Federal Register Vol. 81, No.235,

Federal Register Volume 81, Issue 235 (December 7, 2016)

Page Range88097-88608
FR Document

81_FR_235
Current View
Page and SubjectPDF
81 FR 88135 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Red Snapper Management MeasuresPDF
81 FR 88110 - Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity ActPDF
81 FR 88607 - Regarding the Proposed Acquisition of a Controlling Interest in Aixtron SE by Grand Chip Investment GmbHPDF
81 FR 88605 - International Day of Persons With Disabilities, 2016PDF
81 FR 88238 - Sunshine Act Meeting NoticePDF
81 FR 88218 - Applications for New Awards; Personnel Development To Improve Services and Results for Children With Disabilities-Preparation of Special Education, Early Intervention, and Related Services Leadership PersonnelPDF
81 FR 88226 - Applications for New Awards; Training and Information for Parents of Children With Disabilities-Community Parent Resource CentersPDF
81 FR 88241 - Supplemental Notice Extending the Application Deadline for the Funded Priorities ListPDF
81 FR 88167 - Indemnification or Defense, or Providing Notice to the Department of Defense, Relating to a Third-Party Environmental ClaimPDF
81 FR 88237 - Notice of Agreements FiledPDF
81 FR 88235 - Privacy Act of 1974, as Amended; Computer Matching Program Between the U.S. Department of Education and the Department of Veterans AffairsPDF
81 FR 88276 - Changes to Aging Management Guidance for Various Steam Generator ComponentsPDF
81 FR 88247 - Agency Information Collection Activities; Proposed Collection; Public Comment RequestPDF
81 FR 88246 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment RequestPDF
81 FR 88322 - Pipeline Safety: Meeting of the Gas Pipeline Safety Advisory CommitteePDF
81 FR 88275 - Armed Forces Radiobiology Research InstitutePDF
81 FR 88098 - Special Conditions: Embraer S.A., Model ERJ 190-300 Series Airplanes; Landing Pitchover ConditionPDF
81 FR 88274 - License Renewal for Grand Gulf Nuclear Station, Unit 1PDF
81 FR 88211 - Reorganization of Foreign-Trade Zone 17; (Expansion of Service Area) Under Alternative Site Framework; Kansas City, KansasPDF
81 FR 88270 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
81 FR 88262 - Notice of Regulatory Waiver Requests Granted for the Third Quarter of Calendar Year 2016PDF
81 FR 88213 - Foreign-Trade Zone 92-Gulfport, Mississippi; Application for Subzone; TopShip, LLC; Gulfport, MississippiPDF
81 FR 88213 - Foreign-Trade Zone 24-Pittston, Pennsylvania; Application for Subzone; Brake Parts Inc.; Hazleton, PennsylvaniaPDF
81 FR 88212 - Foreign-Trade Zone (FTZ) 24-Pittston, Pennsylvania; Notification of Proposed Production Activity; Brake Parts Inc; (Automotive Parts Kitting); Hazleton, PennsylvaniaPDF
81 FR 88213 - Reorganization of Foreign-Trade Zone 20 (Expansion of Service Area) Under Alternative Site Framework; Norfolk, VirginiaPDF
81 FR 88211 - Foreign-Trade Zone (FTZ) 226-Merced County, California; Notification of Proposed Production Activity; Brake Parts Inc; (Automotive Parts Kitting); Patterson, CaliforniaPDF
81 FR 88210 - Foreign-Trade Zone (FTZ) 134-Chattanooga, Tennessee; Notification of Proposed Production Activity; Volkswagen Group of America-Chattanooga Operations, LLC; (Passenger Motor Vehicles); Chattanooga, TennesseePDF
81 FR 88313 - CCET, LLC-Lease and Operation Exemption-Rail Line of Norfolk Southern Railway Company in Adams County, Ohio.PDF
81 FR 88212 - Reorganization of Foreign-Trade Zone 93; (Expansion of Service Area) Under Alternative Site Framework; Raleigh-Durham, North CarolinaPDF
81 FR 88214 - Reorganization of Foreign-Trade Zone 244; (Expansion of Service Area) Under Alternative Site Framework; Riverside, CaliforniaPDF
81 FR 88211 - Approval of Expansion of Subzone 124D; LOOP LLC; Lafourche and St. James Parishes, LouisianaPDF
81 FR 88212 - Approval of Expansion of Subzone 122J; Valero Refining Company; Nueces County, TexasPDF
81 FR 88236 - Hazardous Waste Electronic Manifest System (“e-Manifest”) Advisory Board; Notice of Public MeetingPDF
81 FR 88261 - The Critical Infrastructure Partnership Advisory CouncilPDF
81 FR 88126 - Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source Category-Implementation Date ExtensionPDF
81 FR 88117 - Extension of Pharmacy Copayments for MedicationsPDF
81 FR 88199 - Announcement of Grant Application Deadlines and Funding LevelsPDF
81 FR 88205 - Announcement of Grant and Loan Application DeadlinesPDF
81 FR 88235 - Proposed Subsequent ArrangementPDF
81 FR 88249 - Office of the Assistant Secretary for Financial Resources, Statement of Organization, Functions, and Delegations of AuthorityPDF
81 FR 88248 - Meeting Announcement for the Technical Advisory Panel on Medicare Trustee ReportsPDF
81 FR 88238 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMBPDF
81 FR 88239 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMBPDF
81 FR 88218 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Middle Grades Longitudinal Study of 2017-18 (MGLS: 2017) Operational Field Test (OFT) and Recruitment for Main Study Base-Year StudyPDF
81 FR 88243 - Announcement of the Award of Five Single-Source Low-Cost Extension Supplement Grants Within the Office of Refugee Resettlement's Unaccompanied Children's ProgramPDF
81 FR 88317 - Request for Comments on a New Information CollectionPDF
81 FR 88214 - Schedules for Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification WorkshopsPDF
81 FR 88273 - Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978PDF
81 FR 88320 - Reports, Forms, and Record Keeping RequirementsPDF
81 FR 88313 - Notice to Manufacturers of Airports In-Pavement Stationary Runway Weather Information SystemsPDF
81 FR 88314 - Notice of Opportunity To Participate: Criteria and Application Procedures for Participation in the Military Airport Program (MAP)PDF
81 FR 88115 - Security Zone; Kailua Bay, Oahu, HIPDF
81 FR 88269 - Public Land Order No. 7857; Extension of Public Land Order No. 7254; MontanaPDF
81 FR 88110 - Safety Zone; Upper Mississippi River, St. Louis, MOPDF
81 FR 88600 - Terrorism Risk Insurance Program; Adjustment to Civil Penalty Amount Under the Terrorism Risk Insurance Act of 2002PDF
81 FR 88592 - Terrorism Risk Insurance Program; CertificationPDF
81 FR 88323 - Sanctions Actions Pursuant to Executive Orders (E.O.s) 13722, 13687, and 13382PDF
81 FR 88242 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 88133 - Update to Email Address for the Electronic Submission via the Internet of Certain Accident/Incident ReportsPDF
81 FR 88317 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel BLOOMS; Invitation for Public CommentsPDF
81 FR 88198 - White River National Forest; Eagle County, CO El Jebel Administrative Sites, Upper and Lower Parcels, Conveyance ProjectPDF
81 FR 88217 - Privacy Act of 1974; System of RecordsPDF
81 FR 88245 - Determination of Regulatory Review Period for Purposes of Patent Extension; GARDASIL 9PDF
81 FR 88216 - First Responder Network Authority Combined Committee and Board MeetingPDF
81 FR 88300 - CWM Advisors, LLC, et al.; Notice of ApplicationPDF
81 FR 88297 - Wells Fargo Advisors, LLC and Wells Fargo Advisors Financial Network, LLC; Notice of ApplicationPDF
81 FR 88286 - UBS Financial Services Inc.; Notice of ApplicationPDF
81 FR 88308 - Robert W. Baird & Co. Incorporated; Notice of ApplicationPDF
81 FR 88294 - Merrill Lynch, Pierce, Fenner & Smith Incorporated; Notice of ApplicationPDF
81 FR 88284 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing of Proposed Rule Changes to BZX Rule 14.11, Other Securities, and BZX Rule 14.12, Failure To Meet Listing StandardsPDF
81 FR 88290 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Order Granting an Extension to Limited Exemption From Rule 612(c) of Regulation NMS in Connection With the Exchange's Retail Price Improvement Program Until December 1, 2017PDF
81 FR 88311 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Change the Titles of Equities Rule 7015 and Options Chapter XV, Section 3, and To Make Related ChangesPDF
81 FR 88279 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Extend the Pilot Period for the Retail Price Improvement Program Until December 1, 2017PDF
81 FR 88302 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposal to Change Representation Regarding Investments by PowerShares DB Trust Issued Receipts Listed Under Commentary .02 to NYSE Arca Equities Rule 8.200PDF
81 FR 88306 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Its Rules Governing Business Continuity and Disaster RecoveryPDF
81 FR 88304 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Its Rules Governing Business Continuity and Disaster Recovery PlanningPDF
81 FR 88293 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Penny Pilot ProgramPDF
81 FR 88282 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Penny Pilot ProgramPDF
81 FR 88291 - Self-Regulatory Organizations; ICE Clear Credit LLC; Notice of Filing of Proposed Rule Change To Provide for the Clearance of Additional Credit Default Swap ContractsPDF
81 FR 88277 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Make Non-Substantive Changes to the Fee SchedulePDF
81 FR 88289 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Make Non-Substantive Changes to the Fee SchedulePDF
81 FR 88281 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Make Non-Substantive Changes to the Equity Options Fee SchedulePDF
81 FR 88270 - Proposed Collection, Comment RequestPDF
81 FR 88099 - Third-Party Certification Body Accreditation for Food Safety Audits: Model Accreditation Standards; Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
81 FR 88244 - Posting Adverse Event Report Data Associated With Conventional Foods, Dietary Supplements, and Cosmetics on the Internet; AvailabilityPDF
81 FR 88270 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
81 FR 88097 - List of Approved Spent Fuel Storage Casks: NAC International MAGNASTOR® Cask System; Certificate of Compliance No. 1031, Amendment No. 6PDF
81 FR 88124 - Approval and Promulgation of Implementation Plans; Texas; Reasonable Further Progress Plan and Motor Vehicle Emissions Budgets for the Dallas/Fort Worth 2008 Ozone Nonattainment AreaPDF
81 FR 88330 - Allowance for Private Purchase of an Outer Burial Receptacle in Lieu of a Government-Furnished Graveliner for a Grave in a VA National CemeteryPDF
81 FR 88197 - National Advisory Committee on Microbiological Criteria for FoodsPDF
81 FR 88120 - Changes to Attributable CostingPDF
81 FR 88324 - Funding Availability Under Supportive Services for Veteran Families ProgramPDF
81 FR 88318 - Notice of Receipt of Petition for Decision That Nonconforming Model Year 2013 and 2014 Ferrari F12 Berlinetta Passenger Cars Are Eligible for ImportationPDF
81 FR 88261 - Center for Scientific Review; Notice of Closed MeetingPDF
81 FR 88272 - Notice of Information CollectionPDF
81 FR 88234 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; State Longitudinal Data System (SLDS) Survey 2017-2019PDF
81 FR 88251 - Division of Behavioral Health, Office of Clinical and Preventive Services; Methamphetamine and Suicide Prevention Initiative-Generation Indigenous (Gen-I) Initiative SupportPDF
81 FR 88112 - Safety Zone, Delaware River; Marcus Hook, PAPDF
81 FR 88127 - Railroad Police OfficersPDF
81 FR 88173 - Paleontological Resources PreservationPDF
81 FR 88147 - Prevention of Workplace Violence in Healthcare and Social AssistancePDF
81 FR 88216 - U.S. Air Force Scientific Advisory Board Notice of MeetingPDF
81 FR 88098 - Energy Conservation Program: Test Procedure for Commercial Packaged Boilers; WithdrawalPDF
81 FR 88136 - Grid Security Emergency Orders: Procedures for IssuancePDF
81 FR 88562 - Covered Asset AcquisitionsPDF
81 FR 88103 - Covered Asset AcquisitionsPDF
81 FR 88143 - Airworthiness Directives; Airbus Helicopters Deutschland GmbH HelicoptersPDF
81 FR 88145 - Airworthiness Directives; General Electric Company Turbofan EnginesPDF
81 FR 88101 - Visas: Classification of Immediate Family Members as A, C-3, G, and NATO NonimmigrantsPDF
81 FR 88526 - Contact Lens RulePDF
81 FR 88368 - Medicare and State Health Care Programs: Fraud and Abuse; Revisions to the Safe Harbors Under the Anti-Kickback Statute and Civil Monetary Penalty Rules Regarding Beneficiary InducementsPDF
81 FR 88334 - Medicare and State Health Care Programs: Fraud and Abuse; Revisions to the Office of Inspector General's Civil Monetary Penalty RulesPDF
81 FR 88412 - Chartering and Field of Membership ManualPDF

Issue

81 235 Wednesday, December 7, 2016 Contents Agriculture Agriculture Department See

Food Safety and Inspection Service

See

Forest Service

See

Rural Utilities Service

AIRFORCE Air Force Department NOTICES Meetings: Scientific Advisory Board, 88216-88217 2016-29102 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 88242-88243 2016-29310 Children Children and Families Administration NOTICES Single-Source Grants: Office of Refugee Resettlement's Unaccompanied Children's Program, 88243-88244 2016-29326 Coast Guard Coast Guard RULES Safety Zones: Delaware River, Marcus Hook, PA, 88112-88115 2016-29261 Kailua Bay, Oahu, HI, 88115-88117 2016-29317 Upper Mississippi River, St. Louis, MO, 88110-88112 2016-29315 Commerce Commerce Department See

First Responder Network Authority

See

Foreign-Trade Zones Board

See

National Oceanic and Atmospheric Administration

See

National Telecommunications and Information Administration

Defense Department Defense Department See

Air Force Department

PROPOSED RULES Indemnification or Defense, or Providing Notice to the Department of Defense, Relating to a Third-Party Environmental Claim, 88167-88173 2016-29367 NOTICES Privacy Act; Systems of Records, 88217 2016-29304
Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Middle Grades Longitudinal Study of 2017-18, Operational Field Test, and Recruitment for Main Study Base-year Study, 88218 2016-29327 State Longitudinal Data System Survey 2017-2019, 88234 2016-29263 Applications for New Awards: Personnel Development to Improve Services and Results for Children with Disabilities—Preparation of Special Education, Early Intervention, and Related Services Leadership Personnel, 88218-88226 2016-29371 Training and Information for Parents of Children with Disabilities—Community Parent Resource Centers, 88226-88234 2016-29370 Privacy Act; Computer Matching Program, 88235 2016-29364 Energy Department Energy Department RULES Energy Conservation Programs: Test Procedure for Commercial Packaged Boilers; Withdrawal, 88098 2016-29078 PROPOSED RULES Grid Security Emergency Orders: Procedures for Issuance, 88136-88143 2016-28974 NOTICES Proposed Subsequent Arrangements, 88235-88236 2016-29334 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Texas; Reasonable Further Progress Plan and Motor Vehicle Emissions Budgets for the Dallas/Fort Worth 2008 Ozone Nonattainment Area, 88124-88125 2016-29274 Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source Category—Implementation Date Extension, 88126-88127 2016-29338 NOTICES Meetings: Hazardous Waste Electronic Manifest System Advisory Board, 88236-88237 2016-29340 Federal Aviation Federal Aviation Administration RULES Special Conditions: Embraer S.A., Model ERJ 190-300 Series Airplanes; Landing Pitchover Condition, 88098-88099 2016-29358 PROPOSED RULES Airworthiness Directives: Airbus Helicopters Deutschland GmbH Helicopters, 88143-88145 2016-28670 General Electric Company Turbofan Engines, 88145-88147 2016-28667 NOTICES Criteria and Application Procedures for Participation in the Military Airport Program, 88314-88317 2016-29318 Requests for Information: Manufacturers of Airports In-Pavement Stationary Runway Weather Information Systems, 88313-88314 2016-29319 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 88237-88238 2016-29365 Federal Mine Federal Mine Safety and Health Review Commission NOTICES Meetings; Sunshine Act, 88238 2016-29450 Federal Railroad Federal Railroad Administration RULES Railroad Police Officers, 88127-88133 2016-29256 Update to Email Address for the Electronic Submission via the Internet of Certain Accident/Incident Reports, 88133-88135 2016-29309 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 88238-88241 2016-29329 2016-29330 Federal Trade Federal Trade Commission PROPOSED RULES Contact Lens Rule, 88526-88559 2016-28471 FIRSTNET First Responder Network Authority NOTICES Meetings: Combined Committee and Board, 88216 2016-29302 Fish Fish and Wildlife Service PROPOSED RULES Paleontological Resources Preservation, 88173-88196 2016-29244 Food and Drug Food and Drug Administration RULES Guidance: Third-Party Certification Body Accreditation for Food Safety Audits: Model Accreditation Standards, 88099-88101 2016-29278 NOTICES Determinations of Regulatory Review Periods for Purposes of Patent Extensions: GARDASIL 9, 88245-88246 2016-29303 Posting Adverse Event Report Data Associated with Conventional Foods, Dietary Supplements, and Cosmetics on the Internet, 88244 2016-29277 Food Safety Food Safety and Inspection Service NOTICES Requests for Nominations: National Advisory Committee on Microbiological Criteria for Foods, 88197-88198 2016-29271 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 88323-88324 2016-29311 Foreign Trade Foreign-Trade Zones Board NOTICES Production Activities: Brake Parts Inc., Foreign-Trade Zone 24, Pittston, PA, 88212-88213 2016-29351 Proposed Production Activities: Brake Parts Inc., Foreign-Trade Zone 226, Merced County, CA, 88211-88212 2016-29349 Volkswagen Group of America—Chattanooga Operations, LLC, Foreign-Trade Zone 134, Chattanooga, TN, 88210-88211 2016-29348 Reorganizations under Alternative Site Framework: Foreign-Trade Zone 17, Kansas City, KS, 88211 2016-29356 Foreign-Trade Zone 20, Norfolk, VA, 88213-88214 2016-29350 Foreign-Trade Zone 244, Riverside, CA, 88214 2016-29345 Foreign-Trade Zone 93, Raleigh-Durham, NC, 88212 2016-29346 Subzone Applications: Brake Parts Inc., Foreign-Trade Zone 24, Pittston, PA, 88213 2016-29352 TopShip, LLC, Foreign-Trade Zone 92, Gulfport, MS, 88213 2016-29353 Subzone Approvals: LOOP LLC, Foreign-Trade Zone 124D, Lafourche and St. James Parishes, LA, 88211 2016-29344 Valero Refining Company, Foreign-Trade Zone 122J, Corpus Christi, TX, 88212 2016-29343 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: El Jebel Administrative Sites, Upper and Lower Parcels, Conveyance Project; White River National Forest; Eagle County, CO, 88198-88199 2016-29305 Gulf Coast Ecosystem Restoration Council Gulf Coast Ecosystem Restoration Council NOTICES Applications: Funded Priorities List; Deadline Extension, 88241-88242 2016-29369 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Children and Families Administration

See

Food and Drug Administration

See

Indian Health Service

See

Inspector General Office, Health and Human Services Department

See

National Institutes of Health

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 88246-88248 2016-29361 2016-29362 Meetings: Technical Advisory Panel on Medicare Trustee Reports, 88248-88249 2016-29331 Statements of Organization, Functions, and Delegations of Authority, 88249-88251 2016-29332
Homeland Homeland Security Department See

Coast Guard

NOTICES Critical Infrastructure Partnership Advisory Council Quarterly Membership Update, 88261-88262 2016-29339
Housing Housing and Urban Development Department NOTICES Regulatory Waiver Approvals, Third Quarter of Calendar Year 2016, 88262-88269 2016-29354 Indian Health Indian Health Service NOTICES Funding Availability: Methamphetamine and Suicide Prevention Initiative—Generation Indigenous Initiative Support, 88251-88261 2016-29262 Inspector General Health Inspector General Office, Health and Human Services Department RULES Medicare And State Health Care Programs: Fraud And Abuse; Revisions to the Office Of Inspector General's Civil Monetary Penalty Rules, 88334-88365 2016-28293 Medicare and State Health Care Programs: Fraud and Abuse; Revisions to the Safe Harbors Under the Anti-Kickback Statute and Civil Monetary Penalty Rules Regarding Beneficiary Inducements, 88368-88409 2016-28297 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

PROPOSED RULES Paleontological Resources Preservation, 88173-88196 2016-29244
Internal Revenue Internal Revenue Service RULES Covered Asset Acquisitions, 88103-88110 2016-28755 PROPOSED RULES Covered Asset Acquisitions, 88562-88589 2016-28759 Justice Department Justice Department NOTICES Consent Decrees: Consent Decrees under the Clean Air Act, 88270 2016-29276 Proposed Consent Decrees Under CERCLA, 88270 2016-29355 Labor Department Labor Department See

Labor Statistics Bureau

See

Occupational Safety and Health Administration

RULES Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act, 88110 C1--2016--27737
Labor Statistics Labor Statistics Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 88270-88272 2016-29280 Land Land Management Bureau PROPOSED RULES Paleontological Resources Preservation, 88173-88196 2016-29244 NOTICES Public Land Orders: Montana, 88269 2016-29316 Maritime Maritime Administration NOTICES Requests for Administrative Waivers of the Coastwise Trade Laws: Vessel BLOOMS, 88317 2016-29308 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 88272-88273 2016-29264 2016-29265 National Credit National Credit Union Administration RULES Chartering and Field of Membership Manual, 88412-88523 2016-26956 National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 88317-88318, 88320-88322 2016-29320 2016-29325 Petitions for Import Eligibility: Model Year 2013 and 2014 Ferrari F12 Berlinetta Passenger Cars, 88318-88320 2016-29268 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 88261 2016-29266 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Reef Fish Fishery of the Gulf of Mexico; Red Snapper Management Measures, 88135 C1--2016--28905 NOTICES Meetings: Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops; Schedules, 88214-88215 2016-29323 National Science National Science Foundation NOTICES Antarctic Conservation Act Permit Applications, 88273-88274 2016-29321 2016-29322 National Telecommunications National Telecommunications and Information Administration NOTICES Meetings: Combined Committee and Board, 88216 2016-29302 Nuclear Regulatory Nuclear Regulatory Commission RULES List of Approved Spent Fuel Storage Casks: NAC International MAGNASTOR Cask System; Certificate of Compliance No. 1031, Amendment No. 6, 88097 2016-29275 NOTICES Guidance: Changes to Aging Management Guidance for Various Steam Generator Components, 88276-88277 2016-29363 License Renewals: Armed Forces Radiobiology Research Institute, 88275-88276 2016-29359 Grand Gulf Nuclear Station, Unit 1, 88274-88275 2016-29357 Occupational Safety Health Adm Occupational Safety and Health Administration PROPOSED RULES Prevention of Workplace Violence in Healthcare and Social Assistance, 88147-88167 2016-29197 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Meetings: Gas Pipeline Safety Advisory Committee, 88322-88323 2016-29360 Postal Regulatory Postal Regulatory Commission RULES Changes to Attributable Costing, 88120-88124 2016-29270 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: International Day of Persons With Disabilities (Proc. 9550), 88603-88606 2016-29485 ADMINISTRATIVE ORDERS Grand Chip Investment GmbH; Proposed Acquisition of Controlling Interest in Aixtron SE (Order of December 2, 2016), 88607-88608 2016-29494 Rural Utilities Rural Utilities Service NOTICES Grant and Loan Application Deadlines, 88205-88210 2016-29335 Grant Application Deadlines and Funding Levels;, 88199-88205 2016-29336 Securities Securities and Exchange Commission NOTICES Applications: CWM Advisors, LLC, et al., 88300-88302 2016-29301 Merrill Lynch, Pierce, Fenner and Smith Inc., 88294-88297 2016-29297 Robert W. Baird and Co. Inc., 88308-88311 2016-29298 UBS Financial Services Inc., 88286-88289 2016-29299 Wells Fargo Advisors, LLC and Wells Fargo Advisors Financial Network, LLC, 88297-88300 2016-29300 Self-Regulatory Organizations; Proposed Rule Changes: Bats BZX Exchange, Inc., 88277-88279, 88284-88286 2016-29294 2016-29284 Bats EDGA Exchange, Inc., 88289-88290 2016-29283 Bats EDGX Exchange, Inc., 88281-88282 2016-29282 C2 Options Exchange, Inc., 88282-88284 2016-29286 Chicago Board Options Exchange, Inc., 88293-88294 2016-29287 ICE Clear Credit LLC, 88291-88292 2016-29285 NASDAQ BX, Inc., 88279-88281, 88290-88291 2016-29291 2016-29293 New York Stock Exchange LLC, 88306-88308 2016-29289 NYSE Arca, Inc., 88302-88304 2016-29290 NYSE MKT LLC, 88304-88306 2016-29288 The NASDAQ Stock Market LLC, 88311-88312 2016-29292 State Department State Department RULES Visas: Classification of Immediate Family Members as A, C-3, G, and NATO Nonimmigrants, 88101-88103 2016-28518 Surface Transportation Surface Transportation Board NOTICES Lease and Operation Exemptions: CCET, LLC, Norfolk Southern Railway Co. Rail Line in Adams County, OH, 88313 2016-29347 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Railroad Administration

See

Maritime Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Foreign Assets Control Office

See

Internal Revenue Service

RULES Terrorism Risk Insurance Program: Adjustment to Civil Penalty Amount under the Terrorism Risk Insurance Act of 2002, 88600-88601 2016-29314 Certification, 88592-88598 2016-29313
Veteran Affairs Veterans Affairs Department RULES Extension of Pharmacy Copayments for Medications, 88117-88120 2016-29337 NOTICES Allowance for Private Purchase of an Outer Burial Receptacle in Lieu of a Government-Furnished Graveliner for a Grave in a VA National Cemetery, 88330-88331 2016-29273 Funding Availabilities: Supportive Services for Veteran Families Program, 88324-88330 2016-29269 Separate Parts In This Issue Part II Health and Human Services Department, Inspector General Office, Health and Human Services Department, 88334-88365 2016-28293 Part III Health and Human Services Department, Inspector General Office, Health and Human Services Department, 88368-88409 2016-28297 Part IV National Credit Union Administration, 88412-88523 2016-26956 Part V Federal Trade Commission, 88526-88559 2016-28471 Part VI Treasury Department, Internal Revenue Service, 88562-88589 2016-28759 Part VII Treasury Department, 88592-88598 2016-29313 Part VIII Treasury Department, 88600-88601 2016-29314 Part IX Presidential Documents, 88603-88608 2016-29485 2016-29494 Reader Aids

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

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81 235 Wednesday, December 7, 2016 Rules and Regulations NUCLEAR REGULATORY COMMISSION 10 CFR Part 72 [NRC-2016-0137] RIN 3150-AJ77 List of Approved Spent Fuel Storage Casks: NAC International MAGNASTOR® Cask System; Certificate of Compliance No. 1031, Amendment No. 6 AGENCY:

Nuclear Regulatory Commission.

ACTION:

Direct final rule; confirmation of effective date.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) is confirming the effective date of December 21, 2016, for the direct final rule that was published in the Federal Register on October 7, 2016. The direct final rule amended the NRC's spent fuel storage regulations by revising the “List of approved spent fuel storage casks” to include Amendment No. 6 to Certificate of Compliance (CoC) No. 1031 for the NAC International, MAGNASTOR® Cask System.

DATES:

Effective Date: The effective date of December 21, 2016, for the direct final rule published October 7, 2016 (81 FR 69659), is confirmed.

ADDRESSES:

Please refer to Docket ID NRC-2016-0137 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-2016-0137. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: [email protected] For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

• NRC's Agencywide Documents Access and Management System (ADAMS):

You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected] The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in the SUPPLEMENTARY INFORMATION section.

• 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.

FOR FURTHER INFORMATION CONTACT:

Keith McDaniel, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-5252; email: [email protected]

SUPPLEMENTARY INFORMATION:

On October 7, 2016 (81 FR 69659), the NRC published a direct final rule amending § 72.214 of title 10 of the Code of Federal Regulations by revising the “List of approved spent fuel storage casks” to include Amendment No. 6 to CoC No. 1031 for the NAC International, MAGNASTOR® Cask System. Amendment No. 6 revises NAC MAGNASTOR technical specifications (TSs) to align with the NAC Multi-Purpose Canister (MPC) and NAC Universal MPC System TSs. The CoC No. 1031 TSs require that a program be established and maintained for loading, unloading, and preparing fuel for storage without any indication of duration for the program. Amendment No. 6 limits maintenance of this program until all spent fuel is removed from the spent fuel pool and transport operations are completed. Related training and radiation protection program requirements are modified accordingly. Additionally, Amendment No. 6 incorporates the change to Limiting Condition for Operation 3.1.1 previously approved by the NRC in CoC No. 1031, Amendment No. 4.

In the direct final rule, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on December 21, 2016. As described more fully in the direct final rule, a significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change.

The NRC received one comment on the direct final rule (ADAMS Accession No. ML16300A435). The comment stated “While the casks themselves are obviously important, nobody wants depleted uranium from leaking, the real problem is the long term effects of not finding proper storage for our spent nuclear fuel. Nuclear power is the power of the future, and yet we have no definitive solution as to where to store this stuff in bulk.” The NRC determined that this general comment about spent fuel storage is not within the scope of the direct final rule, which is limited to the specific changes contained in Amendment No. 6 to CoC No. 1031. The NRC also determined that this was not a significant adverse comment and did not make any changes to the direct final rule as a result of the public comment. Therefore, because no significant adverse comments were received, the direct final rule will become effective as scheduled. The final CoC, TSs, and Safety Evaluation Report can be viewed in ADAMS under Accession No. ML16319A064.

Dated at Rockville, Maryland, this 1rst day of December, 2016.

For the Nuclear Regulatory Commission.

Cindy Bladey, Chief, Rules, Announcements, and Directives Branch, Division of Administrative Services, Office of Administration.
[FR Doc. 2016-29275 Filed 12-6-16; 8:45 am] BILLING CODE 7590-01-P
DEPARTMENT OF ENERGY 10 CFR Parts 429 and 431 [Docket No. EERE-2014-BT-TP-0006] RIN 1904-AD16 Energy Conservation Program: Test Procedure for Commercial Packaged Boilers; Withdrawal AGENCY:

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

ACTION:

Final rule; withdrawal.

SUMMARY:

The U.S. Department of Energy (DOE) is withdrawing its final rule to amend its test procedure for commercial packaged boilers which published in the Federal Register on Thursday, November 10, 2016. The final rule published on November 10, 2016 contained errors. Therefore, DOE is withdrawing the final rule in its entirety and will republish the final rule amending its test procedure for commercial packaged boilers.

DATES:

Effective December 7, 2016, the final rule published November 10, 2016 (81 FR 79224), effective December 12, 2016, is withdrawn.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

DOE is withdrawing its final rule to amend its test procedure for commercial packaged boilers which published in the Federal Register on Thursday, November 10, 2016 (81 FR 79224). Among other amendments, the final rule incorporates by reference certain sections of the American National Standards Institute (ANSI)/Air-Conditioning, Heating, and Refrigeration Institute (AHRI) Standard 1500, “2015 Standard for Performance Rating of Commercial Space Heating Boilers,” provides an optional field test for commercial packaged boilers with rated input greater than 5,000,000 Btu/h, and modifies the inlet water temperatures during tests of hot water commercial packaged boilers.

Because the November 10, 2016, rule contained errors, DOE is withdrawing the final rule in its entirety and will republish the final rule amending its test procedure for commercial packaged boilers.

Issued in Washington, DC, on November 29, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
[FR Doc. 2016-29078 Filed 12-6-16; 8:45 am] BILLING CODE 6450-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2016-9461; Special Conditions No. 25-642-SC] Special Conditions: Embraer S.A., Model ERJ 190-300 Series Airplanes; Landing Pitchover Condition AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Embraer S.A. Model ERJ 190-300 series airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. This design feature is an automatic braking system with a pilot-selectable function that allows earlier braking at landing without pilot pedal input. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on Embraer S.A. on December 7, 2016. We must receive your comments by January 23, 2017.

ADDRESSES:

Send comments identified by docket number FAA-2016-9461 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 or 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://www.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 athttp://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 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:

Greg Schneider, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98057-3356; telephone 425-227-2116; facsimile 425-227-1320.

SUPPLEMENTARY INFORMATION:

The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would delay issuance of the design approval and thus delivery of the affected airplane.

In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

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 special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Background

On September 13, 2013, Embraer S.A. applied for an amendment to Type Certificate (TC) No. A57NM to include the new Model ERJ 190-300 series airplanes. The ERJ 190-300, which is a derivative of the ERJ 190-100 STD currently approved under TC No. A57NM, is a 97-114 passenger transport category airplane with two Pratt & Whitney Model PW1900G engines, a new wing design with a high aspect ratio and raked wingtip, digital fly-by-wire electronic flight control system, and an automatic braking system.

Type Certification Basis

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Embraer S.A. must show that the ERJ 190-300 meets the applicable provisions of the regulations listed in Type Certificate No. A57NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. Embraer S.A. must show that the ERJ 190-300 meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-137.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the ERJ 190-300 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the Model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the ERJ 190-300 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

Novel or Unusual Design Features

The ERJ 190-300 will incorporate the following novel or unusual design features:

An automatic braking system with a pilot-selectable function that allows earlier braking at landing without pilot pedal input. When the autobrake system is armed before landing, it automatically commands a pre-defined braking action after the main wheels touch down. This might cause a high nose gear sink rate, and potentially higher gear and airframe loads than would occur with a traditional braking system.

Discussion

These special conditions define a landing pitchover condition that accounts for the effects of the automatic braking system. The special conditions define the airplane configuration, speeds, and other parameters necessary to develop airframe and nose gear loads for this condition. The special conditions require that the airplane be designed to support the resulting limit and ultimate loads as defined in § 25.305.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

Applicability

As discussed above, these special conditions are applicable to the ERJ 190-300 series airplanes. Should Embraer S.A. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Embraer S.A. Model ERJ 190-300 series airplanes.

A landing pitchover condition must be addressed that takes into account the effect of the autobrake system. The airplane is assumed to be at the design maximum landing weight, or at the maximum weight allowed with the autobrake system on. The airplane is assumed to land in a tail-down attitude and at the speeds defined in § 25.481. Following main gear contact, the airplane is assumed to rotate about the main gear wheels at the highest pitch rate allowed by the autobrake system.

This is considered a limit load condition from which ultimate loads must also be determined. Loads must be determined for critical fuel and payload distributions and centers of gravity. The effect of the autobrake system on fatigue loading spectra must also be investigated. Nose gear loads, as well as airframe loads, must be determined. The airplane must meet § 25.305 for these loads.

Issued in Renton, Washington, on November 15, 2016. Paul Bernado, Acting Manager, Transport Airplane Directorate Aircraft Certification Service.
[FR Doc. 2016-29358 Filed 12-6-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 1 [Docket No. FDA-2011-N-0146] Third-Party Certification Body Accreditation for Food Safety Audits: Model Accreditation Standards; Guidance for Industry and Food and Drug Administration Staff; Availability AGENCY:

Food and Drug Administration, HHS.

ACTION:

Notification of availability.

SUMMARY:

The Food and Drug Administration (FDA or we) is announcing the availability of a guidance for industry and FDA staff entitled “Third-Party Certification Body Accreditation for Food Safety Audits: Model Accreditation Standards.” The guidance contains FDA recommendations on third-party certification body qualifications for accreditation to conduct food safety audits and to issue food and/or facility certifications under an FDA program required by the FDA Food Safety Modernization Act (FSMA). The guidance is intended to describe the standards for accreditation of third-party certification bodies as required under the final rule entitled “Accreditation of Third-Party Certification Bodies to Conduct Food Safety Audits and to Issue Certifications.” In addition, this guidance discusses specific clauses of ISO/IEC 17021: 2015 and industry practice that are currently being used by third-party certification bodies and that FDA recommends accreditation bodies consider as a model when making accreditation decisions.

DATES:

Submit either electronic or written comments on FDA guidances at any time.

ADDRESSES:

You may submit comments as follows:

Electronic Submissions

Submit electronic comments in the following way:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on http://www.regulations.gov.

• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

Written/Paper Submissions

Submit written/paper submissions as follows:

Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

Instructions: All submissions received must include the Docket No. FDA-2011-N-0146 for “Third-Party Certification Body Accreditation for Food Safety Audits: Model Accreditation Standards; Guidance for Industry and Food and Drug Administration Staff.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on http://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

Submit written requests for single copies of the guidance to the Center for Food Safety and Applied Nutrition (HFS-300), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740. Send two self-addressed adhesive labels to assist that office in processing your request. See the SUPPLEMENTARY INFORMATION section for electronic access to the guidance.

FOR FURTHER INFORMATION CONTACT:

Charlotte A. Christin, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993, 301-796-7526.

SUPPLEMENTARY INFORMATION:

I. Background

We are announcing the availability of a guidance for industry and FDA staff entitled “Third-Party Certification Body Accreditation for Food Safety Audits: Model Accreditation Standards.” We are issuing this guidance consistent with our good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.

In the Federal Register of July 24, 2015 (80 FR 44137), we made available a draft guidance entitled “Draft Guidance for Industry and Food and Drug Administration Staff: Third-Party Auditor/Certification Body Accreditation for Food Safety Audits: Model Accreditation Standards” and gave interested parties an opportunity to submit comments by October 7, 2015, for us to consider before beginning work on the final version of the guidance. Section 808 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 384d) was added by FSMA and directs FDA to establish a program for the recognition of accreditation bodies that accredit third-party certification bodies to conduct food safety audits and to issue food and/or facility certifications that FDA may use in certain circumstances to facilitate the entry of foods presented for import. Section 808(b)(2) of the FD&C Act requires FDA to develop model accreditation standards that recognized accreditation bodies shall use to qualify third-party certification bodies for accreditation, and in so doing, to look to existing standards for certification bodies (as of the date of enactment of FSMA) to avoid unnecessary duplication of efforts and costs. This guidance constitutes the model accreditation standards referred to in section 808(b)(2) of the FD&C Act. The guidance contains FDA recommendations on third-party certification body qualifications for accreditation to conduct food safety audits and to issue food and/or facility certifications under an FDA program required by FSMA.

FDA was guided in developing this guidance, in part, by the National Technology Transfer and Advancement Act of 1995, which directs Federal Agencies to use voluntary consensus standards in lieu of government-unique standards, except where inconsistent with law or otherwise impractical.

In developing the guidance, FDA considered several voluntary consensus standards for their relevance to the qualifications of third-party certification bodies that would certify foreign food facilities and/or their foods for conformance with the requirements of the FD&C Act. FDA also sought to identify the standards most commonly used by stakeholders (e.g., other governments, public and private accreditation bodies, the food industry, and the international standards community) in qualifying third-party certification bodies for conducting food safety audits. As a result, FDA was guided in developing the model accreditation standards guidance document by International Organization for Standardization (ISO)/International Electrotechnical Commission (IEC) ISO/IEC 17021: Conformity Assessment—Requirements for bodies providing audit and certification management systems (2015) (ISO/IEC 17021:2015) and ISO/IEC 17065: Conformity Assessment—Requirements for bodies certifying products, processes and services (2012) (ISO/IEC 17065:2012).

We received several comments on the draft guidance and have modified the final guidance where appropriate. We revised the guidance for clarity and conformance with the final rule. We also updated references to the ISO/IEC standards. The guidance announced in this notice finalizes the draft guidance dated July 2015.

II. Paperwork Reduction Act of 1995

This guidance refers to previously approved collection of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information regarding “Accreditation of Third Party Certification Bodies to Conduct Food Safety Audits and Issue Certifications,” have been approved under OMB control number 0910-0750.

III. Electronic Access

Persons with access to the Internet may obtain the guidance at either http://www.fda.gov/FoodGuidances or http://www.regulations.gov. Use the FDA Web site listed in the previous sentence to find the most current version of the guidance.

Dated: December 1, 2016. Leslie Kux, Associate Commissioner for Policy.
[FR Doc. 2016-29278 Filed 12-6-16; 8:45 am] BILLING CODE 4164-01-P
DEPARTMENT OF STATE 22 CFR Part 41 RIN 1400-AD96 [Public Notice: 9638] Visas: Classification of Immediate Family Members as A, C-3, G, and NATO Nonimmigrants AGENCY:

State Department.

ACTION:

Final rule.

SUMMARY:

This rule amends the definition of immediate family for purposes of A, C-3, G, and NATO visa classifications in two ways: It revises the eligibility requirements for unmarried adult sons and daughters age 21 or older for these visa classifications, and clarifies for purposes of G-4 visa classification that the international organization employing the principal alien must recognize an individual as immediate family to be eligible for derivative U.S. visa status. Furthermore, this rule permits qualified immediate family members of A-1, A-2, G-1, G-2, G-3, and G-4 nonimmigrants to be independently classified as NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6.

DATES:

This final rule is effective on December 7, 2016.

FOR FURTHER INFORMATION CONTACT:

Paul-Anthony L. Magadia, U.S. Department of State, Office of Legislation and Regulations, CA/VO/L/R, 600 19th Street NW., SA-17, Room 12-526B, Washington, DC 20522, 202-485-7641 or [email protected]

SUPPLEMENTARY INFORMATION:

Prior to this amendment, an unmarried adult son or daughter who is not part of any other household and resides regularly in the household of the principal alien must be classified in A or G visa classifications, even if otherwise eligible for another nonimmigrant classification and regardless of age or the intention of the sending government or international organization. Yet for purposes of privileges and immunities, the Department of State accepts only unmarried children under the age of 21, or unmarried sons and daughters under the age of 23 and in full-time attendance as students at post-secondary educational institutions, as dependents. Similarly, under 8 CFR 214.2(a)(2) and (g)(2) for employment authorization purposes, Department of Homeland Security (DHS) regulations generally only consider unmarried children under the age of 21, or unmarried sons and daughters under the age of 23 and in full-time attendance as students at post-secondary educational institutions, to be dependents. (Under certain circumstances, DHS, under its regulations, may also recognize as dependents sons and daughters up to the age of 25 or of any age if physically or mentally challenged.) In practice, requiring A or G classification for sons and daughters above these age limits precludes them from obtaining a nonimmigrant classification that would enable them to accept employment in the United States.

This rule narrows the definition of immediate family in the A, C-3 (aliens in transit under section 212(d)(8) of the Immigration and Nationality Act, 8 U.S.C. 1182(d)(8)), G, and relevant NATO nonimmigrant visa classifications so that only unmarried sons and daughters residing with the principal who are under the age of 21, or under the age of 23 and in full-time attendance as students at post-secondary educational institutions, will continue to be considered immediate family. Any other unmarried son or daughter residing with the principal will only qualify if he or she meets the same criteria the rule imposes on other family members. In particular, he or she must be recognized as an “immediate family member” by the sending government or international organization for purposes of eligibility for rights and benefits and also is individually authorized by the Department. An adult son or daughter who is no longer recognized as an immediate family member would have to apply, and be eligible for, another visa classification or seek a change of status to another nonimmigrant status. This rule also amends 22 CFR 41.21(a)(3)(iii)(C) to clarify that for purposes of G-4 visa classification, the employing international organization must recognize individuals as immediate family members, before they may be treated as such for U.S. visa purposes, similar to the requirement that a sending government must recognize an individual as immediate family.

