination of the liquidity of Rule 144A securities in the portfolio of an investment company issuing redeemable securities is a question of fact for the board of directors to determine, based upon the trading markets for the specific security' and noted that the board should consider the unregistered nature of a rule 144A security as one of the factors it evaluates in determining its liquidity.” See Release Nos. 33-9922; IC-31835; File Nos. S7-16-15; S7-08-15 (Sept. 22, 2015).

    Moreover, as stated in the Prior Corporate Bond Notice and Prior Total Bond Notice, each Fund does not currently intend to purchase any asset if, as a result, more than 10% of its net assets would be invested in assets that are deemed to be illiquid because they are subject to legal or contractual restrictions on resale or because they cannot be sold or disposed of in the ordinary course of business at approximately the prices at which they are valued. For purposes of a Fund's illiquid assets limitation discussed above, if through a change in values, net assets, or other circumstances, a Fund were in a position where more than 10% of its net assets were invested in illiquid assets, it would consider appropriate steps to protect liquidity.

    The Prior Corporate Bond Notice and Prior Total Bond Notice stated that various factors may be considered in determining the liquidity of a Fund's investments, including: (1) The frequency of trades and quotes for the asset; (2) the number of dealers wishing to purchase or sell the asset and the number of other potential purchasers; (3) dealer undertakings to make a market in the asset; and (4) the nature of the asset and the nature of the marketplace in which it trades (including any demand, put or tender features, the mechanics and other requirements for transfer, any letters of credit or other credit enhancement features, any ratings, the number of holders, the method of soliciting offers, the time required to dispose of the security, and the ability to assign or offset the rights and obligations of the asset).

    The Exchange believes that the size of the Rule 144A market (approximately 20% of daily trading volume in U.S. corporate bonds), the active participation of multiple dealers utilizing trading protocols that are similar to those in the corporate bond market, and the transparency of the 144A market resulting from reporting of Rule 144A transactions in TRACE will deter manipulation in trading the Shares. The Exchange notes that all of the Rule 144A securities in which a Fund invests will be corporate debt securities for which transactions are reported in TRACE.

    The Exchange represents that, except for the change described above, all other representations made in the Prior Corporate Bond Releases and the Prior Total Bond Releases remain unchanged. The Funds will continue to comply with all initial and continued listing requirements under NYSE Arca Equities Rule 8.600.

    The Exchange further represents that the trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by FINRA, on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.19 The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange. The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares and underlying exchange-traded options, futures, exchange-traded equity securities (including ADRs, EDRs, and GDRs), and other exchange-traded instruments with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares and underlying exchange-traded options, futures, exchange-traded equity securities (including ADRs, EDRs, and GDRs), and other exchange-traded instruments from such markets and other entities. The Exchange may obtain information regarding trading in the Shares and underlying exchange-traded options, futures, exchange-traded equity securities (including ADRs, EDRs, and GDRs), and other exchange-traded instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.20 FINRA, on behalf of the Exchange, is able to access, as needed, trade information for the Rule 144A securities as well as certain other fixed income securities held by the Funds reported to TRACE. In addition, as stated in the Prior Corporate Bond Releases and the Prior Total Bond Releases, investors have ready access to information regarding the Funds' holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last-sale information for the Shares.

    19 FINRA conducts cross-market surveillances on behalf of the Exchange pursuant to a regulatory services agreement. The Exchange is responsible for FINRA's performance under this regulatory services agreement.

    20 For a list of the current members of ISG, see www.isgportal.org. The Exchange notes that not all of the components of the portfolio for a Fund may trade on exchanges that are members of the ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.

    The Exchange also represents that all statements and representations made in this filing and the Prior Corporate Bond Releases and Prior Total Bond Releases regarding (a) the description of the Funds' respective portfolios, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange rules and surveillance procedures shall constitute continued listing requirements for listing the Shares of the Funds on the Exchange. The Adviser has represented to the Exchange that it will advise the Exchange of any failure by a Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. If a Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Equities Rule 5.5(m).

    III. Discussion and Commission Findings

    After careful review, the Commission finds that the Exchange's proposal, as modified by Amendment Nos. 1 and 2 thereto, is consistent with the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange.21 In particular, the Commission finds that the proposed rule change, as modified by Amendment Nos. 1 and 2 thereto, is consistent with Section 6(b)(5) of the Exchange Act,22 which requires, among other things, that the Exchange's rules be 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.

    21 In approving this proposed rule change, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f).

    22 15 U.S.C. 78f(b)(5).

    The Commission notes that transaction information relating to Rule 144A securities is available via TRACE. According to the Exchange, all of the Rule 144A securities in which a Fund invests will be corporate debt securities for which transactions are reported in TRACE. The Commission believes that limiting Rule 144A securities in which a Fund invests as principal investments to corporate debt securities for which transactions are reported to TRACE would help to promote market transparency and provide an appropriate limit on the use of 144A securities as debt securities eligible for principal investment, provided that no more than 35% of a Fund's assets may be invested in Rule 144A securities.

    The Commission notes that, while the proposal would allow a Fund to consider Rule 144A securities as debt securities eligible for principal investment, subject to the 35% limitation referenced above, any investments in such securities would be required to comply with the restrictions under the 1940 Act and rules thereunder relating to investments in illiquid assets. As stated in the Prior Corporate Bond Notice and Prior Total Bond Notice, each Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Manager or Sub-Advisers. The Manager or Sub-Advisers, who are responsible for the day-to-day decisions regarding the liquidity of securities, may consider various factors in determining the liquidity of a Fund's investments, including: (1) The frequency of trades and quotes for the asset; (2) the number of dealers wishing to purchase or sell the asset and the number of other potential purchasers; (3) dealer undertakings to make a market in the asset; and (4) the nature of the asset and the nature of the marketplace in which it trades (including any demand, put or tender features, the mechanics and other requirements for transfer, any letters of credit or other credit enhancement features, any ratings, the number of holders, the method of soliciting offers, the time required to dispose of the security, and the ability to assign or offset the rights and obligations of the asset). Ultimately, however, a Fund's Board of Directors has responsibility for determining the liquidity of securities (including Rule 144A securities) held by a Fund.

    The Commission further notes that pursuant to the 1940 Act and rules thereunder, Funds are required to monitor their respective portfolio's liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and to consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of a Fund's net assets are held in illiquid assets. Moreover, the Exchange represents that each Fund does not currently intend to purchase any asset if, as a result, more than 10% of its net assets would be invested in assets that are deemed to be illiquid because they are subject to legal or contractual restrictions on resale or because they cannot be sold or disposed of in the ordinary course of business at approximately the prices at which they are valued.

    Importantly, the Commission notes that the Funds will continue to be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Exchange represents that, except for the change described above, all other representations made in the Prior Corporate Bond Releases and the Prior Total Bond Releases remain unchanged. The Commission finds that providing the Manager or Sub-Advisers of each Fund additional flexibility to consider Rule 144A securities as debt securities eligible for principal investment, given the protections discussed above, is consistent with the Act.

    In support of this proposal, the Exchange represented that:

    (1) The Funds will continue to comply with all initial and continued listing requirements under NYSE Arca Equities Rule 8.600.

    (2) Each Fund may include Rule 144A securities within a Fund's principal investments in debt securities (i.e., debt securities in which at least 80% of a Fund's assets are invested), provided that no more than 35% of a Fund's assets may be invested in Rule 144A securities.

    (3) All of the Rule 144A securities in which a Fund invests will be corporate debt securities for which transactions are reported in TRACE.

    (4) Trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by FINRA, on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. These procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange.

    (5) The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares and underlying exchange-traded options, futures, exchange-traded equity securities (including ADRs, EDRs, and GDRs), and other exchange-traded instruments with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares and underlying exchange-traded options, futures, exchange-traded equity securities (including ADRs, EDRs, and GDRs), and other exchange-traded instruments from such markets and other entities. The Exchange may obtain information regarding trading in the Shares and underlying exchange-traded options, futures, exchange-traded equity securities (including ADRs, EDRs, and GDRs), and other exchange-traded instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.

    (6) FINRA, on behalf of the Exchange, is able to access, as needed, trade information for the Rule 144A securities as well as certain other fixed income securities held by the Funds reported to TRACE. In addition, as stated in the Prior Corporate Bond Releases and the Prior Total Bond Releases, investors have ready access to information regarding the Funds' holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last-sale information for the Shares.

    (7) Trading in Shares of a Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, and trading in the Shares will be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of a Fund may be halted.

    (8) The Exchange represents that the Manager and the Sub-Advisers are not broker-dealers but are affiliated with one or more broker-dealers and have each implemented a fire wall with respect to such broker-dealers regarding access to information concerning the composition and/or changes to the portfolios, and will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding the portfolios.

    (9) The Exchange will obtain a representation from the issuer of the Shares that the net asset value (“NAV”) per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time.

    (10) The Portfolio Indicative Value with respect to Shares of each Fund will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Core Trading Session.

    (11) On each business day, before commencement of trading in Shares in the Core Trading Session on the Exchange, each Fund will disclose on the Trust's Web site the Disclosed Portfolio that will form the basis for a Fund's calculation of NAV at the end of the business day.

    (12) The Trust's Web site will include a form of the prospectus for the Funds and additional data relating to NAV and other applicable quantitative information.

    The Exchange also represents that all statements and representations made in this filing and the Prior Corporate Bond Releases and Prior Total Bond Releases regarding (a) the description of the Funds' respective portfolios, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange rules and surveillance procedures shall constitute continued listing requirements for listing the Shares of the Funds on the Exchange. In addition, the Adviser has represented to the Exchange that it will advise the Exchange of any failure by a Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements.23 If a Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Equities Rule 5.5(m).