Finally, prior to this amendment, 22 CFR 41.22(b) and 41.24(b) required that an alien entitled to classification as an A-1, A-2, or G-1 through G-4 nonimmigrant must be classified as such, even those who would otherwise be eligible for another nonimmigrant classification. This rule allows immediate family members of A-1s, A-2s, and G-1s through G-4s to be instead independently classified as a principal in NATO-1 through NATO-6 visa classifications, but not other nonimmigrant classifications.

Regulatory Findings Administrative Procedure Act

The Department of State is of the opinion that regulating visa categories involves a foreign affairs function of the United States Government and that rules implementing this function are exempt from sections 553 (rulemaking) and 554 (adjudications) of the Administrative Procedure Act. Since the Department is of the opinion that this rule is exempt from 5 U.S.C. 553, it is the view of the Department that the provisions of Section 553(d) do not apply. Therefore, this rule is effective upon publication.

Regulatory Flexibility Act/Executive Order 13272: Small Business

Because this final rule is exempt from notice and comment rulemaking under 5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements set forth by the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, consistent with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule does not require the Department to prepare a statement because it will not result in any such expenditure, nor will it significantly or uniquely affect small governments. This rule involves visas, which involves individuals, and does not affect, state, local, or tribal governments, or businesses.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined in 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996. 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 adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and import markets. This rule involves visas, which involves individuals, and does not affect, state, local, or tribal governments, or businesses.

Executive Orders 12866 and 13563

Executive Orders 13563 and 12866 direct agencies to assess 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, distributed impacts, and equity). These Executive Orders stress the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has examined this rule in light of Executive Order 13563, and has determined that the rulemaking is consistent with the guidance therein.

Executive Orders 12372 and 13132: Federalism

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders 12372 and 13132.

Executive Order 12988: Civil Justice Reform

The Department has reviewed the rule in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Section 5 of Executive Order 13175 do not apply to this rulemaking.

Paperwork Reduction Act

This rule does not impose or revise any reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects in 22 CFR Part 41

Aliens, Immigration, Nonimmigrant visas.

For the reasons stated in the preamble, 22 CFR part 41 is amended as follows:

PART 41—[AMENDED] 1. The authority citation for part 41 continues to read as follows: Authority:

22 U.S.C. 2651a; 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 through 2681-801; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295).

2. Section 41.21 is amended by revising paragraph (a)(3) to read as follows:
§ 41.21 Foreign Officials—General.

(a) * * *

(3) Immediate family, as used in INA 101(a)(15)(A), 101(a)(15)(G), and 212(d)(8), and in classification under the NATO visa symbols, means:

(i) The spouse who resides regularly in the household of the principal alien and is not a member of some other household;

(ii) Unmarried sons and daughters, whether by blood or adoption, who reside regularly in the household of the principal alien and who are not members of some other household, and provided that such unmarried sons and daughters are:

(A) Under the age of 21, or

(B) Under the age of 23 and in full-time attendance as students at post-secondary educational institutions; and

(iii) Other individuals who:

(A) Reside regularly in the household of the principal alien;

(B) Are not members of some other household;

(C) Are recognized as dependents of the principal alien by the sending government or international organization, as demonstrated by eligibility for rights and benefits, such as the issuance of a diplomatic or official passport, or travel or other allowances; and

(D) Are individually authorized by the Department.

3. Section 41.22 is amended by revising paragraph (b) to read as follows:
§ 41.22 Officials of foreign governments.

(b) Classification under INA section 101(a)(15)(A). An alien entitled to classification under INA section 101(a)(15)(A) shall be classified under this section even if eligible for another nonimmigrant classification. An exception may be made where an immediate family member is classifiable as A-1 or A-2 under paragraph (a)(2) of this section is also independently classifiable as a principal under INA section 101(a)(15)(G)(i), (ii), (iii), (iv) or in NATO-1 through NATO-6 classification.

4. Section 41.24 is amended by revising paragraph (b)(4) to read as follows:
§ 41.24 International organization aliens.

(b) * * *

(4) An alien not classifiable under INA section 101(a)(15)(A) or in NATO-1 through NATO-6 classification but entitled to classification under INA section 101(a)(15)(G) shall be classified under section 101(a)(15)(G), even if also eligible for another nonimmigrant classification. An alien classified under INA section 101(a)(15)(G) as an immediate family member of a principal alien classifiable G-1, G-2, G-3 or G-4, may continue to be so classified even if he or she obtains employment subsequent to his or her initial entry into the United States that would allow classification under INA section 101(a)(15)(A). Such alien shall not be classified in a category other than A or G, even if also eligible for another nonimmigrant classification.

Michele Thoren Bond, Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2016-28518 Filed 12-6-16; 8:45 am] BILLING CODE P
DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9800] RIN 1545-BM75 Covered Asset Acquisitions AGENCY:

Internal Revenue Service (IRS), Treasury.

ACTION:

Temporary regulations.

SUMMARY:

This document contains temporary Income Tax Regulations under section 901(m) of the Internal Revenue Code (Code) with respect to transactions that generally are treated as asset acquisitions for U.S. income tax purposes and either are treated as stock acquisitions or are disregarded for foreign income tax purposes. These regulations are necessary to provide guidance on applying section 901(m). The text of the temporary regulations also serves in part as the text of the proposed regulations under section 901(m) (REG-129128-14) published in the Proposed Rules section of this issue of the Federal Register.

DATES:

Effective date: These regulations are effective on December 7, 2016.

Applicability dates: For dates of applicability, see §§ 1.901(m)-1T(b), 1.901(m)-2T(f), 1.901(m)-4T(g), 1.901(m)-5T(i), and 1.901(m)-6T(d).

FOR FURTHER INFORMATION CONTACT:

Jeffrey L. Parry, (202) 317-6936 (not a toll-free number).

SUPPLEMENTARY INFORMATION: Background I. Section 901(m)

Section 212 of the Education Jobs and Medicaid Assistance Act (EJMAA), enacted on August 10, 2010 (Public Law 111-226), added section 901(m) to the Code. Section 901(m)(1) provides that, in the case of a covered asset acquisition (CAA), the disqualified portion of any foreign income tax determined with respect to the income or gain attributable to relevant foreign assets (RFAs) will not be taken into account in determining the foreign tax credit allowed under section 901(a), and in the case of foreign income tax paid by a section 902 corporation (as defined in section 909(d)(5)), will not be taken into account for purposes of section 902 or 960. Instead, the disqualified portion of any foreign income tax (the disqualified tax amount) is permitted as a deduction. See section 901(m)(6).

Under section 901(m)(2), a CAA is (i) a qualified stock purchase (as defined in section 338(d)(3)) to which section 338(a) applies; (ii) any transaction that is treated as an acquisition of assets for U.S. income tax purposes and as the acquisition of stock of a corporation (or is disregarded) for purposes of a foreign income tax; (iii) any acquisition of an interest in a partnership that has an election in effect under section 754; and (iv) to the extent provided by the Secretary, any other similar transaction.

Section 901(m)(3)(A) provides that the term “disqualified portion” means, with respect to any CAA, for any taxable year, the ratio (expressed as a percentage) of (i) the aggregate basis differences (but not below zero) allocable to such taxable year with respect to all RFAs; divided by (ii) the income on which the foreign income tax referenced in section 901(m)(1) is determined. If the taxpayer fails to substantiate the income on which the foreign income tax is determined to the satisfaction of the Secretary, such income will be determined by dividing the amount of such foreign income tax by the highest marginal tax rate applicable to the taxpayer's income in the relevant jurisdiction.

Section 901(m)(3)(B)(i) provides the general rule that the basis difference with respect to any RFA will be allocated to taxable years using the applicable cost recovery method for U.S. income tax purposes. Section 901(m)(3)(B)(ii) provides that, except as otherwise provided by the Secretary, if there is a disposition of an RFA, the basis difference allocated to the taxable year of the disposition will be the excess of the basis difference of such asset over the aggregate basis difference of such asset that has been allocated to all prior taxable years. The statute further provides that no basis difference with respect to such asset will be allocated to any taxable year thereafter.

Section 901(m)(3)(C)(i) provides that basis difference means, with respect to any RFA, the excess of (i) the adjusted basis of such asset immediately after the CAA, over (ii) the adjusted basis of such asset immediately before the CAA. If the adjusted basis of an RFA immediately before the CAA exceeds the adjusted basis of the RFA immediately after the CAA (that is, where the adjusted basis of an asset with a built-in loss is reduced in a CAA), such excess is taken into account as a basis difference of a negative amount. See section 901(m)(3)(C)(ii).

Section 901(m)(4) provides that an RFA means, with respect to a CAA, an asset (including goodwill, going concern value, or other intangible) with respect to such acquisition if income, deduction, gain, or loss attributable to such asset is taken into account in determining the foreign income tax referenced in section 901(m)(1).

Section 901(m)(7) provides that the Secretary may issue regulations or other guidance as is necessary or appropriate to carry out the purposes of section 901(m).

II. Notices 2014-44 and 2014-45

The Department of the Treasury (Treasury Department) and the IRS issued Notice 2014-44 (2014-32 I.R.B 270 (July 21, 2014)) and Notice 2014-45 (2014-34 I.R.B. 388 (July 29, 2014)), announcing the intent to issue regulations addressing the application of section 901(m) to dispositions of RFAs following CAAs and to CAAs described in section 901(m)(2)(C) (regarding section 754 elections).

The notices were issued in response to certain taxpayers engaging in transactions shortly after a CAA with the intention of invoking the application of the statutory disposition rule under section 901(m)(3)(B)(ii) to avoid the purposes of section 901(m). To address these transactions, Notice 2014-44 described the definition of disposition that would be set forth in future regulations, as well as the rules for determining the portion of basis difference that would be taken into account upon a disposition of an RFA (the disposition amount). In addition, Notice 2014-44 described the computation of basis difference and disposition amount with respect to an RFA that is subject to a section 743(b) CAA. Notice 2014-44 also announced that future regulations would provide successor rules for the continued application of section 901(m) after a subsequent transfer of an RFA with remaining basis difference. Notice 2014-44 further provided that future regulations would provide that, if an asset is an RFA with respect to two section 743(b) CAAs involving the same partnership interest, the RFA will be treated as having no remaining basis difference with respect to the first section 743(b) CAA if the basis difference with respect to the second section 743(b) CAA is determined independently from the first section 743(b) CAA. In this regard, see generally § 1.743-1(f) and proposed § 1.743-1(f)(2).

Notice 2014-44 provided that the future regulations described therein would apply (i) concerning dispositions, to dispositions occurring on or after July 21, 2014 (the date Notice 2014-44 was issued), (ii) concerning section 743(b) CAAs, to section 743(b) CAAs occurring on or after July 21, 2014, unless a taxpayer consistently applied those provisions to all section 743(b) CAAs occurring on or after January 1, 2011, and (iii) concerning successor rules, to remaining basis difference with respect to an RFA as of July 21, 2014, and any basis difference with respect to an RFA that arises in a CAA occurring on or after July 21, 2014. Notice 2014-45 provided that the future regulations described in Notice 2014-44 also would apply to determine the tax consequences under section 901(m) of an entity classification election made under § 301.7701-3 that is filed on or after July 29, 2014 (the date Notice 2014-45 was issued), including whether a disposition results from the election for purposes of section 901(m) and the treatment of any remaining basis difference that results from such an election.

III. Proposed Regulations Under Section 901(m)

Proposed regulations under section 901(m) are being issued at the same time as these temporary regulations. In addition to cross-referencing these temporary regulations, the proposed regulations provide guidance under section 901(m) concerning issues not addressed in the temporary regulations. Consulting the preamble to the proposed regulations is recommended for a better understanding of how these temporary regulations are intended to work.

Explanation of Provisions I. Overview

Section 1.901(m)-1T provides definitions that apply for purposes of the temporary regulations. Section 1.901(m)-2T identifies the transactions that are CAAs and the assets that are RFAs with respect to a CAA. Section 1.901(m)-4T provides the general rule for determining basis difference with respect to an RFA under section 901(m)(3)(C), as well as a special rule for determining basis difference with respect to an RFA that arises as a result of an acquisition of an interest in a partnership that has made a section 754 election (section 743(b) CAA). Section 1.901(m)-5T provides rules for taking into account basis difference under the applicable cost recovery method or as a result of a disposition of an RFA. Section 1.901(m)-6T provides successor rules for applying section 901(m) to subsequent transfers of RFAs that have basis difference that has not yet been fully taken into account.

II. Effective/Applicability Dates

The applicability dates of the temporary regulations relate back to the issuance of Notices 2014-44 and 2014-45. Accordingly, the temporary regulations apply to CAAs occurring on or after July 21, 2014, and to CAAs occurring before that date resulting from an entity classification election made under § 301.7701-3 that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014 (referred to as the general applicability date). The temporary regulations also apply to CAAs occurring on or after January 1, 2011, and before the general applicability date (the transition period), but only if the basis difference within the meaning of section 901(m)(3)(C)(i) (statutory basis difference) in one or more RFAs with respect to such a CAA had not been fully taken into account under section 901(m)(3)(B) either as of July 21, 2014, or, in the case of an entity classification election made under § 301.7701-3 that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014, prior to the transactions that are deemed to occur under § 301.7701-3(g) as a result of the change in classification.

Taxpayers also may choose to consistently apply § 1.901(m)-4T(d)(1) (regarding the determination of basis difference in an RFA with respect to a section 743(b) CAA) to all section 743(b) CAAs occurring on or after January 1, 2011.

III. CAAs and RFAs

Section 1.901(m)-2T(b) identifies the transactions that are CAAs under section 901(m)(2)(A) through (C). Section 1.901(m)-2T(c) provides that, with respect to a foreign income tax and a CAA, an RFA is any asset (including goodwill, going concern value, or other intangible) subject to the CAA that is relevant in determining foreign income for purposes of the foreign income tax. An asset is subject to a CAA, if, for example (i) in the case of a qualified stock purchase of a target corporation (as defined in section 338(d)(3)) to which section 338(a) applies, “new” target is treated as purchasing the asset from “old” target; (ii) in the case of a taxable acquisition of a disregarded entity that is treated as an acquisition of stock for foreign income tax purposes, the asset is owned by the disregard entity at that time of the purchase and therefore the buyer is treated as purchasing the asset from the seller; and (iii) in the case of a section 743(b) CAA, the asset is attributable to the partnership interest transferred in the section 743(b) CAA.

Section 1.901(m)-2T(d) provides that the statutory definitions under section 901(m)(2) and 901(m)(4) apply to determine whether a transaction that occurred during the transition period is a CAA and which assets are RFAs with respect to those CAAs, respectively.

IV. Determining Basis Difference With Respect to an RFA

A basis difference is computed separately with respect to each foreign income tax for which an asset is an RFA. Consistent with section 901(m)(3)(C), § 1.901(m)-4T(b) provides the general rule that basis difference with respect to an RFA is the U.S. basis in the RFA immediately after the CAA, less the U.S. basis in the RFA immediately before the CAA. If, however, an asset is an RFA with respect to a section 743(b) CAA, § 1.901(m)-4T(d) provides that basis difference with respect to the RFA is the resulting basis adjustment under section 743(b) that is allocated to the RFA under section 755.

Section 1.901(m)-2T(e) “resets” the basis difference in an RFA with respect to a CAA that occurred during the transition period by defining basis difference in the RFA as the portion of statutory basis difference that had not been taken into account under section 901(m)(3)(B) either as of July 21, 2014, or, in the case of an entity classification election made under § 301.7701-3 that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014, prior to the transactions that are deemed to occur under § 301.7701-3(g) as a result of the change in classification. This is the basis difference in the RFA for the period to which the temporary regulations apply.

V. Basis Difference Taken Into Account

Section 1.901(m)-5T provides rules for determining the amount of basis difference with respect to an RFA that is taken into account in a given U.S. taxable year (allocated basis difference). The amount of basis difference taken into account in a U.S. taxable year is used to compute a disqualified tax amount for the U.S. taxable year. Basis difference is taken into account in two ways: Under an applicable cost recovery method or as a result of a disposition of the RFA. If an asset is an RFA with respect to more than one foreign income tax, basis difference with respect to each foreign income tax is separately taken into account under § 1.901(m)-5T.

A. Determining Cost Recovery Amounts

Consistent with section 901(m)(3)(B)(i), § 1.901(m)-5T(b)(2) provides that a cost recovery amount for an RFA is determined by applying an applicable cost recovery method to the basis difference rather than to the U.S. basis of the RFA.

B. Determining Disposition Amounts 1. Overview

Section 901(m)(3)(B)(ii) provides that, except as otherwise provided by the Secretary, if there is a disposition of an RFA, the basis difference allocated to the U.S. taxable year of the disposition shall be the excess of the basis difference of such RFA over the total amount of such basis difference that has been allocated to all prior U.S. taxable years (unallocated basis difference). This result is appropriate when all the gain or loss from the disposition is recognized for both U.S. and foreign income tax purposes. In other cases, however, a disposition may not be the appropriate time for all of the unallocated basis difference to be taken into account. For example, it may not be appropriate for all of the unallocated basis difference to be taken into account upon a disposition that is fully taxable for U.S. income tax purposes but not for foreign income tax purposes. Accordingly, under the specific authority granted to the Secretary with respect to dispositions, these temporary regulations provide rules to determine when less than all of the unallocated basis difference is taken into account as a result of a disposition.

2. Definition of Disposition

Section 1.901(m)-1T(a)(10) defines a disposition for purposes of section 901(m) as an event that results in gain or loss being recognized with respect to an RFA for purposes of U.S. income tax or foreign income tax, or both. Thus, the definition excludes certain transfers that might otherwise be considered dispositions under the ordinary meaning of that term. For example, an entity classification election by an RFA owner that results in a tax-free deemed liquidation for U.S. income tax purposes but that is disregarded for foreign income tax purposes does not result in a disposition of the RFAs under section 901(m), because no gain or loss is recognized for U.S. or foreign income tax purposes with respect to the distribution of the RFAs in the deemed liquidation. This is the case even though the deemed liquidation might otherwise be considered a “disposition” of assets under other provisions of the Code.

3. Determining a Disposition Amount

Section 1.901(m)-5T(c)(2) provides rules for determining a disposition amount. If a disposition of an RFA is fully taxable for U.S. and foreign income tax purposes, the disposition amount will be any remaining unallocated basis difference with respect to that RFA. This is because there generally will no longer be a disparity in the U.S. basis and the foreign basis of the RFA.

If a disposition is not fully taxable for both U.S. and foreign income tax purposes, generally there will continue to be a disparity in the U.S. basis and the foreign basis following the disposition, and it will be appropriate for the RFA to continue to have unallocated basis difference. To the extent that the disparity in the U.S. basis and the foreign basis is reduced as a result of the disposition, however, a portion of the unallocated basis difference (or, in certain cases, all of the unallocated basis difference) should be taken into account. Whether the disposition reduces the basis disparity will depend on whether the basis difference is positive or negative and the jurisdiction in which gain or loss is recognized.

If an RFA has a positive basis difference, a reduction in basis disparity generally will occur upon a disposition of the RFA if (i) a foreign disposition gain is recognized, which generally results in an increase in the foreign basis of the RFA, or (ii) a U.S. disposition loss is recognized, which generally results in a decrease in the U.S. basis of the RFA. Accordingly, if an RFA has a positive basis difference, the disposition amount equals the lesser of (i) any foreign disposition gain plus any U.S. disposition loss (for this purpose, expressed as a positive amount), or (ii) unallocated basis difference. See § 1.901(m)-5T(c)(2)(ii)(A).

If an RFA has a negative basis difference, a reduction in basis disparity generally will occur upon a disposition of the RFA if (i) a foreign disposition loss is recognized, which generally results in a decrease in the foreign basis of the RFA, or (ii) a U.S. disposition gain is recognized, which generally results in an increase in the U.S. basis of the RFA. Accordingly, if an RFA has a negative basis difference, the disposition amount equals the greater of (i) any U.S. disposition gain (for this purpose, expressed as a negative amount) plus any foreign disposition loss, or (ii) unallocated basis difference. See § 1.901(m)-5T(c)(2)(ii)(B).

For the avoidance of doubt, the determination of whether there is a disposition for U.S. income tax purposes, and the amount of U.S. disposition gain or U.S. disposition loss, is made without regard to whether gain or loss is deferred or disallowed or otherwise not taken into account currently (for example, see section 267, which defers or disallows certain recognized losses, and § 1.1502-13, which provides rules for taking into account items of income, gain, deduction, and loss of members of a U.S. consolidated group from intercompany transactions). This principle also applies if foreign law has an equivalent concept whereby gain or loss that is realized and recognized is deferred or disallowed.

If an asset is an RFA by reason of a section 743(b) CAA and subsequently there is a disposition of the RFA, then for purposes of determining the disposition amount, foreign disposition gain or foreign disposition loss means the amount of gain or loss recognized for purposes of a foreign income tax on the disposition of the RFA that is allocable to the partnership interest that was transferred in the section 743(b) CAA. See § 1.901(m)-5T(c)(2)(iii). In addition, U.S. disposition gain or U.S. disposition loss means the amount of gain or loss recognized for U.S. income tax purposes on the disposition of the RFA that is allocable to the partnership interest that was transferred in the section 743(b) CAA, taking into account the basis adjustment under section 743(b) that was allocated to the RFA under section 755 in the section 743(b) CAA. See id.

VI. Successor Rules for Unallocated Basis Difference A. General Rules

Section 1.901(m)-6T(b) provides that section 901(m) continues to apply to any unallocated basis difference with respect to an RFA after there is a transfer of the RFA for U.S. income tax purposes (successor transaction), regardless of whether the transfer is a disposition, a CAA, or a non-taxable transaction. A successor transaction does not occur if, as a result of the transfer of an RFA, the entire unallocated basis difference is taken into account because, for example, the transfer results in all realized gain or loss in the RFA being recognized for U.S. and foreign income tax purposes.

Notice 2014-44 stated that the Treasury Department and the IRS are continuing to study whether and to what extent section 901(m) should apply to an asset received in exchange for an RFA in a transaction in which the U.S. basis of the asset is determined by reference to the U.S. basis of the transferred RFA. The Treasury Department and the IRS have determined that an asset should not become an RFA solely because the U.S. basis of that asset is determined by reference to the U.S. basis of an RFA for which the asset is exchanged in a successor transaction. Accordingly, for example, if, in a successor transaction, an RFA owner transfers an RFA to a corporation in a transfer to which section 351 applies, the stock of the transferee corporation received is not an RFA even though the U.S. basis of the stock is determined under section 358 by reference to the U.S. basis of the RFA transferred.

B. Successor Transactions That Are CAAs

An asset may be an RFA with respect to multiple CAAs if a successor transaction is also a CAA (subsequent CAA). In this case, the subsequent CAA may give rise to additional basis difference. Section 1.901(m)-6T(b)(4)(i) provides generally that the unallocated basis difference with respect to a CAA that occurred prior to the subsequent CAA (referred to in the regulations as a “prior CAA”) will continue to be taken into account under section 901(m) after the subsequent CAA.

Section 1.901(m)-6T(b)(4)(iii) provides an exception to the general rule if an RFA is subject to two section 743(b) CAAs (referred to in the regulations as a “prior section 743(b) CAA” and a “subsequent section 743(b) CAA”). In this case, to the extent the same partnership interest is transferred in the section 743(b) CAAs, the RFA will be treated as having no unallocated basis difference with respect to the prior section 743(b) CAA if basis difference for the subsequent section 743(b) CAA is determined independently from the prior section 743(b) CAA. In this regard, see generally § 1.743-1(f) and proposed § 1.743-1(f)(2). If the subsequent section 743(b) CAA results from the acquisition of only a portion of the partnership interest acquired in the prior section 743(b) CAA, the transferor must equitably apportion the unallocated basis difference attributable to the prior section 743(b) CAA between the portion of the interest retained and the portion of the interest transferred. With respect to the portion transferred, the RFA will be treated as having no unallocated basis difference attributable to the prior section 743(b) CAA.

VII. Definition of Foreign Income Tax

For purposes of section 901(m), the temporary regulations define “foreign income tax” as any income, war profits, or excess profits tax for which a credit is allowable under section 901 or 903, other than any withholding tax determined on a gross basis as described in section 901(k)(1)(B). The Treasury Department and the IRS have determined that a withholding tax should not be subject to disallowance under section 901(m) because a withholding tax is a gross basis tax that is generally unaffected by changes in asset basis.

Effect on Other Documents

The following publications are obsolete as of December 7, 2016:

Notice 2014-44 (2014-32 I.R.B. 270) and Notice 2014-45 (2014-34 I.R.B. 388).

Special Analyses

Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. For the applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), refer to the Special Analyses section of the preamble of the cross-referenced notice of proposed rulemaking published in this issue of the Federal Register. Pursuant to section 7805(f) of the Internal Revenue Code, these regulations has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.

Drafting Information

The principal author of these regulations is Jeffrey L. Parry of the Office of Associate Chief Counsel (International). However, other personnel from the Treasury Department and the IRS participated in their development.

List of Subjects in 26 CFR Part 1

Income taxes, Reporting and recordkeeping requirements.

Amendments to the Regulations

Accordingly, 26 CFR part 1 is amended as follows:

PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by adding entries in numerical order to read as follows: Authority:

26 U.S.C. 7805 * * *

Sections 1.901(m)-1T through -8T also issued under 26 U.S.C. 901(m)(7).

Section 1.901(m)-5T also issued under 26 U.S.C. 901(m)(3)(B)(ii). * * *

Par. 2. Section 1.901(m)-1T is added to read as follows:
§ 1.901(m)-1T Definitions (temporary).

(a) Definitions. For purposes of section 901(m), this section, and §§ 1.901(m)-2T through 1.901(m)-8T, the following definitions apply:

(1)-(5) [Reserved]

(6) The term basis difference has the meaning provided in § 1.901(m)-4T.

(7) The term cost recovery amount has the meaning provided in § 1.901(m)-5T(b)(2).

(8) The term covered asset acquisition (or CAA) has the meaning provided in § 1.901(m)-2T.

(9) [Reserved]

(10) The term disposition means an event (for example, a sale, abandonment, or mark-to-market event) that results in gain or loss being recognized with respect to an RFA for purposes of U.S. income tax or a foreign income tax, or both.

(11) The term disposition amount has the meaning provided in § 1.901(m)-5T(c)(2).

(12) [Reserved]

(13) The term disregarded entity means an entity that is disregarded as an entity separate from its owner, as described in § 301.7701-2(c)(2)(i) of this chapter.

(14) The term fiscally transparent entity means an entity, including a Disregarded Entity, that is fiscally transparent under the principles of § 1.894-1(d)(3) for purposes of U.S. income tax or a foreign income tax (or both).

(15)-(17) [Reserved].

(18) The term foreign disposition gain means, with respect to a foreign income tax, the amount of gain recognized on a disposition of an RFA in determining Foreign Income, regardless of whether the gain is deferred or otherwise not taken into account currently. Notwithstanding the foregoing, if after a section 743(b) CAA there is a disposition of an asset that is an RFA with respect to that section 743(b) CAA, foreign disposition gain has the meaning provided in § 1.901(m)-5T(c)(2)(iii).

(19) The term foreign disposition loss means, with respect to a foreign income tax, the amount of loss recognized on a disposition of an RFA in determining Foreign Income, regardless of whether the loss is deferred or disallowed or otherwise not taken into account currently. Notwithstanding the foregoing, if after a section 743(b) CAA there is a disposition of an asset that is an RFA with respect to that section 743(b) CAA, foreign disposition loss has the meaning provided in § 1.901(m)-5T(c)(2)(iii).

(20) The term foreign income means, with respect to a foreign income tax, the taxable income (or loss) reflected on a foreign tax return (as properly amended or adjusted), even if the taxable income (or loss) is reported by an entity that is a fiscally transparent entity for purposes of the foreign income tax. If, however, foreign law imposes tax on the combined income (within the meaning of § 1.901-2(f)(3)(ii)) of two or more Foreign Payors, foreign income means the combined taxable income (or loss) of such Foreign Payors, regardless of whether such income (or loss) is reflected on a single foreign tax return.

(21) The term foreign income tax means an income, war profits, or excess profits tax for which a credit is allowable under section 901 or 903, except that it does not include any withholding tax determined on a gross basis as described in section 901(k)(1)(B).

(22)-(25) [Reserved]

(26) The term prior CAA has the meaning provided in § 1.901(m)-6T(b)(2).

(27) The term prior section 743(b) CAA has the meaning provided in § 1.901(m)-6T(b)(4)(iii).

(28) The term relevant foreign asset (or RFA) has the meaning provided in § 1.901(m)-2T.

(29)-(32) [Reserved]

(33) The term section 338 CAA has the meaning provided in § 1.901(m)-2T(b)(1).

(34) The term section 743(b) CAA has the meaning provided in § 1.901(m)-2T(b)(3).

(35) [Reserved]

(36) The term subsequent CAA has the meaning provided in § 1.901(m)-6T(b)(4)(i).

(37) The term subsequent section 743(b) CAA has the meaning provided in § 1.901(m)-6T(b)(4)(iii).

(38) The term successor transaction has the meaning provided in § 1.901(m)-6T(b)(2).

(39) [Reserved]

(40) The term unallocated basis difference means, with respect to an RFA and a foreign income tax, the basis difference reduced by the sum of the cost recovery amounts and the disposition amounts that have been computed under § 1.901(m)-5T.

(41) The term U.S. basis means the adjusted basis of an asset determined for U.S. income tax purposes.

(42) [Reserved].

(43) The term U.S. disposition gain means the amount of gain recognized for U.S. income tax purposes on a disposition of an RFA, regardless of whether the gain is deferred or otherwise not taken into account currently. Notwithstanding the foregoing, if after a section 743(b) CAA there is a disposition of an asset that is an RFA with respect to that section 743(b) CAA, U.S. disposition gain has the meaning provided in § 1.901(m)-5T(c)(2)(iii).

(44) The term U.S. disposition loss means the amount of loss recognized for U.S. income tax purposes on a disposition of an RFA, regardless of whether the loss is deferred or disallowed or otherwise not taken into account currently. Notwithstanding the foregoing, if after a section 743(b) CAA there is a disposition of an asset that is an RFA with respect to that section 743(b) CAA, U.S. disposition loss has the meaning provided in § 1.901(m)-5T(c)(2)(iii).

(45) The term U.S. taxable year means a taxable year as defined in section 7701(a)(23).

(b) Effective/applicability date. (1) [Reserved].

(2) Paragraphs (a)(6), (7), (8), (10), (11), (13), (14), (18), (19), (20), (21), (26), (27), (28), (33), (34), (36), (37), (38), (40), (41), (43), (44), and (45) of this section apply to CAAs occurring on or after July 21, 2014, and to CAAs occurring before that date resulting from an entity classification election made under § 301.7701-3 that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014. Paragraphs (a)(6), (7), (8), (10), (11), (13), (14), (18), (19), (20), (21), (26), (27), (28), (33), (34), (36), (37), (38), (40), (41), (43), (44), and (45) of this section also apply to CAAs occurring on or after January 1, 2011, and before July 21, 2014, other than CAAs occurring before July 21, 2014, resulting from an entity classification election made under § 301.7701-3 that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014, but only if the basis difference (within the meaning of section 901(m)(3)(C)(i)) in one or more RFAs with respect to the CAA had not been fully taken into account under section 901(m)(3)(B) either as of July 21, 2014, or, in the case of an entity classification election made under § 301.7701-3 that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014, prior to the transactions that are deemed to occur under § 301.7701-3(g) as a result of the change in classification.

(3) [Reserved].

(c) Expiration date. The applicability of this section expires on December 6, 2019.

Par. 3. Section 1.901(m)-2T is added to read as follows:
§ 1.901(m)-2T Covered asset acquisitions and relevant foreign assets (temporary).

(a) In general. Paragraph (b) of this section sets forth the transactions that are covered asset acquisitions (or CAAs). Paragraph (c) of this section provides rules for identifying assets that are relevant foreign assets (or RFAs) with respect to a CAA. Paragraph (d) of this section provides special rules for identifying CAAs and RFAs with respect to transactions to which paragraphs (b) and (c) of this section do not apply. Paragraph (e) of this section provides examples illustrating the rules of this section. Paragraph (f) of this section provides the effective/applicability date, and paragraph (g) of this section provides the expiration date.

(b) Covered asset acquisitions. Except as provided in paragraph (d) of this section, the transactions set forth in this paragraph (b) are CAAs.

(1) A qualified stock purchase (as defined in section 338(d)(3)) to which section 338(a) applies (section 338 CAA);

(2) Any transaction that is treated as an acquisition of assets for U.S. income tax purposes and as an acquisition of stock of a corporation (or the transaction is disregarded) for foreign income tax purposes;

(3) Any acquisition of an interest in a partnership that has an election in effect under section 754 (section 743(b) CAA);

(4)-(6) [Reserved].

(c) Relevant foreign asset—(1) In general. Except as provided in paragraph (d) of this section, an RFA means, with respect to a foreign income tax and a CAA, any asset (including goodwill, going concern value, or other intangible) subject to the CAA that is relevant in determining foreign income for purposes of the foreign income tax.

(2) RFA status with respect to a foreign income tax [Reserved].

(3) Subsequent RFA status with respect to another foreign income tax [Reserved].

(d) Identifying covered asset acquisitions and relevant foreign assets to which paragraphs (b) and (c) of this section do not apply. For transactions occurring on or after January 1, 2011, and before July 21, 2014, other than transactions occurring before July 21, 2014, resulting from an entity classification election made under § 301.7701-3 of this chapter that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014, the transactions set forth under section 901(m)(2) are CAAs and the assets that are relevant foreign assets with respect to the CAA under section 901(m)(4) are RFAs.

(e) Examples. [Reserved].

(f) Effective/applicability date—(1) Paragraphs (a), (b)(1) through (3), and (c)(1) of this section apply to transactions occurring on or after July 21, 2014, and to transactions occurring before that date resulting from an entity classification election made under § 301.7701-3 of this chapter that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014. Paragraph (d) of this section applies to transactions occurring on or after January 1, 2011, and before July 21, 2014, other than transactions occurring before July 21, 2014, resulting from an entity classification election made under § 301.7701-3 of this chapter that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014.

(2)-(3) [Reserved]

(g) Expiration date. The applicability of this section expires on December 6, 2019.

Par. 4. Section 1.901(m)-3T is added and reserved to read as follows:
§ 1.901(m)-3T Disqualified tax amount and aggregate basis difference carryover (temporary). [Reserved].
Par. 5. Section 1.901(m)-4T is added to read as follows:
§ 1.901(m)-4T Determination of basis difference (temporary).

(a) In general. This section provides rules for determining for each RFA the basis difference that arises as a result of a CAA. A basis difference is computed separately with respect to each foreign income tax for which an asset subject to a CAA is an RFA. Paragraph (b) of this section provides the general rule for determining basis difference that references only U.S. basis in the RFA. Paragraph (c) of this section provides for an election to determine basis difference by reference to foreign basis and sets forth the procedures for making the election. Paragraph (d) of this section provides special rules for determining basis difference in the case of a section 743(b) CAA. Paragraph (e) of this section provides a special rule for determining basis difference in an RFA with respect to a CAA to which paragraphs (b) through (d) of this section do not apply. Paragraph (f) of this section provides examples illustrating the rules of this section. Paragraph (g) of this section provides the effective/applicability date, and paragraph (h) of this section provides the expiration date.

(b) General rule. Except as otherwise provided in paragraphs (c), (d), and (e) of this section, basis difference is the U.S. basis in the RFA immediately after the CAA, less the U.S. basis in the RFA immediately before the CAA. Basis difference is an attribute that attaches to an RFA.

(c) Foreign basis election. [Reserved].

(d) Determination of basis difference in a section 743(b) CAA—(1) In general. Except as provided in paragraphs (d)(2) and (e) of this section, if there is a section 743(b) CAA, basis difference is the resulting basis adjustment under section 743(b) that is allocated to the RFA under section 755.

(2) Foreign basis election. [Reserved].

(e) Determination of basis difference in an RFA with respect to a CAA with respect to which paragraphs (b), (c), and (d) of this section do not apply. For CAAs occurring on or after January 1, 2011, and before July 21, 2014, other than CAAs occurring before July 21, 2014, resulting from an entity classification election made under § 301.7701-3 of this chapter that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014, basis difference in an RFA with respect to the CAA is the amount of any basis difference (within the meaning of section 901(m)(3)(C)(i)) that had not been taken into account under section 901(m)(3)(B) either as of July 21, 2014, or, in the case of an entity classification election made under § 301.7701-3 of this chapter that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014, prior to the transactions that are deemed to occur under § 301.7701-3(g) as a result of the change in classification.

(f) Examples. [Reserved].

(g) Effective/applicability date. (1) Paragraphs (a), (b), and (d)(1) of this section apply to CAAs occurring on or after July 21, 2014, and to CAAs occurring before that date resulting from an entity classification election made under § 301.7701-3 that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014. Paragraph (e) of this section applies to CAAs occurring on or after January 1, 2011, and before July 21, 2014, other than CAAs occurring before July 21, 2014, resulting from an entity classification election made under § 301.7701-3 of this chapter that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014. Taxpayers may, however, consistently apply paragraph (d)(1) of this section to all section 743(b) CAAs occurring on or after January 1, 2011. For this purpose, persons that are related (within the meaning of section 267(b) or 707(b)) will be treated as a single taxpayer.

(2)-(3) [Reserved]

(h) Expiration date. The applicability of this section expires on December 6, 2019.

Par. 6. Section 1.901(m)-5T is added to read as follows:
§ 1.901(m)-5T Basis difference taken into account (temporary).

(a) In general. [Reserved].

(b) Basis difference taken into account under applicable cost recovery method—(1) In general. [Reserved].

(2) Determining a cost recovery amount—(i) General rule. A cost recovery amount for an RFA is determined by applying the applicable cost recovery method to the basis difference rather than to the U.S. basis.

(ii) U.S. basis subject to multiple cost recovery methods. [Reserved].

(3) Applicable cost recovery method. [Reserved].

(c) Basis difference taken into account as a result of a disposition—(1) In general. [Reserved].

(2) Determining a disposition amount—(i) Disposition is fully taxable for purposes of both U.S. income tax and the foreign income tax. If a disposition of an RFA is fully taxable (that is, results in all gain or loss, if any, being recognized with respect to the RFA) for purposes of both U.S. income tax and the foreign income tax, the disposition amount is equal to the unallocated basis difference with respect to the RFA.

(ii) Disposition is not fully taxable for purposes of U.S. income tax or the foreign income tax (or both). If the disposition of an RFA is not fully taxable for purposes of both U.S. income tax and the foreign income tax, the disposition amount is determined under this paragraph (c)(2)(ii). See § 1.901(m)-6T for rules regarding the continued application of section 901(m) if the RFA has any unallocated basis difference after determining the disposition amount under paragraph (c)(2)(ii)(A) or (B) of this section, as applicable.

(A) Positive basis difference. If the disposition of an RFA is not fully taxable for purposes of both U.S. income tax and the foreign income tax, and the RFA has a positive basis difference, the disposition amount equals the lesser of:

(1) Any foreign disposition gain plus any U.S. disposition loss (for this purpose, expressed as a positive amount), or

(2) Unallocated basis difference with respect to the RFA.

(B) Negative basis difference. If the disposition of an RFA is not fully taxable for purposes of both U.S. income tax and the foreign income tax, and the RFA has a negative basis difference, the disposition amount equals the greater of:

(1) Any U.S. disposition gain (for this purpose, expressed as a negative amount) plus any foreign disposition loss, or

(2) Unallocated basis difference with respect to the RFA.

(iii) Disposition of an RFA after a section 743(b) CAA. If an RFA was subject to a section 743(b) CAA and subsequently there is a disposition of the RFA, then, for purposes of determining the disposition amount, foreign disposition gain or foreign disposition loss are specially defined to mean the amount of gain or loss recognized for purposes of the foreign income tax on the disposition of the RFA that is allocable to the partnership interest that was transferred in the section 743(b) CAA. In addition, U.S. disposition gain or U.S. disposition loss are specially defined to mean the amount of gain or loss recognized for U.S. income tax purposes on the disposition of the RFA that is allocable to the partnership interest that was transferred in the section 743(b) CAA, taking into account the basis adjustment under section 743(b) that was allocated to the RFA under section 755.

(d) General rules for allocating and assigning a cost recovery amount or a disposition amount when the RFA owner (U.S.) is a fiscally transparent entity. [Reserved].

(e) Special rules for certain section 743(b) CAAs. [Reserved]

(f) Mid-year transactions. [Reserved]

(g) Reverse hybrids. [Reserved]

(h) Examples. [Reserved]

(i) Effective/applicability date. (1) [Reserved]

(2) Paragraphs (b)(2)(i) and (c)(2) of this section apply to CAAs occurring on or after July 21, 2014, and to CAAs occurring before that date resulting from an entity classification election made under § 301.7701-3 of this chapter that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014. Paragraphs (b)(2)(i) and (c)(2) of this section also apply to CAAs occurring on or after January 1, 2011, and before July 21, 2014, other than CAAs occurring before July 21, 2014, resulting from an entity classification election made under § 301.7701-3 that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014, but only with respect to basis difference determined under § 1.901(m)-4T(e) with respect to the CAA.

(3) [Reserved]

(j) Expiration date. The applicability of this section expires on December 6, 2019.

Par. 7. Section 1.901(m)-6T is added to read as follows:
§ 1.901(m)-6T Successor rules (temporary).

(a) In general. This section provides successor rules applicable to section 901(m). Paragraph (b) of this section provides rules for the continued application of section 901(m) after an RFA that has unallocated basis difference has been transferred, including special rules applicable to successor transactions that are also CAAs or that involve partnerships. Paragraph (c) of this section provides rules for determining when an aggregate basis difference carryover of a section 901(m) payor either becomes an aggregate basis difference carryover of the section 901(m) payor with respect to another foreign payor or is transferred to another section 901(m) payor. Paragraph (d) of this section provides the effective/applicability date, and paragraph (e) of this section provides the expiration date.

(b) Successor rules for unallocated basis difference—(1) In general. Except as provided in paragraph (b)(4) of this section, section 901(m) continues to apply after a successor transaction to any unallocated basis difference attached to a transferred RFA until the entire basis difference has been taken into account as a cost recovery amount or a disposition amount (or both) under § 1.901(m)-5T.