    23 The Commission notes that certain other proposals for the listing and trading of Managed Fund Shares include a representation that the exchange will “surveil” for compliance with the continued listing requirements. See, e.g., Securities Exchange Act Release No. 77499 (Apr. 1, 2016), 81 FR 20428 (Apr. 7, 2016) (Notice of Filing of Amendment No. 2, and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 2, to List and Trade Shares of the SPDR DoubleLine Short Duration Total Return Tactical ETF of the SSgA Active Trust), available at: http://www.sec.gov/rules/sro/bats/2016/34-77499.pdf. In the context of this representation, it is the Commission's view that “monitor” and “surveil” both mean ongoing oversight of the Fund's compliance with the continued listing requirements. Therefore, the Commission does not view “monitor” as a more or less stringent obligation than “surveil” with respect to the continued listing requirements.

    This approval order is based on all of the Exchange's representations, including those set forth above and in the Notice, as modified by Amendment Nos. 1 and 2 to the proposed rule change. The Commission notes that the Funds must comply with the requirements of NYSE Arca Equities Rule 8.600 to be listed and traded on the Exchange on an initial and continuing basis.

    For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment Nos.1 and 2 thereto, is consistent with Section 6(b)(5) of the Act 24 and the rules and regulations thereunder applicable to a national securities exchange.

    24 15 U.S.C. 78f(b)(5).

    IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the Exchange Act,25 that the proposed rule change (SR-NYSEArca-2016-70), as modified by Amendment Nos. 1 and 2 thereto, be, and it hereby is, approved.

    25 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.26

    26 17 CFR 200.30-3(a)(12).

    Robert W. Errett, Deputy Secretary.
    [FR Doc. 2016-28774 Filed 11-29-16; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79389; File No. SR-NYSEMKT-2016-107)] Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 15—Equities Relating to Pre-Opening Indications November 23, 2016.

    Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (the “Act”) 2 and Rule 19b-4 thereunder,3 notice is hereby given that on November 17, 2016, NYSE MKT LLC (the “Exchange” or “NYSE MKT”) filed with the Securities and Exchange Commission (the “Commission”) the proposed rule change as described in Items I and II below, which Items have been prepared by the self-regulatory organization. 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 15 U.S.C. 78a.

    3 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 amend Rule 15—Equities relating to pre-opening indications. The proposed rule change is available on the Exchange's Web site at www.nyse.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 self-regulatory organization 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 those 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 proposes to amend Rule 15—Equities (“Rule 15”) relating to pre-opening indications. The proposed rule changes would restore the obligation for a DMM to publish a pre-opening indication if a security has not opened by 10:00 a.m. Eastern Time and add a new parameter for when a pre-opening indication should be published for lower-priced securities.

    Background

    The Exchange recently amended Exchange rules to consolidate and amend requirements relating to pre-opening indications in Rule 15.4 Rule 15(a) provides that a pre-opening indication will include the security and the price range within which the opening price is anticipated to occur and that a pre-opening indication will be published via the securities information processor and proprietary data feeds. Rule 15(b) specifies the conditions for publishing a pre-opening indication, and Rule 15(b)(1) provides that a DMM will publish a pre-opening indication, as described in Rule 15(e), before a security opens if the opening transaction on the Exchange is anticipated to be at a price that represents a change of more than the “Applicable Price Range” from a specified “Reference Price” before the security opens.

    4See Securities Exchange Act Release No. 78673 (August 25, 2016), 81 FR 60038 (August 31, 2016) (SR-NYSEMKT-2016-79) (Notice of Filing and Immediate Effectiveness of Proposed Rule Change) (“Opening Filing”). The Exchange implemented the changes described in the Opening Filing on September 12, 2016.

    Under Rule 15(c), the Reference Price for a security, other than an ADR, is the securities last reported stale price on the Exchange, the security's offering price in the case of an initial public offering (“IPO”), or the security's last reported sale price in the securities market from which the security is being transferred to the Exchange. Rule 15(d)(1) provides that, except under conditions set forth in Rule 15(d)(2), the Applicable Price Range for determining whether to publish a pre-opening indication will be 5%. Rule 15(d)(2) provides that if as of 9:00 a.m. Eastern Time, the E-mini S&P 500 Futures are +/−2% from the prior day's closing price of the E-mini S&P 500 Futures, when reopening trading following a market-wide trading halt under Rule 80B—Equities, or if the Exchange determines that it is necessary or appropriate for the maintenance of a fair and orderly market, the Applicable Price Range for determining whether to publish a pre-opening indication will be 10%.

    Proposed Rule Change

    The Exchange proposes to amend Rule 15(b)(1) to add another condition for when a DMM would be required to publish a pre-opening indication. As proposed, a DMM would be required to publish a pre-opening indication if a security has not opened by 10:00 a.m. Eastern Time. This requirement was previously set forth in rule text in Rule 123D(b)—Equities that was deleted in the Opening Filing.5 The Exchange proposes to restore this requirement, as modified. Specifically, the Exchange would not retain the prior rule text that required Executive Floor Governor approval to extend the 30-minute time frame. The Exchange believes that current Rule 15(e)(1), which requires a Floor Governor to supervise and approve the publication of a pre-opening indication, provides for appropriate oversight of the publication of a pre-opening indication, including if such publication would be after 10:00 a.m.

    5See Opening Filing, supra note 4 at 60039. Before being amended in the Opening Filing, Rule 123D(b)—Equities provided: “If an indication is disseminated after the opening bell, it must be considered a delayed opening. In addition, any stock that is not opened with a trade or a reasonable quotation within 30 minutes after the opening of business must be considered a delayed opening (except for IPOs) and requires Floor Official supervision, as well as an indication. That 30-minute time frame may only be extended by an Executive Floor Governor on a Floor-wide basis.”

    The Exchange believes that restoring the requirement to publish a pre-opening indication if a security is not opened by 10:00 a.m. Eastern Time would promote transparency in the opening process for securities that do not open on either a trade or a quote by such time. The Exchange believes that there are limited circumstances when a security would not be opened by 10:00 a.m. and for which a pre-opening indication has not already been published. For example, if the reason a security has not opened by 10:00 a.m. is due to an order imbalance, the DMM would have already published a pre-opening indication, as required by current Rule 15(b)(1). By contrast, if there is no trading interest in a security, such as the first day of trading of a security listed on a when issued basis, the proposed requirement to publish a pre-opening indication for such security would provide investors with additional information regarding the indicative price for such security so they can evaluate whether to submit trading interest to participate in the opening. The Exchange believes that 10:00 a.m. is an appropriate time threshold for publishing a pre-opening indication in such circumstances as it would provide sufficient time for the DMM to gather pricing information for a security that may otherwise have no trading interest.6

    6 For example, a security that is listed on a when issued basis generally does not have an offering document that specifies a price for such security. In the absence of trading interest to provide an indication of how market participants would price such a security, a DMM would have to look to other sources, such as research analyst reports, to identify the appropriate pricing. The Exchange notes that in such scenarios, there may be wide fluctuations on the estimated price. The first published pre-opening indication therefore may be wide, but would serve the purpose of providing transparency regarding the potential pricing for such a security.

    To effect this proposed change, the Exchange proposes to amend Rule 15(b)(1) to add sub-numbering within the paragraph, delete the phrase “before the security opens” as duplicative of a prior reference to the same phrase, and add the new text, as follows (new text is in italics, deleted text bracketed):

    (b) Conditions for publishing a pre-opening indication:

    (1) A DMM will publish a pre-opening indication, as described in paragraph (e), (i) before a security opens if the opening transaction on the Exchange is anticipated to be at a price that represents a change of more than the “Applicable Price Range,” as specified in paragraph (d) of this Rule, from a specified “Reference Price,” as specified in paragraph (c) of this Rule[, before the security opens]; or (ii) if a security has not opened by 10:00 a.m. Eastern Time.

    The Exchange also proposes to amend Rule 15(d) to add a new Applicable Price Range for securities priced $3.00 and lower. As proposed, for these securities, the Applicable Price Range would be $0.15 on regular trading days. To effect this proposed change, the Exchange proposes to amend Rule 15(d)(1) to provide that, except under the conditions set forth in Rule 15(d)(2), the Applicable Price Range for determining whether to publish a pre-opening indication would be 5% for securities with a Reference Price over $3.00 and $0.15 for securities with a Reference Price equal to or lower than $3.00. The Exchange proposes to make a related change to Rule 15(d)(2) to provide for what the Applicable Price Range would be for securities priced $3.00 and lower if as of 9:00 a.m. Eastern Time, the E-mini S&P 500 Futures are +/− 2% from the prior day's closing price of the E-mini S&P 500 Futures, when reopening trading following a market-wide trading halt under Rule 80B [sic], or if the Exchange determines that it is necessary or appropriate for the maintenance of a fair and orderly market. As proposed, in such case, the Applicable Price Range would be $0.30.

    The Exchange believes a price range movement of more than $0.15 for lower-priced securities on regular trading days, and more than $0.30 price range movement on more volatile trading days, would better reflect when an opening price for such securities is significantly away from the Reference Price, thus warranting a pre-opening indication. By contrast, the Exchange believes that the current 5% Applicable Price Range applicable to securities priced $3.00 and below is too narrow and would result in a disproportionate number of pre-opening indications for these securities as compared to how many pre-opening indications are required for securities priced above $3.00. Requiring pre-opening indications when they would not otherwise be warranted would also reduce the number of securities that would be eligible to be opened by a DMM electronically. For example, based on Exchange data from January 2016 through October 2016, if the Exchange had applied the 5% Applicable Price Range, there would have been 18 securities requiring a pre-opening indication. By contrast, using a $0.15 Applicable Price Change for this same period would have resulted in only two securities requiring a pre-opening indication.7 This reduced number of required pre-opening indications would mean that more securities would have been eligible to be opened electronically by the DMM. The Exchange further notes that the proposed break point of which parameter would be used is based on the current price buckets used in the Regulation NMS Plan to Address Extraordinary Market Volatility (“LULD Plan”) (providing that securities priced $3.00 and below are subject to wider percentage parameters than securities priced above $3.00).8

    7 When applying the proposed double-wide Applicable Price Change for volatile trading days, as provided for in Rule 15(d)(2), to trade data from August 25, 2015, the change to a $0.30 Applicable Price Change instead of a 10% Applicable Price Change would have resulted in four securities requiring pre-opening indications instead of 63. Similarly, applying these Applicable Price Changes to June 24, 2016, a 10% move would have resulted in 55 securities requiring pre-opening indications, whereas a $0.30 parameter would have resulted in one security requiring pre-opening indication.