(2) Definition of a successor transaction. A successor transaction occurs with respect to an RFA if, after a CAA (prior CAA), there is a transfer of the RFA for U.S. income tax purposes and the RFA has unallocated basis difference with respect to the prior CAA, determined immediately after the transfer. A successor transaction may occur regardless of whether the transfer of the RFA is a disposition, a CAA, or a non-taxable transaction for purposes of U.S. income tax. If the RFA was subject to multiple prior CAAs, a separate determination must be made with respect to each prior CAA as to whether the transfer is a successor transaction.

(3) Special considerations. [Reserved].

(4) Successor transaction is a CAA—(i) In general. An asset may be an RFA with respect to multiple CAAs if a successor transaction is also a CAA (subsequent CAA). Except as otherwise provided in this paragraph (b)(4), if there is a subsequent CAA, unallocated basis difference with respect to any prior CAAs will continue to be taken into account under section 901(m) after the subsequent CAA. Furthermore, the subsequent CAA may give rise to additional basis difference subject to section 901(m).

(ii) Foreign basis election. [Reserved].

(iii) Multiple section 743(b) CAAs. If an RFA is subject to two section 743(b) CAAs (prior section 743(b) CAA and subsequent section 743(b) CAA) and the same partnership interest is acquired in both the CAAs, the RFA will be treated as having no unallocated basis difference with respect to the prior section 743(b) CAA if the basis difference for the section 743(b) CAA is determined independently from the prior section 743(b) CAA. In this regard, see generally § 1.743-1(f). If the subsequent section 743(b) CAA results from the acquisition of only a portion of the partnership interest acquired in the prior section 743(b) CAA, then the transferor will be required to equitably apportion the unallocated basis difference attributable to the prior section 743(b) CAA between the portion retained by the transferor and the portion transferred. In this case, with respect to the portion transferred, the RFAs will be treated as having no unallocated basis difference with respect to the prior section 743(b) CAA if basis difference for the subsequent section 743(b) CAA is determined independently from the prior section 743(b) CAA.

(5) Example. The following example illustrates the rules of paragraph (b) of this section.

Example.

(i) Facts. USP, a domestic corporation, wholly owns CFC, a foreign corporation organized in Country A and treated as a corporation for both U.S. and Country A tax purposes. FT is an unrelated foreign corporation organized in Country A and treated as a corporation for both U.S. and Country A tax purposes. FT owns one asset, a parcel of land (Asset). Country A imposes a single tax that is a foreign income tax. On January 1, Year 1, CFC acquires all of the stock of FT in exchange for 300u in a qualified stock purchase (as defined in section 338(d)(3)) to which section 338(a) applies (Acquisition). Immediately before the Acquisition, Asset had a U.S. basis of 100u, and immediately after the Acquisition, Asset had a U.S. basis of 300u. Effective on February 1, Year 1, FT elects to be a disregarded entity pursuant to § 301.7701-3. As a result of the election, FT is deemed, for U.S. income tax purposes, to distribute Asset to CFC in liquidation (Deemed Liquidation) immediately before the closing of the day before the election is effective pursuant to § 301.7701-3(g)(1)(iii) and (3)(ii). The Deemed Liquidation is disregarded for Country A tax purposes. No gain or loss is recognized on the Deemed Liquidation for either U.S. or Country A tax purposes.

(ii) Result. Under § 1.901(m)-2T(b)(1), the Acquisition by CFC of the stock of FT is a section 338 CAA. Under § 1.901(m)-2T(c)(1), Asset is an RFA with respect to Country A tax and the Acquisition, because immediately after the Acquisition, Asset is relevant in determining foreign income of FT for Country A tax purposes, and FT owned Asset when the Acquisition occurred. Under § 1.901(m)-4T(b), the basis difference with respect to Asset is 200u (300u−100u). Under § 1.901(m)-2T(b)(2), the Deemed Liquidation is a CAA (subsequent CAA) because the Deemed Liquidation is treated as an acquisition of assets for U.S. income tax purposes and is disregarded for Country A tax purposes. Because the U.S. basis in Asset is 300u immediately before and after the Deemed Liquidation, the subsequent CAA does not give rise to any additional basis difference. The Deemed Liquidation is not a disposition under § 1.901(m)-1T(a)(10) because it did not result in gain or loss being recognized with respect to Asset for U.S. or Country A tax purposes. Accordingly, no basis difference with respect to Asset is taken into account under § 1.901(m)-5T as a result of the Deemed Liquidation, and the unallocated basis difference with respect to Asset immediately after the Deemed Liquidation is 200u (200u−0u). Under paragraph (b)(2) of this section, the Deemed Liquidation is a successor transaction because there is a transfer of Asset for U.S. income tax purposes from FT to CFC and Asset has unallocated basis difference with respect to the Acquisition immediately after the Deemed Liquidation. Accordingly, under paragraph (b)(1) of this section, section 901(m) will continue to apply to the unallocated basis difference with respect to Asset until the entire 200u basis difference has been taken into account under § 1.901(m)-5T.

(c) Successor rules for aggregate basis difference carryover [Reserved].

(d) Effective/applicability date. (1) Paragraphs (a), (b)(1), (b)(2), (b)(4)(i), (b)(4)(iii), and (b)(5) of this section apply to CAAs occurring on or after July 21, 2014, and to CAAs occurring before that date resulting from an entity classification election made under § 301.7701-3 of this chapter that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014. Paragraphs (a), (b)(1), (b)(2), (b)(4)(i), (b)(4)(iii), and (b)(5) of this section also apply to CAAs occurring on or after January 1, 2011, and before July 21, 2014, other than CAAs occurring before July 21, 2014, resulting from an entity classification election made under § 301.7701-3 that is filed on or after July 29, 2014, and that is effective on or before July 21, 2014, but only with respect to basis difference determined under § 1.901(m)-4T(e) with respect to the CAA.

(2)-(3) [Reserved]

(e) Expiration date. The applicability of this section expires on December 6, 2019.

Par. 8. Sections 1.901(m)-7T and 1.901(m)-8T are added and reserved to read as follows:
§ 1.901(m)-7T De minimis rules. [Reserved].
§ 1.901(m)-8T Miscellaneous. [Reserved].
John Dalrymple, Deputy Commissioner for Services and Enforcement. Approved: November 4, 2016. Mark J. Mazur, Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 2016-28755 Filed 12-6-16; 8:45 am] BILLING CODE 4830-01-P
DEPARTMENT OF LABOR Office of the Secretary 29 CFR Part 38 RIN 1291-AA36 Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act Correction

In rule document 2016-27737 beginning on page 87130 in the issue of Friday, December 2, 2016, make the following correction:

1. On page 87130, in the first column, after the DATES heading, the second line, “December 2, 2016.” should read “January 3, 2017.”

[FR Doc. C1-2016-27737 Filed 12-6-16; 8:45 am] BILLING CODE 1301-00-D
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-1020] RIN 1625-AA00 Safety Zone; Upper Mississippi River, St. Louis, MO AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone for navigable waters on the Upper Mississippi River from mile 179.2 to mile 180. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created during a fireworks display on and over the navigable waterway. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative.

DATES:

This rule is effective from 7:45 p.m. to 8:40 p.m. on December 31, 2016.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-1020 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email LCDR Sean Peterson, Chief of Prevention, Sector Upper Mississippi River, U.S. Coast Guard; telephone 314-269-2332, email [email protected]

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code UMR Upper Mississippi River II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM with respect to this rule because the Coast Guard was not notified of the fireworks display until November 9, 2016. After full review of the details for the planned display, the Coast Guard determined action is needed to protect people and property from the safety hazards associated with the fireworks display on the Upper Mississippi River (UMR) near St. Louis, MO. It is impracticable to publish an NPRM because we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule; we must establish this safety zone by December 31, 2016.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of the rule is contrary to the public interest as it would delay the effectiveness of the temporary safety zone needed to respond to potential related safety hazards until after the planned fireworks display.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that potential hazards associated with the fireworks display will be a safety concern before, during, and after the display. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled event.

IV. Discussion of the Rule

This rule establishes a safety zone from 7:45 p.m. to 8:40 p.m. on December 31, 2016. The safety zone will cover all navigable waters between miles 179.2 and 180 on the UMR in St. Louis, MO. Exact times of the closures during this 55 minute period will be communicated to mariners using broadcast and local notice to mariners. The safety zone is intended to ensure the safety of vessels and these navigable waters before, during and after the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

V. Regulatory Analyses

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

A. Regulatory Planning and Review

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

This temporary final rule establishes a safety zone impacting a less than one mile area on the UMR for a limited time period less than one hour. During the enforcement period, vessels are prohibited from entering into or remaining within the safety zone unless specifically authorized by the COTP or other designated representative. Based on the location, limited safety zone area, and short duration of the enforcement period, this rule does not pose a significant regulatory impact. Additionally, notice of the safety zone will be made via broadcast and local notice to mariners.

B. Impact on Small Entities

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

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

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

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

E. Unfunded Mandates Reform Act

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

F. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than one hour that will prohibit entry from mile 179.2 to mile 180 on the UMR. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

G. Protest Activities

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

List of Subjects in 33 CFR Part 165

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.T08-1020 to read as follows:
§ 165.T08-1020 Safety Zone; Upper Mississippi River, St. Louis, MO.

(a) Location. The following area is a safety zone: All waters of the Upper Mississippi River between miles 179.2 to 180, St. Louis, MO.

(b) Definitions. As used in this section, designated representative means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port Upper Mississippi River (COTP) in the enforcement of the safety zone.

(c) Regulations. (1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP's designated representative.

(2) To seek permission to enter, contact the COTP or the COTP's representative via VHF-FM channel 16, or through Coast Guard Sector Upper Mississippi River at 314-269-2332. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.

(d) Enforcement periods. This section will be enforced from 7:45 p.m. to 8:40 p.m. on December 31, 2016.

(e) Informational broadcasts. The COTP or a designated representative will inform the public through broadcast notices to mariners of the enforcement period for the safety zone.

Dated: December 1, 2016. M.L. Malloy, Captain, U.S. Coast Guard, Captain of the Port Upper Mississippi River.
[FR Doc. 2016-29315 Filed 12-6-16; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-1034] RIN 1625-AA00 Safety Zone, Delaware River; Marcus Hook, PA AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone on the waters of the Delaware River in the vicinity of Marcus Hook, Pennsylvania. The safety zone will temporarily restrict vessel traffic from transiting or anchoring in a portion of the Delaware River while rock blasting, dredging, and rock removal operations are being conducted to facilitate the Delaware River Main Channel Deepening project for the main navigational channel of the Delaware River. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by rock blasting, dredging, and rock removal operations. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port or his designated representatives.

DATES:

This rule is effective without actual notice from December 7, 2016 through March 15, 2017. For the purposes of enforcement, actual notice will be used from December 1, 2016, through December 7, 2016.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-1034 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT:

If you have questions about this rule, call or email Marine Science Technician First Class Tom Simkins, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division, Coast Guard; telephone (215) 271-4889, email [email protected]

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security E.O. Executive order FR Federal Register NPRM Notice of proposed rulemaking Pub. L. Public Law § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency, for good cause, finds that those procedures are impracticable, unnecessary, or contrary to the public interest. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impractical and contrary to the public interest because environmental restrictions put in place by the National Marine Fisheries Service to protect Shortnose and Atlantic sturgeon require all blasting operations to be conducted between December 1, 2016, and March 15, 2017. Due to the criticality of this phase of the Delaware River Main Channel Deepening project, immediate action is needed to accommodate operations while also ensuring vessels can safely transit through Marcus Hook Range in the Delaware River during this time. Going forward without establishing a safety zone would expose mariners and the public to unnecessary dangers associated with rock blasting, dredging, and rock removal operations. It is impracticable to publish an NPRM because the Coast Guard must establish this safety zone by December 1, 2016. The final details of the rock blasting, dredging, and rock removal operation were not received until November 23, 2016. Publishing an NPRM would be contrary to the public interest since immediate action is necessary to protect the public safety from rock blasting, dredging, and rock removal operations.

For similar reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register. As noted above, blasting operations must be conducted between December 1, 2016, and March 15, 2017. Due to the need for immediate action, the restriction is necessary to protect life and property. Delaying the effective date would be contrary to the safety zone's intended objectives of protecting persons and vessels, and enhancing public and maritime safety.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port has determined that potential hazards associated with rock blasting, dredging, and rock removal operations starting December 1, 2016, will be a safety concern for anyone within 500 yards of rock blasting, dredging, and rock removal operations. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the operational area.

IV. Discussion of the Rule

This rule establishes a safety zone between December 1, 2016, and March 15, 2017. The safety zone will cover all navigable waters in the Delaware River within 500 yards of vessels and machinery being used by personnel to conduct rock blasting, dredging, and rock removal operations in the vicinity of Marcus Hook, PA, between the southern end of Marcus Hook Anchorage to the western end of Little Tinicum Island, at the entrance to Darby Creek. The safety zone will be enforced in an area and in a manner that does not conflict with transiting commercial and recreational traffic, except for the short periods of time when explosive detonation evolutions are being conducted. The blasting detonations will not occur more than three times a day. At all other times, at least one side of the main navigational channel will be open for vessels to transit.

The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while operations are being conducted. For the duration of the project, in the vicinity of the rock blasting, rock removal, and dredging operation, one side of the main navigational channel will be closed. Vessels wishing to transit the safety zone in the main navigational channel may do so if they can make satisfactory passing arrangements with drill boat APACHE or the dredge TEXAS in accordance with the Navigational Rules in 33 CFR subchapter E via VHF-FM channel 13 at least 30 minutes prior to arrival. If vessels are unable to make satisfactory passing arrangements with the drill boat APACHE or the dredge TEXAS, they may request permission from the Captain of the Port, or his designated representative, on VHF-FM channel 16. All vessels must operate at the minimum safe speed necessary to maintain steerage and reduce wake.

No vessels may transit through the safety zone during times of explosives detonation. During rock blasting detonation vessels will be required to maintain a 500 yard distance from the drill boat APACHE. The drill boat APACHE will make broadcasts, via VHF-FM channels 13 and 16, at 15 minutes, 5 minutes, and 1 minute prior to detonation, as well as a countdown to detonation on VHF-FM channel 16. Sector Delaware Bay will ensure significant notice will be given to the maritime community of dates and times of blasting via broadcast notice to mariners on VHF-FM channel 16. After every explosive detonation a survey will be conducted to ensure the navigational channel is clear for vessels to transit. The drill boat APACHE will broadcast, via VHF-FM channel 13 and 16, when the survey has been completed and the channel is clear to transit. Vessels wishing to transit the safety zone in the main navigational channel may do so if they can make satisfactory passing arrangements with drill boat APACHE or the dredge TEXAS in accordance with the Navigational Rules in 33 CFR subchapter E via VHF-FM channel 13 at least 30 minutes prior to arrival. If vessels are unable to make satisfactory passing arrangements with the drill boat APACHE or the dredge TEXAS, they may request permission from the Captain of the Port, or his designated representative, on VHF-FM channel 16.

V. Regulatory Analyses

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

A. Regulatory Planning and Review

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

This regulatory action determination is based on the size, location, duration, and traffic management of the safety zone. The Coast Guard does not anticipate a significant economic impact because the safety zone will be enforced in an area and in a manner that does not conflict with transiting commercial and recreational traffic, except for the short periods of time when explosive detonation evolutions are being conducted. The blasting detonations will not occur more than three times a day. At all other times, at least one side of the main navigational channel will be open for vessels to transit. Moreover, the Coast Guard will work in coordination with the pilots to ensure vessel traffic is limited during the times of detonation and Broadcast Notice to Mariners are made via VHF-FM marine channel 13 and 16 when blasting operations will occur.

B. Impact on Small Entities

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

While some owners or operators of vessels intending to anchor in or transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

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

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

E. Unfunded Mandates Reform Act

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

F. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone in force from December 1, 2016, through March 15, 2017, that prohibits entry within 500 yards of vessels and machinery being used by personnel conducting rock blasting, dredging, and rock removal operations in the Delaware River near Marcus Hook, PA between the southern end of Marcus Hook Anchorage to the western end of Little Tinicum Island, at the entrance to Darby Creek. It is categorically excluded from further review under paragraph 34(g) of figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

G. Protest Activities

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

H. Civil Justice Reform

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive order 12988, Civil Justice Reform to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

List of Subjects 33 CFR Part 165

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR 165 as follows:

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

33 U.S.C 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

2. Add temporary § 165.T05-1034, to read as follows:
§ 165.T05-1034 Safety Zone, Delaware River; Marcus Hook, PA.

(a) Regulated area. The following area is a safety zone: All the waters of the Delaware River within 500 yards of vessels and machinery performing rock blasting, rock removal, and dredging operations, in the vicinity of Marcus Hook, PA, between the southern end of Marcus Hook Anchorage to the western end of Little Tinicum Island, at the entrance to Darby Creek.

(1) Vessels wishing to transit the safety zone in the main navigational channel may do so if they can make satisfactory passing arrangements with the drill boat APACHE or the dredge TEXAS in accordance with the Navigational Rules in 33 CFR subchapter E via VHF-FM channel 13 at least 30 minutes prior to arrival. If vessels are unable to make satisfactory passing arrangements with the drill boat APACHE or the dredge TEXAS, they may request permission from the Captain of the Port, or his designated representative, on VHF-FM channel 16.

(2) The operator of any vessel requesting to transit through the safety zone shall proceed as directed by the drill boat APACHE, the dredge TEXAS or the designated representative of the Captain of the Port and must operate at the minimum safe speed necessary to maintain steerage and reduce wake.

(3) No vessels may transit through the safety zone during times of explosives detonation. During rock blasting detonation vessels will be required to maintain a 500 yard distance from the drill boat APACHE. The drill boat APACHE will make broadcasts, via VHF-FM Channel 13 and 16, at 15 minutes, 5 minutes, and 1 minute prior to detonation, as well as a countdown to detonation on VHF-FM Channel 16.

(4) After every explosive detonation a survey will be conducted to ensure the navigational channel is clear for vessels to transit. The drill boat APACHE will broadcast, via VHF-FM channel 13 and 16, when the survey has been completed and the channel is clear to transit. Vessels requesting to transit through the safety zone shall proceed as directed by the designated representative of the Captain of the Port and contact the drill boat APACHE on VHF-FM channel 13 to make safe passing arrangements.

(b) Definitions. As used in this section:

Captain of the Port means Captain of the Port Delaware Bay. The Captain of the Port is also the Commander, U.S. Coast Guard Sector Delaware Bay, Philadelphia, PA.

Captain of the Port Delaware Bay means the Commander, U.S. Coast Guard Sector Delaware Bay, Philadelphia, PA.

Designated representative means any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port Delaware Bay to assist in enforcing the safety zone described in paragraph (a) of this section.

(c) Enforcement. The U.S. Coast Guard may be assisted by Federal, State and local agencies in the patrol and enforcement of the zone.

(d) Enforcement period. This rule will be enforced from December 01, 2016, through March 15, 2017, unless cancelled earlier by the Captain of the Port.

Dated: December 1, 2016. Benjamin A. Cooper, Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2016-29261 Filed 12-6-16; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-1025] RIN 1625-AA87 Security Zone; Kailua Bay, Oahu, HI AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary security zone for the protection of a Very Important Person (VIP). This VIP will be staying on beachfront property in close proximity to Kailua Bay. It is necessary to restrict waterway access to vessels and persons to prevent waterside threats to the VIP. The security zone encompasses two primary areas from the surface of the water to the ocean floor: The navigable waters of the Kawainui Canal, beginning at the North Kalaheo Avenue Road Bridge and continuing northeast into Kailua Bay; and the navigable waters of Kailua Bay beginning at Kapoho Point and extending in a southwesterly direction to the shore boundary of a property located at 123 Kailuana Loop, Kailua, HI 96734. Entry of persons or vessels into the security zone is prohibited unless authorized by the Captain of the Port (COTP) Honolulu or a designated representative.

DATES:

This rule is effective from 8 a.m. (HST) on December 14, 2016, through 8 a.m. (HST) on January 4, 2017. If the security zone is terminated prior to January 4, 2017, the Coast Guard will provide notice via a broadcast notice to mariners.

ADDRESSES:

Documents mentioned in this preamble are part of docket USCG-2016-1025. To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-1025 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Lieutenant Commander Nicolas Jarboe, Waterways Management Division, U.S. Coast Guard Sector Honolulu; telephone (808) 541-4359, email [email protected]

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security E.O. Executive Order FR Federal Register NPRM Notice of proposed rulemaking TFR Temporary final rule Pub. L. Public Law § Section U.S.C. United States Code VIP Very Important Person II. Background Information and Regulatory History

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) [5 U.S.C. 553 (b)]. This provision authorizes an agency to issue a rule without prior notice and opportunities to comment when the agency, for good cause, finds those procedures are “impractical, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for not publishing a Notice of Proposed Rulemaking (NPRM) and for making this rule effective less than 30 days after publication in the Federal Register. The Coast Guard further finds it impractical to issue an NPRM with respect to this rule because details of the VIP's travel to Hawaii were not provided to the Coast Guard until November 13, 2016, preventing the Coast Guard from completing full notice-and-comment rulemaking procedures. Publishing an NPRM and delaying the effective date would be contrary to the security zone's intended objectives, including but not limited to protection of the VIP, mitigation of potential terrorist risks, and enhancing public and maritime security. Publishing a NPRM and delaying the effective date would be contrary to the public interest since the occasion would occur before a notice-and-comment rulemaking could be completed, thereby jeopardizing the safety of the VIP. The COTP Honolulu finds this temporary security zone must be effective by December 14, 2016 to ensure the safety of the VIP during his visit to the Kailua Bay area on the eastern coast of Oahu, Hawaii.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under the authority in 33 U.S.C. 1231. From December 14, 2016 through January 4, 2017, a VIP of the United States of America plans to visit the Kailua Bay area on Oahu, Hawaii. The security zone encompasses two primary areas from the surface of the water to the ocean floor: (1) The navigable waters of the Kawainui Canal, beginning at the North Kalaheo Avenue Road Bridge and continuing northeast into Kailua Bay; and (2) the navigable waters of Kailua Bay beginning at Kapoho Point and extending in a southwesterly direction to the shore boundary of a property located at 123 Kailuana Loop, Kailua, HI 96734. The COTP of Honolulu has determined the potential risks associated with the VIP's visit to the Kailua Bay area render a security zone necessary to ensure the VIP's safety. Entry of persons or vessels into the security zone is prohibited unless expressly authorized by the COTP of Honolulu or a designated representative.

IV. Discussion of Comments, Changes, and the Rule

This temporary final rule establishes a security zone from 8 a.m. (HST) on December 14, 2016, through 8: a.m. (HST) on January 4, 2017. The security zone encompasses two primary areas from the surface of the water to the ocean floor: (1) The navigable waters of the Kawainui Canal, beginning at the North Kalaheo Avenue Road Bridge and continuing northeast into Kailua Bay; and (2) the navigable waters of Kailua Bay beginning at Kapoho Point and extending in a southwesterly direction to the shore boundary of a property located at 123 Kailuana Loop, Kailua, HI 96734.

Two (2) shore-side markers will be placed in proximity of the security zone along the security zone boundary and one (1) orange boom will be placed at the canal boundary at the North Kalaheo Avenue Road Bridge as visual aids for mariners and public to approximate the zone. An illustration of the security zone will be made available on www.regulations.gov in docket for this rulemaking, USCG-2016-1025. No vessel or person will be permitted to enter the security zone without express authorization from the COTP Honolulu or his designated representative.

V. Regulatory Analyses

We developed this rule after considering numerous statutes and Executive Orders (E.O.s) related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

A. Regulatory Planning and Review

E.O. 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Coast Guard expects the economical impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of the Department of Homeland Security (DHS) is unnecessary. This expectation is based on the limited duration of the zone, the limited geographic area affected by it, and the lack of commercial vessel traffic affected by the zone. This rule has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

B. Impact on Small Entities

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

While some owners or operators of vessels intending to transit the security zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

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

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

E. Unfunded Mandates Reform Act

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

F. Environment

We have analyzed this rule under the Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES.

G. Protest Activities

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

List of Subjects in 33 CFR Part 165

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1

2. Add § 165.T14-1030 to read as follows:
§ 165.T14-1030 Security Zone; Kailua Bay, Oahu, HI.

(a) Location. The security zone area is located within the COTP Zone (See 33 CFR 3.70-10) and encompasses two primary areas from the surface of the water to the ocean floor: The navigable waters of the Kawainui Canal, beginning at the North Kalaheo Avenue Road Bridge and continuing northeast into Kailua Bay; and the navigable waters of Kailua Bay beginning at Kapoho Point and extending in a southwesterly direction to the shore boundary of a property located at 123 Kailuana Loop, Kailua, HI 96734. The geographic coordinates of the zone include the navigable waters of the Kawainui Canal beginning at a point 21°24′56″ N., 157°44′58″ W., then extending to 21°25′27″ N., 157°44′21″ W. (Kapoho Point) including all the waters to the west of a straight line to 21°25′11″ N., 157°44′39″ W., and extending back to the original point 21°24′56″ N., 157°44′58″ W.

(b) Effective period. This rule is effective from-8 a.m. (HST) on December 14, 2016, through 8 a.m. (HST) on January 4, 2017.

(c) Regulations. The general regulations governing security zones contained in 33 CFR 165.33 apply to the security zone created by this temporary final rule.

(1) All persons and vessels are required to comply with the general regulations governing security zones found in 33 CFR part 165.

(2) Entry into or remaining in this security zone is prohibited unless authorized by the COTP Honolulu or his designated representative.

(3) Persons or vessels desiring to transit the security zone identified in paragraph (a) of this section may contact the COTP of Honolulu through his designated representatives at the Command Center via telephone: (808) 842-2600 and (808) 842-2601; fax: (808) 842-2642; or on VHF channel 16 (156.8 Mhz) to request permission to transit the security zone. If permission is granted, all persons and vessels must comply with the instructions of the COTP Honolulu or his designated representative and proceed at the minimum speed necessary to maintain a safe course while in the security zone.

(4) The U.S. Coast Guard may be assisted in the patrol and enforcement of the security zone by Federal, State, and local agencies.

(d) Notice of enforcement. The COTP Honolulu will provide notice of enforcement of the security zone described in this section by verbal radio broadcasts, written notice to mariners, and general public outreach.

(e) Definitions. As used in this section, designated representative means any Coast Guard commissioned, warrant, or petty officer who has been authorized by the COTP to assist in enforcing the security zone described in paragraph (a) of this section.

Dated: December 1, 2016. M.C. Long, Captain, U.S. Coast Guard, Captain of the Port, Honolulu.
[FR Doc. 2016-29317 Filed 12-6-16; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 17 RIN 2900-AP87 Extension of Pharmacy Copayments for Medications AGENCY:

Department of Veterans Affairs.

ACTION:

Interim final rule.

SUMMARY:

The Department of Veterans Affairs (VA) amends its medical regulations concerning the copayment required for certain medications. This rulemaking freezes copayments at the current rate for veterans in priority groups 2 through 8 through February 26, 2017.

DATES:

Effective Date: This rule is effective on December 7, 2016.

Comment date: Comments must be received on or before February 6, 2017.

ADDRESSES:

Written comments may be submitted by email through http://www.regulations.gov; by mail or hand-delivery to Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. (This is not a toll-free number.) Comments should indicate that they are submitted in response to “RIN 2900-AP87-Copayments for Medications in 2017.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m. Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Bridget Souza, Office of Community Care (10D), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 382-2537. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

Under 38 U.S.C. 1722A(a), VA must require veterans to pay at least a $2 copayment for each 30-day supply of medication furnished on an outpatient basis for the treatment of a non-service-connected disability or condition unless a veteran has a service-connected disability rated 50 percent or more, is a former prisoner of war, or has an annual income at or below the maximum annual rate of VA pension that would be payable if the veteran were eligible for pension. Under 38 U.S.C. 1722A(b), VA “may,” by regulation, increase that copayment amount and establish a maximum annual copayment amount (a “cap”). We have consistently interpreted section 1722A(b) to mean that VA has discretion to determine the appropriate copayment amount and annual cap amount for medication furnished on an outpatient basis for covered treatment, provided that any decision by VA to increase the copayment amount or annual cap amount is the subject of a rulemaking proceeding. We have implemented this statute in 38 CFR 17.110.

Under 38 CFR 17.110(b)(1), veterans are obligated to pay VA a copayment for each 30-day or less supply of medication provided by VA on an outpatient basis (other than medication administered during treatment). Under the current regulation, the copayment amount for veterans in priority groups 2 through 6 of VA's health care system is $8 through December 31, 2016. 38 CFR 17.110(b)(1)(i). The copayment amount for veterans in priority groups 7 and 8 is $9 through December 31, 2016. 38 CFR 17.110(b)(1)(ii). Thereafter, the copayment amount for all affected veterans is to be established using a formula based on the prescription drug component of the Medical Consumer Price Index (CPI-P), set forth in 38 CFR 17.110(b)(1)(iii). Using this methodology would generally result in increased medication prices for veterans.

Currently § 17.110(b)(2) also includes a “cap” on the total amount of copayments in a calendar year for a veteran enrolled in one of VA's health care enrollment system priority groups 2 through 6. Through December 31, 2016, the annual cap is set at $960. Thereafter, the cap is to increase “by $120 for each $1 increase in the copayment amount” applicable to veterans in priority categories 2 through 6.

On October 27, 2014, we published an interim final rulemaking that “froze” copayments for veterans in priority categories 2 through 6 at $8 and for veterans in priority groups 7 and 8 at $9, through December 31, 2015. 79 FR 63819. This interim final rule was made final on September 16, 2015. 79 FR 55545. In that final rulemaking, we extended the copayment freeze to be effective through December 31, 2016. We stated that this extended timeframe would permit the freeze to be in effect all of calendar year 2016 for the continued benefit of veterans, and would allow VA to continue to develop and publish proposed and final rules to implement a tiered copayment structure for certain medications, which will further align VA's medication copayment structure with other Federal agencies and the commercial sector. In these rulemakings, we stated that this freeze was appropriate because failure to take the action would result in higher copayments, and, as described in prior rulemakings, higher copayments reduced the utilization of VA pharmacy benefits and caused VA patients to instead rely on external providers for medications. 79 FR 63820. We continue to believe this to be the case. The ability to ensure that medications are taken as prescribed is essential to effective health care management. VA can monitor whether its patients are refilling prescriptions at regular intervals while also checking for medications that may interact with each other when these prescriptions are filled by VA. When both VA and non-VA providers are issuing prescriptions to a veteran, there is a greater risk of adverse interactions and harm to the patient because it is more difficult for each provider to assess whether the patient is taking any other medications.

On January 5, 2016, we published a proposed rule that would establish a tiered medication copayment structure. 81 FR 196. In that proposed rule, we indicated that VA intended to publish a final rule that would make the proposed changes effective January 1, 2017. VA proposed an effective date of January 1, 2017 based on our assumption that the necessary system changes would be in place by that date to allow us to publish a final rule implementing a tiered medication copayment structure. VA will be unable to meet that timeline. However, VA thinks that the necessary changes will be in place in February 2017, and that a final rule establishing a tiered medication copayment regime can be published with an effective date of February 27, 2017.

In this rulemaking, we are removing December 31, 2016, in each place it appears in paragraphs (b)(1)(i)-(iii) and (b)(2), and inserting February 26, 2017, to continue to keep copayment rates and caps at their current levels until the tiered copayment system is established.

If we fail to extend the medication copayment freeze past December 31, 2016, affected veterans would be subject to increased medication copayments until such time as the anticipated final rule implementing the tiered medication copayment structure is effective. In that case, beginning January 1, 2017, VA would use the CPI-P methodology in § 17.110(b)(1)(iii) to determine whether to increase copayments and calculate any mandated increase in the copayment amount for veterans in priority groups 2 through 8. At that time, the copayment amounts would be adjusted to a higher rate based on changes in the CPI-P over the past five years, and the annual copayment cap would also be raised by $120 for each $1 increase in the copayment amount. The end result would be increased medication copayments, and a higher annual cap on copayments until the effective date of the anticipated final rule implementing tiered medication copayments. VA believes this would not only have an adverse financial effect on veterans subject to medication copayments, but would also cause unnecessary confusion by making two changes to veterans' medication copayment amounts over a two-month period. Thus, the intended effect of this interim final rule is to prevent increases in copayment amounts and the copayment cap for veterans in priority groups 2 through 8 until VA has published a final rule establishing a new copayment structure. At that time, veterans' copayments will be determined according to the methodology contained in the final rule that VA will publish to establish a tiered copayment system. If VA has not established a new tiered copayment system by the end of February, copayments and the copayment cap will increase as prescribed in current § 17.110(b) in the absence of further rulemaking.

Administrative Procedure Act

The Secretary of Veterans Affairs finds that there is good cause under 5 U.S.C. 553(b)(B) and (d)(3) to dispense with the opportunity for advance notice and opportunity for public comment and good cause to publish this rule with an immediate effective date. As stated above, this rule freezes at current rates the prescription drug copayment that VA charges certain veterans. The Secretary finds that it is impracticable and contrary to the public interest to delay this rule for the purpose of soliciting advance public comment or to have a delayed effective date. If the medication copayment freeze is not extended, on January 1, 2017, affected veterans would be subject to increased medication copayments based on changes to the CPI-P since 2010, as well as an upward adjustment to the annual copayment cap. VA believes that this might cause a significant financial hardship for those affected veterans and may decrease patient adherence to medical plans and have other unpredictable negative health effects. Further, VA believes that failing to extend the current medication copayment freeze, without interruption, would likely result in confusion for the public and affected veterans because the new tiered medication copayment regime will go into effect within a relatively short period of time. Lastly, allowing the current medication copayment freeze to expire on December 31, 2016, would create programmatic issues that would be difficult for VA to administratively manage. Within a 60-day period IT algorithms that are currently in place would have to be removed, new copayment amounts and annual cap amounts would have to be calculated and implemented along with the necessary system changes, followed by application of the new IT changes necessary for establishing a new tiered medication copayment scheme.

For the above reasons, the Secretary issues this rule as an interim final rule. VA will consider and address comments that are received within 60 days of the date this interim final rule is published in the Federal Register.

Effect of Rulemaking

Title 38 of the Code of Federal Regulations, as revised by this interim final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.

Paperwork Reduction Act

This interim final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this interim final rule have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule 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 (adjusted annually for inflation) in any one year. This interim final rule will have no such effect on State, local, and tribal governments, or on the private sector.

Regulatory Flexibility Act

The Secretary hereby certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This interim final rule will temporarily freeze the copayments that certain veterans are required to pay for prescription drugs furnished by VA. This interim rule directly affects individual VA patients and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are as follows: 64.005, Grants to States for Construction of State Home Facilities; 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem Program.

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on October 3, 2016, for publication.

Dated: December 2, 2016. Michael Shores, Acting Director, Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. List of Subjects in 38 CFR Part 17

Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs—health, Grant programs—veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.

For the reasons set out in the preamble, VA amends 38 CFR part 17 as follows:

PART 17—MEDICAL 1. The authority citation for part 17 continues to read as follows: Authority:

38 U.S.C. 501, and as noted in specific sections.

Sections 17.640 and 17.647 also issued under Public Law 114-2, sec. 4.

Sections 17.641 through 17.646 also issued under 38 U.S.C. 501(a) and Public Law 114-2, sec. 4.

§ 17.110 [Amended]
2. Amend § 17.110 as follows: a. In paragraphs (b)(1)(i), (ii), and (iii), remove all references to “December 31, 2016” and add in each place “February 26, 2017”. b. In paragraph (b)(2), remove all references to “December 31, 2016” and add in each place “February 26, 2017”.
[FR Doc. 2016-29337 Filed 12-6-16; 8:45 am] BILLING CODE 8320-01-P
POSTAL REGULATORY COMMISSION 39 CFR Parts 3015 and 3060 [Docket No. RM2016-13; Order No. 3641] Changes to Attributable Costing AGENCY:

Postal Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The Commission is issuing a set of final rules amending some existing Commission rules related to attributable costing. The final rules are consistent with methodology changes approved by the Commission. Relative to the proposed rules, one rule was revised to alleviate confusion and another revision was administrative in nature.

DATES:

Effective January 6, 2017.

FOR FURTHER INFORMATION CONTACT:

David A. Trissell, General Counsel, at 202-789-6820.

SUPPLEMENTARY INFORMATION: Regulatory History

81 FR 63448 (Sept. 15, 2016).

Table of Contents I. Introduction II. Background III. Review and Analysis of Comments IV. Changes to Proposed Rules V. Ordering Paragraphs I. Introduction

On September 9, 2016, the Commission issued proposed rules consisting of necessary changes, resulting from Order No. 3506, that specifically define or describe attributable costs.1 For the reasons discussed below, the Commission adopts final rules on this topic, with minor revisions to the proposed rules as discussed in chapter IV.

1 Notice of Proposed Rulemaking on Changes Concerning Attributable Costing, September 9, 2016 (Order No. 3507). See also Docket No. RM2016-2, Order Concerning United Parcel Service, Inc.'s Proposed Changes to Postal Service Costing Methodologies (UPS Proposals One, Two, and Three), September 9, 2016 (Order No. 3506). Discussed in greater detail below, the Commission issued an errata related to Order No. 3506. Docket No. RM2016-2, Notice of Errata, October 19, 2016 (Errata). Any reference to Order No. 3506 refers to the updated version including the changes identified in the Errata.

II. Background

On September 9, 2016, the Commission issued Order No. 3506 after consideration of a United Parcel Service, Inc. (UPS) petition which sought to make changes to the methodologies employed by the Postal Service to account for the costs of the Postal Service's products in its periodic reports.2 In Proposal One, UPS recommended that the Postal Service calculate and attribute inframarginal costs to individual products in addition to the currently attributed volume-variable and product-specific fixed costs. Petition, Proposal One at 1. Proposal Two dealt with reclassifying some fixed costs as fully or partially variable, and attributing those costs to products. Petition, Proposal Two at 1. UPS also filed a third proposal, which requested a review of competitive products' share of institutional costs.3

2See generally Order No. 3506. See also Docket No. RM2016-2, Petition of United Parcel Service, Inc. for the Initiation of Proceedings to Make Changes to Postal Service Costing Methodologies, October 8, 2015 (Petition).

3 Petition, Proposal Three at 1. The Commission declined to consider Proposal Three as it planned to initiate its 5-year review pursuant to 39 U.S.C. 3633(b) following Order No. 3506's issuance. Order No. 3506 at 124, 125; see also Docket No. RM2017-1, Order No. 3624, Advance Notice of Proposed Rulemaking to Evaluate the Institutional Cost Contribution Requirement for Competitive Products, November 22, 2016.

The instant rulemaking stems from the Commission's findings in Order No. 3506 on Proposal One. In that order, the Commission found that a portion of inframarginal costs (those inframarginal costs calculated as part of a product's incremental cost) have a reliably identifiable causal relationship to products. Order No. 3506 at 61. Therefore, pursuant to Order No. 3506, attributable costs must also include those inframarginal costs calculated as part of a competitive product's incremental costs (in addition to a product's volume-variable costs and product-specific fixed costs).4

4 On October 7, 2016, UPS appealed Order No. 3506 to the United States Court of Appeals for the District of Columbia Circuit. United Parcel Service, Inc. v. Postal Regulatory Commission, No. 16-1354 (D.C. Cir. filed Oct. 7, 2016) (Case No. 16-1354).

As noted above, on October 19, 2016, the Commission issued the Errata to clarify the definition of inframarginal costs described in Order No. 3506. See Errata. Generally, when defining inframarginal costs, the Errata replaced the phrase “do not vary directly with volume,” with the phrase “are not volume-variable costs.” Id. at 1-2. The revised definition of inframarginal costs does not impact the Commission's findings in Order No. 3506. However, the definition cited in Order No. 3507, “[i]nframarginal costs are variable costs that do not vary directly with volume,” would now be cited as “[i]nframarginal costs are variable costs that are not volume-variable costs.” Id. at 1; Order No. 3507 at 4; see also Order No. 3506 at 10.

III. Review and Analysis of Comments

On October 17, 2016, the Commission received comments from Amazon Fulfillment Services, Inc. (Amazon),5 the Public Representative,6 and the Postal Service.7 On October 18, 2016, the Commission received comments from UPS8 and, on October 20, 2016, it received comments from Valpak Direct Marketing Systems, Inc. and the Valpak Franchise Association, Inc. (Valpak).9 Comments and the Commission's analysis of those comments are discussed below. In addition, Commission analysis related to revisions to the proposed rules is discussed in chapter IV of this Order.

5 Comments of Amazon Fulfillment Services, Inc., October 17, 2016 (Amazon Comments).

6 Public Representative Comments, October 17, 2016 (PR Comments).

7 Comments of the United States Postal Service in Response to Order No. 3507, October 17, 2016 (Postal Service Comments).

8 United Parcel Service, Inc.'s Comments on Notice of Proposed Rulemaking on Changes Concerning Attributable Costing, October 18, 2016 (UPS Comments). UPS also filed a motion for late acceptance of its comments. Motion of the United Parcel Service, Inc. for Late Acceptance of Filing of Comments in Response to RM2016-13, October 18, 2016 (UPS Motion). The UPS Motion is granted.

9 Valpak Direct Marketing Systems, Inc. and the Valpak Franchise Association, Inc. Comments on Changes Concerning Attributable Costing, October 20, 2016 (Valpak Comments). Valpak also filed a motion for late acceptance of its comments. Valpak Direct Marketing Systems, Inc. and the Valpak Franchise Association, Inc. Motion for Late Acceptance of Comments, October 20, 2016 (Valpak Motion). The Valpak Motion is granted.

a. Amazon

Comments. Amazon supports adoption of the proposed rules but requests clarification concerning statements made in Order No. 3507 and suggests revisions to proposed § 3015.7(b). Amazon Comments at 1. Amazon seeks clarification concerning the Commission's statement “[w]hile the Commission found that inframarginal costs are causally related to products, it determined inframarginal costs cannot be reliably identified, which is a necessary component of cost attribution.” Id. at 1-2; see Order No. 3507 at 4 (citing Order No. 3506 at 56). Amazon argues that the statement is unclear considering the Commission's finding in Order No. 3506, that only some inframarginal costs are causally related to individual products. Amazon Comments at 2; see also Order No. 3506 at 35, 45-51, 55 (emphasis added).

Amazon also seeks clarification on the description of inframarginal costs (variable costs that do not vary directly with volume) in Order No. 3507. Amazon Comments at 2; see also Order No. 3507 at 4. Amazon states inframarginal costs should not be described based on a direct or indirect relationship between volume and cost, but instead should be described based on a causal relationship between the level of costs and the marginal unit of output of a product. Amazon Comments at 2-3.

Finally, Amazon suggests revisions to proposed 3015.7(b) in order to cure what it believes is a circular reference in the rule. Id. at 3. The proposed rule defines a product's attributable cost as its “. . . incremental costs, which is the sum of volume-variable costs, product-specific costs, and those inframarginal costs calculated as part of a competitive product's incremental costs. . . .” Id. (quoting proposed § 3015.7(b)). Because the term “incremental cost” appears both as a defined term, and as an element of the definition, Amazon asserts that this reference is circular. Id. Amazon provides a revised definition and states its adoption “would avoid needless confusion, and would allow the appropriate amount of inframarginal costs to be attributed to each product.” Id. at 4.

Commission analysis. The Commission confirms that in Order No. 3506 it found only the portion of inframarginal costs calculated as part of an individual product's incremental costs is causally related and reliably identifiable to individual products, and therefore can be linked to those products. Order No. 3506 at 35, 45-51, 55-56. In addition, the Commission notes that the Errata provided clarification as to the definition of inframarginal costs. See supra at 3; see generally Errata. In addition, the Commission recognizes the potential confusion related to the references to incremental costs in proposed § 3015.7(b). Clarifying changes to proposed § 3015.7(b) are discussed in chapter IV of this Order.

b. Public Representative

Comments. The Public Representative states that the proposed rules conform to Order No. 3506, but that the Commission should discuss the meaning of “to the extent that incremental cost data are unavailable,” in proposed § 3015.7(a), in order to “forestall potential attempts to game the outcome.” PR Comments at 2-3. In addition, the Public Representative suggests a rearrangement of the phrase “to calculate attributable costs” in proposed § 3015.7(b) for clarification and readability purposes. Id. at 7.

Finally, the Public Representative cites to his comments in Docket No. RM2016-2 and, just as in that docket, maintains that a review of compliance with section 703(d) of the Postal Accountability and Enhancement Act (PAEA) is necessary in order to consider changes to attributable costs and revise related rules.10 He argues Order No. 3507 modifies rules under 39 U.S.C. 3633 and must therefore follow the requirements of section 703(d). PR Comments at 6.

10Id. at 3. “Uncodified section 703 of the PAEA, Public Law 109-435, 120 Stat. 3198 (2006) requires that when promulgating new or revised regulations under section 3633, the Commission `shall take into account' Federal Trade Commission recommendations about the net economic effects of laws that apply to the United States Postal Service, and subsequent relevant events.” Order No. 3507 at 3 n.4.

Commission analysis. The phrase “to the extent that incremental cost data are unavailable” stems from the original establishment of part 3015 in Docket No. RM2007-1 and remains unchanged in § 3015.7.11 The Commission did not propose any revisions related to this particular phrase in Order No. 3507 and offers the following explanation. Currently, incremental cost data are available for all products with the exception of international mail. Incremental costs for international mail are not available because its cost pools are not sufficiently disaggregated between market dominant and competitive products. Order No. 3506, Appendix A at 18. The method of calculating incremental costs approved in Docket No. RM2010-4 is applicable to all domestic products, whether market dominant or competitive.12 Because international mail makes up a small percentage of volume, volume-variable costs, and product-specific costs relative to all mail, it is unlikely that the inability to calculate its incremental costs would allow the Postal Service to “game the outcome” and materially reduce the level of cost attribution.

11 Docket No. RM2007-1, Order No. 43, Establishing Ratemaking Regulations for Market Dominant and Competitive Products, October 29, 2007, at 138.

12 The methodology for calculating incremental costs approved in Docket No. RM2010-4 is based on a methodology originally proposed in Docket No. R2000-1. When originally proposed, this methodology was applied to all domestic products. See Docket No. RM2010-4, Order No. 399, Order Accepting Analytical Principles Used in Periodic Reporting (Proposals Twenty-Two through Twenty-Five), January 27, 2010, at 2-5; see also Docket No. R2000-1, Direct Testimony of Nancy R. Kay on Behalf of United States Postal Service, January 12, 2000.

The Commission has previously discussed section 703(d) and its applicability to Order Nos. 3506 and 3507. In Order No. 3506, the Commission distinguished its review of attributable costing as a change in analytical principles pursuant to 39 U.S.C. 3652 rather than a proceeding under 39 U.S.C. 3633. Order No. 3506 at 117-122; see also 39 U.S.C. 3652 and 3633. In Order No. 3507, the Commission determined that “the proposed rules in this instance did not trigger the requirement to consider the net economic effect” because the proposed rules involve conforming changes required by the Commission's action taken in Docket No. RM2016-2 and therefore is required by law. Order No. 3507 at 3 n.4. It also stated that because the proposed revisions are required by law, “any consideration of the `net economic effect' recommendations identified in uncodified section 703 would be moot.” Id. The Commission maintains that, notwithstanding section 703's applicability, these conforming changes represent an improved, more complete, or more accurate measure of attributable costs pursuant to section 3622(c) and an improvement in the attribution of costs pursuant to section 3652(e) and therefore reduce potential economic distortions. Id.

While the Commission appreciates the Public Representative's comments, its conclusions related to section 703(d)'s applicability in this matter remain unchanged. Therefore, the Commission declines to consider compliance with section 703(d) because these conforming changes are required by law.

c. Postal Service

Comments. The Postal Service notes the same circular reference to incremental costs as indicated by Amazon in proposed § 3015.7(b). Postal Service Comments at 1; see also Amazon Comments at 3-4. The Postal Service suggests two alternative versions to proposed § 3015.7(b) that would eliminate the circular reference and would more “clearly and directly convey[] the intent of the provision.” Postal Service Comments at 1-2.

The Postal Service also recommends an update to PRC Form CP-01 as part of proposed § 3060.21 by including a “slightly broader housekeeping change.” 13 The Postal Service argues competitive market tests should be included in the institutional costs calculation pursuant to 39 U.S.C. 3641(b)(3) and 39 U.S.C. 3633(a)(3), but that in Fiscal Year (FY) 2014 the amounts were too small to “merit further consideration.” Postal Service Comments at 2.

13Id. at 2. The Postal Service also notes a numerical inaccuracy with line (8) of proposed § 3060.21 which should read “Line (8): Difference between Competitive Products total revenues and attributable costs (line 3 less line 7)” which will no longer be inaccurate should the Postal Service's other recommended update be included. Id.; Order No. 3507 at 10 (emphasis added).

However, the Postal Service explains that as part of its FY 2015 Annual Compliance Report (ACR), the amounts had grown larger and it was able to incorporate competitive market test amounts in its contribution target analysis by introducing a new row, Net Contribution Competitive Product Market Tests, into PRC Form CP-01.14 The Postal Service recommends that the Commission take this opportunity to add the Net Contribution Competitive Product Market Tests row to PRC Form CP-01 in § 3060.21, as the requirements of 39 U.S.C. 3641(b)(3) are “unlikely to change” and competitive product market tests have the potential to continue to contribute to institutional costs. Postal Service Comments at 2-3.

14Id.; see also Docket No. ACR2015, United States Postal Service FY 2015 Annual Compliance Report, December 29, 2015, at 69 (FY 2015 ACR); Docket No. ACR2015, Library Reference USPS-FY15-39, December 29, 2015.

Commission analysis. The Commission approves of the update to PRC Form CP-01 as recommended by the Postal Service. While this additional revision to § 3060.21 is not directly related to the Commission's findings in Order No. 3506, the Commission concludes the revision is appropriate as it will result in the Postal Service submitting a more accurate income report. In addition and as noted above, the Commission recognizes the potential confusion related to the references to incremental costs in proposed § 3015.7(b). Revisions to proposed §§ 3015.7(b) and 3060.21 are discussed in chapter IV of this Order.

d. UPS

Comments. UPS asserts the proposed rules are premature as Order No. 3506 is now under review by the Court in Case No. 16-1354 and the instant proceeding was initiated pursuant to that order. UPS Comments at 1; Case No. 16-1354. As a result, UPS requests that the Commission withdraw Order No. 3507 and defer any rule revisions until the Court issues its decision in Case No. 16-1354.15 Despite its request to defer this proceeding, UPS argues the Postal Service should still be obligated to comply with the directives set forth by the Commission in Order No. 3506.16

15 UPS Comments at 1. UPS notes that the Court's decision in Case No. 16-1354 could have a direct effect on any newly implemented rules and that revising any rules now could “create unnecessary procedural complications for the Commission and for interested parties.” Id. at 2-3.

16 UPS Comments at 3 (i.e., the calculation and attribution of product-level incremental costs for products and providing additional information for each cost segment sub-report). See also Order No. 3506 at 60-62, 108.

Commission analysis. The Commission recognizes UPS's concern regarding potential “procedural complications” should these rules need to be revised in the future; however, it finds no compelling reason for it to defer this final rulemaking pending the Court's decision in Case No. 16-1354, a proceeding that has not been resolved. Conforming changes to the Code of Federal Regulations (CFR) are necessary in order to comply with Order No. 3506 and require the Postal Service to attribute costs pursuant to that order. In Order No. 3506, based on the information provided, the only costs which the Commission found to have a reliably identified causal relationship to products are incremental costs. This finding expands the scope of cost attribution beyond volume-variable costs and product-specific costs. For these reasons, the Commission declines to defer the instant rulemaking proceeding.

e. Valpak

Comments. Valpak does not specifically support the adoption of the proposed rules but recommends the Commission revise certain CFR rules to require market dominant products to cover their attributable costs. Valpak Comments at 3-5. Valpak cites to a specific discussion in Order No. 3506 and states it “implies that the average revenue of every product, be it competitive or market dominant, henceforth will (or should) be required by the Commission to cover its incremental cost.” Valpak Comments at 2 (citing Order No. 3506 at 61). Based on this interpretation, Valpak asserts Order No. 3507 does not comport with Order No. 3506 because in Order No. 3507 the Commission notes attributable cost coverage is one of many factors considered when regulating market dominant products. Valpak Comments at 1-2 (citing Order No. 3507 at 3-4). Valpak argues the discussion in Order No. 3506 necessitates revisions to market dominant product rules that would require market dominant products to cover attributable costs just as competitive products are required to cover their attributable costs.17 It also states the requirement would protect against the cross-subsidization of competitive products by market dominant products. Id. at 5-6.

17 Valpak Comments at 1-5. Valpak recommends revisions to §§ 3010.4 and 3050.1. Id. at 3-4.

Commission analysis. The Commission's findings concerning incremental cost attribution across all postal products do not imply that the Commission intended for market dominant products to be required to cover their attributable costs. When referring to attributable costs, the definition is the same, i.e., attributable costs are the sum of a product's volume-variable costs, product-specific costs, and those inframarginal costs calculated as part of a product's incremental costs, regardless of whether one is referring to the attributable costs of market dominant products or competitive products. This newly established definition applies to both product types equally. However, the requirement of attributable cost coverage does not.18

18Compare 39 U.S.C. 3622(c)(2) (market dominant products) and 39 U.S.C. 3633 (a)(2) (competitive products).

In 39 U.S.C. 3622(c)(2), a market dominant product's ability to cover attributable costs is a factor in market dominant product rate regulation. See 39 U.S.C. 3622(c)(2). The Commission has long held that should a market dominant product fail to cover its attributable costs, it does not “compel a finding of noncompliance” for that product.19 The Commission's findings in Order No. 3506 do not change prior Commission determinations as to the role of attributable costs. Therefore, the Commission declines to incorporate Valpak's proposed changes to §§ 3010.4 and 3050.1 related to market dominant products and maintains that no rules aside from those discussed in Order No. 3507 require conforming revisions as a result of Order No. 3506.

19 Docket No. ACR2010, FY 2010 Annual Compliance Determination Report, March 29, 2011, at 17 (FY 2010 ACD). Similar views were reiterated by the Commission in other dockets. See Docket No. ACR2013, Annual Compliance Determination Report Fiscal Year 2013, March 27, 2014 (FY 2013 ACD) (“The Commission must also consider the 9 objectives and 14 factors in their totality. . . .” FY 2013 ACD at 57.). See also Docket No. ACR2009, FY 2009 Annual Compliance Determination, March 29, 2010 (FY 2009 ACD) (The Commission stated “[a]s amended by the PAEA, section 3622(c)(2), along with the other factors enumerated, is to be taken into account in the rate-setting process” and “[a] finding that a particular factor (or objective) is not satisfied need not result in a determination that a product is not in compliance with the PAEA.” FY 2009 ACD at 16.).

IV. Changes to Proposed Rules

The Commission adopts final rules that reflect revisions to the proposed rules in response to comments.20 Mainly, Amazon, the Postal Service, and the Public Representative suggest alternatives to proposed § 3015.7(b) citing a circular reference to incremental costs and readability issues.21 The Commission finds that the Postal Service's second alternative to proposed § 3015.7(b) provides the most clarity and also improves readability. Accordingly, the Commission revises § 3015.7(b) as set forth in the rules below.

20 No comments were received on proposed §§ 3015.7(a) and 3060.10, and the Commission finds no reason to alter the proposed rules.

21 Amazon Comments at 3; Postal Service Comments at 1; PR Comments at 7.

In addition, the Commission finds it appropriate, as an administrative matter, to update PRC Form CP-01 in proposed § 3060.21 and include a new row of expenses titled “Net Contribution Competitive Products Market Tests” as recommended by the Postal Service. See Id. at 2, 4.

V. Ordering Paragraphs

It is ordered:

1. Parts 3015 and 3060 of title 39, Code of Federal Regulations, are amended as set forth below the signature of this Order, effective 30 days after publication in the Federal Register.

2. The Secretary shall arrange for publication of this Order in the Federal Register.

By the Commission.

Stacy L. Ruble, Secretary.
List of Subjects 39 CFR Part 3015

Administrative practice and procedure, Postal service.

39 CFR Part 3060

Administrative practice and procedure, Reporting and recordkeeping requirements.

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

PART 3015—REGULATION OF RATES FOR COMPETITIVE PRODUCTS 1. The authority citation of part 3015 continues to read as follows: Authority:

39 U.S.C. 503; 3633.

2. Amend § 3015.7 by revising paragraphs (a) and (b) to read as follows:
§ 3015.7 Standards for compliance.

(a) Incremental costs will be used to test for cross-subsidies by market dominant products of competitive products. To the extent that incremental cost data are unavailable, the Commission will use the sum of competitive products' volume-variable costs and product-specific costs supplemented to include causally related, group-specific costs to test for cross-subsidies.

(b) Each competitive product must recover its attributable costs as defined in 39 U.S.C. 3631(b). Pursuant to 39 U.S.C. 3631(b), the Commission will calculate a competitive product's attributable costs as the sum of its volume-variable costs, product-specific costs, and those inframarginal costs calculated as part of a competitive product's incremental costs.

PART 3060—ACCOUNTING PRACTICES AND TAX RULES FOR THE THEORETICAL COMPETITIVE PRODUCTS ENTERPRISE 3. The authority citation of part 3060 continues to read as follows: Authority:

39 U.S.C. 503; 2011, 3633, 3634.

4. Amend § 3060.10 by revising paragraph (b)(1) to read as follows:
§ 3060.10 Costing.

(b) * * *

(1) Attributable costs, including volume-variable costs, product-specific costs, and those inframarginal costs calculated as part of a competitive product's incremental costs; and

5. Amend § 3060.21 by revising table 1 to read as follows:
§ 3060.21 Income report. Table 1—Competitive Products Income Statement—PRC Form CP-01 [$ in 000s] FY 20xx FY 20xx-1 Change from
  • SPLY
  • Percent change from
  • SPLY
  • Revenue: $x,xxx $x,xxx $xxx xx.x (1) Mail and Services Revenues xxx xxx xx xx.x (2) Investment Income x,xx x,xxx xxx xx.x (3) Total Competitive Products Revenue Expenses: x,xxx (4) Volume-Variable Costs x,xxx x,xxx xxx xx.x (5) Product Specific Costs x,xxx x,xxx xxx xx.x (6) Incremental Inframarginal Costs x,xxx x,xxx xxx xx.x (7) Total Competitive Products Attributable Costs x,xxx x,xxx xxx xx.x (8) Net Contribution Competitive Products Market Tests x,xxx x,xxx xxx xx.x (9) Net Income Before Institutional Cost Contribution x,xxx x,xxx xxx (10) Required Institutional Cost Contribution x,xxx x,xxx xxx x.x.x (11) Net Income (Loss) Before Tax x,xxx x,xxx xxx xx.x (12) Assumed Federal Income Tax x,xxx x,xxx xxx xx.x (13) Net Income (Loss) After Tax x,xxx x,xxx xxx xx.x Line (1): Total revenues from Competitive Products volumes and Ancillary Services. Line (2): Income provided from investment of surplus Competitive Products revenues. Line (3): Sum total of revenues from Competitive Products volumes, services, and investments. Line (4): Total Competitive Products volume-variable costs as shown in the Cost and Revenue Analysis (CRA) report. Line (5): Total Competitive Products product-specific costs as shown in the CRA report. Line (6): Inframarginal costs calculated as part of total Competitive Products incremental costs as shown in ACR Library Reference “Competitive Product Incremental and Group Specific Costs” (Currently NP10). Line (7): Sum total of Competitive Products costs (sum of lines 4, 5, and 6). Line (8) Net Contribution Competitive Products Market Tests as shown in the Annual Compliance Report. Line (9): Difference between Competitive Products total revenues and attributable costs and Market Tests Contributions (line 3 less line 7 plus line 8). Line (10): Minimum amount of Institutional cost contribution required under 39 CFR 3015.7 of this chapter. Line (11): Line 9 less line 10. Line (12): Total assumed Federal income tax as calculated under 39 CFR 3060.40. Line (13): Line 11 less line 12.
    [FR Doc. 2016-29270 Filed 12-6-16; 8:45 am] BILLING CODE 7710-FW-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2015-0495; FRL-9955-52-Region 6] Approval and Promulgation of Implementation Plans; Texas; Reasonable Further Progress Plan and Motor Vehicle Emissions Budgets for the Dallas/Fort Worth 2008 Ozone Nonattainment Area AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving the Dallas/Fort Worth (DFW) moderate nonattainment area Reasonable Further Progress (RFP) State Implementation Plan (SIP) revision for the 2008 ozone National Ambient Air Quality Standard (NAAQS or standard). EPA is also approving revisions to the 2011 base year emissions inventory for the DFW moderate nonattainment area for the 2008 ozone NAAQS, the 2017 transportation conformity motor vehicle emissions budgets (MVEBs), and the required contingency measures for failure to meet RFP. This action is being taken under the Clean Air Act (CAA).

    DATES:

    This rule is effective on January 6, 2017.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2015-0495. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

    FOR FURTHER INFORMATION CONTACT:

    Wendy Jacques, 214-665-7395, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” and “our” means the EPA.

    I. Background

    The background for this action is discussed in detail in our September 20, 2016 proposal (81 FR 64372). In that document we proposed to approve the DFW RFP SIP revision for the 2008 ozone standard submitted by the State of Texas. EPA also proposed to approve revisions to the 2011 base year emissions inventory for the DFW moderate nonattainment area for the 2008 ozone NAAQS, the 2017 transportation conformity motor vehicle emissions budgets (MVEBs), and the required contingency measures for failure to meet RFP. We did not receive any comments regarding our proposal.

    II. Final Action

    We are approving the DFW RFP SIP revision for the 2008 ozone standard that was submitted on July 10, 2015 and supplemented on April 22, 2016. We are approving the revised base year emission inventory, the RFP plan, the 2017 MVEBs and the required contingency measures for failure to meet RFP. The 2017 MVEBs are listed in Table 1.

    Table 1—DFW RFP MVEBs [Tons per day] Year NOX VOC 2017 148.36 77.18

    This action is being taken under section 110 of the CAA.

    III. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 6, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

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

    Dated: December 1, 2016. Ron Curry, Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart SS—Texas 2. In § 52.2270 (e), the second table titled “EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP” is amended by adding a new entry at the end for “DFW Reasonable Further Progress SIP Revision for the 2008 Ozone Standard” to read as follows.
    § 52.2270 Identification of plan.

    (e) * * *

    EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP Name of SIP provision Applicable geographic or nonattainment area State
  • submittal/
  • effective
  • date
  • EPA approval date Comments
    *         *         *         *         *         *         * DFW Reasonable Further Progress (RFP) Plan, RFP Contingency Measures, RFP Motor Vehicle Emission Budgets for 2017, and Revised 2011 Base Year Emissions Inventory for the 2008 Ozone NAAQS Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant and Wise Counties, TX 7/10/2015 12/7/2016 [Insert Federal Register citation] Supplement submitted on April 22, 2016.
    [FR Doc. 2016-29274 Filed 12-6-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 435 [EPA-HQ-OW-2014-0598; FRL-9956-05-OW] RIN 2040-AF68 Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source Category—Implementation Date Extension AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to extend the implementation deadline for certain facilities subject to the final rule establishing pretreatment standards under the Clean Water Act (CWA) for discharges of pollutants into publicly owned treatment works (POTWs) from onshore unconventional oil and gas (UOG) extraction facilities.

    DATES:

    The final rule is effective December 7, 2016. In accordance with 40 CFR part 23, this regulation shall be considered issued for purposes of judicial review at 1 p.m. Eastern time on December 21, 2016. Under section 509(b)(1) of the CWA, judicial review of this regulation can be had only by filing a petition for review in the U.S. Court of Appeals within 120 days after the regulation is considered issued for purposes of judicial review. Under section 509(b)(2), the requirements in this regulation may not be challenged later in civil or criminal proceedings brought by EPA to enforce these requirements.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OW-2014-0598. All documents in the docket are listed on the https://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. This material can be viewed at the Water Docket in the EPA Docket Center, EPA/DC, EPA West William Jefferson Clinton Bldg,. Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading room is 202-566-1744, and the telephone number for the Water Docket is 202-566-2426. Publicly available docket materials are available electronically through http://www.regulations.gov. A detailed record index, organized by subject, is available on EPA's Web site at https://www.epa.gov/eg/unconventional-oil-and-gas-extraction-effluent-guidelines.

    FOR FURTHER INFORMATION CONTACT:

    For more information, see the EPA's Web site: https://www.epa.gov/eg/unconventional-oil-and-gas-extraction-effluent-guidelines. For technical information, contact Karen Milam, Engineering and Analysis Division (4303T), Office of Water, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone: 202-566-1915; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Does this action apply to me?

    Entities potentially regulated by this final action include:

    Category Example of regulated entity North American
  • Industry
  • Classification
  • System
  • (NAICS) Code
  • Industry Crude Petroleum and Natural Gas Extraction 211111 Industry Natural Gas Liquid Extraction 211112
    II. Supplementary Information A. Background

    The EPA promulgated revisions to the Effluent Guidelines and Standards for the Oil and Gas Extraction Point Source Category which established pretreatment standards for onshore UOG extraction facilities (81 FR 41845, June 28, 2016). This final pretreatment standards rule prohibited the discharge of pollutants in UOG extraction wastewater to POTWs, and established an effective date of August 29, 2016. In the preamble to the final pretreatment standards rule, the EPA indicated that because UOG facilities were currently meeting this zero discharge requirement, the implementation deadline for these pretreatment standards would be the same as the effective date of the final rule. After promulgation of the final rule, the EPA received two letters indicating that there are likely facilities discharging UOG wastewater to POTWs; this was new information to the EPA.

    In light of this post-promulgation information, on September 30, 2016 (81 FR 67266, September 30, 2016), the EPA published a proposed rule to extend the compliance date to August 29, 2019, for existing sources that were lawfully discharging UOG wastewater to POTWs on or between the date of the Federal Register Notice of the proposed UOG pretreatment standards rule (80 FR 18557, April 17, 2015) and the date of the Federal Register action of the final UOG pretreatment standards rule (81 FR 41845, June 28, 2016). For purposes of this final rule, compliance date and implementation date are used interchangeably.

    B. Description of EPA's Action

    Based on the post-promulgation information submitted to the EPA suggesting that there are likely facilities subject to the final UOG pretreatment standards rule that are currently discharging UOG wastewater to POTWs, the EPA is extending the compliance date for existing sources that were lawfully discharging to POTWs on or between April 7, 2015 and June 28, 2016, to three years from the effective date of the rule—to August 29, 2019. This final rule does not change the compliance date for all other facilities subject to the final onshore UOG extraction pretreatment standards rule.

    C. Response to Comments

    Comments received in response to the proposed rulemaking supported the extension of the compliance date for these facilities. The EPA did not receive any comments that opposed or otherwise questioned the appropriateness of the extension of the compliance date. The EPA did, however, receive comments regarding the applicability of the underlying pretreatment standards rule. Specifically, these comments disagreed with the definition of “unconventional” in the final UOG rule, arguing that the definition was “overly broad” or “arbitrary,” and suggested alternative definitions of “unconventional” that may exclude certain operators in Pennsylvania that have been sending their wastewater to POTWs. These comments are outside the scope of the proposed rule, which was specifically limited to the extension of the compliance date. See 81 FR 67267; September, 30, 2016 (“EPA will not consider any comment submitted on the proposed rule published today on any topic other than the appropriateness of an extension of the compliance date; any other comments will be considered outside the scope of this rulemaking.”). As clarified in the preamble to the proposed rulemaking, the rule simply extends the implementation deadline for certain facilities subject to the underlying final UOG pretreatment standard rule and does not otherwise amend the final pretreatment standards rule in any way. See 81 FR 67266, 67267; September 30, 2016 (incorporating rationale set forth in direct final rule at 81 FR 67191, 67192; September 30, 2016). Therefore, the EPA maintains that comments regarding the applicability of the underlying pretreatment standards rule are outside the scope of the proposed rule. Any such challenges were required to be raised with respect to the underlying pretreatment standards rule, and not with this final rule, which is limited to the extension of the compliance date.

    The EPA's extension of the compliance date by three years is reasonable, as acknowledged by industry commenters on the direct final rule. See, e.g., Comments from Pennsylvania Independent Oil and Gas Association (finding the three year extension to be “a reasonable, measured and appropriate accommodation.”). As noted in the proposed rule, this is consistent with the EPA's General Pretreatment regulations, which require existing sources to meet categorical pretreatment standards within three years of the effective date of such standards, unless a shorter compliance time is specified therein. 40 CFR 403.6(b). Although commenters expressed generalized concerns about adverse impacts on facilities that have been sending UOG wastewater to POTWs, these generalized concerns are not sufficient to undermine the reasonableness of a three year timeframe for these facilities to meet the pretreatment standard—particularly when the rulemaking record for the EPA's final UOG pretreatment standard rule demonstrates that other similarly-situated operators are currently meeting the zero discharge pretreatment standard today. EPA did not receive any comments or data attempting to explain why the facilities subject to this final rule would need longer than three years in order to meet the requirements that are currently being met by the vast majority of the industry.

    III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821, January 21, 2011), this action is not a “significant regulatory action” and is therefore not subject to OMB review. With respect to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), this action will not have a significant economic impact on a substantial number of small entities—as this direct final relieves regulatory burden by extending the compliance date for any businesses (including small businesses) that were discharging UOG wastewater to POTWs at the time of issuance of the pretreatment standard. For the Sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA) (Pub. L. 104-4), this action does not significantly or uniquely affect small governments. The action imposes no incremental enforceable duty on any state, local or tribal governments or the private sector. This action does not create new binding legal requirements that substantially and directly affect Tribes under Executive Order 13175 (65 FR 67249, November 9, 2000). This action does not have significant Federalism implications under Executive Order 13132 (64 FR 43255, August 10, 1999). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994). This action does not involve technical standards; thus, the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

    Congressional Review Act

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 435

    Environmental protection, Pretreatment, Unconventional oil and gas extraction, Waste treatment and disposal, Water pollution control.

    Dated: November 28, 2016. Gina McCarthy, Administrator.

    Therefore, 40 CFR part 435 is amended as follows:

    PART 435—OIL AND GAS EXTRACTION POINT SOURCE CATEGORY 1. The authority citation for part 435 continues to read as follows: Authority:

    33 U.S.C. 1251, 1311, 1314, 1316, 1317, 1318, 1342 and 1361.

    Subpart C—Onshore Subcategory 2. Amend § 435.33 by adding paragraph (a)(3) to read as follows:
    § 435.33 Pretreatment standards for existing sources (PSES).

    (a) * * *

    (3) Compliance deadline for existing sources. Existing sources discharging into publicly owned treatment works on or between April 7, 2015 and June 28, 2016, shall comply with the PSES by August 29, 2019. All other existing sources shall comply by August 29, 2016.

    [FR Doc. 2016-29338 Filed 12-6-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 207 [Docket No. FRA-2016-0107, Notice No. 1] RIN 2130-AC62 Railroad Police Officers AGENCY:

    Federal Railroad Administration (FRA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    This rule amends FRA's regulations on railroad police officers to implement certain provisions of the Fixing America's Surface Transportation (FAST) Act. Consistent with the FAST Act, FRA is amending its regulations to allow: Railroads to hire contractors as railroad police officers; railroad police officers to transfer from one state to another without immediately needing to be commissioned or certified in the new state; and a state to recognize an officer's training at another state's recognized police academy or at a Federal law enforcement training center as meeting the state's basic police officer certification or commissioning requirements.

    DATES:

    This final rule is effective February 6, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Gareth Rosenau, Office of Chief Counsel, Federal Railroad Administration, Mail Stop 10, Room W31-316, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-6054).

    SUPPLEMENTARY INFORMATION:

    I. Background

    Prior to enactment of the FAST Act (Pub. L. 114-94 (Dec. 4, 2015)), 49 U.S.C. 28101 (Section 28101) authorized railroad employees commissioned or certified as police officers by any state to enforce, consistent with DOT regulations, the laws of any state where the railroad police officer's employer owns property to protect railroad property, personnel, passengers, and cargo. Section 28101 did not allow railroads to hire contractor railroad police officers or allow a railroad police officer to transfer from one state to another unless that officer was immediately commissioned or certified in the new state. Section 28101 also did not address training railroad police officers, except general references to the certification or commissioning of the officers under state law. FRA's regulations at 49 CFR part 207 implement Section 28101.

    FAST Act Section 11412(b) (Section 11412) revised Section 28101 to allow: (1) Railroads to hire contractors as railroad police officers; (2) railroad police officers to transfer from one state to another without immediately needing to be commissioned or certified in the new state; and (3) a state to recognize an officer's training at another state's recognized police academy or a Federal law enforcement training center meets the state's basic police officer certification or commissioning requirements.1

    1 Section 11412 of the FAST Act also contained provisions modifying 49 U.S.C. 24305(e) (authorizing Amtrak to employ railroad police officers) and 18 U.S.C. 922(z)(2)(B) (excepting railroad police officers from certain restrictions related to handguns). These provisions are self-executing and require no revision to part 207 or any other FRA regulation.

    Section 11412 also requires the Secretary of Transportation (Secretary) to, within one year of enactment of the FAST Act, revise part 207 consistent with Section 11412. The authority to carry out this mandate is delegated to FRA. See 49 CFR 1.89(a). In issuing this final rule, neither the Secretary nor FRA is exercising any discretion in modifying part 207. Instead, this final rule merely incorporates the new Section 11412 statutory language into existing part 207 and, in certain instances, updates part 207 to ensure consistent application of the regulation, as modified by the FAST Act.

    II. The FAST Act's Specific Mandates Addressed in This Final Rule

    The FAST Act made three substantive revisions to existing Section 28101. First, the FAST Act revised Section 28101 paragraphs (a) and (b) to allow railroad police officers to be either direct employees of a railroad or contractors to a railroad (prior to the FAST Act, Section 28101 required railroad police officers to be “employed by” a railroad). Specifically, the FAST Act amended Section 28101(a) (the general authorizing provision for railroad police officers) to specify railroad police officers may be “directly employed by or contracted by” railroads. This change allows railroads to not only directly employ railroad police officers, but also to hire contractors as railroad police officers. In Section 28101(b) (which allows a railroad police officer to be temporarily assigned to assist a second railroad), the FAST Act revised the words “employed by” to “directly employed by or contracted by” and specified that a railroad police officer assisting a second railroad is an employee “or agent, as applicable” of the second railroad carrier.

    Second, the FAST Act added a new paragraph (c) to Section 28101 addressing the transfer of railroad police officers from one state of employment or residence to a state other than the one where he or she is commissioned. New paragraph (c) provides a one year interim period for the officer to become commissioned in the new state, while retaining authority to enforce laws in the new state under Section 28101.

    Third, the FAST Act added a new paragraph (d) to Section 28101 specifically allowing a state to allow a railroad police officer's training at another state's recognized police academy or at a Federal law enforcement training center to meet the state's basic police officer certification or commissioning requirements.

    III. Justification for Final Rule

    FRA is proceeding directly to a final rule in this proceeding because it finds, for good cause, notice and public comment is unnecessary because the public would not benefit from such notice. See 5 U.S.C. 553(b)(B). In this rule, FRA is merely incorporating the new statutory language of the FAST Act into existing part 207, and, in doing so, is exercising no discretion. See, e.g., Komjathy v. National Transp. Safety Bd., 832 F.2d 1294 (D.C. Cir. 1987), cert. denied, Komjathy v. Administrator, Federal Aviation Admin., 486 U.S. 1057 (1988).

    IV. Section-by-Section Analysis Section 207.1 Application

    Existing § 207.1 states part 207 applies to “all railroads,” as defined in section 202(e) of the Federal Railroad Safety Act of 1970. FRA is updating this section to accurately reflect the current statutory cite for the term “railroad.” 49 U.S.C. 20103. This only updates an outdated statutory citation and is not a substantive amendment.

    Section 207.2 Definitions

    Existing paragraph (a) of § 207.2 defines “railroad police officer” as a “peace officer who is commissioned in his or her state of legal residence or state of primary employment and employed by a railroad to enforce state laws for the protection of railroad property, personnel, passengers, and/or cargo.” Consistent with the mandate of Section 11412, this rule revises this definition by clarifying that term includes peace officers “directly employed by” or “contracted by” a railroad.

    Section 207.3 Designation and Commissioning

    Existing paragraph (b) of § 207.3 requires railroad police officers to be commissioned by the officer's state of legal residence or the officer's state of primary employment. Consistent with Section 11412's new provision providing for a one year interim period for an officer transferring from one state of employment or residence to another to become commissioned or certified in the new state, FRA is revising this paragraph to except railroad police officers from this commissioning requirement during such an interim period by referencing new § 207.6 (discussed below).

    Section 207.6 Transfers

    Consistent with new Section 28101(c), FRA is adding new § 207.6 to address transferring railroad police officers from one state of employment or residence to a state other than the one where he or she is commissioned. Section 207.6(a) provides that if a railroad police officer certified or commissioned as a police officer under the laws of a state or jurisdiction transfers primary employment or residence from the certifying or commissioning state to another state or jurisdiction, then the railroad police officer must apply to be certified or commissioned as a police officer under the laws of the state of new primary employment or residence not later than one year after the date of transfer. Section 207.6(b) provides that during the period beginning on the date of transfer and ending one year after the date of transfer, a railroad police officer certified or commissioned as a police officer under the laws of a state may enforce the laws of the new state or jurisdiction in which the railroad police officer resides, to the same extent as provided in existing § 207.5(a) governing the authority of railroad police officers in states where the officer is not commissioned or certified.

    Section 207.7 Training

    Consistent with new Section 28101, FRA is adding new § 207.7 specifically allowing a state to recognize a railroad police officer's training at another state's recognized police academy or at a Federal law enforcement training center meets the state's basic police officer certification or commissioning requirements. Tracking paragraph (d)(1) of Section 28101, paragraph (a) of new § 207.7 specifically allows states to recognize its basic police officer certification or commissioning requirements for qualification as a railroad police officer are met by any individual who successfully completes a program at another state's state-recognized police training academy or a Federal law enforcement training center and who is certified or commissioned as a police officer by that other state. Tracking paragraph (d)(2) of Section 28101, paragraph (b) of new § 207.7 explains the rule may not be construed to supersede or affect any state training requirements related to criminal law, civil procedure, motor vehicle code, any other state law, or state-mandated comparative or annual in-service training academy or Federal law enforcement training center.

    V. Regulatory Impact and Notices A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures

    FRA evaluated this final rule under existing policies and procedures and determined it is non-significant, under both Executive Orders 12866 and 13563, and DOT policies and procedures. See 44 FR 11034, Feb. 26, 1979. Because FRA determined the anticipated costs from this final rule are de minimis, FRA did not prepare a separate regulatory impact assessment document. Instead, FRA summarized its assessment of the cost and benefit expected to result from implementation of this final rule here.

    First, FRA found this final rule will not create any additional burden on any entities. Thus, we do not expect the rule to result in any costs, either quantifiable or non-quantifiable, as the rule does not create any additional requirements entities must follow.

    Second, FRA found the final rule provides benefits to entities and benefits to workers from the three provisions allowing: (1) Railroads to hire contractor police officers; (2) railroad police officers to transfer from one state to another without immediately needing to be commissioned or certified in the new state; and (3) a state to recognize an officer's training at another state's recognized police academy or at a Federal law enforcement training center meets the state's basic police officer certification or commissioning requirements.

    Providing entities with the ability to employ contractor police officers more easily allows entities to adjust employment rolls based upon their business needs. Providing flexibility for railroad police officers to transfer from one state to another allows for increased mobility of railroad police officers to meet interstate business needs. Increased interstate worker mobility addresses the current geographic immobility of railroad police officers caused by existing law that typically requires railroad police officers to be commissioned within their states of residence or primary employment. Similar to how allowing railroads to employ contractor police officers will lead to increased interstate worker mobility, allowing states to recognize an officer's training completed within another state or at a Federal law enforcement training center as meeting that state's basic police officer certification or commissioning requirements will likewise increase the interstate mobility of railroad police officers.

    Thus, FRA concludes this final rule will result in several non-quantifiable benefits that allow railroads to more efficiently allocate the railroad police officer workforce based upon employment needs. Therefore, the final rule benefits workers because there is increased worker mobility, and the final rule benefits railroads, because of the increased flexibility and efficiency they have to allocate railroad police officers.

    It is important to note the total number of railroad police officers is not expected to change as a result of this final rule. However, this final rule may result in a more stable labor market for railroad police officers, with a lower employment turnover rate, since railroad police officers can more easily relocate.

    B. Regulatory Flexibility Act and Executive Order 13272; Certification

    FRA developed this final rule under Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) to ensure potential impacts of rules on small entities are properly considered.

    The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities. An agency must conduct a regulatory flexibility analysis unless it determines and certifies that a rule is not expected to have a significant economic impact on a substantial number of small entities.

    This final rule will apply to all entities employing or contracting for railroad police officers. Because the final rule does not impose any substantive requirements on regulated entities (either large or small), FRA estimates this rule imposes no costs on regulated entities. Thus, because this final rule does not create any costs, it will not result in greater costs per employee for small entities as compared to large entities.

    FRA estimates there are fewer than 5 railroads that are both small entities for purposes of this analysis, and that employ or contract for railroad police officers. Moreover, because there are no costs associated with this final rule, the economic impact on these small entities is not significant.

    1. Description of Regulated Entities and Impacts

    The “universe” of entities under consideration includes only those small entities that can reasonably be expected to be directly affected by this final rule. The only small entities potentially affected by this final rule are small railroads that employ or contract for railroad police officers.

    “Small entity” is defined in 5 U.S.C. 601 (Section 601). Section 601(6) defines “small entity” as having “the same meaning as the terms `small business', `small organization' and `small governmental jurisdiction’ ” as defined by Section 601. Section 601(3) defines “small business” as having the same meaning as “small business concern” under Section 3 of the Small Business Act. Section 601(4) defines “small organization” as “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Section 601(5) defines “small governmental jurisdiction” as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.”

    The U.S. Small Business Administration (SBA) stipulates “size standards” for small entities. It provides that the largest a for-profit railroad business firm may be (and still be classified as a “small entity”) is 1,500 employees for “Line-Haul Operating Railroads” and 500 employees for “Short-Line Operating Railroads.”2 Additionally, 5 U.S.C. 601(5) defines as “small entities” governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.

    2 “Table of Size Standards,” U.S. Small Business Administration, Jan. 31, 1996, 13 CFR part 121.

    Federal agencies may adopt their own size standards for small entities in consultation with SBA and in conjunction with public comment. Under that authority, FRA has published a final statement of agency policy formally establishing for FRA's regulatory purposes “small entities” or “small businesses” as railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR 1201.1-1 (which is $20 million or less in inflation-adjusted annual revenues, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less).3 FRA used this definition for this rulemaking.

    3See 49 CFR part 209, appendix C.

    FRA could not exactly quantify the number of entities that could be impacted by this final rule if there was a burden. However, evidence exists that, because of resource constraints, most Class III railroads (small entities) do not employ railroad police officers. See ASLRRA Aims to Help 560 Roads Address Hazmat Car Security, Progressive Railroading, April 2009. Nevertheless, there may be commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less that would be considered small entities and would be impacted by this final rule with no associated burden. Although there is no associated burden, FRA conservatively estimates this final rule will impact approximately 30 railroads, five of which meet FRA's definition of a “small entity.”

    There are approximately 695 small railroads (as defined by revenue size). Class III railroads do not report to the STB, and the precise number of Class III railroads is difficult to ascertain due to conflicting definitions, conglomerates, and even seasonal operations. Potentially, all small railroads could be impacted by this final regulation, but there is no reason to believe that any additional small railroads are likely to employ or contract for railroad police officers.

    Significant Economic Impact Criteria

    Previously, FRA sampled small railroads and found that revenue averaged approximately $4.7 million (not discounted) in 2006. One percent of that average annual revenue per small railroad is $47,000. FRA realizes that some railroads will have lower revenue than $4.7 million. FRA estimates that this rule will not result in any additional expense to small railroads over the next ten years, as the final rule does not require entities to comply with anything. That is, while this final rule provides entities with relaxed constraints on how to employ railroad police officers, this final rule does not introduce any new requirements itself. Therefore, FRA concludes there is no expected burden for this final rule so it will not have a significant impact on the financial position of small entities, or on the small entity segment of the railroad industry as a whole.

    Substantial Number Criteria

    Because this final rule does not contain any provision requiring action on the part of entities, either large or small, this final rule will not impact a substantial number of small entities.

    2. Certification

    Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA certifies this final rule will not have a significant economic impact on a substantial number of small entities.

    C. Paperwork Reduction Act

    The information collection requirements in this final rule are being submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The sections that contain the new and current information collection requirements are duly designated, and the estimated time to fulfill each requirement is as follows:

    CFR Section/subject Respondent universe Total annual
  • responses
  • Average time per
  • response
  • Total annual
  • burden hours
  • 207.4—RR Notice to State Officials—Written notice of RR police officer's commission to each state in which the RR police officer shall protect the railroad's property, personnel, passengers, and cargo 763 railroads 35 notices 5 hours 175 —RR Copy of Written Notices to State Officials 763 railroads 35 records/copies 10 minutes 6 207.6—Transfers—Application by RR police officer for new state certification/commission when transferring primary employment or residence from one State to Another (New Provision) 763 railroads 30 state certification applications 1 hour 30 207.7—Training—RR police officer training successful completion at a state's police academy training program in one state recognized by other state (New Provision) 763 railroads 30 trained RR police officers 40 hours 1,200

    All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. For information or a copy of the unchanged paperwork package submitted to OMB, contact Mr. Robert Brogan at 202-493-6292 or Ms. Kimberly Toone at 202-493-6132 or via email at the following addresses: [email protected]; [email protected]

    Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be sent via email to the Office of Management and Budget at the following address: [email protected]

    OMB is required to make a decision concerning the collection of information requirements contained in this final rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication.