    8See Securities Exchange Act Release No. 77679 (April 21, 2016), 81 FR 24908 (April 27, 2016) (File No. 4-631) (Order approving 10th Amendment to the LULD Plan).

    There are no technology changes associated with this proposed rule change. However, because the proposed rule change would require DMMs to change behavior, the Exchange will announce the operative date by a Trader Update that describes the proposed changes. The Exchange will publish this Trader Update no later than 10 days after the operative date of this filing.

    2. Statutory Basis

    The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,9 in general, and furthers the objectives of Section 6(b)(5) of the Act,10 in particular, because it is designed to prevent fraudulent and manipulative acts and practices, promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system, and protect investors and the public interest. The Exchange believes that amending Rule 15(b)(1) to restore the requirement that a pre-opening indication be published if a security has not opened by 10:00 a.m. Eastern Time would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would provide additional transparency to the opening process if a security has not opened by 10:00 a.m. As such, the Exchange believes that the proposal would advance the efficiency and transparency of the opening process, thereby fostering accurate price discovery at the open of trading. For the same reasons, the proposal is also designed to protect investors as well as the public interest.

    9 15 U.S.C. 78f(b).

    10 15 U.S.C. 78f(b)(5).

    The Exchange further believes that providing for a $0.15 Applicable Price Range for securities priced $3.00 and lower on regular trading days, and a $0.30 Applicable Price Range for such securities on more volatile trading days, would remove impediments to and perfect a free and open market and a national market system because it would require a wider range of price movement before a pre-opening indication must be published for these lower-priced securities. The Exchange believes that these proposed changes would balance the goal of providing price transparency if there would be significant price dislocation in the opening price of a security compared to the Reference Price with the manual process involved with publishing pre-opening indications. Moreover, the Exchange believes that any reduction in number of pre-opening indications published for these lower-priced securities would not result in less transparency because the Exchange would continue to publish Order Imbalance Information for such securities, as provided for in Rule 15(g).

    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 that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but rather promote greater efficiency and transparency at the open of trading on the Exchange.

    C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the proposed rule change.

    III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

    The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A) of the Act 11 and Rule 19b-4(f)(6) thereunder.12 Because the 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 prior to 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) of the Act and Rule 19b-4(f)(6)(iii) thereunder.13

    11 15 U.S.C. 78s(b)(3)(A).

    12 17 CFR 240.19b-4(f)(6).

    13 In addition, Rule 19b-4(f)(6)(iii) requires the Exchange to give the Commission written notice of the Exchange's intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. The Exchange has satisfied this requirement.

    A proposed rule change filed under Rule 19b-4(f)(6) 14 normally does not become operative prior to 30 days after the date of the filing. However, pursuant to Rule 19b4(f)(6)(iii),15 the Commission may designate a shorter time if such action is consistent with the protection of investors and the public interest.

    14 17 CFR 240.19b-4(f)(6).

    15 17 CFR 240.19b-4(f)(6)(iii).

    At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B) 16 of the Act to determine whether the proposed rule change should be approved or disapproved.

    16 15 U.S.C. 78s(b)(2)(B).

    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-NYSEMKT-2016-107 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-NYSEMKT-2016-107. 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-NYSEMKT-2016-107 and should be submitted on or before December 21, 2016.

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.17

    17 17 CFR 200.30-3(a)(12).

    Robert W. Errett, Deputy Secretary.
    [FR Doc. 2016-28779 Filed 11-29-16; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79388; File No. SR-NYSEArca-2016-136] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change Amending NYSE Arca Equities Rule 7.35P To Provide for Widened Price Collar Thresholds for the Core Open Auction on Volatile Trading Days November 23, 2016.

    On September 28, 2016, NYSE Arca, Inc. (the “Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder,2 a proposed rule change to amend NYSE Arca Equities Rule 7.35P 3 to widen price collar thresholds for the Core Open Auction on volatile trading days. The proposed rule change was published for comment in the Federal Register on October 14, 2016.4 The Commission received no comment letters on the proposed rule change.

    1 15 U.S.C. 78s(b)(1).

    2 17 CFR 240.19b-4.

    3 The Commission notes that the Exchange recently re-designated NYSE Arca Equities Rule 7.35P as NYSE Arca Equities Rule 7.35. See Securities Exchange Act Release No. 79078 (October 11, 2016), 81 FR 71559 (October 17, 2016) (SR-NYSEArca-2016-135).

    4See Securities Exchange Act Release No. 79068 (October 7, 2016), 81 FR 71127.

    Section 19(b)(2) of the Act 5 provides that, within 45 days of the publication of notice of the filing of a proposed rule change, or within such longer period up to 90 days as the Commission may designate if it finds such longer period to be appropriate and publishes its reasons for so finding or as to which the self-regulatory organization consents, the Commission shall either approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether the proposed rule change should be disapproved. The 45th day after publication of the notice for this proposed rule change is November 28, 2016. The Commission is extending this 45-day time period.

    5 15 U.S.C. 78s(b)(2).

    The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,6 designates January 12, 2017, as the date by which the Commission shall either approve or disapprove or institute proceedings to determine whether to disapprove the proposed rule change (File Number SR-NYSEArca-2016-136).

    6 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.7

    7 17 CFR 200.30-3(a)(31).

    Robert W. Errett, Deputy Secretary.
    [FR Doc. 2016-28778 Filed 11-29-16; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79383; File No. SR-NYSE-2016-77] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Section 907.00 of the Listed Company Manual November 23, 2016.

    Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (the “Act”) 2 and Rule 19b-4 thereunder,3 notice is hereby given that, on November 10, 2016, New York Stock Exchange LLC (“NYSE” or the “Exchange”) filed with the Securities and Exchange Commission (the “Commission”) the proposed rule change as described in Items I and II below, which Items have been prepared by the self-regulatory organization. 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 15 U.S.C. 78a.

    3 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 amend Section 907.00 of the Listed Company Manual (the “Manual”) to clarify how it will treat currently listed U.S. issuers and non-U.S. companies who qualify to receive Tier One or Tier Two services as a result of a corporate action completed between October 1 and December 31 of a particular calendar year. The proposed rule change is available on the Exchange's Web site at www.nyse.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 self-regulatory organization 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 those 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

    Pursuant to Section 907.00 of the Manual, the Exchange offers a suite of complimentary products and services to certain companies currently listed on the Exchange (“Eligible Current Listings”). A company qualifies to receive such complimentary products and services based on the number of shares of common stock in the case of U.S. companies or other equity security in the case of non-U.S. companies that it has outstanding. Presently, the Exchange determines eligibility to receive complimentary products and services for a calendar year based on the number of shares outstanding as of September 30 of the immediately preceding calendar year. If a company has the requisite number of shares outstanding on September 30, it will begin (or continue, as the case may be) to receive the suite of complimentary products and services for which it is eligible as of the following January 1.4

    4 Eligible Current Listings that have 270 million or more shares issued and outstanding as of September 30 (each a “Tier One Eligible Current Listing”) are presently offered (i) a choice of market surveillance or market analytics products and services, and (ii) Web-hosting and Web-casting products and services, on a complimentary basis. Eligible Current Listings that have between 160 million and 269.9 million shares issued and outstanding as of September 30 (each a “Tier Two Eligible Current Listing”) are presently offered a choice of market analytics or Web-hosting and Web-casting products and services.

    For planning and budgeting purposes, it is helpful for both the Exchange and listed companies to determine a reasonable period in advance the Tier One and Tier Two Eligible Current Listings that will receive complimentary products and services the following year.5 Therefore, the Exchange has historically looked at a company's shares outstanding as of September 30 to determine qualification for the following year. On occasion, there is a company that does not qualify [sic] Tier One or Tier Two services based on its shares outstanding as of September 30, but that subsequently completes a corporate action (such as a share issuance or stock split) between October 1 and December 31 that would enable it to either (i) qualify for the first time or (ii) qualify for a higher tier of services if the Exchange made its eligibility determination as of a later date. Under existing Exchange rules, the unfortunate outcome for such companies is that they do not qualify to receive complimentary products and services for, in some cases, nearly 15 months after they became eligible.

    5See Securities Exchange Act Release No. 34-68143 (November 2, 2012), 77 FR 67053 (November 8, 2012) (SR-NYSE-2012-44). This provides qualifying issuers with nearly three months to select from the available services in their tier for the following calendar year as well as providing non-qualifying issuers with time to budget and plan for obtaining the service elsewhere.

    The Exchange proposes to amend Section 907.00 of the Manual to clarify that, if a company becomes a Tier One or Tier Two Eligible Current Listing due to a corporate action completed between October 1 and December 31 of a particular year that results in an increased number of outstanding shares, such company will receive the suite of complimentary products and services to which it is entitled by virtue of that designation as of the immediately following January 1. The Exchange will continue to conduct its initial eligibility review as of September 30. This will enable the Exchange to capture the vast majority of Tier One and Tier Two Eligible Current Listings to assist both itself and listed companies in their planning and budget process for the following year. The Exchange will then conduct a secondary review each year towards the end of December to determine whether any additional companies have become eligible to receive services or have become eligible to receive a higher tier or [sic] services.