    FRA cannot impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the Federal Register.

    D. Federalism

    Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or the agency consults with state and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts state law, the agency seeks to consult with state and local officials in the process of developing the regulation.

    This final rule has been analyzed consistent with the principles and criteria in Executive Order 13132. FRA has determined this rule does not have substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This rule does not impose substantial direct compliance costs on state and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

    E. Environmental Impact

    FRA has evaluated this final rule consistent with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), other environmental statutes, related regulatory requirements, and its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999). FRA has determined this final rule is categorically excluded from detailed environmental review under section 4(c)(20) of FRA's NEPA Procedures, “Promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions of air or water pollutants or noise or increased traffic congestion in any mode of transportation.” See 64 FR 28547, May 26, 1999. Categorical exclusions (CEs) are actions identified in an agency's NEPA implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See 40 CFR 1508.4.

    In analyzing the applicability of a CE, the agency must also consider whether extraordinary circumstances are present that would warrant a more detailed environmental review through the preparation of an EA or EIS. Id. Consistent with section 4(c) and (e) of FRA's Procedures, the agency has further concluded no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. The purpose of this rulemaking is to conform FRA's regulation on railroad police officers to the statutory provisions of Section 11412 of the FAST Act which provide additional flexibility for railroads to hire, employ, and train railroad police officers than previously provided. FRA does not anticipate any environmental impacts from this requirement and finds that there are no extraordinary circumstances present in connection with this final rule.

    F. Executive Order 13175 (Tribal Consultation)

    FRA has evaluated this final rule consistent with the principles and criteria in Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, dated November 6, 2000. The final rule would not have a substantial direct effect on one or more Indian tribes, would not impose substantial direct compliance costs on Indian tribal governments, and would not preempt tribal laws. Therefore, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.

    G. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a) (91 FR 27534, May 10, 2012) require DOT agencies to achieve environmental justice as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations. The DOT Order instructs DOT agencies to address compliance with Executive Order 12898 and requirements within the DOT Order in rulemaking activities, as appropriate. FRA has evaluated this rule under Executive Order 12898 and the DOT Order and determined it would not cause disproportionately high and adverse human health and environmental effects on minority populations or low-income populations.

    H. Unfunded Mandates Reform Act of 1995

    Under Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that

    before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement detailing the effect on state, local, and tribal governments and the private sector. This final rule will not result in the expenditure, in the aggregate, of $100,000,000 or more (as adjusted annually for inflation) in any one year, and thus preparation of such a statement is not required. I. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355, May 22, 2001. Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this final rule consistent with Executive Order 13211. FRA has determined this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined this final rule is not a “significant energy action” within the meaning of Executive Order 13211.

    J. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et seq.) prohibits Federal agencies from engaging in any standards setting or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

    FRA has assessed the potential effect of this final rule on foreign commerce and believes its requirements are consistent with the Trade Agreements Act of 1979. The requirements imposed relate to safety standards, which, as noted, are not considered unnecessary obstacles to trade.

    K. Privacy Act

    Consistent with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides to, www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

    List of Subjects in 49 CFR Part 207

    Law enforcement, Law enforcement officers, Railroad employees, Railroad safety.

    The Rule

    In consideration of the foregoing, FRA amends chapter II, subtitle B of title 49, Code of Federal Regulations as follows:

    PART 207—[AMENDED] 1. The authority citation for part 207 continues to read as follows: Authority:

    49 U.S.C. 28101; 49 CFR 1.89.

    2. Revise § 207.1 to read as follows:
    § 207.1 Application.

    This part applies to all railroads as defined in 49 U.S.C. 20103.

    3. Revise § 207.2(a) to read as follows:
    § 207.2 Definitions.

    (a) Railroad police officer means a peace officer who is commissioned in his or her state of legal residence or state of primary employment and directly employed by or contracted by a railroad to enforce state laws for the protection of railroad property, personnel, passengers, and/or cargo.

    4. Revise § 207.3(b) to read as follows:
    § 207.3 Designation and commissioning.

    (b) Except as provided by § 207.6, the designated railroad police officer shall be commissioned by the railroad police officer's state of legal residence or the railroad police officer's state of primary employment.

    5. Add § 207.6 to read as follows:
    § 207.6 Transfers.

    (a) General. If a railroad police officer certified or commissioned as a police officer under the laws of a state or jurisdiction transfers primary employment or residence from the certifying or commissioning state to another state or jurisdiction, then the railroad police officer must apply to be certified or commissioned as a police officer under the laws of the state of new primary employment or residence not later than one (1) year after the date of transfer.

    (b) Interim period. During the period beginning on the date of transfer and ending one year after the date of transfer, a railroad police officer certified or commissioned as a police officer under the laws of a state may enforce the laws of the new state or jurisdiction in which the railroad police officer resides, to the same extent as provided in § 207.5(a).

    6. Add § 207.7 to read as follows:
    § 207.7 Training.

    (a) A state may consider an individual to have met that state's basic police officer certification or commissioning requirements for qualification as a railroad police officer under this section if that individual:

    (1) Has successfully completed a program at a state-recognized police training academy in another state or at a Federal law enforcement training center; and

    (2) Is certified or commissioned as a police officer by the other state.

    (b) Nothing in this section shall be construed as superseding or affecting any state training requirements related to criminal law, civil procedure, motor vehicle code, any other state law, or state-mandated comparative or annual in-service training academy or Federal law enforcement training center.

    Issued in Washington, DC, on December 1, 2016. Amitabha Bose, Acting Administrator.
    [FR Doc. 2016-29256 Filed 12-6-16; 8:45 am] BILLING CODE 4910-06-P
    DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 225 RIN 2130-AC58 Update to Email Address for the Electronic Submission via the Internet of Certain Accident/Incident Reports AGENCY:

    Federal Railroad Administration (FRA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    This final rule updates FRA's accident/incident reporting regulations to provide the current electronic mail address railroads must use to electronically submit to FRA certain accident/incident report forms.

    DATES:

    Effective: December 7, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Kebo Chen, Staff Director, U.S. Department of Transportation, Federal Railroad Administration, Office of Safety Analysis, RRS-22, Mail Stop 25, West Building 3rd Floor, Room W33-314, 1200 New Jersey Ave. SE., Washington, DC 20590 (telephone 202-493-6079); or Gahan Christenson, Trial Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W33-435, 1200 New Jersey Ave. SE., Washington, DC 20590 (telephone 202-493-1381).

    SUPPLEMENTARY INFORMATION:

    This rule updates the electronic mail (email) address provided in 49 CFR part 225 for railroads to electronically submit certain FRA accident/incident report forms.1 Part 225 references the FRA email address in two places: Paragraph (c) of § 225.27 and paragraph (c)(1) of § 225.37. Those paragraphs direct railroads to submit the specified forms to the following email address: [email protected] This FRA email address is out of date and no longer functional. Accordingly, in this rule FRA is updating the email address referenced in paragraph (c) of § 225.27 and paragraph (c)(1) of § 225.37 to the current email address where FRA can receive these reports. The current email address is: [email protected]

    1 FRA is not simultaneously updating the email address in the FRA Guide for Preparing Accident/Incident Reports (Guide) because this final rule and updates on FRA's Web site, in addition to communication between FRA and individual railroads, makes it unnecessary to revise the Guide at this time.

    Starting in 2013, FRA informed railroad reporting officers of the change in the email address in §§ 225.27 and 225.37 and started transitioning to the new [email protected] email address. FRA established the [email protected] email address to avoid increased costs associated with the previous email address in the regulations. Until December 31, 2015, FRA accepted emailed accident/incident report forms at the email address in part 225 ([email protected]) and at [email protected], but the [email protected] email address no longer functions.

    This rule only updates the email address in the regulation and makes no other changes to part 225. FRA is issuing this final rule without providing an opportunity for prior to public notice and comment as the Administrative Procedure Act (APA) normally requires. See 5 U.S.C. 553. The APA authorizes agencies to dispense with certain notice and comment procedures if the agency finds for good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(3)(B). Because this final rule makes no substantive amendment to FRA's regulations and only changes the email address for railroads to submit to FRA certain already required documents, FRA finds, for good cause, that notice and public comment is unnecessary, because the public would not benefit from such notice. Moreover, The scope of this regulatory change is very limited; FRA is merely replacing an outdated email address with a current email address.

    Regulatory Evaluation Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures

    FRA evaluated this final rule under existing policies and procedures and determined it to be a non-significant regulatory action under both Executive Orders 12866 and 13563 and DOT policies and procedures. See 44 FR 11034, Feb. 26, 1979. This final rule only updates the email address used by railroads to report certain accident/incident forms to FRA, and makes no substantive changes to part 225's reporting requirements. This rule is necessary because the current email address is out of date and no longer accepts accident/incident report forms. Over the past three years, FRA has repeatedly notified railroads of the new email address that should be used for submitting accident/incident report forms. Consequently, most railroads already use the new email address referenced in this rule, but some do not and will need to do so under this final rule. These railroads will incur a minor administrative burden to make note of the new email address and revise their contact lists accordingly, in comparison to no change in the email address used to submit accident/incident report forms to FRA.

    The administrative burden to update the email address will depend on how the railroads submit accident/incident report forms to FRA. In general, railroads use the email address in two ways to submit accident/incident report forms. First, a railroad may manually enter the email address into its email program or electronic device (such as a multi-function printer) each time the railroad submits an accident/incident report form to FRA. In this case, substituting the new email address for the old one would present no additional burden because the railroad would have had to enter an email address regardless. Furthermore, if occasionally updating email addresses is a regular part of a railroad reporting officer's duties (the employee most likely to submit accident/incident report forms to FRA), the burden of updating the email address is already taken into account. The railroad employee would only need to take note of the new email address, requiring a minimal amount of time.

    Second, a railroad may use an automated system to submit accident/incident report forms to FRA. In such a system, the reporting officer would need to update, save and/or compile, and check for errors when using the new email address (such as entering in the email address wrong). These steps are standardized, and again, would require minimal time to update one email address. In addition, whether email addresses are entered manually, or stored in an automated system, the email address would only need to be updated once. Thus, given the small amount of time needed to revise the current email address to the new one, and one-time occurrence of the task, the costs associated with this change will be minimal.

    In sum, this final rule makes no substantive changes to part 225's reporting requirements. The rule only makes an administrative change to facilitate railroads submission of accident/incident forms to FRA. Thus, the rule imposes no significant additional costs, and creates no new significant benefits and FRA has determined further analysis under Executive Orders 12866, 13563 or DOT policies and procedures is not necessary.

    Regulatory Flexibility Act and Executive Order 13272

    FRA developed this rule under Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) to ensure potential impacts of rules on small entities are properly considered.

    The Regulatory Flexibility Act of 1980 (RFA) requires an agency to review regulations to assess their impact on small entities. An agency must conduct a regulatory flexibility analysis unless it determines and certifies that a rule is not expected to have a significant economic impact on a substantial number of small entities.

    This final rule simply updates an email address railroads use to electronically submit to FRA certain accident/incident report forms. This rule does not contain any new substantive regulatory requirements. As a result, this rule will impose no new compliance costs on small entities other than those minimal potential costs outlined above in the Regulatory Evaluation section. Under the RFA, the Administrator of FRA certifies this final rule will have no significant economic impact on a substantial number of small entities.

    Furthermore, FRA has determined the RFA does not apply to this rulemaking because FRA is not publishing a proposed rule in this proceeding. Given the minor change to replace an outdated email address with a current email address and FRA's finding that notice and public comment is unnecessary and would serve no public benefit, per guidance from the Small Business Administration, the RFA does not apply. See A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act, Small Business Administration, Office of Advocacy (May 2012, p.55).

    Paperwork Reduction Act

    There are no new or additional information collection requirements associated with this final rule. FRA's collection of accident/incident reporting and recordkeeping information is currently approved under OMB No. 2130-0500. Therefore, FRA is not required to provide an estimate of a public reporting burden in this document.

    Federalism Implications

    Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.

    FRA analyzed this final rule under the principles and criteria in Executive Order 13132. This rule will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and the responsibilities among the various levels of government, as specified in the Executive Order 13132. In addition, FRA determined this rule does not impose substantial direct compliance costs on State and local governments. Accordingly, FRA concluded the consultation and funding requirements of Executive Order 13132 do not apply and preparation of a federalism assessment is not required.

    Environmental Impact

    FRA evaluated this final rule under its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined this final rule is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review under section 4(c)(20) of FRA's Procedures. See 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows:

    (c) Actions categorically excluded. Certain classes of FRA actions have been determined to be categorically excluded from the requirements of these Procedures as they do not individually or cumulatively have a significant effect on the human environment. . . . The following classes of FRA actions are categorically excluded: . . . (20) Promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions or air or water pollutants or noise or increased traffic congestion in any mode of transportation.

    Consistent with section 4(c)(20) of FRA's Procedures, FRA concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds this rule is not a major Federal action significantly affecting the quality of the human environment.

    Unfunded Mandates Reform Act of 1995

    Under Section 201 of the Unfunded Mandates Reform Act of 1995 (Public Law 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that

    before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement detailing the effect on State, local, and tribal governments and the private sector. This final rule will not result in the expenditure of more than $156,000,000 by the public sector in any one year. Thus, preparation of such a statement is not required. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355, May 22, 2001. Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of, a final rule or regulation (including a notice of inquiry, advance notice of proposed rulemaking, and notice of proposed rulemaking) that (1)(i) is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this rule under Executive Order 13211. FRA has determined this rule will not have a significant adverse effect on the supply, distribution, or use of energy, and, thus, is not a “significant energy action” under Executive Order 13211.

    Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a) (91 FR 27534, May 10, 2012) require DOT agencies to achieve environmental justice as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations. The DOT Order instructs DOT agencies to address compliance with Executive Order 12898 and requirements within the DOT Order in rulemaking activities, as appropriate. FRA evaluated this final rule under Executive Order 12898 and the DOT Order and determined it would not cause disproportionately high and adverse human health and environmental effects on minority or low-income populations.

    Executive Order 13175 (Tribal Consultation)

    FRA evaluated this final rule under the principles and criteria in Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, dated November 6, 2000. The final rule would not have a substantial direct effect on one or more Indian tribes, would not impose substantial direct compliance costs on Indian tribal governments, and would not preempt tribal laws. Therefore, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.

    Trade Impact

    The Trade Agreements Act of 1979 19 U.S.C. 2501 et seq.) prohibits Federal agencies from engaging in any standards setting or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. FRA assessed the potential effect of this final rule on foreign commerce and concluded its requirements are consistent with the Trade Agreements Act.

    Privacy Act

    Interested parties should be aware that anyone can search the electronic form of all written comments received into any agency docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register (65 FR 19477-19478, Apr. 11, 2000) or you may visit http://www.transportation.gov/privacy.

    List of Subjects in 49 CFR Part 225

    Investigations, Penalties, Railroad safety, Reporting and recordkeeping requirements.

    The Rule

    In consideration of the foregoing, FRA amends part 225 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows:

    PART 225—[AMENDED] 1. The authority citation for part 225 continues to read as follows: Authority:

    49 U.S.C. 103, 322(a), 20103, 20107, 20901-02, 21301, 21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.

    2. Amend § 225.27 by revising the first sentence of paragraph (c) to read as follows:
    § 225.27 Retention of records.

    (c) Each railroad shall retain the original hard copy of each completed and signed Form FRA F 6180.55, “Railroad Injury and Illness Summary,” that the railroad submits to FRA on optical media (CD-ROM) or electronically via the Internet to [email protected] for at least five years after the calendar year to which it relates. * * *

    3. Amend § 225.37 by revising paragraph (c)(1) introductory text to read as follows:
    § 225.37 Optical media transfer and electronic submission.

    (c)(1) Each railroad utilizing the electronic submission via the Internet option shall submit to FRA at [email protected]:

    Issued in Washington, DC, on December 1, 2016. Amitabha Bose, Acting Administrator.
    [FR Doc. 2016-29309 Filed 12-6-16; 8:45 am] BILLING CODE 4910-06-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 160630573-6999-02] RIN 0648-BG19 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Red Snapper Management Measures Correction

    In rule document 2016-28905 beginning on page 876971 in the issue of Friday, December 2, 2016, make the following correction:

    1. On page 86971, in the first column, after the DATES heading, the second line, “January 3, 2016.” should read “January 3, 2017.”

    [FR Doc. C1-2016-28905 Filed 12-6-16; 8:45 am] BILLING CODE 1301-00-D
    81 235 Wednesday, December 7, 2016 Proposed Rules DEPARTMENT OF ENERGY 10 CFR Part 205 RIN 1901-AB40 Grid Security Emergency Orders: Procedures for Issuance AGENCY:

    Office of Electricity Delivery and Energy Reliability, U.S. Department of Energy.

    ACTION:

    Notice of proposed rulemaking and request for comment.

    SUMMARY:

    The U.S. Department of Energy is proposing to issue procedural regulations concerning the Secretary of Energy's issuance of an emergency order following the President's declaration of a Grid Security Emergency, under the Federal Power Act, as amended. The proposed procedures, if adopted, are intended to ensure the expeditious issuance of emergency orders under the Federal Power Act.

    DATES:

    Public comment on this proposed rule will be accepted until February 6, 2017.

    ADDRESSES:

    You may submit comments, identified by RIN 1901-AB40, by any of the following methods:

    1. Follow the instructions for submitting comments on the Federal eRulemaking Portal at http://www.regulations.gov.

    2. Send email to [email protected] Include RIN 1901-AB40 in the subject line of the email. Please include the full body of your comments in the text of the message or as an attachment.

    3. Address postal mail to U.S. Department of Energy, Office of Electricity Delivery and Energy Reliability, Mailstop OE-20, Room 8G-017, 1000 Independence Avenue SW., Washington, DC 20585.

    Due to potential delays in the delivery of postal mail, we encourage respondents to submit comments electronically to ensure timely receipt.

    This notice of proposed rulemaking, and any comments that DOE receives will be made available on regulations.gov. You may request a hardcopy of the comments be sent to you via postal mail by contacting [email protected] or the DOE's Office of Electricity Delivery and Energy Reliability at Mailstop OE-20, Room 8G-017, 1000 Independence Avenue SW., Washington, DC 20585.

    FOR FURTHER INFORMATION CONTACT:

    Jeffrey Baumgartner, (202) 586-1411; U.S. Department of Energy, Office of Electricity Delivery and Energy Reliability, Mailstop OE-20, Room 8G-017, 1000 Independence Avenue SW., Washington, DC 20585; or [email protected]

    SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction and Background II. Synopsis of the Notice of Proposed Rulemaking A. General B. Definitions C. Summary of Proposed Rule III. Public Participation A. Submission of Comments IV. Regulatory Review A. Executive Order No. 12,866 B. National Environmental Policy Act C. Regulatory Flexibility Act D. Paperwork Reduction Act E. Unfunded Mandates Reform Act of 1995 F. Treasury and General Government Appropriations Act, 1999 G. Executive Order No. 13,132 H. Executive Order No. 12,988 I. Treasury and General Government Appropriations Act, 2001 J. Executive Order No. 13,211 V. Approval of the Office of the Secretary I. Introduction and Background

    On December 4, 2015, the President signed into law the Fixing America's Surface Transportation Act (“FAST Act” or “The Act”), Public Law 114-94. The Act contains several provisions designed to protect and enhance the Nation's electric power delivery infrastructure. Section 61003 of the Act adds a new section 215A, titled “Critical Electric Infrastructure Security,” to Part II of the Federal Power Act, codified at 16 U.S.C. 824o-1. New section 215A(a) defines, among other terms, a “grid security emergency.” New section 215A(b) authorizes the Secretary of Energy to order emergency measures after the President declares a grid security emergency. A grid security emergency could result from a physical attack, a cyber-attack using electronic communication or an electromagnetic pulse (EMP), or a geomagnetic storm event, damaging certain electricity infrastructure assets and impairing the reliability of the Nation's power grid. Emergency orders responding to grid security emergencies would aim to mitigate or eliminate threats to reliability as quickly and efficiently as possible. The statute authorizes the Secretary of Energy to issue orders for emergency measures as are necessary, in the Secretary's judgment, to protect or restore the reliability of critical electric infrastructure or defense critical electric infrastructure during the emergency. Critically, the Department's centralized direction following a declared grid security emergency will help the Department to coordinate resources efficiently to minimize the impact of the emergency.

    The authority granted in section 215A of the Federal Power Act supplements the Secretary's existing authority, under section 202(c) of the Federal Power Act, to order temporary emergency measures if the Secretary finds “that an emergency exists by reason of a sudden increase in the demand for electric energy, or a shortage of electric energy or of facilities for the generation or transmission of electric energy, or of fuel or water for generating facilities, or other causes,” that the Secretary believes “will best meet the emergency and serve the public interest.” To that end, the Secretary may issue orders under section 202(c) requiring the “temporary connections of facilities[,] generation, delivery, interchange, or transmission of electric energy.”

    The FAST Act also directs the Secretary, “after notice and opportunity for comment,” to “establish rules of procedure that ensure that such authority can be exercised expeditiously.” To ensure that stakeholders and the public understand how the Department would issue an order responding to a grid security emergency, the Department proposes in this notice of proposed rulemaking the procedures it would expect to follow in the event of such emergency. DOE proposes to add these procedures to the existing subpart W in 10 CFR part 205.

    Synopsis of the Notice of Proposed Rulemaking A. General

    Both natural and artificial events can disrupt the Nation's power grid. Geomagnetic storm events are unavoidable natural phenomena, and an event of sufficient strength could compromise the grid. EMPs pose another significant threat. Cyber- and physical attacks on infrastructure could also damage or disrupt critical grid components. The Department is committed to minimizing any disruptions from an attack on, or natural damage to, the Nation's power grid. Responses to grid disruptions will need to be tailored to the particular circumstances, and the Department now has the authority to respond as necessary to mitigate the effects of a grid security emergency.

    If the President should declare a grid security emergency, the Department intends to follow the procedures established in this rulemaking proceeding. The Secretary is authorized to issue emergency orders “[w]henever the President issues and provides to the Secretary [of Energy] a written directive or determination identifying a grid security emergency.” The purpose of an emergency order is to designate “emergency measures as are necessary in the judgment of the Secretary to protect or restore the reliability of critical electric infrastructure or of defense critical electric infrastructure during such emergency.”

    B. Definitions

    The proposed rule begins with definitions of key terms in § 205.380. Further explanations for certain definitions and terms appear below.

    “Bulk-power system” encompasses the facilities used to transmit electricity and energy needed to maintain the reliability of that system of interconnected facilities—in essence, the electric power grid for which the President might declare a grid security emergency and authorize the Secretary to issue emergency orders to protect or restore its reliability. The term excludes facilities used in local electric distribution. This definition is drawn from the statutory definition applicable throughout section 215A of the Federal Power Act.

    “Commission” refers to the Federal Energy Regulatory Commission, which is responsible for approving applicable reliability standards. This term does not apply here to State regulatory commissions or to the former Federal Power Commission.

    “Electric Reliability Organization” refers to the organization, certified by the Commission under section 215(c) of the Federal Power Act, which establishes and enforces reliability standards with Commission oversight. As of this rulemaking, the Commission's designated Electric Reliability Organization is the North American Electric Reliability Corporation (NERC).

    “Electricity Information Sharing and Analysis Center” (E-ISAC) refers to the organization, operated on behalf of the electricity subsector by the North American Electric Reliability Corporation, that gathers and analyzes security information, coordinates incident management, and communicates mitigation strategies with stakeholders within the electricity subsector, across interdependent sectors, and with government partners. E-ISAC is one of the organizations with which the Secretary will consult, to the extent practicable, in issuing an emergency order.

    The “Electricity Subsector Coordinating Council” (ESCC) refers to the organization that aims to foster and facilitate the coordination of sector-wide, policy-related activities and initiatives designed to improve the reliability and resilience of the electricity subsector, including physical and cyber security infrastructure. The ESCC is another of the organizations with which the Secretary will consult, to the extent practicable, in issuing an emergency order. DOE considers the “electricity subsector” to include commercial and industrial actors who generate and deliver electric power, along with the facilities those actors use to generate and deliver the power.

    An “Electromagnetic pulse” is one (1) or more pulses of electromagnetic energy emitted by a device capable of disabling or disrupting operation of, or destroying, electronic devices or communications networks, including hardware, software, and data, by means of such a pulse. The pulse can be accidental, incidental, or malicious.

    The “Emergency & Incident Management Council” (EIMC) is the organization, internal to the Department and chaired by the Deputy Secretary of Energy, designed to increase cooperation and coordination across the Department to prepare for, mitigate, respond to, and recover from emergencies. The EIMC plays a central role in Grid Security Emergency orders, as it will meet, if practicable, after the President declares the emergency to prepare recommendations to the Secretary.

    “Geomagnetic storm” refers to a temporary disturbance of the Earth's magnetic field resulting from solar activity. These natural phenomena are sometimes powerful enough to disrupt the Bulk-power system. If the disruption is sufficiently severe, a Grid Security Emergency could result.

    “Regional entity” refers to organizations responsible for enforcing reliability standards for the Bulk-power system in certain, defined regions. These organizations operate under NERC and Commission oversight.

    C. Summary of Proposed Rule

    As described in proposed § 205.381, orders issued under section 215A(b) of the Federal Power Act may apply to the pertinent Electric Reliability Organization (NERC, as of this rulemaking), regional entity, or “any owner, user, or operator of critical electric infrastructure or of defense critical electric infrastructure within the United States.”

    The procedures are designed to allow the Secretary to address a declared grid security emergency. The statute authorizes the Secretary to order response measures that the Secretary believes are necessary to protect or restore the reliability of certain infrastructure in a grid security emergency. Because the nature of a grid security emergency is uncertain, the procedures allow for flexibility in response measures and, as the statute requires, to “ensure that such authority can be exercised expeditiously.” While the procedures are expected to produce the most efficient and effective emergency response possible under the circumstances, the Secretary has final authority to issue appropriate grid security emergency orders.

    In the event of a grid security emergency, DOE will immediately activate its unified command structure and coordinate outreach efforts. DOE expects that the EIMC will anchor the Department's proposed response via its recommendations to the Secretary. Based on the nature and timing of the emergency, however, the Secretary would maintain discretion, based on a judgment of the relevant circumstances, to issue an emergency order without EIMC input. To the extent practicable, DOE will promptly alert stakeholders of the grid security emergency through existing alert mechanisms, such as the NERC alert system and ESCC communication coordination processes.

    Proposed § 205.382 outlines the EIMC procedures. When the Department is notified, in writing, that the President has declared a grid security emergency and has directed the Secretary to order emergency response measures, the EIMC will be activated. The EIMC will create ad hoc task groups, assign recommendation development tasks to these groups, and coordinate the Department's consultation efforts. The EIMC may take other actions but only as necessary and practicable to develop the Department's recommendations to the Secretary. After the EIMC makes its recommendations, the Secretary will issue the emergency order. Again, the Department would follow these procedures to the extent practicable, but subject to the Secretary's judgment of the urgency of the situation and the best approach under the circumstances.

    Consistent with the Department's longstanding practice, all reasonable efforts will be made to consult with stakeholders prior to the issuance of an emergency order. The statute also requires the Secretary to consult with other governmental authorities and non-governmental entities before issuing emergency orders, “to the extent practicable in light of the nature of the grid security emergency and the urgency of the need for action.” The Department understands that electric reliability entities and private industry will likely be impacted by the emergency and have important situational awareness to assist the Department in identifying mitigation or protection measures. Proposed § 205.383 outlines how the Department will coordinate its communication with other entities. Within the Department, the Office of Electricity Delivery and Energy Reliability (OE) will be the lead program office supporting the Secretary in issuing grid security emergency orders. As set forth in this proposed rule, OE would be responsible for conducting the required consultations under the statute. Consultation would include the Department's effort to obtain information and recommended emergency measures from those government entities,1 electric reliability entities, and owners, users, or operators of critical electric infrastructure or of defense critical electric infrastructure—including private-sector entities—impacted by the emergency. Historically, the Department has collaborated with other Federal agencies in an energy emergency to obtain waivers or special permits to facilitate expedited restoration. Here, the Department also intends to work with other Federal agencies to obtain waivers or special permits necessary to comply with the Secretary's order.

    1 DOE notes that the regulatory text of proposed § 205.383 discusses consultation with agencies supporting Emergency Support Function (ESF) #12. For clarification, ESF #12 is the Department of Energy's responsibility to help reestablish damaged energy systems and components when an incident requires a coordinated Federal response. The scope of ESF #12 includes providing technical expertise; collecting, evaluating, and sharing information on energy system damage; estimating the impact of system outages locally, regionally, and nationally; helping government and private sector entities overcome challenges in reestablishing energy system; and providing information about the status of energy reestablishment efforts.

    After the Secretary issues an emergency order, the Department will communicate the order's content to the entities subject to the order, as noted in proposed § 205.384. The Department will also enlist the ESCC and E-ISAC to communicate the order's content to those affected. The Department will also use any other form of communication most appropriate under the circumstances. Optimal communication on grid security emergencies will be paramount during the emergency, and the Department will work to ensure that information is shared that will help it to respond most effectively. For that reason, according to proposed § 205.384 and consistent with obligations to protect classified information, the Secretary may declassify information eligible for that change in status to ensure maximum distribution of information critical to the emergency response.

    This proposed rule is limited to the Department's procedures for issuing an emergency order in response to a grid security emergency. Should the Secretary issue such an order, the order itself would set out the requirements and procedures for impacted entities to seek clarification or reconsideration of that particular order. Proposed § 205.385 provides general requirements for such requests. In particular, DOE proposes that anyone subject to a particular order may submit a request for clarification or reconsideration in writing to the Secretary. The requests would be posted on the Department's Web site consistent with criteria established for treatment of critical electric infrastructure information. In acting on a request for clarification or reconsideration, the Secretary may grant or deny the request or may abrogate or modify the final order, in whole or in part, with or without further proceedings, as soon as practicable. Such a request would not stay an emergency order unless the Secretary so determined.

    As warranted, and to the extent practicable and consistent with obligations to protect classified information, the Secretary may allow key personnel of ordered entities temporary access to classified information. Proposed § 205.386 sets out this approach.

    Proposed § 205.387 describes termination of grid security emergency orders. An emergency order remains effective for up to fifteen (15) days and may be extended for subsequent periods of up to 15 days if the President issues another directive to the Secretary that the original emergency has not ended or that the emergency measures already ordered are still required. If warranted, the Secretary may also terminate an order before the 15 days have elapsed. The entity or entities subject to the emergency order may also request that the Secretary terminate an order if the entity or entities believes that the grid security emergency ceases to exist and that protection or restoration of the grid has been achieved.

    The Department also plans to determine compliance with grid security emergency orders, as described in proposed § 205.388. At the time the Department issues an emergency order, or shortly after the issuance, the Department may require the ordered party to provide a detailed account of compliance actions. As noted in proposed § 205.389, enforcement provisions in Part III of the Federal Power Act also apply to orders issued under section 215A. See 42 U.S.C. 7151(b) & 7172(a)(2)(A). For appeal purposes, as noted in proposed § 205.390, the Federal Power Act includes the requirements for a rehearing request and the process for an appeal of a decision.

    As indicated in proposed § 205.391, the Department will not adjudicate cost recovery under an emergency order, as that determination is reserved for the Commission, state regulators, or the United States Court of Federal Claims. Specifically, the FAST Act allows the Commission to “establish a mechanism” allowing an aggrieved party to recover costs, but only if it determines that such a party has “incurred substantial costs to comply with an order for emergency measures issued under [section 215A] and that such costs were prudently incurred and cannot reasonably be recovered through regulated rates or market prices for the electric energy or services sold by” the aggrieved party.

    Finally, the FAST Act shields parties affected by emergency orders from liability for what would otherwise be violations of the Federal Power Act or the reliability standards, except in cases of gross negligence. New section 215A(f) of the Federal Power Act states that any action or omission taken to comply with an emergency order that causes noncompliance “with any rule, order, regulation, or provision” of the Federal Power Act, as well as any FERC-approved reliability standard, “shall not be considered a violation” of that legal requirement. The same subsection incorporates the liability protection for emergency orders issued under section 202(c) of the Federal Power Act. That protection, for actions or omissions resulting in noncompliance with “any Federal, State, or local environmental law or regulation,” not only frees the ordered party from violations of those laws or regulations, but also shields the ordered party from “any requirement, civil or criminal liability, or a citizen suit under such environmental law or regulation,” even if a court subsequently stays, modifies, or sets aside the order. Proposed § 205.392 describes all of these protections.

    III. Public Participation A. Submission of Comments

    DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments using any of the methods described in the ADDRESSES section at the beginning of this proposed rule.

    Submitting comments via regulations.gov. The regulations.gov Web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

    However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

    Do not submit to regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through regulations.gov cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

    DOE processes submissions made through regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that regulations.gov provides after you have successfully uploaded your comment.

    Submitting comments via email, hand delivery, or mail. Comments and documents submitted via email, hand delivery, or mail also will be posted to regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

    Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.

    Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

    Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

    Confidential Business Information. According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery two well-marked copies: One copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked non-confidential with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

    Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

    It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

    IV. Regulatory Review A. Executive Order No. 12,866

    This proposed rule has been determined to be a significant regulatory action under Executive Order No. 12,866, “Regulatory Planning and Review,” 58 FR 51,735 (Oct. 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget.

    B. National Environmental Policy Act

    DOE has determined that this proposed rule is covered under the Categorical Exclusion found in the DOE's National Environmental Policy Act regulations at paragraph A6 Rulemakings, procedural of appendix A to subpart D, 10 CFR part 1021, which applies to Rulemakings that are strictly procedural, such as rulemaking (under 48 CFR part 9) establishing procedures for technical and pricing proposals and establishing contract clauses and contracting practices for the purchase of goods and services, and rulemaking (under 10 CFR part 600) establishing application and review procedures for, and administration, audit, and closeout of, grants and cooperative agreements. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

    C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order No. 13,272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53,461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE's procedures and policies are available on the Office of General Counsel's Web site: http://www.energy.gov/gc/downloads/executive-order-13272-consideration-small-entities-agency-rulemaking.

    DOE has reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This proposed rule sets forth procedures that DOE expects to use to issue an order in the event of a declared grid security emergency. The procedures govern DOE activities in the issuance of an order and therefore impact DOE, a Federal agency, rather than any small entities.

    DOE further expects that these orders would be issued rarely. In addition, the FAST Act authorizes DOE to issue orders only to specific entities—namely, the pertinent Electric Reliability Organization (NERC, as of this rulemaking), regional entity, or any owner, user or operator of critical energy infrastructure or defense critical energy infrastructure. DOE has determined that these entities most likely fall under NAICS code 221121, “Electric Bulk Power Transmission and Control.” To be considered a small entity, these businesses must have 500 employees or less. Due to the nature of the orders to protect or restore and/or infrastructure, DOE has determined that it is likely to consult with large businesses.

    An entity subject to an order may request the clarification or rehearing of an order, or the termination of an order. DOE does not expect that these provisions, which would help an entity to understand an order or, in the case of a termination granted by the Secretary, end the applicability of an order, to impose a significant impact on any entity. DOE may also consult with any of these entities to understand the grid security emergency and obtain recommendations to address the emergency. DOE also does not expect these consultations to result in a significant impact on any entity because the interaction would not order the entity to perform any action, but would rather be an exchange of information to help DOE understand the emergency and consider measures to protect and/or restore infrastructure. In addition, it is likely that only entities with equities that could be impacted by potential orders would be consulted. In the event that an order is issued to address a grid security emergency, because the contents of any order would be highly dependent upon the nature of the grid security emergency, DOE again emphasizes that the order itself, rather than these procedures, would specify the requirements necessary to address the grid security emergency.

    On the basis of the foregoing, DOE certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE's certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b).

    D. Paperwork Reduction Act

    This proposed rule does not contain information collection requirements subject to approval by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and the procedures implementing that Act at 5 CFR part 1320. A person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

    E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. Section 101(5) of title I of that law defines a Federal intergovernmental mandate to include any regulation that would impose upon State, local, or tribal governments an enforceable duty, except a condition of Federal assistance or a duty arising from participating in a voluntary federal program. Title II of that law requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal governments, in the aggregate, or to the private sector, other than to the extent such actions merely incorporate requirements specifically set forth in a statute. Section 202 of that title requires a Federal agency to perform a detailed assessment of the anticipated costs and benefits of any rule that includes a Federal mandate which may result in costs to State, local, or tribal governments, or to the private sector, of $100 million or more in any one year (adjusted annually for inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title requires each agency that proposes a rule containing a significant Federal intergovernmental mandate to develop an effective process for obtaining meaningful and timely input from elected officers of State, local, and tribal governments. 2 U.S.C. 1534.

    This proposed rule will establish the procedures DOE expects to use issue an order in the event of a declared grid security emergency. In the event that an order is issued to address a grid security emergency, the order itself, rather than these procedures, would specify the requirements necessary to address the grid security emergency. The proposed 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. Accordingly, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995.

    F. Treasury and General Government Appropriations Act, 1999

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

    G. Executive Order No. 13,132

    Executive Order No. 13,132, “Federalism,” 64 FR 43,255 (Aug. 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it will not preempt State law and will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This proposed rule would establish the procedures DOE expects to use issue an order in the event of a declared grid security emergency. In the event that an order is issued to address a grid security emergency, the order itself, rather than these procedures, would specify the requirements necessary to address the grid security emergency. No further action is required by Executive Order No. 13,132.

    H. Executive Order No. 12,988

    With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order No. 12,988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order No. 12,988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order No. 12,988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or whether it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order No. 12,988.

    I. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB.

    OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62,446 (Oct. 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

    J. Executive Order No. 13,211

    Executive Order No. 13,211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28,355 (May 22, 2001) requires Federal agencies to prepare and submit to the OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order No. 12,866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action will not have a significant adverse effect on the supply, distribution, or use of energy. The proposed rule would establish the procedures DOE expects to use issue an order in the event of a declared grid security emergency. In the event that an order is issued to address a grid security emergency, the order itself, rather than these procedures, would specify the requirements necessary to address the grid security emergency. In addition, the statute requires that the order must “protect or restore” critical electric infrastructure or defense critical electric infrastructure. Therefore, the rule is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

    V. Approval of the Office of the Secretary

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

    List of Subjects in 10 CFR Part 205

    Administrative practice and procedure, Energy, and Recordkeeping and reporting requirements.

    Issued in Washington, DC, on November 23, 2016. Patricia Hoffman, Assistant Secretary, Office of Electricity Delivery and Energy Reliability.

    For the reasons stated in the preamble, DOE proposes to amend part 205 of chapter II, subchapter A, of Title 10 of the Code of Federal Regulations, as set forth below:

    PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS 1. The authority citation for part 205 continues to read as follows: Authority:

    Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. Section 7101). Federal Power Act, Pub. L. 66-280, 41 Stat. 1063 (16 U.S.C. Section 792) et seq., Department of Energy Delegation Order No. 0204-4 (42 FR 60726). E.O. 10485, 18 FR 5397, 3 CFR, 1949-1953, Comp., p. 970 as amended by E.O. 12038, 43 FR 4957, 3 CFR 1978 Comp., p. 136.

    2. Part 205 is amended by revising the heading of subpart W to read as follows: Subpart W—Electric Power System Permits and Reports; Applications; Administrative Procedures and Sanctions; Grid Security Emergency Orders 3. Subpart W is amended by adding an undesignated center heading after § 205.379 to read as follows: Internal Procedures for Issuance of a Grid Security Emergency Order 4. Sections 205.380 through 250.392 are added to subpart W to read as follows: Sec. § 205.380 Definitions. § 205.381 Application of emergency order. § 205.382 Procedures for issuing an emergency order. § 205.383 Outreach and consultation. § 205.384 Communication of orders. § 205.385 Clarification or reconsideration. § 205.386 Temporary access to classified information. § 205.387 Termination of an emergency order. § 205.388 Tracking compliance. § 205.389 Enforcement. § 205.391 Cost recovery. § 205.392 Liability exemptions.
    § 205.380 Definitions.

    As used in this part:

    Bulk-power system means:

    (1) Facilities and control systems necessary for operating an interconnected electric energy transmission network (or any portion thereof); and

    (2) Electric energy from generation facilities needed to maintain transmission system reliability.

    (3) The term does not include facilities used in the local distribution of electric energy.

    Commission means the Federal Energy Regulatory Commission.

    Critical electric infrastructure means a system or asset of the bulk-power system, whether physical or virtual, the incapacity or destruction of which would negatively affect national security, economic security, public health or safety, or any combination of such matters.

    Defense critical electric infrastructure means any electric infrastructure located in any of the 48 contiguous States or the District of Columbia that serves a facility designated by the Secretary as:

    (1) Critical to the defense of the United States; and

    (2) Vulnerable to a disruption of the supply of electric energy provided to such facility by an external provider, but that is not owned or operated by the owner or operator of such facility.

    Department means the United States Department of Energy.

    Electric reliability organization means the organization, certified by the Commission under section 215(c) of the Federal Power Act, 16 U.S.C. 824o(c), the purpose of which is to establish and enforce reliability standards for the bulk-power system, subject to Commission review.

    Electricity information sharing and analysis center means the organization, operated on behalf of the electricity subsector by the Electric Reliability Organization, that gathers and analyzes security information, coordinates incident management, and communicates mitigation strategies with stakeholders within the electricity subsector, across interdependent sectors, and with government partners. The E-ISAC, in collaboration with the Department of Energy and the Electricity Subsector Coordinating Council (ESCC), serves as the primary security communications channel for the electricity subsector and enhances the subsector's ability to prepare for and respond to cyber and physical threats, vulnerabilities, and incidents.

    Electricity subsector coordinating council means the organization that aims to foster and facilitate the coordination of sector-wide, policy-related activities and initiatives designed to improve the reliability and resilience of the electricity subsector, including physical and cyber security infrastructure.

    Electromagnetic pulse means one or more pulses of electromagnetic energy emitted by a device capable of disabling or disrupting operation of, or destroying, electronic devices or communications networks, including hardware, software, and data, by means of such a pulse.

    Emergency & incident management council means the organization, internal to the Department of Energy and chaired by the Deputy Secretary of Energy, designed to increase cooperation and coordination across the Department to prepare for, mitigate, respond to, and recover from emergencies.

    Geomagnetic storm means a temporary disturbance of the Earth's magnetic field resulting from solar activity.

    Grid security emergency means the occurrence or imminent danger of:

    (1) A malicious act using electronic communication or an electromagnetic pulse, or a geomagnetic storm event, that could disrupt the operation of those electronic devices or communications networks, including hardware, software, and data, that are essential to the reliability of critical electric infrastructure or of defense critical electric infrastructure; and

    (2) Disruption of the operation of such devices or networks, with significant adverse effects on the reliability of critical electric infrastructure or of defense critical electric infrastructure, as a result of such act or event; or

    (3) A direct physical attack on critical electric infrastructure or on defense critical electric infrastructure; and

    (4) Significant adverse effects on the reliability of critical electric infrastructure or of defense critical electric infrastructure as a result of such physical attack.