    The Exchange notes that listed companies are subject to an annual fee that is billed each January 1 and is calculated based on the number of shares outstanding on the preceding December 31.6 In this regard, under the Exchange's existing rules, a company that increases its shares outstanding due to a corporate action completed subsequent to September 30 would be billed a higher annual fee on the following January 1 but would not receive any complimentary products and services for which it may be eligible for an entire year. The Exchange's current proposal seeks to address this anomaly by ensuring that companies obtain the benefits of listing normally provided to other issuers paying comparable annual listing fees.

    6See Section 902.02 of the Manual.

    In the event that a U.S. issuer or non-U.S. company that was eligible for Tier One or Tier Two services as of September 30, then completes a corporate action between October 1 and December 31 that reduces its shares outstanding and makes it no longer eligible, the Exchange proposes that it would not discontinue services as of the following January 1. Instead, the Exchange proposes that it would re-evaluate the following September 30 and determine to discontinue as of the following January 1 if the issuer remained ineligible.7 The Exchange believes it could be unnecessarily harmful to an issuer that reduces its outstanding shares due to a corporate action in the fourth quarter to immediately discontinue providing services the following year. As described above, a significant reason for determining eligibility on September 30 is to provide ineligible issuers time to budget and plan to procure services from an alternative vendor. The Exchange believes that any company that undertakes a corporate action in the fourth quarter that results in a reduction in its shares outstanding is likely doing so for reasons other than to reduce its forthcoming annual listing fee. A company in that situation may have expected that it would be eligible for Tier One or Tier Two services based on its September 30 shares outstanding and the Exchange believes it could disadvantage them to discontinue services so close to the year end.

    7 However, if a company remained ineligible on September 30, but regained eligibility between October 1 and December 31, it would continue to receive the package of services for which it became eligible.

    2. Statutory Basis

    The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,8 in general, and furthers the objectives of Sections 6(b)(4) 9 of the Act, in particular, in that it is designed to provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities. The Exchange also believes that the proposed rule change is consistent with Section 6(b)(5) 10 of the Act in that it is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers.

    8 15 U.S.C. 78f(b).

    9 15 U.S.C. 78f(b)(4).

    10 15 U.S.C. 78f(b)(5).

    The Exchange believes that its proposed rule change is consistent with Section 6(b)(4) of the Act because it ensures that all companies that are subject to the same fee structure as of January 1 each year are also eligible to receive the same benefits of listing. Under existing rules, the Exchange charges companies an annual fee based on shares outstanding on December 31, but determines eligibility for complimentary products and services based on shares outstanding as of September 30. The proposed rule change will ensure that, for the vast majority of listed companies, the Exchange takes into account a company's shares outstanding on December 31 not only for purposes of charging annual listing fees but also for purposes of determining an issuer's eligibility to receive complimentary products and services or receive a higher tier of complimentary products and services.

    The Exchange believes that its proposed rule change is consistent with Section 6(b)(5) of the Act because it prevents unfair discrimination between issuers by ensuring that no issuer is deprived of eligibility for services simply because they became a Tier One or Tier Two Eligible Current Listing in the last three months of a calendar year after the Exchange has made its eligibility determinations for the next calendar year. The Exchange believes that its proposal to continue offering Tier One or Tier Two services for one additional year to a company that became ineligible as a result of a corporate action undertaken in the fourth quarter does not unfairly discriminate between issuers. The Exchange believes this situation would occur very rarely and issuers in this situation would continue to receive services for only one additional year. The Exchange believes all issuers would benefit from knowing that their services would not be discontinued on short notice.

    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 that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed change simply clarifies how the Exchange will treat Tier One and Tier Two Eligible Current Listings who achieve that designation as a result of a corporate action completed after September 30, but prior to December 31 in a given year. As described above, except for a very small number of companies that may continue to receive services for an additional year despite losing eligibility in the fourth quarter, under the proposed rule change, all issuers that are similarly situated on January 1 will receive the same package of complimentary products and services and no issuer will be treated differently simply because it became a Tier One or Tier Two Eligible Current Listing in the final three months of the preceding year. The Exchange believes that its proposal that it continue to offer services for an additional year to companies that became ineligible during the fourth quarter does not significantly impact the public interest or impose any significant burden on competition. Such proposal simply offers all issuers a measure of protection against having their services discontinued on short notice.

    C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the proposed rule change.

    III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

    Because the 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, it has become effective pursuant to Section 19(b)(3)(A) of the Act 11 and Rule 19b-4(f)(6) thereunder.12

    11 15 U.S.C. 78s(b)(3)(A).

    12 17 CFR 240.19b-4(f)(6). As required under Rule 19b-4(f)(6)(iii), the Exchange provided the Commission with written notice of its intent to file the proposed rule change, along with a brief description and the text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission.

    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 necessary or appropriate in the public interest, for the protection of investors, or 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 change 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-NYSE-2016-77 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-NYSE-2016-77. 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-NYSE-2016-77, and should be submitted on or before December 21, 2016.

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.13

    13 17 CFR 200.30-3(a)(12).

    Robert W. Errett, Deputy Secretary.
    [FR Doc. 2016-28773 Filed 11-29-16; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79390; File No. SR-NYSE-2016-78] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 15 Relating to Pre-Opening Indications November 23, 2016.

    Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (the “Act”) 2 and Rule 19b-4 thereunder,3 notice is hereby given that on November 17, 2016, New York Stock Exchange LLC (“NYSE” or the “Exchange”) filed with the Securities and Exchange Commission (the “Commission”) the proposed rule change as described in Items I and II below, which Items have been prepared by the self-regulatory organization. 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 15 U.S.C. 78a.

    3 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 amend Rule 15 relating to pre-opening indications. The proposed rule change is available on the Exchange's Web site at www.nyse.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 self-regulatory organization 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 those 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 proposes to amend Rule 15 relating to pre-opening indications. The proposed rule changes would restore the obligation for a DMM to publish a pre-opening indication if a security has not opened by 10:00 a.m. Eastern Time and add a new parameter for when a pre-opening indication should be published for lower-priced securities.

    Background

    The Exchange recently amended Exchange rules to consolidate and amend requirements relating to pre-opening indications in Rule 15.4 Rule 15(a) provides that a pre-opening indication will include the security and the price range within which the opening price is anticipated to occur and that a pre-opening indication will be published via the securities information processor and proprietary data feeds. Rule 15(b) specifies the conditions for publishing a pre-opening indication, and Rule 15(b)(1) provides that a DMM will publish a pre-opening indication, as described in Rule 15(e), before a security opens if the opening transaction on the Exchange is anticipated to be at a price that represents a change of more than the “Applicable Price Range” from a specified “Reference Price” before the security opens.

    4See Securities Exchange Act Release Nos. 78228 (July 5, 2016), 81 FR 44907 (July 11, 2016) (SR-NYSE-2016-24) (Approval Order) and 77491 (March 31, 2016), 81 FR 20030 (April 6, 2016) (SR-NYSE-2016-24) (“Opening Notice of Filing”) (“Opening Filing”). The Exchange implemented the changes described in the Opening Filing on September 12, 2016.

    Under Rule 15(c), the Reference Price for a security, other than an ADR, is the securities last reported stale price on the Exchange, the security's offering price in the case of an initial public offering (“IPO”), or the security's last reported sale price in the securities market from which the security is being transferred to the Exchange. Rule 15(d)(1) provides that, except under conditions set forth in Rule 15(d)(2), the Applicable Price Range for determining whether to publish a pre-opening indication will be 5%. Rule 15(d)(2) provides that if as of 9:00 a.m. Eastern Time, the E-mini S&P 500 Futures are ± 2% from the prior day's closing price of the E-mini S&P 500 Futures, when reopening trading following a market-wide trading halt under Rule 80B, or if the Exchange determines that it is necessary or appropriate for the maintenance of a fair and orderly market, the Applicable Price Range for determining whether to publish a pre-opening indication will be 10%.

    Proposed Rule Change

    The Exchange proposes to amend Rule 15(b)(1) to add another condition for when a DMM would be required to publish a pre-opening indication. As proposed, a DMM would be required to publish a pre-opening indication if a security has not opened by 10:00 a.m. Eastern Time. This requirement was previously set forth in rule text in Rule 123D(b) that was deleted in the Opening Filing.5 The Exchange proposes to restore this requirement, as modified. Specifically, the Exchange would not retain the prior rule text that required Executive Floor Governor approval to extend the 30-minute time frame. The Exchange believes that current Rule 15(e)(1), which requires a Floor Governor to supervise and approve the publication of a pre-opening indication, provides for appropriate oversight of the publication of a pre-opening indication, including if such publication would be after 10:00 a.m.

    5See Opening Notice of Filing, supra note 4 at 20031. Before being amended in the Opening Filing, Rule 123D(b) provided: “If an indication is disseminated after the opening bell, it must be considered a delayed opening. In addition, any stock that is not opened with a trade or a reasonable quotation within 30 minutes after the opening of business must be considered a delayed opening (except for IPOs) and requires Floor Official supervision, as well as an indication. That 30-minute time frame may only be extended by an Executive Floor Governor on a Floor-wide basis.”

    The Exchange believes that restoring the requirement to publish a pre-opening indication if a security is not opened by 10:00 a.m. Eastern Time would promote transparency in the opening process for securities that do not open on either a trade or a quote by such time. The Exchange believes that there are limited circumstances when a security would not be opened by 10:00 a.m. and for which a pre-opening indication has not already been published. For example, if the reason a security has not opened by 10:00 a.m. is due to an order imbalance, the DMM would have already published a pre-opening indication, as required by current Rule 15(b)(1). By contrast, if there is no trading interest in a security, such as the first day of trading of a security listed on a when issued basis, the proposed requirement to publish a pre-opening indication for such security would provide investors with additional information regarding the indicative price for such security so they can evaluate whether to submit trading interest to participate in the opening. The Exchange believes that 10:00 a.m. is an appropriate time threshold for publishing a pre-opening indication in such circumstances as it would provide sufficient time for the DMM to gather pricing information for a security that may otherwise have no trading interest.6

    6 For example, a security that is listed on a when issued basis generally does not have an offering document that specifies a price for such security. In the absence of trading interest to provide an indication of how market participants would price such a security, a DMM would have to look to other sources, such as research analyst reports, to identify the appropriate pricing. The Exchange notes that in such scenarios, there may be wide fluctuations on the estimated price. The first published pre-opening indication therefore may be wide, but would serve the purpose of providing transparency regarding the potential pricing for such a security.

    To effect this proposed change, the Exchange proposes to amend Rule 15(b)(1) to add sub-numbering within the paragraph, delete the phrase “before the security opens” as duplicative of a prior reference to the same phrase, and add the new text, as follows (new text in italics, deleted text bracketed):

    (b) Conditions for publishing a pre-opening indication:

    (1) A DMM will publish a pre-opening indication, as described in paragraph (e), (i) before a security opens if the opening transaction on the Exchange is anticipated to be at a price that represents a change of more than the “Applicable Price Range,” as specified in paragraph (d) of this Rule, from a specified “Reference Price,” as specified in paragraph (c) of this Rule[, before the security opens]; or (ii) if a security has not opened by 10:00 a.m. Eastern Time.

    The Exchange also proposes to amend Rule 15(d) to add a new Applicable Price Range for securities priced $3.00 and lower. As proposed, for these securities, the Applicable Price Range would be $0.15 on regular trading days. To effect this proposed change, the Exchange proposes to amend Rule 15(d)(1) to provide that, except under the conditions set forth in Rule 15(d)(2), the Applicable Price Range for determining whether to publish a pre-opening indication would be 5% for securities with a Reference Price over $3.00 and $0.15 for securities with a Reference Price equal to or lower than $3.00. The Exchange proposes to make a related change to Rule 15(d)(2) to provide for what the Applicable Price Range would be for securities priced $3.00 and lower if as of 9:00 a.m. Eastern Time, the E-mini S&P 500 Futures are ± 2% from the prior day's closing price of the E-mini S&P 500 Futures, when reopening trading following a market-wide trading halt under Rule 80B, or if the Exchange determines that it is necessary or appropriate for the maintenance of a fair and orderly market. As proposed, in such case, the Applicable Price Range would be $0.30.

    The Exchange believes a price range movement of more than $0.15 for lower-priced securities on regular trading days, and more than $0.30 on more volatile trading days, would better reflect when an opening price for such securities is significantly away from the Reference Price, thus warranting a pre-opening indication. By contrast, the Exchange believes that the current 5% Applicable Price Range applicable to securities priced $3.00 and below is too narrow and would result in a disproportionate number of pre-opening indications for these securities as compared to how many pre-opening indications are required for securities priced above $3.00. Requiring pre-opening indications when they would not otherwise be warranted would also reduce the number of securities that would be eligible to be opened by a DMM electronically. For example, based on Exchange data from January 2016 through October 2016, if the Exchange had applied the 5% Applicable Price Range, there would have been 13 securities requiring a pre-opening indication. By contrast, using a $0.15 Applicable Price Change for this same period would have resulted in only four securities requiring a pre-opening indication.7 This reduced number of required pre-opening indications would mean that more securities would have been eligible to be opened electronically by the DMM. The Exchange further notes that the proposed break point of which parameter would be used is based on the current price buckets used in the Regulation NMS Plan to Address Extraordinary Market Volatility (“LULD Plan”) (providing that securities priced $3.00 and below are subject to wider percentage parameters than securities priced above $3.00).8

    7 When applying the proposed double-wide Applicable Price Change for volatile trading days, as provided for in Rule 15(d)(2), to trade data from August 25, 2015, the change to a $0.30 Applicable Price Change instead of a 10% Applicable Price Change would have resulted in six securities requiring pre-opening indications instead of 76. Similarly, applying these Applicable Price Changes to June 24, 2016, a 10% move would have resulted in 49 securities requiring pre-opening indications, whereas a $0.30 parameter would have resulted in one security requiring pre-opening indication.

    8See Securities Exchange Act Release No. 77679 (April 21, 2016), 81 FR 24908 (April 27, 2016) (File No. 4-631) (Order approving 10th Amendment to the LULD Plan).

    There are no technology changes associated with this proposed rule change. However, because the proposed rule change would require DMMs to change behavior, the Exchange will announce the operative date by a Trader Update that describes the proposed changes. The Exchange will publish this Trader Update no later than 10 days after the operative date of this filing.

    2. Statutory Basis

    The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,9 in general, and furthers the objectives of Section 6(b)(5) of the Act,10 in particular, because it is designed to prevent fraudulent and manipulative acts and practices, promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system, and protect investors and the public interest. The Exchange believes that amending Rule 15(b)(1) to restore the requirement that a pre-opening indication be published if a security has not opened by 10:00 a.m. Eastern Time would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would provide additional transparency to the opening process if a security has not opened by 10:00 a.m. As such, the Exchange believes that the proposal would advance the efficiency and transparency of the opening process, thereby fostering accurate price discovery at the open of trading. For the same reasons, the proposal is also designed to protect investors as well as the public interest.

    9 15 U.S.C. 78f(b).

    10 15 U.S.C. 78f(b)(5).

    The Exchange further believes that providing for a $0.15 Applicable Price Range for securities priced $3.00 and lower on regular trading days, and a $0.30 Applicable Price Range for such securities on more volatile trading days, would remove impediments to and perfect a free and open market and a national market system because it would require a wider range of price movement before a pre-opening indication must be published for these lower-priced securities. The Exchange believes that these proposed changes would balance the goal of providing price transparency if there would be significant price dislocation in the opening price of a security compared to the Reference Price with the manual process involved with publishing pre-opening indications. Moreover, the Exchange believes that any reduction in number of pre-opening indications published for these lower-priced securities would not result in less transparency because the Exchange would continue to publish Order Imbalance Information for such securities, as provided for in Rule 15(g).

    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 that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but rather promote greater efficiency and transparency at the open of trading on the Exchange.

    C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the proposed rule change.

    III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

    The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A) of the Act 11 and Rule 19b-4(f)(6) thereunder.12 Because the 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 prior to 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) of the Act and Rule 19b 4(f)(6)(iii) thereunder.13

    11 15 U.S.C. 78s(b)(3)(A).

    12 17 CFR 240.19b 4(f)(6).

    13 In addition, Rule 19b 4(f)(6)(iii) requires the Exchange to give the Commission written notice of the Exchange's intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. The Exchange has satisfied this requirement.

    A proposed rule change filed under Rule 19b 4(f)(6) 14 normally does not become operative prior to 30 days after the date of the filing. However, pursuant to Rule 19b4(f)(6)(iii),15 the Commission may designate a shorter time if such action is consistent with the protection of investors and the public interest.

    14 17 CFR 240.19b 4(f)(6).

    15 17 CFR 240.19b 4(f)(6)(iii).

    At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B) 16 of the Act to determine whether the proposed rule change should be approved or disapproved.

    16 15 U.S.C. 78s(b)(2)(B).

    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-NYSE-2016-78 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-NYSE-2016-78. 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-NYSE-2016-78 and should be submitted on or before December 21, 2016.

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.17

    17 17 CFR 200.30-3(a)(12).

    Robert W. Errett, Deputy Secretary.
    [FR Doc. 2016-28780 Filed 11-29-16; 8:45 am] BILLING CODE 8011-01-P
    SOCIAL SECURITY ADMINISTRATION [Docket No: SSA-2016-0062] Agency Information Collection Activities: Comment Request

    The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions and one extension of OMB-approved information collections.

    SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.

    (OMB) Office of Management and Budget, Attn: Desk Officer for SSA, Fax: 202-395-6974, Email address: [email protected] (SSA) Social Security Administration, OLCA, Attn: Reports Clearance Director, 3100 West High Rise, 6401 Security Blvd., Baltimore, MD 21235, Fax: 410-966-2830, Email address: [email protected]

    Or you may submit your comments online through www.regulations.gov, referencing Docket ID Number [SSA-2016-0062].

    II. SSA submitted the information collections below to OMB for clearance. Your comments regarding the information collections would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than December 30, 2016. Individuals can obtain copies of the OMB clearance packages by writing to [email protected]

    1. Missing and Discrepant Wage Reports Letter and Questionnaire—26 CFR 31.6051-2—0960-0432. Each year employers report the wage amounts they paid their employees to the Internal Revenue Service (IRS) for tax purposes, and separately to SSA for retirement and disability coverage purposes. Employers should report the same figures to SSA and the IRS; however, each year some of the employer wage reports SSA receives show wage amounts lower than those employers report to the IRS. SSA uses Forms SSA-L93-SM, SSA-L94-SM, SSA-95-SM, and SSA-97-SM to ensure employees receive full credit for their wages. Respondents are employers who reported lower wage amounts to SSA than they reported to the IRS.

    Type of Request: Revision of an OMB-approved information collection.

    Modality of completion Number of
  • responses
  • Frequency of
  • response
  • Average
  • burden per
  • response
  • (minutes)
  • Estimated total
  • annual burden
  • (hours)
  • SSA-95-SM and SSA-97-SM (and accompanying cover letters SSA-L93, L94) 360,000 1 30 180,000

    2. Application for Supplemental Security Income—20 CFR 416.305-416.335, Subpart C—0960-0444. SSA uses Form SSA-8001-BK to determine an applicant's eligibility for Supplemental Security Income (SSI) and SSI payment amounts. SSA employees also collect this information during interviews with members of the public who wish to file for SSI. SSA uses the information for two purposes: (1) To formally deny SSI for non-medical reasons when information the applicant provides results in ineligibility; or (2) to establish a disability claim, but defer the complete development of non-medical issues until SSA approves the disability. The respondents are applicants for SSI.

    Note:

    This is a correction notice: SSA published the incorrect burden information for this collection at 81 FR 81224, on 11/17/16. We are correcting this error here.