    Regional entity means an entity having enforcement authority under section 215(e)(4) of the Federal Power Act, 16 U.S.C. 824o(e)(4).

    Secretary means the Secretary of Energy.

    § 205.381 Application of emergency order.

    An order for emergency measures under section 215A(b) of the Federal Power Act may apply to the Electric Reliability Organization, a regional entity, or any owner, user, or operator of critical electric infrastructure or of defense critical electric infrastructure within the United States.

    § 205.382 Procedures for issuing an emergency order.

    (a) The Secretary has final authority and may act as quickly as necessary to address the emergency. The Secretary will adhere to these procedures unless, in the Secretary's judgment, the emergency requires alternative procedures.

    (b) Upon the Department's receipt of the President's written directive or determination identifying a Grid Security Emergency, the Emergency & Incident Management Council (Council) will convene at least one emergency meeting. Resulting from this meeting, the Council's responsibilities will include, but not be limited to:

    (1) Assigning consultation and situational awareness tasks;

    (2) Creating ad hoc task groups; and

    (3) Assigning recommendation development tasks to the ad hoc task groups it has created.

    (c) The Council will present its recommendations to the Secretary as expeditiously as possible and practicable. As quickly as the situation requires, following presentation of the Council's recommendations, the Secretary will issue the emergency order.

    § 205.383 Outreach and consultation.

    The Department of Energy's Office of Electricity Delivery and Energy Reliability will conduct consultation related to any order issued by the Secretary in response to a declared Grid Security Emergency. Before the issuance of any order, to the extent practicable in light of the nature of the Grid Security Emergency and the urgency of the need for action, outreach efforts will be made to consult at least the following: Authorities in the government of Canada; authorities in the government of Mexico; appropriate Federal agencies including, but not limited to, those supporting Emergency Support Function No. 12; the Commission; and at least the following non-government entities: The Electricity Subsector Coordinating Council, the Electric Reliability Organization, regional entities, and owners, users, or operators of Critical Electric Infrastructure or of Defense Critical Electric Infrastructure within the United States. Consultation will include the Department's effort to obtain information related to the Grid Security Emergency and recommended emergency measures from those governments, electric reliability entities, and private sector companies impacted by the emergency.

    § 205.384 Communication of orders.

    The Department will communicate the content of emergency orders issued by the Secretary to the parties subject to the order. The Department will also rely on existing coordinating bodies, such as the Electricity Subsector Coordinating Council and the Electricity Information Sharing and Analysis Center, in addition to any other form or forms of communication most expedient under the circumstances, to communicate the content of emergency orders issued by the Secretary. To the extent practicable under the circumstances, efforts will be made to declassify information to ensure maximum distribution.

    § 205.385 Clarification or reconsideration.

    Any request for clarification or reconsideration of an emergency order issued under section 215A(b) of the Federal Power Act must be submitted in writing to the Secretary, and will be posted on the DOE Web site consistent with CEII criteria. The Secretary may, in his sole discretion, order a stay of the emergency order for which such clarification or rehearing is sought. The Secretary may grant or deny the request for clarification or reconsideration, or may abrogate or modify the order, in whole or in part, with or without further proceedings, as soon as practicable.

    § 205.386 Temporary access to classified information.

    To the extent practicable, and consistent with obligations to protect classified information, the Secretary may provide temporary access to classified information, related to a Grid Security Emergency for which emergency measures are issued, to key personnel of any entity subject to such emergency measures. The purpose of this access is to enable optimum communication between the entity and the Secretary and other appropriate Federal agencies regarding the Grid Security Emergency.

    § 205.387 Termination of an emergency order.

    (a) An order for emergency measures shall expire no later than 15 days after its issuance. The Secretary may reissue an order for emergency measures for subsequent periods, not to exceed 15 days for each such period, provided that the President, for each such period, issues and provides to the Secretary a written directive or determination that the Grid Security Emergency for which the Secretary intends to reissue an emergency order continues to exist or that the emergency measures continue to be required.

    (b) The Secretary may rescind an emergency order after finding that the Grid Security Emergency for which that order was issued has ended and that protective or mitigation measures required by the order have been sufficiently taken.

    (c) An entity or entities subject to an emergency order under this rule may, at any time, request termination of the emergency order by demonstrating, in a petition to the Secretary, that the emergency no longer exists and that protective or mitigation measures required by the order have been sufficiently taken.

    § 205.388 Tracking compliance.

    Beginning at the time the Secretary issues an emergency order, the Department may require the ordered party to provide a detailed account of actions taken to comply with the terms of the order.

    § 205.389 Enforcement.

    In accordance with Part III of the Federal Power Act, the Secretary may take or seek enforcement action against ordered parties who fail to comply with the terms of an order issued under section 215A(b) of that Act.

    § 205.390 Rehearing and Judicial Review.

    The procedures of Part III of the Federal Power Act apply to motions for rehearing of orders issued under section 215A(b) of that Act filed for the purpose of preserving appellate rights.

    § 205.391 Cost recovery.

    A party seeking recovery of costs associated with compliance with an order issued under section 215A(b) of the Federal Power Act must petition the appropriate State regulatory agency, the United States Court of Federal Claims, or the Commission for relief.

    § 205.392 Liability exemptions.

    To the extent any action or omission taken by an entity that is necessary to comply with an order for emergency measures issued by authority of section 215A(b) of the Federal Power Act and pursuant to this Part, including any action or omission taken to voluntarily comply with such order, results in noncompliance with, or causes such entity not to comply with any rule, order, regulation, or provision of or under that Act, including any reliability standard approved by the Commission pursuant to section 215 of that Act, such action or omission shall not be considered a violation of such rule, order, regulation, or provision. Further, an action or omission by an owner, operator, or user of Critical Electric Infrastructure or of Defense Critical Electric Infrastructure to comply with an order for emergency measures issued under section 215A(b) of the Federal Power Act shall be treated as an action or omission taken to comply with an order issued under section 202(c) of that Act for purposes of such section. These liability exemptions shall not apply to an entity that, in the course of complying with an order for emergency measures issued under section 215A(b) of the Federal Power Act by taking an action or omission for which the entity would otherwise be liable, takes such action or omission in a grossly negligent manner.

    [FR Doc. 2016-28974 Filed 12-6-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-6436; Directorate Identifier 2015-SW-037-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Helicopters Deutschland GmbH Helicopters AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for Airbus Helicopters Deutschland GmbH (Airbus Helicopters) Model MBB-BK117 C-2 helicopters. This proposed AD would require inspecting the pilot collective wiring harness. This proposed AD is prompted by a report that a heat-shrinkable sleeve prevented the twist grip on the collective from being fully engaged during a flight test. The proposed actions are intended to prevent failure of the hoist or emergency landing gear flotation systems due to chafing of wiring caused by an incorrectly installed heat-shrinkable sleeve.

    DATES:

    We must receive comments on this proposed AD by February 6, 2017.

    ADDRESSES:

    You may send comments by any of the following methods:

    Federal eRulemaking Docket: Go to http://www.regulations.gov. Follow the online instructions for sending your comments electronically.

    Fax: 202-493-2251.

    Mail: Send comments to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

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

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6436; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the European Aviation Safety Agency (EASA) AD, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    For service information identified in this proposed rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.airbushelicopters.com/techpub.You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177.

    FOR FURTHER INFORMATION CONTACT:

    George Schwab, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

    We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

    Discussion

    EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2015-0144, dated July 21, 2015, to correct an unsafe condition for Airbus Helicopters Model MBB-BK117 C-2 helicopters, up to serial number 9708. EASA advises that, during a flight test, the pilot could not fully engage a twist grip on a Model MBB-BK117 C-2 helicopter. According to EASA, further investigation found a transparent sleeve on the collective lever wiring harness damaged because of incorrect installation of the heat-shrinkable sleeve. This condition, if not detected and corrected, could result in chafing of the harness, leading to the malfunction of the affected systems, EASA advises. EASA consequently requires a one-time inspection of the heat-shrinkable and transparent sleeves installed on the collective lever wiring harness.

    FAA's Determination

    These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.

    Related Service Information Under 1 CFR Part 51

    We reviewed Airbus Helicopters Alert Service Bulletin ASB MBB-BK117 C-2-88A-010, Revision 1, dated April 16, 2015 (ASB), which specifies a visual inspection of the heat-shrinkable sleeve for correct position. If the sleeve's position is incorrect, the ASB specifies shortening the sleeve. If there is any damage, the ASB calls for replacing the damaged parts.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Proposed AD Requirements

    This proposed AD would require, within 100 hours time-in-service, visually inspecting the pilot collective wiring harness for correct position of the heat-shrinkable sleeve and the transparent sleeve. If the heat-shrinkable and the transparent sleeves are in their correct positions, this proposed AD would require re-installing the collective lever. If the heat-shrinkable sleeve is closer to or below the torque tube tangs, this proposed AD would require shortening the heat-shrinkable sleeve. If the transparent sleeve is damaged, this proposed AD would require replacing the heat-shrinkable sleeve, transparent sleeve, and identification sleeve. Lastly, this proposed AD would require replacing any damaged wires in the wiring harness.

    Differences Between This Proposed AD and the TCCA AD

    The compliance time in the EASA AD is based on whether the helicopter has an externally mounted hoist or emergency flotation system. This proposed AD would require compliance within 100 hours time-in-service for all applicable helicopters.

    Costs of Compliance

    We estimate that this proposed AD would affect 113 helicopters of U.S. Registry and that labor costs average $85 a work hour.

    • Inspecting the pilot collective wiring harness for the correct position of the heat-shrinkable sleeve would require 1.5 work hours. No parts would be required for a total cost of $128 per helicopter and $14,464 for the U.S. fleet.

    • Replacing or repairing the sleeves would require 5.5 work hours and parts would cost $10, for a total cost of $478 per helicopter.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed, I certify this proposed regulation:

    1. Is not a “significant regulatory action” under Executive Order 12866;

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

    3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

    We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus Helicopters Deutschland GmbH Helicopters: Docket No. FAA-2016-6436; Directorate Identifier 2015-SW-037-AD. (a) Applicability

    This AD applies to Airbus Helicopters Deutschland GmbH Model MBB-BK 117 C-2 helicopters, serial numbers 9004 through 9708, certificated in any category.

    (b) Unsafe Condition

    This AD defines the unsafe condition as an incorrectly installed heat-shrinkable sleeve on the collective lever wiring harness. This condition could result in chafing of the wiring and subsequent failure of the hoist cable cutter or emergency landing gear flotation systems.

    (c) Comments Due Date

    We must receive comments by February 6, 2017.

    (d) Compliance

    You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

    (e) Required Actions

    Within 100 hours time-in-service, remove the pilot collective lever and visually inspect the pilot collective lever wiring harness for proper installation of the heat-shrinkable sleeve and transparent sleeve and for damage in accordance with paragraph 3.B.2.1 and as depicted in Figure 2 of Airbus Helicopters Alert Service Bulletin MBB-BK117 C-2-88A-010, Revision 1, dated April 16, 2015 (ASB).

    (1) If the heat-shrinkable sleeve and transparent sleeve are installed as depicted in Figure 2 of the ASB and there is no damage, install the collective lever in accordance with paragraphs 3.B.2.3.a through 3.B.2.3.f of the ASB.

    (2) If the heat-shrinkable sleeve or transparent sleeve is installed as depicted in Figure 3, Detail B of the ASB, alter the heat-shrinkable sleeve as depicted in Figure 3, Detail C.

    (3) If the transparent sleeve is damaged as depicted in Figure 4, Detail D of the ASB, replace the heat-shrinkable sleeve, transparent sleeve, and identification sleeve. Replace any wire that has a nick, scratch, cut, or is frayed.

    (f) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: George Schwab, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

    (2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.

    (g) Additional Information

    The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2015-0144, dated July 21, 2015. You may view the EASA AD on the Internet at http://www.regulations.gov in the AD Docket.

    (h) Subject

    Joint Aircraft Service Component (JASC) Code: Wheel/Ski/Float/Emergency Equipment, 3246/2560.

    Issued in Fort Worth, Texas, on November 21, 2016. Lance T. Gant, Manager, Rotorcraft Directorate, Aircraft Certification Service.
    [FR Doc. 2016-28670 Filed 12-6-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9167; Directorate Identifier 2016-NE-20-AD] RIN 2120-AA64 Airworthiness Directives; General Electric Company Turbofan Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain General Electric Company (GE) GE90 turbofan engines. This proposed AD was prompted by a report of an engine and airplane fire. This proposed AD would require replacing affected fuel/oil lube/servo coolers (“main heat exchangers”) with a part eligible for installation. We are proposing this AD to prevent failure of a main heat exchanger, which could result in an engine fire.

    DATES:

    We must receive comments on this proposed AD by January 23, 2017.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact General Electric Company, GE-Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215, phone: 513-552-3272; email: [email protected] You may view this referenced service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9167; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    John Frost, Aerospace Engineer, Engine Certification Office, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7756; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this NPRM. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-FAA-2016-9167; Directorate Identifier 2016-NE-20-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    We propose to adopt an AD for certain GE GE90-76B, GE90-85B, GE90-90B, GE90-94B, GE90-110B1, and GE90-115B turbofan engines with a main heat exchanger, part number (P/N) 1838M88P11 or 1838M88P13.

    This proposed AD is prompted by a report of an airplane fire caused by a failed main heat exchanger. The incident investigation determined the cause to be an internal main heat exchanger tube separation, which resulted in leakage of fuel into the oil system, causing oil sump flooding that overwhelmed the scavenge and venting system. This condition, if not corrected, could result in failure of a main heat exchanger, which could cause an engine fire. To correct this unsafe condition, we propose to require replacing the main heat exchanger with a part not affected by this proposed AD or with a part that is repaired in accordance with the manufacturer's service information.

    Related Service Information Under 1 CFR Part 51

    We reviewed GE Service Bulletin (SB) GE90-100 SB 79-0034, Revision 03, dated August 5, 2016, and SB GE90 SB 79-0058, Revision 02, dated August 5, 2016. This service information describes procedures to replace and repair a main heat exchanger. These documents are distinct since they apply to different engine models.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require replacing the affected main heat exchangers with a part eligible for installation.

    Costs of Compliance

    We estimate that this proposed AD affects 185 engines installed on airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Replace main heat exchanger 5 work-hours × $85 per hour = $425 $7,000 $7,425 $1,373,625
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): General Electric Company: Docket No. FAA-2016-9167; Directorate Identifier 2016-NE-20-AD. (a) Comments Due Date

    We must receive comments by January 23, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to General Electric Company (GE) GE90-76B, GE90-85B, GE90-90B, GE90-94B, GE90-110B1, and GE90-115B turbofan engines with a fuel/oil lube/servo cooler (“main heat exchanger”) part number (P/N) 1838M88P11 or 1838M88P13, with a serial number listed in paragraph 1.A of GE Service Bulletin (SB) GE90-100 SB 79-0034, Revision 03, dated August 05, 2016; or SB GE90 SB 79-0058, Revision 02, dated August 05, 2016.

    (d) Subject

    Joint Aircraft System Component (JASC) Code 7921, Engine Oil Cooler.

    (e) Unsafe Condition

    This AD was prompted by an engine and airplane fire. We are issuing this AD to prevent failure of a main heat exchanger, which could result in an engine fire.

    (f) Compliance

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

    (g) Required Actions

    Within 12 months after the effective date of this AD, replace the main heat exchanger with a part eligible for installation.

    (h) Definition

    For purposes of this AD, a part eligible for installation is a main heat exchanger with a P/N and serial number not listed in paragraph (c) of this AD or a main heat exchanger repaired in accordance with the Accomplishment Instructions, paragraphs 3.C.(2) through 3.C.(7), of GE SB GE90-100 SB 79-0034, dated December 3, 2014; Revision 01, dated August 14, 2015; Revision 02, dated November 6, 2015; or Revision 03, dated August 5, 2016; or GE SB GE90 SB 79-0058, dated August 18, 2015; Revision 01, dated December 10, 2015; or Revision 02, dated August 05, 2016.

    (i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to: [email protected]

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

    (j) Related Information

    (1) For more information about this AD, contact John Frost, Aerospace Engineer, Engine Certification Office, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7756; fax: 781-238-7199; email: [email protected]

    (2) For service information identified in this AD, contact General Electric Company, GE-Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215, phone: 513-552-3272; email: [email protected]

    (3) You may view this referenced service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

    Issued in Burlington, Massachusetts, on November 16, 2016. Colleen M. D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
    [FR Doc. 2016-28667 Filed 12-6-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 [Docket No. OSHA—2016-0014] RIN 1218-AD 08 Prevention of Workplace Violence in Healthcare and Social Assistance AGENCY:

    Occupational Safety and Health Administration (OSHA), DOL.

    ACTION:

    Request for Information (RFI).

    SUMMARY:

    Workplace violence against employees providing healthcare and social assistance services is a serious concern. Evidence indicates that the rate of workplace violence in the industry is substantially higher than private industry as a whole. OSHA is considering whether a standard is needed to protect healthcare and social assistance employees from workplace violence and is interested in obtaining information about the extent and nature of workplace violence in the industry and the nature and effectiveness of interventions and controls used to prevent such violence. This RFI provides an overview of the problem of workplace violence in the healthcare and social assistance sector and the measures that have been taken to address it. It also seeks information on issues that might be considered in developing a standard, including scope and the types of controls that might be required.

    DATES:

    Submit comments on or before April 6, 2017. All submissions must bear a postmark or provide other evidence of the submission date.

    ADDRESSES:

    Submit comments and additional materials by any of the following methods:

    Electronically: Submit comments and attachments electronically at http://www.regulations.gov, which is the Federal eRulemaking Portal. Follow the instructions online for making electronic submissions.

    Facsimile: OSHA allows facsimile transmission of comments and additional material that are 10 pages or fewer in length (including attachments). Send these documents to the OSHA Docket Office at (202) 693-1648. OSHA does not require hard copies of these documents. Instead of transmitting facsimile copies of attachments that supplement these documents (for example, studies, journal articles), commenters must submit these attachments to the OSHA Docket Office, Technical Data Center, Room N-3653, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210. These attachments must identify clearly the sender's name, the date, subject, and docket number OSHA-2016-0014 so that the Docket Office can attach them to the appropriate document.

    Regular mail, express mail, hand delivery, or messenger (courier) service: Submit comments and any additional material (for example, studies, journal articles) to the OSHA Docket Office, Docket No. OSHA-2016-0014 or RIN 1218-AD 08, Technical Data Center, Room N-3653, OSHA, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210; telephone: (202) 693-2350. (OSHA's TTY number is (877) 889-5627.) Contact the OSHA Docket Office for information about security procedures concerning delivery of materials by express mail, hand delivery, and messenger service. The hours of operation for the OSHA Docket Office are 10 a.m. to 3:00 p.m., e.t.

    Instructions: All submissions must include the Agency's name and the docket number for this Request for Information (OSHA-2016-0014). OSHA will place comments and other material, including any personal information, in the public docket without revision, and these materials will be available online at http://www.regulations.gov. Therefore, OSHA cautions commenters about submitting statements they do not want made available to the public and submitting comments that contain personal information (either about themselves or others) such as Social Security numbers, birth dates, and medical data.

    If you submit scientific or technical studies or other results of scientific research, OSHA requests (but is not requiring) that you also provide the following information where it is available: (1) Identification of the funding source(s) and sponsoring organization(s) of the research; (2) the extent to which the research findings were reviewed by a potentially affected party prior to publication or submission to the docket, and identification of any such parties; and (3) the nature of any financial relationships (e.g., consulting agreements, expert witness support, or research funding) between investigators who conducted the research and any organization(s) or entities having an interest in the rulemaking and policy options discussed in this RFI. Disclosure of such information is intended to promote transparency and scientific integrity of data and technical information submitted to the record. This request is consistent with Executive Order 13563, issued on January 18, 2011, which instructs agencies to ensure the objectivity of any scientific and technological information used to support their regulatory actions. OSHA emphasizes that all material submitted to the record will be considered by the Agency if it engages in rulemaking.

    Docket: To read or download submissions or other material in the docket, go to: http://www.regulations.gov or the OSHA Docket Office at the address above. The http://www.regulations.gov index lists all documents in the docket. However, some information (e.g., copyrighted material) is not available publicly to read or download through the Web site. All submissions, including copyrighted material, are available for inspection at the OSHA Docket Office. Contact the OSHA Docket Office for assistance in locating docket submissions.

    FOR FURTHER INFORMATION CONTACT:

    Press Inquiries: Frank Meilinger, Director, OSHA Office of Communications, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone: 202-693-1999; email: [email protected]

    General and technical information: Lyn Penniman, OSHA Directorate of Standards and Guidance, Room N-3609, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone: 202-693-2245; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Copies of this Federal Register notice: Electronic copies are available at: http://www.regulations.gov. This Federal Register notice, as well as news releases and other relevant information, also are available at OSHA's Web page at http://www.osha.gov.

    References and Exhibits (optional): Documents referenced by OSHA in this request for information, other than OSHA standards and Federal Register notices, are in Docket No. OSHA-2016-0014 (Prevention of Workplace Violence in Healthcare). The docket is available at: http://www.regulations.gov, the Federal eRulemaking Portal. For additional information on submitting items to, or accessing items in, the docket, please refer to the Addresses section of this RFI. Most exhibits are available at http://www.regulations.gov; some exhibits (e.g., copyrighted material) are not available to download from that Web page. However, all materials in the dockets are available for inspection and copying at the OSHA Docket Office, Room N-3653, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC.

    Table of Contents I. Overview II. Background A. OSHA's Prior Actions To Protect Healthcare and Social Assistance Workers From Violence 1. Guidelines for Preventing Workplace Violence for Healthcare and Social Assistance 2. Enforcement Directive B. State Laws C. Recommendations From Governmental, Professional and Public Interest Organizations D. Questions for Section II III. Defining Workplace Violence A. Definition and Types of Events Under Consideration B. Questions for Section III IV. Scope A. Health Care and Social Assistance B. Questions for Section IV V. Workplace Violence Prevention Programs A. Elements of Violence Prevention Program 1. Management Commitment and Employee Participation 2. Worksite Analysis and Hazard Identification 3. Hazard Prevention and Control a. Engineering Controls b. Administrative Controls c. Personal Protective Equipment d. Innovative Strategies 4. Safety and Health Training 5. Recordkeeping and Program Evaluation a. Recordkeeping b. Program Evaluation B. Questions for Section V 1. Questions on the Overall Program, Management Commitment and Employee Participation 2. Questions on Worksite Analysis and Hazard Identification 3. Questions on Hazard Prevention and Control 4. Questions on Safety and Health Training 5. Questions on Recordkeeping and Program Evaluation VI. Costs, Economic Impacts, and Benefits A. Questions for Costs, Economic Impacts, and Benefits B. Impacts on Small Entities C. Questions for Section VI VII. References I. Overview

    OSHA is considering whether to commence rulemaking proceedings on a standard aimed at preventing workplace violence in healthcare and social assistance workplaces perpetrated by patients or clients. Workplace violence affects a myriad of healthcare and social assistance workplaces, including psychiatric facilities, hospital emergency departments, community mental health clinics, treatment clinics for substance abuse disorders, pharmacies, community-care facilities, residential facilities and long-term care facilities. Professions affected include physicians, registered nurses, pharmacists, nurse practitioners, physicians' assistants, nurses' aides, therapists, technicians, public health nurses, home healthcare workers, social and welfare workers, security personnel, maintenance personnel and emergency medical care personnel.

    OSHA's analysis of available data suggest that workers in the Health Care and Social Assistance sector (NAICS 62) face a substantially increased risk of injury due to workplace violence. Table 1 compiles data from the Bureau of Labor Statistics' (BLS) Survey of Occupational Injuries and Illnesses (SOII). In 2014, workers in this sector experienced workplace-violence-related injuries at an estimated incidence rate of 8.2 per 10,000 full time workers, over 4 times higher than the rate of 1.7 per 10,000 workers in the private sector overall (BLS Table R8, 2015). Individual portions of the healthcare sector have much higher rates. Psychiatric hospitals have incidence rates over 64 times higher than private industry as a whole, and nursing and residential care facilities have rates 11 times higher than those for private industry as a whole. The overall rate for violence-related injuries in just the social assistance subsector was 9.8 per 10,000, and individual industries, such as vocational rehabilitation with rates of 20.8 per 10,000 full-time workers are higher. In 2014, 79 percent of serious violent incidents reported by employers in healthcare and social assistance settings were caused by interactions with patients (BLS, 2015, Table R3, p. 40).

    Table 1—Cases of Intentional Injury by Other Person(s) by Industry Sectors in 2014 Nonfatal injury cases 1 Rate per 10,000 full time workers 2 All Private Sector Industries 15,980 1.7 Goods Producing 260 0.1 Service Producing 15,710 2.1 Trade-Transportation-and Utilities 1,950 0.9 Leisure and Hospitality 1,160 1.2 Professional and Business Services 470 0.3 Information 40 0.2 Financial Activities 90 0.1 Other Services, Except Public Administration 80 0.3 Educational and Health Services 11,920 7.7 Educational Services 810 4.4 Health Care and Social Assistance 11,100 8.2 Ambulatory Healthcare Services 960 1.9 Hospitals 3,410 8.9 Nursing and Residential Care Facilities 4,690 18.7 Social Assistance 2,050 9.8 1 BLS Table R4, 2015, http://www.bls.gov/iif/oshwc/osh/case/ostb4370.pdf. 2 BLS Table R100, 2015, http://www.bls.gov/iif/oshwc/osh/case/ostb4466.pdf.

    BLS relies on employers to report injury and illness data and employers do not always record or accurately record workplace injuries and illnesses (Ruser, 2008; Robinson, 2014; BLS, 2014). In addition, healthcare and social assistance employees may be reluctant to report incidents of workplace violence (see Section V.A.3.b below).

    Surveys of healthcare and social assistance workers provide another source of data useful for describing the extent of the problem. In one survey, 21 percent of registered nurses and nursing students reported being physically assaulted in a 12-month period (ANA, 2014). The U.S. Department of Health and Human Services (HHS) National Electronic Injury Surveillance System-Work Supplement (NEISS-WORK) reported that, of the cases where healthcare workers sought treatment for workplace violence related injuries in 2011 in hospital emergency rooms, patients were perpetrators an estimated 63 percent of the time (US GAO, 2016). Other perpetrators include patients' families and visitors, and co-workers (Stokowski, 2010; BLS Data, 2013).

    A survey of 175 licensed social workers and 98 agency directors in a western state found that 25 percent of social workers had been assaulted by a client, nearly 50 percent had witnessed violence in a workplace, and more than 75 percent were fearful of violent acts (Rey, 1996). A similar survey of a national sample of 633 workers randomly drawn from the National Association of Social Workers Membership Directory reported that 17.4 percent of the respondents reported being physically threatened, and 2.8 percent being assaulted. Verbal abuse was prevalent and was reported by 42.8 percent respondents (Jayaratne et al., 1996).

    Though non-fatal injuries predominate by a large extent, homicides accounted for 14 fatalities in healthcare and social service settings that occurred in 2014, and 10 that occurred in 2013 (BLS SOII and CFOI Data, 2011-2014).1

    1 Many of the deaths in the healthcare setting involved a shooting, with many perpetrated by someone the worker knew, such as a domestic partner or coworker (US GAO, 2016). While such incidents often garner media attention, they are not the typical foreseeable workplace violence incidents that are associated with predictable risk factors that employers can reduce or eliminate. OSHA does not intend to address these types of incidents in any rulemaking activity.

    This RFI is focused on workplace violence occurring in health care and social assistance for several reasons. While workplace violence occurs in other industries, health care services and social assistance services have a common set of risk factors related to the unique relationship between the care provider and the patient or client. The complex culture of healthcare and social assistance, in which the health care provider is typically cast as the patient's advocate, increases resistance to the notion that healthcare workers are at risk for patient-related violence (McPhaul and Lipscomb, 2004). In addition, the number of healthcare and social assistance workers is likely to grow as the sector is a large and growing component of the U.S. economy.

    OSHA has a history of providing guidance to employees and employers in this sector since 1996 (see Sections II and V). In addition, a body of knowledge has emerged in recent years from research about the factors that increase the risk of violence and the interventions that mitigate or reduce the risk in health care and social assistance. As a result, workplace violence is recognized as an occupational hazard for healthcare and social assistance, which, like other hazards, can be avoided or minimized when employers take appropriate precautions to reduce risk factors that have been shown to increase the risk of violence. See Section V.A.2., Worksite analysis and hazard identification, for a discussion of risk factors.

    Though OSHA has no intention of including violence that is solely verbal in a potential regulation, the Agency does ask a series of questions about threats that could reasonably be expected to result in violent acts. These threats could be verbal or written, or could be marked by body language.

    In order to chart the best course going forward and inform OSHA's approach to this hazard, OSHA has posed a number of detailed questions for comment throughout the RFI. To make the best decisions about OSHA's next steps in this area, the questions posed are designed to better elucidate these general subjects:

    • The scope of the problem in healthcare and social assistance—frequency of incidents of workplace violence, where those incidents most commonly occur, and who is most often the victim in those incidents;

    • The common risk factors that could be addressed;

    • Interventions and controls that data show are working already in the field;

    • The efficacy, feasibility and cost of different options.

    The remainder of the RFI is organized as follows. Section II provides background on the growing awareness of the problem of workplace violence in health care and social assistance, and steps taken to date by OSHA, states, and the private sector. Section III discusses and seeks information on definitional issues. Section IV provides an overview of current data on the problem of workplace violence in the health care and social assistance sectors, and seeks input on a potential scope for a standard. Using OSHA's workplace violence guidelines as a starting point, Section V discusses the elements of a workplace violence prevention program that might be included in a standard, and asks for public input on these elements. Finally, Section VI seeks input on costs and economic impacts, and Section VII contains the references relied on by OSHA in preparing this RFI.

    II. Background A. OSHA's Prior Actions To Protect Healthcare and Social Assistance Workers From Workplace Violence 1. Guidelines for Preventing Workplace Violence for Healthcare and Social Assistance

    Protecting healthcare and social assistance workers from workplace violence is not a new focus for OSHA. In 1996, OSHA published the first version of its “Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers.” The same year, NIOSH published and broadly disseminated its document describing violence as an occupational hazard in the healthcare workplace, as well as risk factors and prevention strategies for mitigating the hazard (NIOSH, 1996). In 2002, NIOSH published a report entitled “Violence: Occupational Hazards in Hospitals” (NIOSH, 2002). The current revision of OSHA's violence prevention guidelines (2015) is at: http://www.osha.gov/Publications/osha3148.pdf.

    OSHA's Guidelines are based on industry best practices and feedback from stakeholders, and provides recommendations for policies and procedures to eliminate or reduce workplace violence in a range of healthcare and social services settings. Information on five settings was included in the updated guidelines: Hospital settings, residential treatment settings, non-residential treatment/services settings, community care settings, and field work settings. In addition, the updated 2015 version covers a broader spectrum of workers in comparison with previously published guidelines because healthcare is increasingly being provided in other settings such as nursing homes, free-standing surgical and outpatient centers, emergency care clinics, patients' homes, and pre-hospitalization emergency care settings.

    The Guidelines recommend a comprehensive violence prevention program that consists of five core elements or “building blocks”: (1) Management commitment and employee participation; (2) worksite analysis; (3) hazard prevention and control; (4) safety and health training; and (5) recordkeeping and program evaluation. These elements are discussed further in Section V below. While these guidelines provide much detailed, research-based information on specific controls and strategies for various healthcare and social assistance settings to help employers and employees prevent violence, they are recommendations and therefore non-mandatory.

    Lipscomb and colleagues (2006) report the results of a participatory intervention study that implemented and then evaluated violence prevention programs that were based on the 1996 OSHA Guidelines in three New York state mental health facilities. The New York State Office of Mental Health (OMH), working through its labor-management health and safety committee established a policy requiring all 26 in-patient OMH facilities to develop and implement a proactive violence-prevention program. Recognizing the opportunity for a “natural” experiment, the study investigators chose three “intervention” and “comparison” sites, with the intervention sites benefitting from consultation with the study team and with the project's New York State-based violence-prevention coordinator. The intervention had three main components: (1) Implementation of a facility-specific violence prevention program; (2) conducting a risk assessment; and (3) designing and implementing feasible recommendations evolving from the risk assessment. The OSHA elements of management commitment and employee involvement, worksite analysis, hazard control and prevention, and training were operationalized within the project. The authors stated that the guideline's emphasis on management commitment and employee involvement was critical to the successful implementation of the program. Program impact was evaluated through focus groups and surveys. A comparison of pre- and post-intervention survey data indicate an improvement in staff perception of the quality of the facility's violence-prevention program (i.e., OSHA elements) in both intervention and comparison facilities.

    In 2015, OSHA also published a complementary Web page, “Caring for Our Caregivers: Strategies and Tools for Workplace Violence Prevention in Healthcare” containing resources and tools to help healthcare facilities develop and implement a workplace violence prevention program, located at: https://www.osha.gov/dsg/hospitals/workplace_violence.html. The focus of this guidance is primarily hospitals and behavioral health facilities, and the content was developed from examples shared with OSHA by healthcare facilities with various components of successful violence prevention programs.

    2. Enforcement Directive

    Although OSHA has no standard specific to the prevention of workplace violence, the Agency currently enforces Section 5(a)(1) (General Duty Clause) of the OSH Act against employers that expose their workers to this recognized hazard. Section 5(a)(1) states that employers have a general duty to furnish to each of its employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees (29 U.S.C. 654(a)(1)). Section 5(a)(1) does not specifically prescribe how employers are to eliminate or reduce their employees' exposure to workplace violence. A standard on workplace violence would help clarify employer obligations and the measures necessary to protect employees from such violence.

    To prove a violation of the General Duty Clause, OSHA must provide evidence that: (1) the employer failed to keep the workplace free of a hazard to which its employees were exposed; (2) the hazard was recognized; (3) the hazard was causing or likely to cause death or serious injury; and (4) a feasible and useful method was available to correct the hazard.

    Prior to 2011, federal OSHA rarely used the General Duty Clause to inspect and cite healthcare and social assistance facilities for the hazard of workplace violence, in part because no guidance existed on how to conduct such an inspection. In September 2011, OSHA took an important step toward beginning to address workplace violence in healthcare and other high-risk settings by publishing a compliance Directive CPL 02-01-052 (https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-01-052.pdf), detailing potential hazards in those settings and providing OSHA compliance officers with enforcement guidance to respond to complaints regarding the hazard of workplace violence. The Directive provides guidance on how a workplace violence enforcement case should be developed and what steps Area Offices should take to assist employers in addressing this hazard. The Agency is currently in the process of updating and revising its Directive.

    A relatively small percentage of the inspections related to workplace violence in health care facilities resulted in general duty clause citations. From 2011 through 2015, OSHA inspected 107 hospitals (NAICS code 622) and nursing and residential care facilities (NAICS code 623) and issued 17 general duty clause citations to healthcare employers for failing to address workplace violence (OSHA Enforcement Data).

    B. State Laws

    As of August 2015, nine states had enacted laws that require employers who employ healthcare and/or social assistance workers to establish a plan or program to protect those workers from workplace violence: California, Connecticut, Illinois, Maine, Maryland, New Jersey, New York, Oregon, and Washington (US GAO, 2016). State laws differ widely in definitions of workplace violence, requirements and scopes of facilities covered. For example, Washington and New Jersey cover the healthcare sector broadly, while Maine covers only hospitals and Illinois covers only developmental disabilities and mental health centers. Eight state laws require worksite risk assessment to identify hazards that may lead to violent incidents; however, not all state regulations specify how to conduct a risk assessment. Only Maine does not have a requirement for a risk assessment. All the states but Maine also require violence prevention training, although requirements differ in frequency and format of training, as well as the occupations of the employees required to be trained. All nine states require healthcare employers to record incidents of violence against workers. Some laws apply specifically to healthcare settings (e.g., Washington Labor and Industries' RCW 49.19), while others apply more broadly to cover additional industries or sectors. New York is the only state that operates its own OSHA program that has a standard that specifically requires a violence prevention program; however, coverage is limited to public employees. California law requires hospitals to conduct security and safety assessments, and to use the assessment to develop and update a security plan (California Health and Safety Code Section 1257.7). Also, as of 1991, Cal/OSHA's Workplace Injury and Illness Prevention standard requires a program to address and prevent known occupational hazards, including violence.

    Tragic events are often the impetus for legislation. Such was the case when a psychiatric technician was strangled on the Napa State Hospital grounds by a patient in November 2010. (http://articles.latimes.com/2010/nov/03/local/la-me-hospital-violence-20101103). In February 2014, two healthcare worker unions, the Service Employees International Union (SEIU) and SEIU Nurse Alliance of California, filed petitions requesting the California Occupational Safety and Health Standards Board to adopt a new standard that would provide more protections to healthcare workers, specifically against workplace violence.

    In June 2014, California's Board requested the Division of Occupational Safety and Health to convene an advisory committee and develop a proposal for workplace violence protection standards. In September 2014, the governor signed Senate Bill (SB) 1299, requiring the Board to adopt standards developed by the Division that would require facilities to adopt a workplace violence prevention plan as part of their injury and illness prevention plan. On October 20, 2016, California announced the adoption of those standards, and became the first state to promulgate an occupational health and safety standard requiring healthcare facilities to take certain specific steps to establish, implement and maintain an effective workplace violence prevention plan. Implementation will begin in 2017.

    Some studies in the published literature evaluated whether healthcare facilities located in states with state laws have higher quality violence prevention programs than in states with no requirements, as a measure of the value or efficacy of state laws (Peek-Asa et al., 2007; Peek-Asa et al., 2009, Casteel et al., 2009). Peek-Asa et al. (2007) compared workplace violence programs in high-risk emergency departments among a representative sample of hospitals in California (a state with a violence prevention law) and New Jersey (which at the time of the study did not have such a law). California had significantly higher scores for training, policies and procedures, but there was no difference in the scoring for security and environmental approaches. Program component scores were not highly correlated. For example, hospitals with a strong training program were not more likely to have strong policies and procedures. The authors concluded that a comprehensive approach that coordinates the components of training, policies, procedures, environmental approaches, and security is likely to be achieved only through multidisciplinary and representative input from the staff and management (Peek-Asa et al., 2007).

    Two years later, the same authors (Peek-Asa et al., 2009) conducted studies that compared workplace violence programs in a representative sample of psychiatric units and facilities in California and New Jersey. The researchers found that a similar proportion of hospitals in both states had workplace violence prevention training programs. A higher proportion of hospitals in California had written workplace violence policies and a higher proportion of New Jersey hospitals had implemented environmental and security modifications to reduce violence.

    One study examined the effects of a state law on workers' compensation costs, and supports the conclusion that Washington State's efforts to reduce workplace violence in the healthcare industry have led to lower injury rates and workers' compensation costs. From 1997 to 2007, the state's average annual rate of workers' compensation claims associated with workplace violence in the healthcare and social assistance industry was 75.5 per 10,000 full-time equivalent workers (FTEs). From 2007 to 2013, the rate had fallen to 54.5 claims per 10,000 FTEs, a decrease of 28 percent. This improvement coincides with Washington's 2009 rule that required hazard assessments, training, and incident tracking for workplace violence (Foley, and Rauser, 2012).

    C. Recommendations From Governmental, Professional and Public Interest Organizations

    In response to a request from members of Congress, the GAO conducted an investigation of OSHA's efforts to protect healthcare workers from workplace violence in healthcare. The investigation focused on healthcare, and included residential care facilities and home health care services.

    During its investigation, GAO identified nine states with workplace violence prevention requirements for healthcare employers, examined workplace violence incidents, conducted a literature review, and interviewed OSHA and state officials. The final report, published in April 2016, included a summary of interviews of healthcare workers, who described a range of violent encounters with patients. See the table below for details.

    Table 2—Examples of Workplace Violence Incidents Reported by the Health Care Workers GAO Interviewed Health care facilities Examples of reported workplace violence incidents Hospitals with emergency rooms • Worker hit in the head by a patient when drawing the patient's blood and suffered a concussion and a permanent injury to the neck.
  • • Worker knocked unconscious by a patient when starting intravenous therapy on the patient.
  • Psychiatric hospitals • Worker punched and thrown against a wall by a patient and had to have several surgeries. As a result of the injuries, the worker was unable to return to work.
  • • Patient put worker in a head-lock, and worker suffered neck pain and headaches and was unable to carry out regular workload.
  • • Patient broke healthcare worker's hand when the healthcare worker intervened in a conflict between two patients.
  • Residential care facilities • Patient became upset after being deemed unfit to return home and attacked the worker.
  • • Worker hit in the head by a patient and suffered both physical and emotional problems as a result of the incident.
  • Home health care services • Worker attacked by patient with dementia and had to defend self.
  • • Worker was sexually harassed by a patient when the patient grabbed the worker while rendering care.
  • Source: GAO, Workplace Safety and Health: Additional Efforts Needed to Help Protect Healthcare Workers from Workplace Violence, 2016.

    In its final report, the GAO recommended that OSHA provide additional information to assist inspectors in developing citations, develop a policy for following up on hazard alert letters concerning workplace violence hazards in healthcare facilities, and assess the results of its efforts to determine whether additional action, such as development of a standard, may be needed. OSHA agreed with the GAO's recommendations and stated that it would take action to address them. Since then, OSHA's Training Institute in the Directorate of Training and Education developed a course on Workplace Violence Investigations for its Compliance Safety and Health Officers (CSHOs) and other staff with responsibilities in this area. In June 2016, approximately 30 CSHOs, Area Directors, Acting Area Directors, and other OSHA staff, participated in the first offering of the 3-day course on workplace violence, which included exercises using actual scenarios encountered by investigators. The Agency's publication of this RFI is in part a response to the GAO's recommendation to consider issuance of a standard addressing workplace violence. OSHA will review the record developed as a result of the information received and decide on the appropriate course of action regarding a standard.

    In July 2016, a coalition of unions representing healthcare workers, including SEIU, AFL-CIO, and the American Federation of Governmental Employees, petitioned the Agency for a Workplace Violence Prevention Standard. National Nurses United (NNU) filed a similar petition. While NNU petitioned the Agency for a standard covering its membership only (healthcare workers), the broader coalition of labor unions requested a standard covering all workers in healthcare and social assistance. By this time, the Agency had already made the public aware about the publication of an RFI by November 2016, via the Unified Regulatory Agenda.

    In recent years, several nursing professional associations have published statements on workplace violence (ANA, 2015; APNA, 2008; ENA, 2010). In addition, the ANA has published a model state law, “The Violence Prevention in Health Care Facilities Act,” recommending that healthcare facilities establish violence prevention programs to protect healthcare workers from acts of violence (ANA, 2011).