    Type of Request: Revision of an OMB-approved information collection.

    Modality of completion Number of
  • respondents
  • Frequency of
  • response
  • Average
  • burden per
  • response
  • (minutes)
  • Estimated total
  • annual burden
  • (hours)
  • MSSICS/Signature Proxy 537,207 1 20 179,069 iClaim/MSSICS 162,945 1 20 54,315 SSA-8001-BK (Paper Version) 1,033 1 20 344 Totals 701,185 233,728

    3. Incorporation by Reference of Oral Findings of Fact and Rationale in Wholly Favorable Written Decisions (Bench Decision Regulation)—20 CFR 404.953 and 416.1453—0960-0694. If an administrative law judge (ALJ) makes a wholly favorable oral decision, including all the findings and rationale for the decision for a claimant of Title II or Title XVI payments, at an administrative appeals hearing, the ALJ sends a Notice of Decision (Form HA-82), as the records from the oral hearing preclude the need for a written decision. We call this the incorporation-by-reference process. In addition, the regulations for this process state that if the involved parties want a record of the oral decision, they may submit a written request for these records. SSA collects identifying information under the aegis of Sections 20 CFR 404.953 and 416.1453 of the Code of Federal Regulations to determine how to send interested individuals written records of a favorable incorporation-by-reference oral decision made at an administrative review hearing. Since there is no prescribed form to request a written record of the decision, the involved parties send SSA their contact information and reference the hearing for which they would like a record. The respondents are applicants for Disability Insurance Benefits and SSI payments, or their representatives, to whom SSA gave a wholly favorable oral decision under the regulations cited above.

    Type of Request: Extension of an OMB-approved information collection.

    Modality of collection Number of
  • respondents
  • Frequency of
  • response
  • Average
  • burden per
  • response
  • (minutes)
  • Estimated total
  • annual burden
  • (hours)
  • HA-82 2,500 1 5 208

    4. Request for Waiver of Special Veterans Benefits (SVB) Overpayment Recovery or Change in Repayment Rate—20 CFR 408.900-408.950—0960-0698. Title VIII of the Social Security Act requires SSA to pay a monthly benefit to qualified World War II veterans who reside outside the United States. When an overpayment in this SVB occurs, the beneficiary can request a waiver of recovery of the overpayment or a change in the repayment rate. SSA uses the SSA-2032-BK to obtain the information necessary to establish whether the claimant meets the waiver of recovery provisions of the overpayment, and to determine the repayment rate if we do not waive repayment. Respondents are SVB beneficiaries who have overpayments on their Title VIII record and wish to file a claim for waiver of recovery or change in repayment rate.

    Type of Request: Revision of an OMB-approved information collection.

    Modality of completion Number of
  • respondents
  • Frequency of
  • response
  • Average
  • burden per
  • response
  • (minutes)
  • Estimated total
  • annual burden
  • (hours)
  • SSA-2032-BK 450 1 120 900

    5. Consent Based Social Security Number Verification Process—20 CFR 400.100—0960-0760. The Consent Based Social Security Number Verification (CBSV) process is a fee-based automated Social Security number (SSN) verification service available to private businesses and other requesting parties. To use the system, private businesses and requesting parties must register with SSA and obtain valid consent from SSN holders prior to verification. We collect the information to verify if the submitted name and SSN match the information in SSA records. After completing a registration process and paying the fee, the requesting party can use the CBSV process to submit a file containing the names of number holders who gave valid consent, along with each number holder's accompanying SSN and date of birth (if available) to obtain real-time results using a web service application or SSA's Business Services Online (BSO) application. SSA matches the information against the SSA master file of SSNs, using SSN, name, date of birth, and gender code (if available). The requesting party retrieves the results file from SSA, which indicates only a match or no match for each SSN submitted. Under the CBSV process, the requesting party does not submit the consent forms of the number holders to SSA. SSA requires each requesting party to retain a valid consent form for each SSN verification request. The requesting party retains the consent forms in either electronic or paper format.

    SSA added a strong audit component to ensure the integrity of the CBSV process. At the discretion of the agency, we require audits (called “compliance reviews”) with the requesting party paying all audit costs. Independent certified public accountants (CPAs) conduct these reviews to ensure compliance with all the terms and conditions of the party's agreement with SSA, including a review of the consent forms. CPAs conduct the reviews at the requesting party's place of business to ensure the integrity of the process. In addition, SSA reserves the right to perform unannounced onsite inspections of the entire process, including review of the technical systems that maintain the data and transaction records. The respondents to the CBSV collection are the participating companies; members of the public who consent to the SSN verification; and CPAs who provide compliance review services.

    Type of Request: Revision of an OMB-approved information collection.

    Time Burden Participating Companies Requirement Number of
  • respondents
  • Frequency of
  • response
  • Number of
  • responses
  • Average
  • burden per
  • response
  • (minutes)
  • Total
  • estimated
  • annual burden
  • (hours)
  • Registration process for new participating companies * 13 1 13 120 26 Creation of file with SSN holder identification data; maintaining required documentation/forms 90 ** 251 22,590 60 22,590 Using the system to upload request file, check status, and download results file 90 251 22,590 5 1,883 Storing Consent Forms 90 251 22,590 60 22,590 Activities related to compliance review 90 251 22,590 60 22,590 Total 90,373 69,679 * One-time registration process/approximately 14 new participating companies per year. ** Please note there are 251 Federal business days per year on which a requesting party could submit a file.
    Participating Companies Who Opt for External Testing Environment (ETE) Requirement Number of
  • respondents
  • Frequency of
  • response
  • Number of
  • responses
  • Average
  • burden per
  • response
  • (minutes)
  • Total
  • estimated
  • annual burden
  • (hours)
  • ETE Registration Process (includes reviewing and completing ETE User Agreement) 20 1 1 180 60 Web Service Transactions 20 1 1 50 17 Reporting Issues Encountered on Web service testing (e.g., reports on application's reliability) 20 1 1 50 17 Reporting changes in users' status (e.g., termination or changes in users' employment status; changes in duties of authorized users) 20 1 1 60 20 Cancellation of Agreement 20 1 1 30 10 Dispute Resolution 20 1 1 120 40 Total 20 104 164
    People Whose SSNs SSA Will Verify Requirement Number of
  • respondents
  • Frequency of
  • response
  • Number of
  • responses
  • Average
  • burden per
  • response
  • (minutes)
  • Estimated
  • annual burden
  • (hours)
  • Reading and signing authorization for SSA to release SSN verification 2,800,000 1 2,800,000 3 140,000 Responding to CPA re-contact 5,750 1 5,750 5 479 Total 2,805,750 2,805,750 140,479

    There is one CPA respondent conducting compliance reviews and preparing written reports of findings. The average burden per response is 4,800 minutes for a total burden of 7,200 hours annually.

    Cost Burden

    The public cost burden is dependent upon the number of companies and transactions. SSA based the cost estimates below upon 90 participating companies submitting a total 2.8 million transactions per year.

    One-Time Per Company Registration Fee—$5,000.

    Estimated per SSN Transaction Fee—$1.40.1

    1 The annual costs associated with the transaction to each company are dependent upon the number of SSN transactions submitted to SSA by the company on a yearly basis. For example, if a company anticipates submitting 1 million requests to SSA for the year, its total transaction cost for the year would be $1.40 × 1,000,000, or $1,400,000. Periodically, SSA will calculate our costs to provide CBSV services and adjust the fee charged as needed. SSA notifies companies in writing and via Federal Register Notice of any changes and companies have the opportunity to cancel the agreement or continue service using the new transaction fee.

    Estimated per Company Cost to Store Consent Forms—$300.

    Date: November 25, 2016. Naomi R. Sipple, Reports Clearance Officer, Social Security Administration.
    [FR Doc. 2016-28822 Filed 11-29-16; 8:45 am] BILLING CODE 4191-02-
    DEPARTMENT OF TRANSPORTATION Federal Highway Administration [Docket No. FHWA-2016-0035] Proposed Amendment to the Third Renewed Memorandum of Understanding (MOU) Assigning Certain Federal Environmental Responsibilities to the State of California, Including National Environmental Policy Act (NEPA) Authority for Certain Categorical Exclusions (CEs) AGENCY:

    Federal Highway Administration (FHWA), DOT.

    ACTION:

    Notice of proposed amendment, request for comments.

    SUMMARY:

    The FHWA and the State of California acting by and through its Department of Transportation (Caltrans), propose an amendment to the Memorandum of Understanding (MOU) authorizing the State's participation in the 23 U.S.C. 326 program. This program allows FHWA to assign to States its authority and responsibility for determining whether certain designated activities within the geographic boundaries of the State are categorically excluded from preparation of an Environmental Assessment or an Environmental Impact Statement under the National Environmental Policy Act. The parties propose to amend the MOU to make the litigation provisions consistent with the 23 U.S.C. 327 program MOU and to allow a 90 day suspension of the program, giving the State an opportunity to renew its waiver of sovereign immunity and acceptance of Federal court jurisdiction. The program will resume upon the State's recertification that the sovereign immunity waiver and acceptance of Federal court jurisdiction is in place.

    DATES:

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

    ADDRESSES:

    You may submit comments by any of the methods described below. To ensure that you do not duplicate your submissions, please submit them by only one of the means below. Electronic or facsimile comments are preferred because Federal offices experience intermittent mail delays due to security screening.

    Federal eRulemaking Portal: Go to Web site: http://www.regulations.gov/. Follow the instructions for submitting comments on the DOT electronic docket site (FHWA-2016-0035).

    Facsimile (Fax): 1-202-493-2251.

    Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: 1200 New Jersey Avenue SE., Washington, DC 20590 between 9 a.m. and 5 p.m., Eastern Time, Monday through Friday, except Federal holidays.

    For access to the docket to view a complete copy of the proposed MOU, or to read background documents or comments received, go to http://www.regulations.gov/ at any time or to 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Eastern Time, Monday through Friday, except for Federal holidays.

    Instructions: You must include the agency name and docket number at the beginning of your comments. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

    FOR FURTHER INFORMATION CONTACT:

    For FHWA: Shawn Oliver; by email at [email protected] or by telephone at 916-498-5048. The FHWA California Division Office's normal business hours are 8 a.m. to 4:30 p.m. (Pacific Time), Monday-Friday, except for Federal holidays. For the State of California: Tammy Massengale; by email at [email protected] or by telephone at 916-653-5157. State business hours are the same as above although State holidays may not completely coincide with Federal holidays.

    SUPPLEMENTARY INFORMATION:

    Electronic Access

    Internet users may reach the Office of the Federal Register's home page at: http://www.archives.gov/ and the Government Printing Office's database: http://www.fdsys.gov/. An electronic version of the proposed MOU may be downloaded by accessing the DOT DMS docket, as described above, at http://www.regulations.gov/.

    Background

    Section 326 of Title 23 U.S. Code, creates a program that allows the Secretary of the U.S. Department of Transportation (Secretary) to assign, and a State to assume, responsibility for determining whether certain Federal highway projects are included within classes of action that are categorically excluded (CE) from requirements for Environmental Assessments or Environmental Impact Statements pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. In addition, this program allows the assignment of other environmental review requirements applicable to Federal highway projects, except with respect to government-to-government consultations with federally recognized Indian tribes (23 U.S.C. 326(b)(1)). The FHWA retains responsibility for conducting formal government-to-government consultation with federally recognized Indian tribes, which is required under some of the above-listed laws and Executive Orders. The State may assist FHWA with formal consultations, with consent of a tribe, but FHWA remains responsible for the consultation. The Secretary delegated his authority to FHWA, which acts on behalf of the Secretary with respect to these matters.

    The FHWA renewed California's participation in this program for a third time on May 31, 2016. The original MOU became effective on June 7, 2007, for an initial term of three (3) years. The first renewal followed on June 7, 2010, and the second renewal followed on June 7, 2013. The third MOU renewal has an expiration date on May 31, 2019.

    The FHWA and Caltrans propose three modifications to the MOU. First, the parties propose to modify Stipulations IV.G.5 and IV.G.9 with regards to coordination on settlements and appeals to make them consistent with the draft MOU for participation in the 23 U.S.C. 327 Surface Transportation Project Delivery Program. The draft MOU for that Program can be accessed in Docket No. FHWA-2016-0019.

    Second, Stipulation V.B. of the MOU contains a termination clause stating that the State's authority to participate in the program will end on January 1, 2017, unless the California Legislature takes affirmative action to extend the sovereign immunity waiver under the Eleventh Amendment of the U.S. Constitution. The parties propose an amendment that establishes a process to address a possible temporary lapse in the State's statutory consent to Federal jurisdiction and waiver of sovereign immunity. If the State does not provide consent to Federal court jurisdiction and waive sovereign immunity by December 31, 2016, this MOU will be suspended and Caltrans will not be able to make any NEPA decisions or implement any of the environmental review responsibilities assigned under the MOU. The FHWA and Caltrans propose a temporary suspension not to exceed 90 days to provide time for the State to address the deficiency. In the event that the State does not take the necessary action and Caltrans does not provide adequate certification within the time period provided, the State's participation in the Program will be terminated. This language is the same as the one proposed in the draft MOU for the Surface Transportation Project Delivery Program (Docket No. FHWA-2016-0019).

    Third, the parties propose an amendment to Stipulation language to eliminate unnecessary paperwork. The current MOU requires a Federal Register notice that announces the agency's decision and execution of the MOU. The parties believe that requiring publication in the Federal Register of the decision is unnecessary. Publication of the final MOU through other means, such as in the State's public Web site, would be a more effective means of disseminating the outcome of this process.

    The FHWA will consider the comments submitted on the proposed MOU when making its decision on whether to execute this renewal MOU. The FHWA will make the final, executed MOU publicly available.

    (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program) Authority:

    23 U.S.C. 326; 42 U.S.C. 4331, 4332; 23 CFR 771.117; 49 CFR 1.85; 40 CFR 1507.3, 1508.4.

    Issued on: November 23, 2016. Vincent Mammano, California Division Administrator, Federal Highway Administration.
    [FR Doc. 2016-28800 Filed 11-29-16; 8:45 am] BILLING CODE 4910-22-P
    DEPARTMENT OF TRANSPORTATION Office of the Secretary of Transportation [DOT-OST-2016-0227] Positioning, Navigation, and Timing (PNT) Service for National Critical Infrastructure Resiliency AGENCY:

    Office of the Secretary (OST), U.S. Department of Transportation (DOT).

    ACTION:

    Request for information (RFI).

    SUMMARY:

    This RFI provides an outline for the potential use by the Federal Government of one or more Positioning, Navigation, and Timing (PNT) technologies to back up signals from the Global Positioning System (GPS) and to ensure resiliency of PNT for U.S. Critical Infrastructure (CI) operations. As a co-chair and member of the National Executive Committee for Space-based PNT, and a provider and user of U.S. critical infrastructure services, the Department of Transportation is investigating opportunities by which the Federal Government may make use of service(s) which can provide the necessary backup capability or capabilities to ensure PNT continuity for U.S. CI in the event of a temporary disruption in GPS availability. Further, as the lead civil agency for PNT in the Federal Government, the Department of Transportation is interested in leveraging PNT service technology initiatives under consideration or currently undertaken by industry.

    The Federal Government is presently documenting civil requirements for PNT capabilities to serve as the basis for potential future acquisition activity. The initial objective is to support sustainment of domestic CI timing continuity with the capability to extend service(s) in the future to provide positioning/navigation continuity as well.

    DATES:

    Responses should be filed by January 30, 2017.

    ADDRESSES:

    You may file responses identified by the docket number DOT-OST-2016-0227 by any of the following methods:

    Federal eRulemaking Portal: go to http://www.regulations.gov and follow the online instructions for submitting comments.

    Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.

    Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Ave. SE., between 9:00 a.m. and 5:00 p.m. ET, Monday through Friday, except Federal holidays.

    Fax: (202) 493-2251.

    Instructions: You must include the agency name and docket number DOT-OST-2016-0227 at the beginning of your submission. All submissions received will be posted without change to http://www.regulations.gov, including any personal information provided.

    Privacy Act: Anyone is able to search the electronic form of all submissions received in any of our dockets by the name of the individual submitting the document (or signing the submission, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.

    Docket: For access to the docket and comments received, go to http://www.regulations.gov or to the street address listed above. Follow the online instructions for accessing the docket.

    FOR FURTHER INFORMATION CONTACT:

    Karen L. Van Dyke, Director, Positioning, Navigation, and Timing & Spectrum Management, Office of the Assistant Secretary for Research and Technology, U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC, 20590, 202-366-3180, [email protected]

    SUPPLEMENTARY INFORMATION: 1. Overview

    This RFI provides an outline for the potential use by the Federal Government of one or more PNT technologies to back up signals from GPS and to ensure resiliency of PNT for U.S. critical infrastructure operations. The national policy requirement to ensure resilient PNT capabilities is expressed in two Presidential policy documents. The National Space Policy of the United States of America, dated June 28, 2010, states, “. . . the United States shall . . . Invest in domestic capabilities and support international activities to detect, mitigate, and increase resiliency to harmful interference to GPS, and identify and implement, as necessary and appropriate, redundant and back-up systems or approaches for critical infrastructure, key resources, and mission-essential functions.” This follows a statement in U.S. Space-based PNT Policy dated December 15, 2004 (National Security Presidential Directive (NSPD)-39) that, “. . . the United States Government shall . . . Improve the performance of space-based positioning, navigation, and timing services, including more robust resistance to interference for, and consistent with, U.S. and allied national security purposes, homeland security, and civil, commercial, and scientific users worldwide . . . and, Promote the use of U.S. space-based positioning, navigation, and timing services and capabilities for applications at the Federal, State, and local level, to the maximum practical extent.”

    As defined in NSPD-39, the responsibility to “. . . advise and coordinate with and among the Departments and Agencies responsible for the strategic decisions regarding policies, architectures, requirements, and resource allocation for maintaining and improving U.S. space-based PNT infrastructures, including the GPS, its augmentations, [and] security for these services . . .” rests with the National Space-Based PNT Executive Committee, co-chaired by the Deputy Secretaries of the Department of Defense and the Department of Transportation. NSPD-39 also specifically requires that the Secretary of Transportation, in coordination with the Secretary of Homeland Security, “. . . develop, acquire, operate, and maintain backup position, navigation, and timing capabilities that can support critical transportation, homeland security, and other critical civil and commercial infrastructure applications within the United States, in the event of a disruption of the GPS or other space-based positioning, navigation, and timing services . . .”

    As a co-chair and member of the National Executive Committee for Space-based PNT, and a provider and user of U.S. CI services, the Department of Transportation is investigating opportunities by which the Federal Government may make use of service(s) which can provide the necessary backup capability or capabilities to ensure PNT continuity for U.S. CI in the event of a temporary disruption in GPS availability. Further, as the lead civil agency for PNT in the Federal Government, the Department of Transportation is interested in leveraging PNT service technology initiatives under consideration or currently undertaken by industry.

    The Federal Government is presently documenting civil requirements for PNT capabilities to serve as the basis for potential future acquisition activity. The initial objective is to support sustainment of domestic CI timing continuity with the capability to extend service(s) in the future to provide positioning/navigation continuity as well.

    The government would be open to suggestions from industry regarding methods of accessing such services and associated cost-sharing arrangements, including, but not limited to Public-Private-Partnerships, Service Level Agreements, or other Cooperative Arrangements to alleviate or eliminate constraints to meet the general continuity requirements below. The government would also be interested in industry assessment of user participation in the backup GPS market. If a proposed solution or solutions assumes legislative and/or regulatory action on the part of the Federal Government, that should be noted in any response.