    Some organizations have recommended specific programmatic elements, policies, procedures and processes to reduce and prevent workplace violence. In 2008, APNA published recommendations for addressing workplace violence. In 2011, it published a report that included recommendations for adequate staffing, increased security, video monitoring, and safe areas for nurses (Cafaro, 2012; http://www.apna.org/i4a/pages/index.cfm?pageID=4912#sthash.2JKbjy3w.dpuf). The American Association of Occupational Health Nurses, Inc. has published strategies for preventing workplace violence. It also noted the problem of underreporting of workplace violence events, which it recommended should be addressed so that “the scope of non-fatal violence in the workplace” is adequately measured and in turn “informed targeted prevention strategies” are developed (AAOHN, 2015).

    In 2013, Public Citizen published “Health Care Workers Unprotected; Insufficient Inspections and Standards Leave Safety Risks Unaddressed,” which recommended that OSHA promulgate a standard to address the hazardous situations of workplace violence. Based on their analysis of data from the Bureau of Labor Statistics, the U.S. Census Bureau, OSHA, the AFL-CIO, and The Kaiser Family Foundation, they recommended that such a standard should require employers to create a policy of zero tolerance for workplace violence, including verbal and nonverbal threats; require workplace policies that encourage employees to promptly report incidents and suggest ways to reduce or eliminate risks; provide protections to employees to deter employers from retaliating against those who report workplace-violence incidents; and require employers to develop a comprehensive plan for maintaining security in the workplace (Public Citizen, 2013).

    The Society for Human Resource Management's (SHRM) Workplace Violence Policy provides guidance on prohibited conduct, reporting procedures, risk reduction measures, employees at risk, dangerous/emergency situations, and enforcement for human resource professionals.

    D. Questions for Section II

    The following questions are intended to solicit information on the topics covered in this section. In general, OSHA is interested in hearing about healthcare facilities' experiences with provisions of state laws that have been shown to be effective in some way. Wherever possible, please indicate the title of the person completing the question and the type and the number of employees at your facility. OSHA is also interested in hearing from employers and managers in public sector facilities in New York State about their experiences with the Public Employees Safety and Health workplace violence prevention regulations.

    Question II.1: What state are you employed in or where is your facility located? If your state has a workplace violence law, what has been your experience complying with these requirements? Are there any specific provisions included in your workplace violence law that you think should or should not be included in an OSHA standard? If so, what provisions and why?

    Question II.2: For employers and managers: If your state has a workplace violence prevention law, have you or are you conducting an evaluation of the effectiveness of its programs or policies? If you are conducting such an analysis, how are you doing it? Have you been able to demonstrate improved tracking of workplace violence incidents and/or a change in the frequency or severity of violent incidents? If you think it is effective, please explain why. If you think it is ineffective, please explain why.

    Question II.3: If your state has workplace violence prevention laws, how many hours do you spend each year (month) complying with these laws?

    Question II.4: Please specify the number or percentage of staff participating in workplace violence prevention activities required under your state laws.

    Question II.5: Do you have experience implementing any of the workplace violence prevention practices recommended by the American Psychiatric Nurses Association (APNA), American Association of Occupational Health Nurses (AAOHN), or similar organizations? If so, please discuss the resources it took to implement the practice, and whether you think the practice was effective. Please provide any data you have to support your conclusions.

    III. Defining Workplace Violence A. Definition and Types of Events Under Consideration

    As discussed in the overview above, the data show that injuries and fatalities in the health care and social assistance sector due to workplace violence are substantially elevated compared to the private sector overall. This section addresses the question of how to define the universe of workplace violence that OSHA might cover in a standard. This involves at least two issues: (1) What events constitute “violence” (i.e., should physical assaults be covered only, or should threats be considered as well?); and (2) should there be consideration of the type of injury (physical, psychological) and a threshold for harm that could be sustained as a result of the activity.

    The National Institute of Occupational Safety and Health (NIOSH) defines workplace violence as “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty” (https://www.cdc.gov/niosh/docs/2002-101/). Examples of violence include threats (expressions of intent to cause harm, including verbal threats, threatening body language, and written threats), physical assaults (attacks ranging from slapping and beating to rape, homicide, and the use of weapons such as firearms, bombs, or knives), and muggings (aggravated assaults, usually conducted by surprise and with intent to rob) (NIOSH at: http://www.cdc.gov/niosh/docs/2002-101/default.html). OSHA's Web page refers to “workplace violence” as any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. Both the NIOSH definition and the general one on OSHA's Web site include harassment and intimidation; however, OSHA's focus has been solely on physical injuries resulting in serious harm. The effects of violence on individuals represent a range in intensity and include minor physical injuries; serious physical injuries; temporary and permanent physical disability; psychological trauma; and death. Healthcare and social assistance workers involved in workplace violence incidents can suffer physical injury, disability, and chronic pain; employees who experience violence also suffer psychological problems such as loss of sleep, nightmares, and flashbacks (Gerberich et al., 2004).

    Further, workplace violence can be classified into the following four categories, based on the relationship between the perpetrator and the victim/worker: Type I (criminal intent; the perpetrator has no legitimate relationship to the business), Type II (customer/client/patient), Type III (worker-on-worker), and Type IV (personal relationship) (UIIPRC, 2001). Type II events occur most commonly in healthcare and social assistance and these events are the type addressed by this RFI. Type III (sometimes referred to as “lateral violence”) is also commonly reported in the literature, especially when taking verbal abuse into account.

    OSHA intends to address only Type II, or customer/client/patient violence in this RFI. Type I, or criminal intent, perpetrated by criminals with no connection to the workplace other than to commit a crime, typically does not apply the healthcare environment. OSHA does not intend to seek information specific to Type I or Type III incidents, “lateral” or “worker-on-worker” violence. In addition, OSHA does not intend to cover Type IV incidents or violence that happen to be carried out in a healthcare workplace but are based on personal relationships. Although such incidents often garner media attention, they are not the typical foreseeable workplace violence incidents that are associated with predictable risk factors in the workplace that employers can reduce or eliminate. OSHA has determined that Type I, III and IV incidents are generally outside the scope of any potential rulemaking activity stemming from this RFI.

    B. Questions for Section III

    The following questions are intended to solicit information on the topics covered in this section. Wherever possible, please indicate the title of the person providing the information and the type and number of employees of your healthcare and/or social assistance facility or facilities.

    Question III.1: CDC/NIOSH defines workplace violence as “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty” (CDC/NIOSH, 2002). Is this the most appropriate definition for OSHA to use if the Agency proceeds with a regulation?

    Question III. 2: Do employers encourage reporting and evaluation of verbal threats? If so, are verbal threats reported and evaluated? If evaluated, how do employers currently evaluate verbal threats (i.e., who conducts the evaluation, how long does such an evaluation take, what criteria are used to evaluate verbal threats, are such investigations/evaluations effective)?

    Question III.3: Though OSHA has no intention of including violence that is solely verbal in a potential regulation, what approach might the Agency take regarding those threats, which may include verbal, threatening body language, and written, that could reasonably be expected to result in violent acts?

    Question III.4: Employers covered by OSHA's recordkeeping regulation must record each fatality, injury or illness that is work-related, that is a new case and not a continuation of an old case, and meets one or more of the general recording criteria in section 1904.7 or the additional criteria for specific cases found in section 1904.8 through 1904.11. A case meets the general recording criteria in section 1904.7 if it results in death, loss of consciousness, days away from work or restricted work or job transfer, or medical treatment beyond first aid. What types of injuries have occurred from workplace violence incidents? Do these types of injuries typically meet the OSHA criteria for recording the injury on the 300 Log?

    Question III.5: Currently, a mental illness sustained as a result of an assault in the workplace, e.g., Posttraumatic Stress Disorder (PTSD), is not required to be recorded on the OSHA 300 Log “unless the employee voluntarily provides the employer with an opinion from a physician or other licensed healthcare professional with appropriate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating that the employee has a mental illness that is work-related (1904.5(b)(2)(ix)).” Although protecting the confidentiality of the victim is important, an unintended consequence of omitting these incidents from the 300 Log is that the extent of the problem is likely underestimated. In a workplace violence prevention standard, should this exclusion be maintained or be removed? Is there a way to capture the information about cases, while still protecting confidentiality?

    Question III.6: Are you aware of cases of PTSD or psychological trauma related to workplace violence in your facility? If so, was it captured in the recordkeeping system and how? Please provide examples, omitting personal data and information.

    Question III.7: Are there other indicators of the extent and severity of workplace violence in healthcare or social assistance that OSHA has not captured here? Please provide any additional data that you are aware of, or any indicators you have used in your workplace to address workplace violence.

    IV. Scope A. Health Care and Social Assistance

    The Health Care and Social Assistance sector is composed of a wide range of establishments providing varying levels of healthcare and social assistance services, from general medical-surgical hospitals to at-home patient care to treatment facilities for substance abuse disorders, and different types of establishments providing social assistance, such as child day care services, vocational rehabilitation and food to the needy. In 2015 the healthcare industry had a total of 1,432,801 establishments and employed 18,738,870 workers in both healthcare and non-healthcare occupations (BLS, Census of Employment and Wages, 2016 and Occupational Employment Statistics, 2015). The Health Care and Social Assistance sector provides a range of services employing a diverse group of occupations at places such as: Nursing homes, free-standing surgical and outpatient centers, emergency care clinics, patients' homes, and pre-hospitalization emergency care settings. The largest occupational group employed in the Health Care and Social Assistance industry are healthcare practitioners (defined as healthcare professionals, technicians, and healthcare support workers), which included 6,288,040 workers in 2015, an increase of 1.2 million workers over the past 10 years (BLS, Occupational Employment Statistics, 2016). Healthcare practitioners are employed across various industries, but the industry with the largest concentration of healthcare practitioners is General Medical and Surgical Hospitals, which employed 2,926,350 workers in 2015.

    Table 3—Top 5 Occupations in Healthcare and Social Assistance Industry Between 2005 and 2015 2005
  • (million)
  • 2015
  • (million)
  • Healthcare and social assistance industry 15.2 18.7 Healthcare practitioners and technical occupations 5.1 6.3 Healthcare support occupations 2.9 3.5 Office and administrative support occupations 2.5 2.7 Personal care and service occupations 1.0 1.9 Community and social services occupations 0.8 1.0 BLS, Occupational Employment Statistics, April 2016.

    Across all industries there were 8.0 million Health Care Practitioners and Technical workers employed in 2015 and can be found in various parts of the private sector outside of the Health Care and Social Assistance sector, for example in Air Transportation, Accommodations, Recreation, and Retail Trade. Of the almost 8.0 million Healthcare Practitioners and Technical workers, 515,970 are employed at retail trade facilities, the majority are specifically at Health and Personal Care Stores.

    For purposes of assessing workplace violence risk, OSHA has used the BLS category of Intentional Injury by Other Person. OSHA has not included here the BLS category of Injury by Person—Unintentional or Intent Unknown. That category may include some incidents classifiable as workplace violence, but also includes large numbers of injuries resulting from such causes like attempting to lift patients. Unintentional injuries resembling workplace violence may also be common in mental health services. Of the almost 16,000 cases of Intentional Injury by Other Persons in the private sector in 2014, 11,100 were in the Healthcare and Social Assistance sector (BLS Table R4, November 2015).

    The rate of intentional injury in the Healthcare and Social Assistance sector as a whole was 8.2 per 10,000 full time workers, over four times the rate across all private industry, 1.7 per 10,000 full-time workers in 2014 (BLS Table R8, November 2015). Within the Healthcare and Social Assistance sector, the incident rates for Intentional Injury by Other Person(s) ranges from a low of 0.4 per 10,000 full-time workers in Offices of Physicians (lower than private industry as a whole) to a high of 109.5 per 10,000 full-time workers in Psychiatric and Substance Abuse Hospitals 2 (BLS Table R8, November 2015). Of the four major subsectors within Health Care and Social Assistance in 2014, the highest incident rate of Intentional Injury by Other Person(s) was 18.7 per 10,000 in Nursing and Residential Care Facilities. The incident rates for the next two highest subsectors, Hospitals, and Social Assistance were half that of Nursing and Residential Care Facilities, 8.9 and 9.8 respectively. The subsector of Nursing and Residential Care Facilities includes establishments providing services to a diverse population of patients, many of whom need a higher level of care at these facilities. In contrast, the services provided in the other areas of the Health Care and Social Assistance sector may typically involve more routine health care services requiring less physically demanding care from staff. This wide range reflects the diversity of workplace conditions and patient interactions faced by workers in the Health Care and Social Assistance economic sector.

    2 The term “Substance Abuse Hospital” is used because it is the official designation in the NAICS code manual for such facilities.

    Table 4—Incident Rate for Violence and Other Injuries by Private Industry in the United States per 10,000 Full Time Workers in 2014 Intentional
  • injury by
  • other person
  • All Private Industry 1.7 Health care and social assistance 8.2 Ambulatory health care services 1.9 Offices of physicians 0.4 Offices of physicians except mental health 0.3 Offices of mental health physicians 8.5 Offices of other health practitioners Outpatient care centers 4.1 Medical and diagnostic laboratories 5.6 Home health care services 5.0 Other ambulatory health care services 3.1 Ambulance services 5.3 All other ambulatory health care services Hospitals 8.9 General medical and surgical hospitals 6.7 Psychiatric and substance abuse hospitals 109.5 Other hospitals 7.3 Nursing and residential care facilities 18.7 Nursing care facilities 15.8 Residential mental health facilities 34.9 Community care facilities for the elderly 7.2 Other residential care facilities 39.9 Social assistance 9.8 Individual and family services 10.2 Child and youth services 4.0 Services for the elderly and disabled 11.0 Emergency and other relief services Community housing services Vocational rehabilitation services 20.8 Child day care services 6.5 (BLS Table R8, November 2015). Note: Dash indicates data do not meet BLS publication guidelines for their Survey of Occupational Injuries and Illnesses.

    The industries in the Social Assistance subsector provide a wide variety of services directly to clients, and include industries with incident rates of intentional injury that are higher than those in the Ambulatory Health Care sector. The highest incident rate within this sector for intentional injury by other person was in Vocational Rehabilitation Services with 20.8 per 10,000 full time workers in 2014. The next highest industry in this sector was Services for the Elderly and Disabled with an incident rate of 11 per 10,000 full time workers. This sector includes, among other industries, services for children and youth, the elderly, and persons with disabilities; community food and housing services; vocational rehabilitation; and day care centers. Consequently, the risk of workplace violence to healthcare workers differs depending on the nature of the setting and the level of interaction with patients.

    The severity of workplace violence in the Health Care and Social Assistance sector is even greater in state government entities where the incident rate for intentional injury by other person(s) in 2014 was 79.3 per 10,000 full time workers. Across state government sectors the incident rate for intentional injury by other persons in the Health Care and Social Assistance sector is the highest even compared to the sector for Public Administration at 10.5 per 10,000 full time workers, which includes Police Protection and Correctional Institutions. State-run healthcare facilities often serve individuals with fewer available heath care options and populations with fewer preventive healthcare services. State- run healthcare and social assistance facilities may face unique challenges compared to the private sector.

    Table 5—Incident Rate for Violence and Other Injuries by Select State Industries in the United States per 10,000 Full Time Workers in 2014 Intentional
  • injury by
  • other person
  • ALL STATE GOVERNMENT 15.8 SERVICE PROVIDING 16.2 Healthcare and Social Assistance 79.3 Hospitals 97.4 Nursing and Residential Care Facilities 116.8 Public Administration 10.5 Justice, Public Order, and Safety Activities 23.1 Police Protection 8.7 Correctional Institutions 37.2 BLS Table S8, April 2016.

    Locally-run health care and social assistance facilities, on the other hand, appear to present risks that are comparable to private facilities, the incident rate of intentional injury by other persons in sector of Healthcare and Social Assistance was 13.1 per 10,000 full time workers. The overall incident rate for the Public Administration sector in local governments is not much lower at 11.1 per 10,000 full time workers.

    Table 6—Incident Rate for Violence and Other Injuries by Select Local Government Industries in the United States per 10,000 Full Time Workers in 2014 Intentional
  • injury by
  • other person
  • ALL LOCAL GOVERNMENT 8.7 SERVICE PROVIDING 8.8 Healthcare and Social Assistance 13.1 Hospitals 13.0 Nursing and Residential Care Facilities 39.9 Public Administration 11.1 Justice, Public Order, and Safety Activities 22.5 Police Protection 36.8 Fire Protection 7.1 BLS Table L8, April 2016.

    Another way to consider the data is by occupation. Nursing-Psychiatric and Home Health Aides (which includes Psychiatric Aids and Nursing Assistants) had the highest rates of violence in 2014 across three of the four sectors. Out of the 4,690 injury cases in Nursing and Residential Care Facilities (based on data from BLS provided upon request), 2,640 of the cases of workplace violence were perpetrated against Nursing-Psychiatric and Home Health Aides in 2014 (BLS SOII 2014 Data, requested June 2016). Across all private industries, the highest rates of incidents for Intentional Injury by Other Person(s) were for Psychiatric Aides at 426.4 per 10,000 full time workers, followed by Psychiatric Technicians at 206.8 per 10,000 full time workers in 2014 (BLS Table R100, November 2015). These two occupations reflect the highest rates of intentional injury by other person(s) that occurs in the major sector of healthcare practitioners and technical occupations.

    Table 7—Cases of Intentional Injury by Other Person(s) by Industry and Occupation in 2014 2014 All Private Sector Industries 15,980 Goods Producing 260 Service Producing 15,710 Healthcare and Social Assistance 11,100 Ambulatory Healthcare Services 960 Counselors- Social Workers- and Other Community and Social Service Specialists 100 Health Diagnosing and Treating Practitioners 150 Health Technologists and Technicians 230 Nursing- Psychiatric- and Home Health Aides 290 Occupational Therapy and Physical Therapist Assistants and Aides Other Personal Care and Service Workers 100 Hospitals 3,410 Counselors- Social Workers- and Other Community and Social Service Specialists 180 Health Diagnosing and Treating Practitioners 1,110 Health Technologists and Technicians 610 Other Healthcare Practitioners and Technical Occupations 20 Nursing- Psychiatric- and Home Health Aides 1,030 Occupational Therapy and Physical Therapist Assistants and Aides Other Personal Care and Service Workers 100 Nursing and Residential Care Facilities 4,690 Counselors- Social Workers- and Other Community and Social Service Specialists 370 Health Diagnosing and Treating Practitioners 170 Health Technologists and Technicians 310 Nursing- Psychiatric- and Home Health Aides 2,640 Occupational Therapy and Physical Therapist Assistants and Aides Other Personal Care and Service Workers 770 Social Assistance 2,050 Counselors- Social Workers- and Other Community and Social Service Specialists 190 Health Diagnosing and Treating Practitioners 30 Health Technologists and Technicians Nursing- Psychiatric- and Home Health Aides 150 Other Personal Care and Service Workers 1,060 BLS SOII 2014 Data, requested June 2016. Note: Dash indicates data do not meet BLS publication guidelines for their Survey of Occupational Injuries and Illnesses.

    Violence in the workplace is a topic that has been studied heavily using different data sources such as workers' compensation data, and occupation specific surveys. The results from these studies highlight similar findings to that of BLS's SOII data by industry, both showing that workplace injury rates of workers in the healthcare industry rank among the highest across private sector industries. In one study, Washington State workers compensation data was evaluated for the period between 1997 and 2007 (Foley, and Rauser, 2012). The results showed that the industry sectors with the highest rates of workplace violence were Health Care and Social Assistance (75.5 claims per 10, 000 FTEs), Public Administration (29.9 per 10,000 FTEs), and Educational Services (15.0 claims per 10,000 FTEs). Within the Health Care and Social Assistance sector, the industry groups with the highest estimated claim rates were Psychiatric and Substance Abuse Hospitals 3 at 875 per 10,000 FTEs, and Residential Mental Retardation, Mental Health and Substance Abuse Facilities at 749 per 10,000 FTEs. The rates of these two Health Care and Social Assistance groups are 65 times and 56 times the overall claim rate of 13.4 per 10,000 FTEs for workplace violence in all industries. A study that surveyed staff in a psychiatric hospital (Phillips, 2016) found that 70 percent of staff reported being physically assaulted within the last year. Another study that surveyed over 300 staff in a psychiatric hospital found that ward staff, which had the highest levels of patient contact, were more likely than clinical care and supervisory workers to report being physically assaulted by patients (Kelly and Subica, 2015; as reported in US GAO, 2016). Data from HHS' NEISS-Work data set showed that in 2011 the estimated rate of nonfatal workplace violence injuries for workers in healthcare facilities was statistically greater than the estimated rate for all workers. The Department of Justice's National Crime Victimization Survey (NCVS) data set showed that from 2009 through 2013 healthcare workers experienced workplace violence at more than twice the estimated rate for all workers (after accounting for the sampling error). These results consistently point to the healthcare industry and occupations within the healthcare field as having the highest risks to workplace violence compared to other private sector industries.

    3 The term “Substance Abuse Hospital” is used because it is the official designation in the NAICS code manual for such facilities.

    The four subsectors that make up the Health Care and Social Assistance sector include a wide range of establishments providing varying types of services to the general public, and placing workers at elevated levels of exposure to workplace violence relative to other economic sectors. The Health Care and Social Assistance sector includes industries with the highest rates for Intentional Injury by Other Persons exceeding all other private sector industries.

    B. Questions for Section IV

    The following questions are intended to solicit information on the topics covered in this section. Wherever possible, please indicate the title of the person completing the question and the type and employee size of your healthcare and/or social assistance facility.

    Question IV.1: Rates of workplace violence vary widely within the healthcare and social assistance sector, ranging from extremely high to below private industry averages. How would you suggest OSHA approach the issue of whom should be included in a possible standard? For example, should the criteria for consideration under the standard be certain occupations (e.g., nurses), regardless of where they work? Or is it more appropriate to include all healthcare and social assistance workers who work in certain types of facilities (e.g., in-patient hospitals and long-term care facilities)? Another approach could be to extend coverage to include all employees who provide direct patient care, without regard to occupation or type of facility. If OSHA were to take this approach, should home healthcare be covered?

    Question IV.2: If OSHA issues a standard on workplace violence in healthcare, should it include all or portions of the Social Assistance subsector? Are the appropriate preventive measures in this subsector sufficiently similar to those appropriate to healthcare for a single standard addressing both to make sense?

    Question IV.3: The only comparative quantitative data provided by BLS is for lost workday injuries. OSHA is particularly interested in data that could help to quantitatively estimate the extent of all kinds of workplace violence problems and not just those caused by lost workday injuries. For that reason, OSHA requests information and data on both workplace violence incidents that resulted in days away from work needed to recover from the injury as well as those that did not require days away from work, but may have required only first aid treatment.

    Question IV.4: OSHA requests information on which occupations are at a higher risk of workplace violence at your facility and what about these occupations cause them to be at higher risk. Please provide the job titles and duties of these occupations. Please provide estimates on how many of your workers are providing direct patient care and the proportion of your workforce this represents.

    Question IV.5: The GAO Report relied on BLS SOII data, HHS NEISS data and DOJ NCVS data. Are there any other data sets or data sources OSHA should obtain for better estimating the extent of workplace violence?

    Question IV.6: The data provided by BLS are for relatively aggregated industries. Instance of high risk of workplace violence can be found aggregated with industries with low average risk, and low risk of workplace violence within industries with high risk. Please describe if your establishment's experience with workplace violence is consistent with the relative risks reported by BLS in the tables found in this section? If you are in an industry with high rates, are there places within your industry where establishments or kinds of establishments have lower rates than the industry as a whole? If you are in an industry with relatively low rates, are there work stations within establishments or within the industry that have higher rates?

    Question IV.7: Are there special circumstances in your industry or establishment that OSHA should take into account when considering a need for a workplace violence prevention standard?

    Question IV.8: Please comment if the workplace violence prevention efforts put in place at your establishments are specific to certain settings or activities within the facility, and how they are triggered.

    Question IV.9: OSHA has focused on the Health Care and Social Assistance sectors in this RFI. However, workers who provide healthcare and social assistance are frequently found in other industries. Should a potential OSHA standard cover workers who provide healthcare or social assistance in whatever industries they work?

    V. Workplace Violence Prevention Programs; Risk Factors and Controls/Interventions A. Elements of Violence Prevention Programs

    OSHA has recognized the unique challenges of workplace violence in healthcare and social assistance for decades. OSHA's “Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers,” which was last updated in 2015 is based on industry best practices and feedback from stakeholders, provides recommendations for policies and procedures to eliminate or reduce workplace violence in a range of healthcare and social assistance settings. The guidelines recommend a comprehensive violence prevention program that covers the following five core elements: (1) Management commitment and worker participation; (2) worksite analysis and hazard identification; (3) hazard prevention and control; (4) safety and health training; and (5) recordkeeping and program evaluation. Below, OSHA uses this framework in discussing and seeking information on the elements that might be included in a workplace violence standard. In addition, because there are particular concerns with underreporting of workplace violence in the healthcare and social assistance sector, below OSHA also discusses and seeks information on effectiveness of its whistleblower protection requirements in these sectors.

    1. Management Commitment and Employee Participation

    OSHA's Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers highlight the benefits of commitment by management and establishment of a joint management-employee committee, whether the committee is focused on workplace violence prevention or worker safety more broadly. The structure of the management-employee teams will differ based on the facility's size and the availability of personnel to staff it.

    OSHA is interested in hearing from employers and individuals working in healthcare and social assistance about their experiences with management commitment and employee participation. Specific questions regarding these topics are at the end of Section V.

    2. Worksite Analysis and Hazard Identification

    OSHA's guidelines emphasize worksite analysis and hazard identification. A worksite analysis involves a mutual step-by-step assessment of the workplace to find existing or potential hazards that may lead to incidents of workplace violence.

    Healthcare and social assistance workers face a number of risk factors that are known to contribute to violence in the workplace. Common risk factors (or factors that have been shown to increase the risk of harm if one is exposed to a hazard) for workplace violence generally fall into two groups: (1) Patient, client and setting-related and (2) organizational-related (OSHA, 2015a, p. 4-5). The patient/client and setting-related group includes: (a) Working directly with people who have a history of violence, especially if they are under the influence of drugs or alcohol or a diagnosis of dementia; (b) lifting, moving and transporting patients and clients; (c) working alone in a facility or in patients' homes; (d) poor environmental design of the workplace that may block employee vision or interfere with escape from a violent incident; poor lighting in hallways, corridors, rooms, parking lots and other exterior areas; (e) lack of means of emergency communication; (f) long waiting periods for service; or (g) working in neighborhoods with high crime rates.

    Organizational risks (the second group) arise from workplace policies, or the lack thereof. Examples include a lack of facility policies and staff training for recognizing and managing escalating hostile and assaultive behaviors from patients, clients, visitors, or staff; working when understaffed, especially during mealtimes and visiting hours; inadequate security and mental health personnel on site; not permitting smoking; allowing unrestricted movement of the public in clinics and hospitals; allowing a perception that violence is tolerated and victims will not be able to report the incident to police and/or press charges; and an overemphasis on customer satisfaction over staff safety (OSHA, 2015a).

    Studies show that staff working in some hospital units or areas are at greater risks than others. High-risk areas include emergency departments (EDs), admission areas, long-term care and geriatrics settings, behavioral health, waiting rooms, and obstetrics and pediatrics, among others (DeSanto et al., 2013).

    Assault rates for nurses, physicians and other staff working in EDs have been shown to be among the highest (Crilly et al., 2004; Gerberich et al., 2005; Gates et al., 2006; Gacki-Smith et al., 2009). In high volume urban emergency departments and residential day facilities, staff are in frequent contact with patients or family members who may have a history of violence, and/or a history of substance abuse disorders. Also, an increasing number of patients are in possession of handguns and weapons (Stokowski, 2010).

    Workers in the healthcare occupations of psychiatric aides, psychiatric technicians, and nursing assistants experienced higher rates of workplace violence compared to other healthcare occupations and workers overall (BLS Table R100, 2015; Pompeii et al., 2015). Some studies have found that nursing assistants in long-term care have the highest incidence of assaults among all workers in the U.S. (Gates et al., 2005).

    Surveys of nurses have identified risk factors including patient mental health or behavioral issues, medication withdrawal, pain, history of a substance abuse disorder, and being unhappy with care (Pompeii et al., 2015).

    OSHA is interested in hearing from employers and individuals working in healthcare and social assistance about their experiences with worksite analysis and hazard identification, including how they use risk factors. Specific questions regarding these topics are at the end of Section V.

    3. Hazard Prevention and Control

    Once workplace violence hazards are identified, controls can be designed and implemented to prevent and control them. OSHA's hierarchy of controls includes: elimination, substitution, engineering controls, administrative controls, and work practices, and personal protective equipment (PPE) in that order. Engineering controls for workplace violence prevention are permanent changes to the work environment. Administrative controls are policies and procedures that reduce or prevent exposure to risk factors. Administrative strategies include modification of job rules and procedures, training and education, scheduling, or modifying assigned duties.

    a. Engineering Controls

    Engineering controls attempt to remove the hazard from the workplace or create a barrier between the worker and the hazard. Examples of engineering controls include the installation of alarm systems, panic buttons, hand-held alarms, or noise devices, installation of door locks and increased lighting or use of closed-circuit video monitoring on a 24-hour basis (Haynes, 2013). Other examples include improvements to the layout of the admission area, nurses' stations and rooms. Where appropriate, some hospitals may have metal detectors installed to detect for guns, knives, box cutters, razors, and other weapons.

    Effective interventions that have been described in the literature include K-9 security dog teams, metal detectors, and the installation of a security system, that includes metal detectors, cameras, and security personnel (Stirling et al., 2001) and increased lighting (Gerberich et al. 2005).

    b. Administrative Controls

    Administrative controls, sometimes referred to as management policies, include organizational factors and can have a major impact on day-to-day operations in healthcare and social assistance, for both staff and patients/residents. For example, staffing issues, such as mandatory overtime and inadequate staffing levels can lead to increased and unscheduled absences, high turnover, low morale and increased risk of violence for both healthcare and social assistance workers and their patients. Adequate numbers of well-trained staff can help ensure that situations with the potential for violence can be diffused before they escalate into full-blown violent incidents, resulting in fewer injuries. Adequate numbers of staff to address the needs of the patients can result in a higher level of safety and comfort for both patients and staff. Effective training can increase staff confidence and control in preventing, managing and de-escalating these incidents, resulting in a greater sense of safety for both staff and patients.

    Employer policies often include security measures to prevent workplace violence, including policies for monitoring and maintaining premises security (e.g., access control systems, video monitoring security systems) and data security (e.g., measures to prevent unauthorized use of employer computer systems and other forms of electronic communication by a patient with a history of violence to obtain personal information about a staff member). Many organizations also have policies that limit or monitor access of nonemployees to the premises. Emergency departments (EDs), because they are typically open 24 hours a day, expose hospitals to the community at large and can pose unique safety and security concerns. If the hospital is located in a community or area with a high crime rate, the crime can spill into the ED.

    Zero Tolerance policies are policy statements from employers/management that state that any violence to employees and patients/customers will not be tolerated. In general, zero tolerance policies require and encourage staff to report all assaults or threats to a supervisor or manager. Supervisors and managers keep a log of incidents, and all reports of workplace violence are investigated to help determine what actions to take to prevent future incidents. Some studies in the literature describe and discuss the effectiveness of zero-tolerance policies (Nachreiner et al., 2005; Lipscomb and London, 2015).

    Policies that encourage employees to report incidents help ensure that hazards are addressed; however, the current evidence shows that many assaults go unreported (Snyder et al., 2007; Bensley et al., 1997; Gillespie et al., 2014; Kowalenko et al., 2013; Arnetz et al., 2015; Speroni et al., 2014; Pompeii et al., 2015).

    Research has shown that injured healthcare and social assistance workers and their employers are reluctant to report violent incidents and resulting injuries out of fear of stigmatizing the patients or residents who are the perpetrators of the violence, particularly when they are mentally ill, developmentally disabled, or cognitively impaired elderly. There is also an attitude among many that violence toward those working with the public, especially with individuals with cognitive impairment, mental illness, or brain injury, is part of the job (Lipscomb and London, 2015; Speroni et al., 2014). Confusion on the part of nurses and other staff about what to report, and what legally constitutes “assault” and “abuse” as well as the lack of institutional support for reporting incidents can contribute to under-reporting (May and Grubbs, 2002).

    c. Personal Protective Equipment

    In OSHA's hierarchy of controls, personal protective equipment is the least-preferred type of control because these methods rely on the compliance of all individuals, and often places a burden on the individual worker rather than on the organization as a whole. However, there may be circumstances where the use of personal protective equipment (PPE) is appropriate for preventing workplace violence. For example, the ANA identified the use of gloves, sleeves, and blocking mats as a barrier method to protect staff from bites and scratches when caring for individuals with certain developmental disabilities and where other types of controls are infeasible (Lipscomb and London, 2015).

    d. Innovative Strategies

    In addition to controls that fall into the traditional OSHA hierarchical approach previously described here, OSHA is also very interested in hearing about strategies and innovations that have been developed from the clinical experience of health professionals, particularly if they have been shown to be effective. The Agency is interested in how existing operations tools, such as electronic infrastructure and work practices, can be modified to support violence prevention in specific healthcare and social assistance settings. In addition, the Agency seeks information on cross-disciplinary tools and strategies that merge techniques from different disciplines (such as threat assessment, education, and clinical practice) to improve workplace safety and health. Examples of innovative approaches include soliciting information from patients and their families about risk factors and effective solutions through informal surveys or focus groups. One behavioral health facility that hires and employs “milieu officers,” typically corrections officers with mental health training whose job is to be visible and accessible on the unit and maintain control over the unit environment as a whole, has reduced violent incidents on some patient units.

    New Hampshire Hospital, a state-run behavioral health facility, serves as a teaching hospital through its affiliation with the Geisel School of Medicine at Dartmouth College. This connection allows New Hampshire Hospital to serve as a living laboratory for ongoing research to identify precursors to violence and test new practices. Physicians engage patients as partners in their research, which is part of the hospital's drive for continual improvement. This connection to academic studies also helps to raise awareness of other new research and encourage staff members to adopt the best available evidence-based approaches.

    OSHA is interested in hearing from employers and individuals working in healthcare and social assistance about their experiences with hazard prevention and control. Specific questions regarding these topics are at the end of Section V.

    4. Safety and Health Training

    OSHA's Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers highlight education and training as an essential element of a workplace violence prevention program. Safety and health training helps ensure that all staff members are aware of potential safety hazards and how to protect themselves, their coworkers and patients through established policies and procedures. The content and frequency of training can vary, as well as the staff eligible for training. In general, training covers policies and procedures specific to the facility and perhaps the unit, as well as de-escalation and self-defense techniques. De-escalation of aggressive behavior and managing aggressive behavior when it occurs are very important components of the training (Nonviolent Crisis Intervention Training, 2014).

    Training provides opportunities to learn and practice strategies to improve both patient safety and worker safety. The nationwide movement toward reducing the use of restraints (physical and medication) and seclusion in behavioral health—which is mandated in some states—along with the movement toward “trauma-informed care,” means that workers are relying more on approaches that minimize physical contact with patients, intervening with verbal de-escalation strategies before an incident turns into a physical assault thereby reducing injuries. Trauma-informed care is a strengths-based approach that is grounded in an understanding of and responsiveness to the impact of trauma, that emphasizes physical, psychological, and emotional safety for both providers and survivors, and that creates opportunities for survivors to rebuild a sense of control and empowerment (SAMHSA). The results can be a “win-win” for patient and worker safety (OSHA, 2015b). Training ensures consistent dissemination of information about policies and procedures, as well as an opportunity to practice and develop confidence with newly-learned skills and techniques, such as de-escalation. In particular, when implementing a zero tolerance policy, training staff on what and when to report is essential to changing the expectation that violence will not be tolerated.

    Staff training on policies and procedures is usually conducted at orientation and periodically (e.g., annually or semi-annually) afterward. A number of studies show that training can be effective in reducing workplace violence (Swain, 2014; Martin, 1995; Allen, 2013).

    Because duties, work locations, and patient interactions vary by job, violence prevention training can be customized to address the needs of different groups of healthcare personnel, particularly: Nurses and other direct caregivers; emergency department (ED) staff; support staff (e.g., dietary, housekeeping, maintenance); security personnel; and supervisors and managers (Greene, 2008). The Joint Commission (formerly the Joint Commission on Accreditation of Healthcare Organizations (JCAHO)) emphasizes that security personnel need specific training on the unique needs of providing security in the healthcare environment, including the psychological components of handling aggressive and abusive behavior, and ways to handle aggression and defuse hostile situations (The Joint Commission, 2009).

    OSHA is interested in hearing from employers and individuals working in healthcare and social assistance about their experiences with the various types of training and their effectiveness. Specific questions regarding training are at the end of Section V.

    5. Recordkeeping and Program Evaluation a. Recordkeeping

    OSHA's recordkeeping regulations require employers to record certain workplace injuries and illnesses. The OSHA 300 Log can be a valuable source of evaluation metrics data for establishing baseline injury and illness rates and benchmarks for success. Information from the OSHA 300 Log, 300A Annual Summary, and the 301 Incident Report can be used to identify tasks and jobs with higher risks of injury or illness, and to monitor trends. Under OSHA's recordkeeping regulation, an employer must record each fatality, injury, and illness that is work-related, a new case, and meets one or more of the general recording criteria in section 1904.7 or the application to specific cases of section 1904.8 through 1904.11. The general recording criteria in section 1904.7 is triggered by an injury or illness that results in death, days away from work, restricted work or transfer to another job, loss of consciousness, or medical treatment beyond first aid. For each such injury, the employer is required to record the worker's name; the date; a brief description of the injury or illness; and, when relevant, the number of days the worker was away from work, assigned to restricted duties, or transferred to another job as a result of the injury or illness. Employers with 10 or fewer employees at all times during the previous calendar year and employers in certain low-hazard industries are partially exempt from routinely keeping OSHA injury and illness records (29 CFR 1904.1, 1904.2). Accurate records of injuries, illnesses, incidents, assaults, hazards, corrective actions, patient histories, and training can help employers evaluate methods of hazard control, identify training needs, and develop solutions for an effective program.

    All employers, including those who are partially exempt from keeping records, must report any work-related fatality to OSHA within 8 hours of learning of the incident, and must report all work-related inpatient hospitalizations, amputations, and losses of an eye to OSHA within 24 hours of learning of the incident (29 CFR 1904.39). These events can be reported to OSHA in person, by phone, or by using the reporting application on OSHA's public Web site at www.osha.gov/recordkeeping. See https://www.osha.gov/recordkeeping2014/.

    Employers do not always record or accurately record workplace injuries and illnesses in general. Specifically, in a 2012 report OSHA found that for calendar years 2007 and 2008, approximately 20 percent of injury and illness cases reconstructed by inspectors during a review of employee records were either not recorded or incorrectly recorded by the employer (OSHA, 2012). BLS is working on improving reporting by conducting additional research on the extent to which cases are undercounted in the SOII and exploring whether computer-assisted coding can improve reporting (BLS, 2014). Further, as discussed above in Section V.A.3.b, there are a number of published studies that show that employees substantially underreport workplace violence cases.

    OSHA is interested in hearing from employers and individuals in healthcare and social assistance facilities about their experiences with both recordkeeping to comply with OSHA requirements as well as reporting of incidents at the facility or unit level. Specific questions regarding recordkeeping are at the end of Section V.

    b. Program Evaluation

    Programs are evaluated to identify deficiencies and opportunities for improvement. Accurate records of injuries and illnesses can help employers gauge the effectiveness of intervention efforts. The evaluation of a comprehensive workplace violence prevention program typically includes, but is not limited to, measuring improvement based on lowering the frequency and severity of workplace violence incidents; keeping up-to-date records of administrative and work practice changes implemented to prevent workplace violence (to evaluate how well they work); surveying workers before and after making job or worksite changes or installing security measures or new systems to evaluate their effectiveness; tracking recommendations through to completion; keeping abreast of new strategies available to prevent and respond to violence as they develop; and establishing an ongoing relationship with local law enforcement and educating them about the nature and challenges of working with potentially violent patients. The quality and effectiveness of training is particularly important to assess.

    OSHA is interested in hearing from employers and individuals in healthcare and social assistance facilities about their experiences with program evaluation. Specific questions regarding program evaluation are located in section V.3. below.

    B. Questions for Section V

    OSHA is interested in hearing from employers and individuals in facilities that provide healthcare and social assistance about their experiences with the various components of workplace violence prevention programs that are currently being implemented by their facilities. Wherever possible, please indicate the title of the person completing the question and the type and employee size of your facility. In particular, the Agency appreciates respondents addressing the following:

    1. Questions on the Overall Program, Management Commitment and Employee Participation

    Question V.1: Does your facility have a workplace violence prevention program or policy? If so, what are the details of the program or policy? Please describe the requirements of your program, or submit a copy, if feasible. When and how did you implement the program or policy? How many hours did it take to develop the requirements? Did you consult your workers through union representatives?

    Question V.2: How is your program or policy communicated to workers? (e.g., Web site, employee meetings, signage, etc.) How are employees involved in the design or implementation of the program or policy?

    Question V.3: In your experience, what are the important factors to consider when implementing a workplace violence prevention program or policy?

    Question V.4: At what level in your organization was the workplace violence prevention program or policy implemented? Who has responsibility for implementation? What are the qualifications of the person responsible for its implementation?

    Question V.5: How well is your program or policy followed? Have you received sufficient support from management? Employees? The union, if there is one?

    Question V.6: How did you select the approach to workplace violence prevention outlined in your facility program or policy (e.g., triggered by an incident, following existing guidelines, listening to staff needs, complying with state laws)?

    Question V.7: Do you have a safety and health program in place in your facility? If so, what is the relationship between the workplace violence prevention program and the safety and health management system?

    Question V.8: Does your facility subscribe to a management philosophy that encompasses quality measures, e.g., lean sigma, high reliability? If so, are metrics for worker safety included?

    Question V.9: Does your facility have a safety and health committee? Does your facility also have a workplace violence committee? If so, what is the function of these committees? How are they held accountable? How is progress measured?

    Question V.10: Does your facility have a workplace violence prevention committee that is separate from the general safety committee or part of it? If separate, how do the two committees communicate and share information? How many hours do they spend meeting or doing committee work? How many hours of employee time does this require per year?

    Question V.11: If the facility does not have a committee, are there reasons for that?

    Question V.12: What is the make-up of the committee? How are the committee members selected? What is the highest level of management that participates? Are worker/union representatives included in a committee? Is there a rotation for the committee members?

    Question V.13: What does the decision making process look like? Do the committee members play an equal role in the decision making? Is there a meeting agenda? Does the committee keep minutes and records of decisions made?

    Question V.14: How are the workplace violence prevention committee's decisions disseminated to the staff and management? Does the committee address employees' safety concerns in a timely manner?

    Question V.15: If OSHA were to require management commitment, how should the Agency determine compliance?

    Question V.16: If OSHA were to issue a standard that included a requirement for employee participation, how might compliance be determined?