    2. Technical Information

    The Presidential Policy Directive on Critical Infrastructure Security and Resilience (PPD-21; February 12, 2013) designates sixteen CI sectors: Chemical; Commercial Facilities; Communications; Critical Manufacturing; Dams; Defense Industrial Base; Emergency Services; Energy; Financial Services; Food and Agriculture; Government Facilities; Healthcare and Public Health; Information Technology; Nuclear Reactors, Materials, and Waste; Transportation Systems; and Water and Wastewater Systems. To support the initial objective, CI sectors need access to timing information for both nationwide applications and, in some cases, for more stringent regional and local applications.

    The Federal Government is interested in services which could be implemented to provide the following capabilities and ensure timing continuity for the domestic CI outlined below. Respondents must include information related to nationwide and regional CI Timing application coverage for GPS backup capabilities as described below. Respondents may also include information on CI timing applications additional to GPS capabilities if desired:

    Nationwide CI Timing Application Coverage for a GPS Backup ○ Timing Continuity—Sustained accuracy at 1 microsecond with respect to UTC ○ Frequency Stability—Stratum 1 level or better (1x10−11 over 24 hours) ○ System Availability—95%-99% ○ System Reliability/Holdover Capability (no access to GPS)—90 days ○ Extent of service coverage area as a function of system architecture ○ Considerations for receive antennas and integration with GPS devices (include estimated costs, user equipage requirements, and time-to-market information) ○ Considerations for service to mobile vs. fixed users ○ Rough order of magnitude cost estimate for service implementation and operation for at least ten years ○ How quickly a demonstration of service functionality could be performed ○ Scalability and considerations for extending service to a nationwide positioning/navigation capability ○ Any off-shore coverage capability Regional/Local CI Timing Application Coverage for a GPS Backup ○ Timing Continuity—Sustained accuracy at 100 nanoseconds with respect to UTC ○ Frequency Stability—Stratum 1 level or better (1x10−11 over 24 hours) ○ System Availability—99% ○ System Reliability/Holdover Capability (no access to GPS)—30 days ○ Extent of service coverage area as a function of system architecture ○ Considerations for receive antennas and integration with GPS devices (include estimated costs, user equipage requirements, and time-to-market information) ○ Considerations for service to mobile vs. fixed users ○ Rough order of magnitude cost estimate for service implementation and operation for at least ten years ○ How quickly a demonstration of service functionality could be performed ○ Considerations for extending service to include positioning/navigation capability ○ Any off-shore coverage capability Nationwide or Regional/Local CI Timing Application Coverage Additional to GPS Capabilities ○ Considerations for messaging capabilities in terms of data rate and message content (support operations, emergency notifications, etc.) ○ Service availability in environments such as indoors, underwater, underground, and urban canyons not feasible with GPS ○ Rough order of magnitude cost estimate for service implementation and operation for at least ten years Respondents please advise if your company has developed and/or offered PNT services in the past and if you are marketing or providing similar services today in foreign markets. 3. Requested Information

    Interested companies who believe they are capable of providing all or part of the information requested above are invited to indicate their interest by providing company information to include:

    (a) Company name (b) Company address (c) CAGE code [if applicable] (d) Business Point of Contact (POC) name, email address, and telephone (e) Technical Point of Contact (POC) name, email address, and telephone

    4. Responses may be submitted in respondent's preferred format. Abbreviations should be defined either on first use or in a glossary. Charts and graphics should have quantitative data clearly labeled. Assumptions should be clearly identified.

    5. Proprietary and other sensitive information should be so marked with requested disposition instructions. Submitted materials will not be returned.

    6. Responses are limited to fifteen (15) 8.5″ x 11″ pages with 1″ margins, and 12-point font (Arial or Times New Roman). Pages must be numbered and submitted electronically via email as Microsoft Word or Adobe Acrobat files. Please send responses to the contact information provided in the FOR FURTHER INFORMATION CONTACT section of the notice.

    7. Submitted responses shall be UNCLASSIFIED unless prior arrangements are made with the Contracting Office.

    This is a Request For Information (RFI) only. This request is for planning purposes, and shall not be construed as a solicitation announcement, invitation for bids, request for proposals, quotes or an indication that the Government will contract for the items contained in this notice. After reviewing the descriptions currently posted to FEDBIZOPS, interested capable vendors are invited to provide responses. The Government will not reimburse respondents for any costs associated with the submission of the information being requested or reimburse expenses incurred to the interested parties for responses.

    Additionally, your response will be treated only as information for the Government to consider. As previously stated, respondents will not be entitled to payment for direct or indirect costs that are incurred in responding to this RFI. Further, this request does not constitute a solicitation for proposals or the authority to enter into negotiations to award a contract. No funds have been authorized, appropriated or received for this effort. The information provided may be used by the Federal Government in developing an acquisition strategy, Statements of Work/Performance Work Statements and/or Statements of Objectives. Interested parties are responsible to adequately mark proprietary, restricted or competition sensitive information contained in their response accordingly.

    Issued this day of November 23, 2016, in Washington, DC. Sophie Shulman, Acting Assistant Secretary for Research and Technology.
    [FR Doc. 2016-28805 Filed 11-29-16; 8:45 am] BILLING CODE 4910-9X-P
    DEPARTMENT OF THE TREASURY Submission for OMB Review; Comment Request November 25, 2016.

    The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.

    DATES:

    Comments should be received on or before December 30, 2016 to be assured of consideration.

    ADDRESSES:

    Send comments regarding the burden estimates, or any other aspect of the information collections, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at [email protected] and (2) Treasury PRA Clearance Officer, 1750 Pennsylvania Ave. NW., Suite 8142, Washington, DC 20220, or email at [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Copies of the submissions may be obtained by emailing [email protected], calling (202) 622-0934, or viewing the entire information collection request at www.reginfo.gov.

    Internal Revenue Service (IRS)

    OMB Control Number: 1545-1487.

    Type of Review: Reinstatement without change of a previously approved collection.

    Title: Failure To File Gain Recognition Agreements or Satisfy Other Reporting Obligations.

    Abstract: Sections 367(e)(1) and 367(e)(2) provide for gain recognition on certain transfers to foreign persons under sections 355 and 332. Section 6038B(a) requires U.S. persons transferring property to foreign persons in exchanges described in sections 332 and 355 to furnish information regarding such transfers.

    Affected Public: Businesses or other for-profits.

    Estimated Total Annual Burden Hours: 2,471.

    OMB Control Number: 1545-1675.

    Type of Review: Reinstatement with change of a previously approved collection.

    Title: Treatment of taxable income of a residual interest holder in excess of daily accruals.

    Abstract: Sections 1.860E-1(c)(4)-(10) of the Treasury Regulations provide circumstances under which a transferor of a noneconomic residual interest in a Real Estate Mortgage Investment Conduit (REMIC) meeting the investigation, and two representation requirements may avail itself of the safe harbor by satisfying either the formula test or asset test.

    Affected Public: Businesses or other for-profits.

    Estimated Total Annual Burden Hours: 470.

    OMB Control Number: 1545-1856.

    Type of Review: Extension without change of a currently approved collection.

    Title: Consent To Disclosure of Return Information.

    Form: 13362.

    Abstract: The Consent Form is provided to external applicant that will allow the Service the ability to conduct tax checks to determine if an applicant is suitability for employment once they are determined qualified and within reach to receive an employment offer. Form 13362 can be sent and received electronically.

    Affected Public: Individuals or Households.

    Estimated Total Annual Burden Hours: 7,664.

    OMB Control Number: 1545-2219.

    Type of Review: Reinstatement with change of a previously approved collection.

    Title: Form 14242—Reporting Abusive Tax Promotions or Preparer's, & Form 14242 (SP)—Informe las Presuntas Promociones de Planes.

    Forms: 14242, 14242 (SP).

    Abstract: Form 14242 and Form 14242 (SP) are both used to report an abusive tax avoidance scheme and tax return preparer's who promote such schemes (Form 14242 (SP) is the Spanish translation of Form 14242). The information is collected to combat abusive tax promoters. Respondents can be individuals, businesses and tax return preparer's.

    Affected Public: Individuals or Households.

    Estimated Total Annual Burden Hours: 77.

    Bob Faber, Acting Treasury PRA Clearance Officer.
    [FR Doc. 2016-28813 Filed 11-29-16; 8:45 am] BILLING CODE 4830-01-P
    81 230 Wednesday, November 30, 2016 Rules and Regulations Part II Department of Health and Human Services Centers for Medicare & Medicaid Services 42 CFR Parts 407, 430, 431, et al. Medicaid and Children's Health Insurance Programs: Eligibility Notices, Fair Hearing and Appeal Processes for Medicaid and Other Provisions Related to Eligibility and Enrollment for Medicaid and CHIP; Final Rule and Proposed Rule DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 407, 430, 431, 433, 435, and 457 [CMS-2334-F2] RIN 0938-AS27 Medicaid and Children's Health Insurance Programs: Eligibility Notices, Fair Hearing and Appeal Processes for Medicaid and Other Provisions Related to Eligibility and Enrollment for Medicaid and CHIP AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    This final rule implements provisions of the Affordable Care Act that expand access to health coverage through improvements in Medicaid and coordination between Medicaid, CHIP, and Exchanges. This rule finalizes most of the remaining provisions from the “Medicaid, Children's Health Insurance Programs, and Exchanges: Essential Health Benefits in Alternative Benefit Plans, Eligibility Notices, Fair Hearing and Appeal Processes for Medicaid and Exchange Eligibility Appeals and Other Provisions Related to Eligibility and Enrollment for Exchanges, Medicaid and CHIP, and Medicaid Premiums and Cost Sharing; Proposed Rule” that we published in the January 22, 2013, Federal Register. This final rule continues our efforts to assist states in implementing Medicaid and CHIP eligibility