    2. Questions on Worksite Analysis and Hazard Identification

    Question V.17: Are workplace analysis and hazard identification performed regularly? If so, what is the frequency or triggers for these activities? Are there any assessment tools or overall approaches that you have found to be successful and would recommend? Please describe the types of successes or problems your facility encountered with reviewing records, administering employee surveys to identify violence-related risk factors, and conducting regular walkthrough assessments.

    Question V.18: Who is involved in workplace analysis? How are the individuals selected and trained to conduct the workplace analysis and hazard identification? How long does it take to perform the workplace analysis?

    Question V.19: What areas of the facility are covered during the routine workplace assessment? Please specify why these areas are included in the assessment and how many of these areas are part of the assessment.

    Question V.20: What records do you find most useful for identifying trends and risk factors with regards to workplace violence? How many of these records are collected per year?

    Question V.21: What screening tools do you use for the worksite analysis? Are these screening tools designed specifically to meet your facility's needs? Are questionnaires and surveys an effective way to collect information about the potential and existing workplace violence hazards? Why or why not?

    Question V.22: Who provides post-assessment feedback? Is it shared with other employees and if so, how is it shared with the other employees?

    Question V.23: Does your facility use patient threat assessment? If so, do you use an existing tool or did you develop your own? If you develop your own, what criteria do you use?

    Question V.24: Does your facility conduct accident/incident investigations? If so, who conducts them? How are follow-ups conducted and changes implemented?

    Question V.25: How much time is required to conduct your patient assessments? What is the occupational background of persons who do these assessments?

    Question V.26: If OSHA were to implement a standard with a requirement for hazard identification and worksite analysis, how might compliance be determined?

    Question V.27: What do you know or perceive to be risk factors for violence in the facilities you are familiar with?

    3. Questions on Hazard Prevention and Controls

    Question V.28: Are you aware of any specific controls or interventions that have been found to be effective in reducing workplace violence in an ED environment? How was effectiveness determined? If so, can you provide cost information?

    Question V.29: Are you aware of any specific controls or interventions that have been found to be effective in reducing workplace violence in a behavioral health, psychiatric or forensic mental health setting? How was effectiveness determined? If so, can you provide cost information?

    Question V.30: Are you aware of any specific controls or interventions that have been found to be effective in reducing workplace violence in a nursing home or long-term care environment? How was effectiveness determined? If so, can you provide cost information?

    Question V.31: Are you aware of any specific controls or interventions that have been found to be effective in reducing workplace violence in a hospital environment? How was effectiveness determined? If so, can you provide cost information?

    Question V.32: Are you aware of any specific controls or interventions that have been found to be effective in reducing workplace violence in a home health environment? How was effectiveness determined? If so, can you provide cost information?

    Question V.33: Are you aware of any specific controls or interventions that have been found to be effective in reducing workplace violence of any other environments where healthcare and/or social assistance workers are employed? How was effectiveness determined? If so, can you provide cost information?

    Question V.34: Are you aware of any existing or modified infrastructure and work practices, or cross-disciplinary tools and strategies that have been found to be effective in reducing violence?

    Question V.35: Have you made modifications of your facility to reduce risks of workplace violence? If so, what were they and how effective have those modifications been? Please provide cost for each modification made. Please specify the type of impact the modification made and whether the modification resulted in a safer workplace.

    Question V.36: Does your facility have controls for workplace violence prevention (security equipment, alarms, or other devices)? If so, what kind of equipment does your facility use to prevent workplace violence? Where is the equipment located? Are there any barriers that prevent using the equipment? What labor requirements or other operating costs does this equipment have (e.g., have you hired security guards to monitor video cameras)?

    Question V.37: Who is usually involved in selecting the equipment? If a committee, please list the titles of the committee members. Is new equipment tested before purchase, and if so, by whom? Are there any pieces of equipment purchased that are rarely used? If so, why?

    Question V.38: Is there a process for evaluating the effectiveness of controls once they are implemented? What are the evaluation criteria?

    Question V.39: What best practices are in use in your facility for workplace violence prevention?

    Question V.40: How do you assure that the program is followed and controls are used? What are the ramifications for not following the program or using the equipment? If OSHA were to issue a standard, how might compliance with hazard prevention and control be determined?

    Question V.41: Do you have information on changes in work practices or administrative controls (other than engineering controls and devices) that have been shown to reduce or prevent workplace violence either in your facility or elsewhere?

    Question V.42: Do you have a zero tolerance policy? If so please share it. Do you think it has been successful in reducing workplace violence incidents? Why or why not?

    Question V.43: If you have a policy for reporting workplace violence incidents, what steps have you taken to assure that all incidents are reported? What requirements do you have to ensure that adequate information about the incident is shared with coworkers? Do you think these policies have been effective in improving the reporting and communication about workplace violence incidents? Why or why not?

    Question V.44: What factors do you consider in staffing your security department? What are the responsibilities of your security staff?

    Question V.45: Have you instituted policies or procedures to identify patients with a history of violence, either before they are admitted or upon admission? If so, what costs are associated with this? How is this information used and conveyed to staff? Whose responsibility is it and what is the process? Has it been effective?

    4. Questions on Safety and Health Training

    Question V.46: What kind of training on workplace violence prevention is provided to the healthcare and/or social assistance workers at your facility? If this is copyrighted/branded training, please provide the name.

    Question V.47: What is the scope and format of the training, and how often is workplace violence prevention training conducted?

    Question V.48: What occupations (e.g., registered nurses, nursing assistants, etc.) attend the training sessions? Are the staff members required to attend the training sessions or is attendance voluntary? Are staff paid for the time they spend in training? Who administers the training sessions? Are they in-house training staff or a contractor? How is the effectiveness of the training measured? What is the duration of the training sessions or cost of the contractor?

    Question V.49: Do all employees have education or training on hazard recognition and controls?

    Question: V.50: Are contract and per diem employees trained?

    Question V.51: Are patients educated on the workplace violence prevention program and, if so, how?

    Question V.52: Does training cover workers' rights (including non-retaliation) and incident reporting procedures?

    Question V.54: If OSHA were to require workplace violence prevention training, how might compliance be assessed?

    5. Questions on Recordkeeping and Program Evaluation

    Question V.55: Does your facility have an injury and illness recordkeeping policy and/or standard operating procedures? Please describe how it works. How are records maintained; online, paper, in person?

    Question V.56: Who is responsible for injury and illness recordkeeping in your facility?

    Question V.57: Does your facility use a workers' compensation form, the OSHA 301 or another form to collect detailed information on injury and illness cases?

    Question V.58: Where are the OSHA 300 log(s) kept at your facility? Are they kept on each unit, each floor, or are they centrally located for the entire facility?

    Question V.59: Would the OSHA 300 Log alone serve as a valuable or sufficient tool for evaluating workplace violence prevention programs? Why or why not?

    Question V.60: Are you aware of any issues with reporting (either underreporting or overreporting) of OSHA recordables and/or “accidents” or other incidents related to workplace violence in your facility and if so, what types of issues? If you have addressed them, how did you address them?

    Question V.61: Do you regularly evaluate your program? If so, how often? Is there an additional assessment after a violent event or a near miss? If so, how do you measure the success of your program? How many hours does the evaluation take to complete?

    Question V.62: Who is involved in a program evaluation at your facility? Is this the same committee that conducted the workplace analysis and hazard identification?

    Question V.63: If you have or are conducting an evaluation of the effectiveness of your workplace violence prevention program, have you been able to demonstrate improved tracking of workplace violence incidents and/or a reduction in the frequency or severity of violent incidents?

    Question V.64: What are the most effective parts of your program? What elements of your program need improvement and why?

    Question V.65: When conducting program evaluations, do you use the same tools and metrics you used for the initial worksite assessment? If not, please explain.

    Question V.66: If OSHA were to develop a standard to prevent workplace violence and included a requirement for program or policy evaluation, how might compliance be determined?

    Question V.67: Could you provide information characterizing the nature and extent of the difficulties in implementing your facility's program or policy?

    Question V.68: What actions are taken based on the results of the program evaluation at your facility?

    VI. Costs, Economic Impacts, and Benefits

    As part of the Agency's consideration of a possible workplace violence standard, OSHA is interested in the costs, economic impacts, and benefits of related practices. OSHA is also interested in the benefits of such practices in terms of reduced injuries, deaths, and compromised operations (i.e., emotional distress, staffing turnover, and unexpected reallocation of resources).

    Workplace violence exacts a high cost today. It harms workers often both physically and emotionally, and employers also bear several costs. A single serious injury can lead to workers' compensation losses of thousands of dollars, along with thousands of dollars in additional costs for overtime, temporary staffing, or recruiting and training a replacement. Even if a worker does not have to miss work, violence can still lead to “hidden costs” such as higher turnover and deterioration of productivity and morale. In the study of Washington state's workers' compensation data (1997-2007), the average cost claim per time-lost was $32,963, with an annual average of at least 2,247 claims related to workplace violence in Washington State for the period from 1997-2007. Similar costs were cited by McGovern et al. (2000) who found costs per case for assaults was $31,643 for registered nurse and $17,585 for licensed practical nurses. These costs included medical expenses, lost wages, legal fees insurance administrative costs, lost fringe benefits, and household production costs.

    In addition to the out-of-pocket costs by the employer and employee, healthcare workers who experience workplace violence have reported short term and long term emotional effects which can negatively impact productivity. It was found by Gates et al. (2003; 2006) that nursing assistants employed in long term care, who had been assaulted suffered a range of occupational stressors including job dissatisfaction, decreased safety, and fear of future assaults. Caldwell (1992) and Gerberich et al. (2004) found emergency department (ED) workers to have post-traumatic stress disorder or symptom of the disorder at rates between 12 percent to 20 percent; the 12-month prevalence rate for the general U.S. adult population is about 3.5 percent (http://www.nimh.nih.gov/health/statistics/prevalence/post-traumatic-stress-disorder-among-adults.shtml). The impact of PTSD caused by workplace violence on productivity was studied by Gates, Gillespie and Succop (2011), where they found those who suffered from PTSD symptoms or experienced emotional distress reported difficulty thinking, withdrawal from patients, absenteeism, and higher job turnover. The results also found that, although emergency department nurses with PTSD symptoms continued to work, they had trouble remaining cognitively focused, and had “difficulty managing higher level work demands that required attention to detail or communication skills.”

    OSHA requests any workers' compensation data related to workplace violence. Any other information on your facility's experience would also be appreciated.

    Several studies have evaluated the effectiveness of various engineering and administrative workplace violence controls in a variety of settings (e.g., hospitals, nursing homes). The implementation of a comprehensive workplace violence prevention program that includes administrative and engineering controls has been shown to lead to lower injury rates and workers' compensation costs (Foley and Rauser, 2012, updated data provided to OSHA by the authors in 2015).

    A. Questions for Costs, Economic Impacts, and Benefits

    The following questions are intended to solicit information on the topics covered in this section. Wherever possible, please indicate the title of the person providing the information and the type and number of employees at your healthcare and/or social assistance facility.

    Question VI.1: Are there additional data (other than workers' compensation data) from published or unpublished sources that describe or inform about the incidence or prevalence of workplace violence in healthcare occupations or settings?

    Question VI.2: As the Agency considers possible actions to address the prevention and control of workplace violence, what are the potential economic impacts associated with the promulgation of a standard specific to the risk of workplace violence? Describe these impacts in terms of benefits from the reduction of incidents; effects on revenue and profit; and any other relevant impact measure.

    Question VI.3: If you have implemented a workplace violence prevention program or policy, what was the cost of implementing the program or policy, in terms of both time and expenditures for supplies and equipment? Please describe in detail the resource requirements and associated costs expended to initiate the program(s) and to conduct the program(s) annually. If you have any other estimates of the costs of preventing or mitigating workplace violence, please provide them. It would be helpful to OSHA to learn both overall totals and specific components of the program (e.g., cost of equipment, equipment installation, equipment maintenance, training programs, staff time, facility redesign).

    Question VI.4: What are the ongoing operating and maintenance costs for the program?

    Question VI.5: Has your program reduced incidents of workplace violence and by how much? Can you identify which elements of your program most reduced incidents? Which elements did not seem effective?

    Question VI.6: Has your program reduced costs for your facility (e.g., reduced insurance premiums, workers' compensation costs, fewer lost workdays)? Please quantify these reductions, if applicable.

    Question VI.7: Has your program reduced indirect costs for your facility (e.g., reductions in absenteeism and worker turnover; increases in reported productivity, satisfaction, and level of safety in the workplace)?

    Question VI.8: If you are in a state with standards requiring programs and/or policies to reduce workplace violence, how did implementing the program and/or policy affect the facility's budget and finances?

    Question VI.9: What changes, if any, in market conditions would reasonably be expected to result from issuing a standard on workplace violence prevention? Describe any changes in market structure or concentration, and any effects on services, that would reasonably be expected from issuing such a standard.

    B. Impacts on Small Entities

    As part of the Agency's consideration of a workplace violence prevention standard, OSHA is concerned whether its actions will have a significant economic impact on a substantial number of small businesses. Injury and illness incident rates are known to vary by establishment size in the healthcare industry, where establishments between 50 and 999 employees had a rate of 5.4 per 10,000 full time workers, while establishments under 50 employees had a rate of 2.8 and lower in 2014 (BLS Table Q1, October 2015).

    If the Agency pursues development of a standard that would have such impacts on small businesses, OSHA is required to develop a regulatory flexibility analysis and convene a Small Business Advocacy Review (SBAR) under the Small Business Regulatory Enforcement Fairness Act (SBREFA) Panel prior to publishing a proposal. Regardless of the significance of the impacts, OSHA seeks ways of minimizing the burdens on small businesses consistent with OSHA's statutory and regulatory requirements and objectives (Regulatory Flexibility Act, 5 U.S.C. 601 et seq.).

    C. Questions for Impacts on Small Entities

    Question VI.10: How many, and what type of small firms, or other small entities, have a workplace violence prevention training, or a program, and what percentage of their industry (NAICS code) do these entities comprise? Please specify the types of workplace violence risks you face.

    Question VI.11: How, and to what extent, would small entities in your industry be affected by a potential OSHA standard to prevent workplace violence? Do special circumstances exist that make preventing workplace violence more difficult or more costly for small entities than for large entities? Describe these circumstances.

    Question VI.12: How many, and in what type of small healthcare entities, is workplace violence a threat, and what percentage of their industry (NAICS code 622) do these entities comprise?

    Question VI.13: How, and to what extent, would small entities in your industry be affected by an OSHA standard regulating workplace violence? Are there conditions that make controlling workplace violence more difficult for small entities than for large entities? Describe these circumstances.

    Question VI.14: Are there alternative approaches OSHA could use to mitigate possible impacts on small entities?

    Question VI.15: For very small entities, what types of workplace violence threats are faced by workers? Does your experience with workplace violence reflect the lower rates reported by BLS?

    Question VI.16: For very small entities, what are the unique challenges establishments face in addressing workplace violence, including very small non-profit healthcare facilities and at small jurisdictions?

    VI. References I. Overview American Nurses Association. 2014. American Nurses Association Health Risk Appraisal (HRA): Preliminary Findings October 2013-October 2014. Bureau of Labor Statistics [BLS]. (2015). Table R3. Number of nonfatal occupational injuries and illnesses involving days away from work by industry and selected sources of injury or illness, private industry, 2014. Accessed July 26, 2016 at: http://www.bls.gov/iif/oshwc/osh/case/ostb4369.pdf. Bureau of Labor Statistics [BLS]. (2015). Table R4. Number of nonfatal occupational injuries and illnesses involving days away from work by industry and selected events or exposures leading to injury or illness, private industry, 2014. Accessed July 26, 2016 at http://www.bls.gov/iif/oshwc/osh/case/ostb4370.pdf. Bureau of Labor Statistics [BLS]. (2015). Table R100. Incidence rates for nonfatal occupational injuries and illnesses involving days away from work2 per 10,000 full-time workers by occupation and selected events or exposures leading to injury or illness, private industry, 2014. Accessed July 26, 2016 from http://www.bls.gov/iif/oshwc/osh/case/ostb4466.pdf. Bureau of Labor Statistics [BLS]. Injuries, Illnesses, and Fatalities for 2014 and 2013, by selected worker characteristics and selected industry (IIF) database. Accessed on July 26, 2016 at http://data.bls.gov/gqt/InitialPage. Bureau of Labor Statistics [BLS]. (2015). Table R8. Incidence rates for nonfatal occupational injuries and illnesses involving days away from work per 10,000 full-time workers by industry and selected events or exposures leading to injury or illness, private industry, 2014. Accessed July 26, 2016 at: http://www.bls.gov/iif/oshwc/osh/case/ostb4374.pdf. Jayaratne, S.,Vinokur-Kaplan, D., Nagda, B.A; Chess, W.A. (1996). A national study on violence and harassment of social workers by clients. Journal of Applied Social Sciences, Vol 20(1):1-14. McPhaul, K, and Lipscomb, J. (2004). Workplace Violence in Health Care: Recognized but not Regulated, The Online Journal of Issues in Nursing. Vol. 9, No. 3. Occupational Safety and Health Administration [OSHA] (2011). Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents. Directive CPL 02-01-052 (https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-01-052.pdf.). Occupational Safety and Health Administration [OSHA] (2011-2015). Table 1. Inspections and citations related to workplace violence in healthcare in 2011-2015. Pompeii L.A., Dement J., Schoenfisch, A.L., Lavery A. (2013). Perpetrator, worker and workplace characteristics associated with patient and visitor perpetrated violence (Type II) on hospital workers: a review of the literature and existing occupational injury data. Journal of Safety Research, 44: 57-64. Rey L. (1996) What Social Workers Need to Know About Client Violence. Families in Society: The Journal of Contemporary Social Services: 1996, Vol. 77, No. 1, pp. 33-39. Robinson, T. A. (2014). New study points to significant under reporting of injuries to bureau of labor statistics. Retrieved from https://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/archive/2014/08/29/new-study-points-to-significant-underreporting-of-injuries-to-bureau-of-labor-statistics.aspx. Ruser, J. (2008). Examining evidence on whether BLS undercounts workplace injuries and illnesses. Monthly Labor Review. Retrieved from: http://www.bls.gov/opub/mlr/2008/08/art2full.pdf. United States Government Accountability Office [GAO]. (2016). Workplace safety and health: Additional efforts needed to help protect health care workers from workplace violence. Retrieved from http://www.gao.gov/assets/680/675858.pdf. II. Background American Association of Occupational Health Nurses, Inc. [AAOHN] (2015) Position Statement: Preventing Workplace Violence: The Occupational and Environmental Health Nurse Role. Retrieved on August 10, 2016 at http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwie3dSDjNXOAhXCkx4KHf8yAY0QFgghMAA&url=http%3A%2F%2Faaohn.org%2Fd%2Fdo%2F41&usg=AFQjCNFbnfdAms9REGlNcgeU15lo8zfmvA&sig2=FlFAqgRWochSWXnm1PLn7A. American Nurses Association [ANA] (2015). American Nurses Association Position Statement on Incivility, Bullying, and Workplace Violence. Retrieved from http://www.nursingworld.org/Bullying-Workplace-Violence. American Nurses Association [ANA]. (2011). Model “state” bill: “The violence prevention in health care facilities act”. Retrieved on August 10, 2016 from http://nursingworld.org/MainMenuCategories/Policy-Advocacy/State/Legislative-Agenda-Reports/State-WorkplaceViolence/ModelWorkplaceViolenceBill.pdf. American Psychiatric Nurses Association [APNA]. 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Cincinnati, OH: U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health, DHHS (NIOSH) Publication No. 96-100. Occupational Safety & Health Administration [OSHA] (1970). OSH Act. Retrieved from https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=OSHACT&p_id=2743. Occupational Safety and Health Administration [OSHA] (2015a). 3148-04R Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. https://www.osha.gov/Publications/osha3148.pdf. Occupational Safety and Health Administration [OSHA] (2015b). Caring for our Caregivers: Strategies and Tools for Workplace Violence Prevention in Healthcare. Accessed on August 1, 2016 at https://www.osha.gov/dsg/hospitals/workplace_violence.html. Occupational Safety and Health Administration [OSHA] (2011). Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents. Directive CPL 02-01-052 (https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-01-052.pdf). Peek-Asa, C., Casteel, C., Allareddy, V., Nocera, M., Goldmacher, S., & O'Hagan, E. (2007). Workplace violence prevention programs in hospital emergency departments. Journal of Occupational & Environmental Medicine, 49(7), 757-763. Peek-Asa, C., Casteel, C., Allareddy, V., Nocera, M., Goldmacher, S., O'Hagan, E., Harrison, R. (2009). Workplace violence prevention programs in psychiatric units and facilities. Archives of Psychiatric Nursing, 23(2), 166-176. DOI: 10.1016/j.apnu.2008.05.008. Public Citizen. (2013). Health care workers unprotected: Insufficient inspections and standards leave safety risks unaddressed. Retrieved from https://www.citizen.org/documents/health-care-workers-unprotected-2013-report.pdf. Romney, L., (2010) Patient aggression intensifies at Napa State Hospital. Los Angeles Times, November 3, 2010. Retrieved from: http://articles.latimes.com/2010/nov/03/local/la-me-hospital-violence-20101103. SEIU Nurse Alliance in California. (February 10, 2014). Petition 538. Petition for a Workplace Violence Prevention Standard for Healthcare Workers. Retrieved from https://www.dir.ca.gov/oshsb/petition_538.pdf. Senate Bill No. 1299, Chapter 842, An act to add Section 6401.8 to the Labor Code, relating to Occupational Safety and Health. September 29, 2014. State of California—Department of Industrial Relations. Occupation Safety and Health Standards Board. Title 8. California Code of Regulations. New Section 3342, General Industry Safety Orders. Workplace Violence Prevention in Health Care. October 30, 2015. United States Government Accountability Office [GAO]. (2016). Workplace safety and health: Additional efforts needed to help protect health care workers from workplace violence. Retrieved from http://www.gao.gov/assets/680/675858.pdf. III. Defining Workplace Violence Center for Disease Control and Prevention [CDC], National Institute for Occupational Health [NIOSH) (2002). Violence: Occupational Hazards in Hospitals. DHH (NIOSH) Pub. No. 2001-101. http://www.cdc.gov/niosh/docs/2002-101/#5. Gerberich, S.G., Church T.R., McGoven, P.M., Hasen, H. (2004). An epidemiological study of the magnitude and consequence of work related violence: the Minnesota nurses' study. Occupational and Environmental Medicine, 61, 495-503. Lipscomb J., and London, M. (2015). Not part of the job: How to take a stand against violence in the work setting. Silver Spring, MD: American Nurses Association. University of Iowa Injury Prevention Center [UIIPRC]. (2001). Workplace Violence—A report to the nation. Accessed July 8, 2016 at: http://docplayer.net/8506391-A-report-to-the-nation-february-2001.html. IV. Scope Bureau of Labor Statistics [BLS]. (April 2016). Occupational Employment Statistics OES Data, National Industry Specific Tables, May 2015 and May 2005. Accessed July 26, 2016 from http://www.bls.gov/oes/tables.htm. Bureau of Labor Statistics [BLS]. (2015). Table R8. Incidence rates for nonfatal occupational injuries and illnesses involving days away from work per 10,000 full-time workers by industry and selected events or exposures leading to injury or illness, private industry, 2014. Accessed July 26, 2016 from http://www.bls.gov/iif/oshwc/osh/case/ostb4374.pdf. Bureau of Labor Statistics [BLS]. (2015). Table R4. Number of nonfatal occupational injuries and illnesses involving days away from work by industry and selected events or exposures leading to injury or illness, private industry, 2014. Accessed July 26, 2016 from http://www.bls.gov/iif/oshwc/osh/case/ostb4370.pdf. Bureau of Labor Statistics [BLS]. (2015). Table R100. Incidence rates for nonfatal occupational injuries and illnesses involving days away from work2 per 10,000 full-time workers by occupation and selected events or exposures leading to injury or illness, private industry, 2014. Accessed July 26, 2016 from http://www.bls.gov/iif/oshwc/osh/case/ostb4466.pdf. Bureau of Labor Statistics [BLS]. (2015). Table L8. Incidence rates for nonfatal occupational injuries and illnesses involving days away from work per 10,000 full-time workers by industry and selected events or exposures leading to injury or illness, local government, 2014. Accessed July 26, 2016 from http://www.bls.gov/iif/oshwc/osh/case/ostb4606.pdf. Bureau of Labor Statistics [BLS]. (2015). Table S8. Incidence rates for nonfatal occupational injuries and illnesses involving days away from work per 10,000 full-time workers by industry and selected events or exposures leading to injury or illness, state government, 2014. Accessed July 26, 2016 from http://www.bls.gov/iif/oshwc/osh/case/ostb4490.pdf. Foley, M., and Rauser, E. (2012). Evaluating progress in reducing workplace violence: trends in Washington State workers' compensation claims rates 1997-2007. Work. 42, 67-81. (Updated data provided by the authors in 2015). Kelly, E.L., A.M. Subica, A.M., Fulginiti, A., Brekke, J.S., and Novaco R.W. (2015). “A cross-sectional survey of factors related to inpatient assault of staff in a forensic psychiatric hospital.” Journal of Advanced Nursing, vol. 71, no. 5: 1110-1122. Phillips, J. P. (2016). Workplace violence against health care workers in the United States. The New England Journal of Medicine: 1661-1669. United States Census Bureau [Census]. (July 2016). Industry Snapshots Health Care and Social Assistance (NAICS 62). Accessed July 26, 2016 from http://www.census.gov/econ/snapshots/index.php. United States Government Accountability Office [GAO]. (2016). Report to Congressional Requesters-Workplace Safety and Health—Additional Efforts Needed to Help Protect Health Care Workers from Workplace Violence. Accessed July 26, 2016 from http://www.gao.gov/assets/680/675858.pdf. V. Workplace Violence Prevention Programs; Risk Factors and Controls/Interventions Allen D. (2013). Staying safe: re-examining workplace violence in acute psychiatric settings. Journal of Psychosocial Nursing and Mental Health Services. 51(9), 37-41. Arnetz, J.E., Hamblin, L., Ager, J., Luborsky, M.J. (2015). Underreporting of workplace violence: comparison of self-report and actual documentation of hospital incidents. Workplace Health & Safety, 63(5), 200-210. Bensley L., Nelson N., Kaufman J., Silverstein B. (1997). Injuries due to assaults on psychiatric hospital employees in Washington State. American Journal of Industrial Medicine, 31: 92-99. Bureau of Labor Statistics [BLS]. (June 2014). Monthly Labor Review. Examining the completeness occupational injury and illness data: an update on current research. Retrieved from http://www.bls.gov/opub/mlr/2014/article/examining-the-completeness-of-occupational-injury-and-illness-data-an-update-on-current-research-1.htm. Bureau of Labor Statistics [BLS]. (November 2015). Table R100. Incidence rates for nonfatal occupational injuries and illnesses involving days away from work per 10,000 full-time workers by occupation and selected events or exposures leading to injury or illness, private industry, 2014. Accessed July 26, 2016 from http://www.bls.gov/iif/oshwc/osh/case/ostb4466.pdf. 29 CFR 1904.35(b)(1)(iii) and 29 CFR. 1904.35(b)(1)(iv) Other OSHA injury and Illness Recordkeeping Requirements. Retrieved from: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=12779#1904.35(b)(1). Crilly, J., Chaboyer, W., Creedy, D. (2004). Violence towards emergency department nurses by patients. Accident and Emergency Nursing, 12(2), 67-73. DeSanto, J., Dixon, J., Whittemore, R., & Bowers, L. (2013). Measurement and monitoring of health care worker aggression exposure. OJIN: The Online Journal of Issues in Nursing, 18(1). Gacki-Smith, J., Juarez, A.M., Boyett, L., Homeyer, C. (2009). Violence against nurses working in US Emergency Departments. Journal of Nursing Administration, [JONA]. 39(7:8). Gates, D., Ross, C.S., McQueen, L. (2006). Violence against emergency department workers. Journal of Emergency Medicine. 31(3), 331-337. Gates D., Fitzwater, E., & Succop, P. (2005). Reducing assaults against nursing home caregivers. Nursing Research. 54(2), 119-127. Gerberich S.G., Church T.R., McGoven P.M., & Hansen H. (2005) Risk factors for work-related assaults on nurses. Epidemiology, 16(5), 704-709. Gillespie, G.L., Gates, D.M., Kowalenko, T.D., S., Bresler, & Succop, p. (2014). Implementation of a Comprehensive Intervention to Reduce Physical Assaults and Threats in the Emergency Department. Journal of Emergency Nursing, 40(6), 586-591. Greene, J. (2008). Violence in ED: no quick fixes for pervasive threat. Annals of Emergency Medicine News and Perspective. 52(1), doi:10.1016/j.annemergmed.2008.05.009). Haynes, M.I. (2013). Workplace violence: Why every state must adopt a comprehensive workplace violence prevention law. Retrieved from http://digitalcommons.ilr.cornell.edu/chrr/47/. The Joint Commission [TJC]. (2009). Preventing violence in the emergency department-ensuring staff safety. Environment of Care News. 12(10):1-3, 11. Kowalenko, T.D., Gates, D.M., Gillespie, G.L., Succop, P., and Mentzel, T.K. (2013). Prospective study of violence against ED workers. American Journal of Emergency Medicine, 31, 197-205. Lipscomb, J., and London, M. (2015). Not Part of the Job: How to Take a Stand Against Violence in the Work Setting. American Nurses Association. Silver Spring, Maryland. Martin, K.H., (1995). Improving staff safety through an aggression management program. Archives of Psychiatric Nursing 9, 211-215. May, D.D., and Grubbs, L.M. (2002). The extent, nature, and precipitating factors of nurse assault among three groups of registered nurses in a regional medical center. Journal of Emergency Nursing, 28(1), 94-100). Nachreiner, N.M., Gerbersch, S.G., McGovern, P.M., Church, T.R. (2005). Relation between policies and work related assault: Minnesota nurses' study. Occupational and Environmental Medicine, 62, 675—681. Non-violent Crisis Intervention Training, 2014. Retrieved from: http://www.crisisprevention.com/Specialties/Nonviolent-Crisis-Intervention. Occupational Safety and Health Administration [OSHA]. (2012). Report on the Findings of the Occupational Safety and Health Administration's National Emphasis Program on Recordkeeping and Other Department of Labor Activities Related to the Accuracy of Employer Reporting of Injury and Illness Data, May 7, 2012. Occupational Safety and Health Administration [OSHA]. (2014). OSHA injury and illness recordkeeping and reporting requirements. Retrieved from http://www.osha.gov/recordkeeping. Occupational Safety and Health Administration [OSHA]. (2015). OSHA forms for recording work-related injuries and illnesses. Retrieved from https://www.osha.gov/recordkeeping/new-osha300form1-1-04.pdf. Occupational Safety and Health Administration [OSHA] (2015a). 3148-04R Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. https://www.osha.gov/Publications/osha3148.pdf. Occupational Safety and Health Administration [OSHA]. (2015b). Caring for our caregivers: Strategies and tools for workplace violence prevention in healthcare. Retrieved on August 1, 2016 at https://www.osha.gov/dsg/hospitals/workplace_violence.html. Occupational Safety and Health Act, Section 11(c)(1) (1970). https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=OSHACT&p_id=336529 CFR 1904.35(b)(1)(iii) and 29 CFR 1904.35(b)(1)(iv) Other OSHA injury and Illness Recordkeeping Requirements. Retrieved from: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=12779#1904.35(b)(1). Pompeii L.A., Schoenfisch A.L., Lipscomb H.J., Dement J.M., Smith C.D., and Upadhyaya M. (2015). Physical assault, physical threat, and verbal abuse perpetrated against hospital workers by patients or visitors in six U.S. hospitals. American Journal of Industrial Medicine. 1-11. Snyder, L.A., Chen, P.Y., and Vacha-Haase, T. (2007). The underreporting gap in aggressive incidents from geriatric patients against certified nursing assistants Violence and Victims, 22(3), 367-379. Speroni, K.G., Fitch, T., Dawson, E., Dugan, L., and. Atherton, M. (2014) Incidence and cost of nurse workplace violence perpetrated by hospital patients or patient visitors. Journal of Emergency Nursing, 40(3), 218-228. Stirling. G., Higgins. J.E., Cooke, M.W. (2001). Violence in A and E departments: a systematic review of the literature. Accident and Emergency Nursing, 9, 77-85. Stokowski, L.A. (2010). Violence: Not in My Job Description. Retrieved from http://www.medscape.com/viewarticle/727144_4. Swain, N., Gale, C. (2014). A communication skills intervention for community healthcare workers reduces perceived patient aggression: a pretest-posttest study. International Journal of Nursing Studies, 5:1241-1245. VI. Costs, Economic Impacts, and Benefits Bureau of Labor Statistics [BLS]. (October 2015). Table Q1. Incidence rates of total recordable cases of nonfatal occupational injuries and illnesses, by quartile distribution and employment size, 2014. Accessed July 26, 2016 from http://www.bls.gov/iif/oshwc/osh/os/ostb4359.pdf. Caldwell, M.F. (1992). Incidence of PTSD among staff victims of patient violence. Hospital & Community Psychiatry: A Journal of the American Psychiatric Association, 43(8), 838-839. Foley, M., and Rauser, E. (2012). Evaluating progress in reducing workplace violence: trends in Washington State workers' compensation claims rates 1997-2007. Work. 42, 67-81. (Updated data provided by the authors in 2015). McGovern, P., Kochevar, L., Lohman, W., Zaidman, B., Gerberich, S.G., Nyman, J., & Findorff-Dennis, M. (2000). The cost of work-related physical assaults in Minnesota. Health Services Research, 35(3), 663-686. Gates, D., Gillespie, G., & Succop, P. (2011). Violence Against Nurses and its Impact on Stress and Productivity. Nursing Economics, 29(2), 59-66. Gates, D., Ross, C.S., McQueen, L. (2006). Violence against emergency department workers. Journal of Emergency Medicine. 31(3), 331-337. Gates, D., Fitzwater, E., & Succop, P. (2003). Relationship of stressors, strain and anger to caregiver assaults. Issues in Mental Health Nursing, 24(8), 775-793. Gerberich, S.G., Church T.R., McGoven, P.M., Hasen, H. (2004). An epidemiological study of the magnitude and consequence of work related violence: the Minnesota nurses' study. Occupational and Environmental Medicine, 61, 495-503. Authority and Signature:

    Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice pursuant to 29 U.S.C. 653, 655, and 657, Secretary's Order 1-2012 (77 FR 3912; Jan. 25, 2012), and 29 CFR part 1911.

    Signed at Washington, DC, on December 1, 2016. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health.
    [FR Doc. 2016-29197 Filed 12-6-16; 8:45 am] BILLING CODE 4510-26-P
    DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 175 RIN 0790-AJ54 [Docket ID: DOD-2016-OS-0108] Indemnification or Defense, or Providing Notice to the Department of Defense, Relating to a Third-Party Environmental Claim AGENCY:

    Department of Defense (DoD).

    ACTION:

    Proposed rule.

    SUMMARY:

    The DoD proposes to identify the proper address and notification method for an entity making a request for indemnification or defense, or providing notice to DoD, of a third-party claim under section 330 of the National Defense Authorization Act for Fiscal Year 1993, as amended (hereinafter “section 330”), or under section 1502(e) of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, (hereinafter “section 1502(e)”). This rule also identifies the documentation required to demonstrate proof of any claim, loss, or damage for indemnification or defense or for providing notice to DoD of a third-party claim. This rule also provides the mailing address for such requests for indemnification or defense or notice to DoD of a third-party claim to be filed with DoD, Office of General Counsel, Deputy General Counsel for Environment, Energy, and Installations (DoDGC(EE&I)). This will allow for timely review and greater efficiency in screening requests for indemnification or defense by providing clarity to requesters.

    DATES:

    Written comments on this proposed rule will be accepted on or before February 6, 2017.

    ADDRESSES:

    You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) number and title, by any of the following methods:

    Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, Regulatory and Advisory Committee Division, 4800 Mark Center Drive, Mailbox #24, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name and docket number or RIN for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Philip Sheuerman, 703-692-2287.

    SUPPLEMENTARY INFORMATION:

    Preamble Outline I. Legal Authority II. Background III. Summary of Proposed Rule IV. Section-by-Section Analysis A. Purpose and Objectives B. Applicability C. Responsibilities V. Summary of Challenges VI. Discussion of Other Major Alternatives A. Status Quo VII. Costs and Benefits VIII. Administrative Requirements A. Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review” B. Regulatory Flexibility Act C. Paperwork Reduction Act D. Environmental Justice E. Unfunded Mandates F. Federalism IX. References/Docket I. Legal Authority

    This part is proposed under 10 U.S.C. 113, 5 U.S.C. 301, section 330 of the National Defense Authorization Act for Fiscal Year 1993, Public Law 102-484, October 23, 1992, 106 Stat. 2371, as amended, and section 1502(e) of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Public Law 106-398, October 30, 2000, 1014 Stat. 1654A-350, as amended.

    II. Background

    Sections 330 and 1502(e) provide that, subject to certain exceptions set forth in the statutes, the Secretary of Defense shall hold harmless, defend, and indemnify in full certain persons and entities that acquire ownership or control of, in the case of section 330, any military installation closed pursuant to a base closure law or, in the case of section 1502(e), certain portions of the former Naval Ammunition Support Detachment on the island of Vieques, Puerto Rico (hereinafter “Detachment”), from and against any suit, claim, demand or action, liability, judgment, cost or other fee arising out of any claim for personal injury or property damage (including death, illness, or loss of or damage to property or economic loss) that results from, or is in any manner predicated upon, the release or threatened release of any hazardous substance, pollutant or contaminant, or petroleum or petroleum derivative 1 as a result of DoD activities at any military installation (or portion thereof) that is closed pursuant to a base closure law or the Detachment. (Coverage of pollutants and contaminants was added to section 330 by an amendment contained in the National Defense Authorization Act for Fiscal Year 1994, Public Law 103-160, 1002.) It also provides that DoD has certain rights in defending third-party claims.

    1 Section 1502(e) does not apply to petroleum or petroleum derivatives.

    The authority to adjudicate requests for indemnification and process requests for defense under sections 330 or 1502(e) has been delegated from the Secretary of Defense to the DoD General Counsel and re-delegated by the General Counsel to DoDGC(EE&I). Requests for indemnification or defense or notice to DoD of a third-party claim must be sent to DoDGC(EE&I) to be considered.

    The DoD recognizes that some real property transfer documents, such as deeds and agreements, entered into in past years provide for notification under sections 330 or 1502(e) being made to, e.g., the local BRAC program office. Until the promulgation of this rule in its final form, DoD has and will continue to honor such notifications made in conformance with those transfer documents. Effective 180 days after promulgation of this rule, while a requester may continue to provide notification in accordance with such transfer documents, a requester must also comply with the notice requirements of this rule in order to comply with the requirements of sections 330 or 1502(e), particularly with regard to when the statutes of limitation in sections 330(b)(1) and 1502(e)(2)(A) begin to run. Nothing in this rule should be construed as requiring amendment of any such transfer documents.

    The United States Federal Circuit has interpreted the definition of a “claim for personal injury or property damages” under section 330 to include, under certain circumstances, notice from an enforcement agency to conduct a cleanup. Indian Harbor Insurance Co. v. United States, 704 F.3d 949 (Fed. Cir. 2013). Because such notices may constitute a claim under section 330, a requester should carefully evaluate whether failing to provide notice to the Secretary would prevent the Secretary from settling or defending against a claim.

    The timely and proper filing of a request for indemnification or defense enables DoDGC(EE&I) to perform its adjudication function for requests, maintain oversight of the implementation of sections 330 and 1502(e), and secure the rights of requesters under sections 330 and 1502(e). Proper notice to DoD of a claim from a third-party is also essential to allow DoD to exercise its right to defend against such a claim pursuant to sections 330(c) or 1502(e).

    Under sections 330(c)(2) and 1502(e)(3)(B), the requester must allow DoD to defend the claim in order to be afforded indemnification for that claim. This regulation makes clear that failure to notify DoD immediately of receipt of any claim, or of a release that may lead to a claim, could prevent DoD from settling or defending that claim, and on that basis, DoD may deny indemnification. Failure to provide necessary documents and access will also prevent DoD from exercising its right to settle and defend the claim and, on that basis, DoD may deny indemnification.

    In the context of a claim from an enforcement agency or third party seeking to require a cleanup or response action, failure to notify DoD may prevent DoD from exercising its right to defend against the claim. If the requester undertakes a cleanup or response action itself prior to providing immediate notice to DoD, the requestor's actions may interfere with DoD's ability to defend against a claim, which might result in denial of indemnification.

    This proposed rule does not affect claims that are made pursuant to other authorities such as under a real property covenant contained in a deed in accordance with section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).

    III. Summary of Proposed Rule

    This proposal identifies the required process for submitting documentation necessary to support a request for indemnification or defense or to provide notice to DoD of a third-party claim under sections 330 or 1502(e). For a notice to DoD of a third-party claim, DoDGC(EE&I) must receive the specified paperwork at the specified address no less than 30 days after a requester receives a third-party claim or before any action is taken, or an agreement is entered into, related to a hazardous substance or a pollutant or contaminant, or petroleum or petroleum derivative covered by section 330 or a hazardous substance or a pollutant or contaminant covered by section 1502(e).

    IV. Section-by-Section Analysis A. Purpose

    To ensure the proper implementation of sections 330 and 1502(e), requesters and DoD must communicate effectively and in a timely manner. This proposal will provide the necessary information for that interaction to take place.

    B. Applicability

    This proposal applies to the DoD General Counsel's Office, to the Military Departments, and to any person or entity making a request for indemnification or defense, or providing notice to DoD, of a third-party claim pursuant to sections 330 or 1502(e).

    C. Definitions

    This proposal defines the terms “commercial delivery service”, “Deputy General Counsel”, “received”, “request”, “requester”, “section 330”, “section 1502(e)”, and “third-party claim”.

    D. Responsibilities

    This proposal advises that the responsibilities of the Secretary of Defense under sections 330 and 1502(e) have been delegated to the General Counsel of the DoD who has, in turn, re-delegated certain of those responsibilities, particularly with regard to adjudication of requests for indemnification, to DoDGC(EE&I). DoDGC(EE&I) exercises this responsibility through close communication with the military department that has property disposal responsibility for the closed installation subject of the request for indemnification or defense. Such communication includes obtaining review by, and the recommendations of, the military department on the merits of the request for indemnification or defense. Likewise, DoDGC(EE&I) communicates any notice of a third-party claim to the military department and works closely with the military department in determining what action, if any, the DoD will take in response to the notice. The proposal also contains responsibilities of requesters, delineated in the body of the rule.

    E. Requests for Indemnification or Defense

    This proposal explains the process to be used, timelines that apply, and documentation that must be received by DoDGC(EE&I) for a request for indemnification or defense. The mailing address and required method of delivery are specified. The proposal also requires a requester to provide DoD with a right of entry at reasonable times for purposes of inspecting the property and obtaining samples. The proposal also provides for reconsideration of a DoD determination.

    F. Third-Party Claims

    This proposal explains the process to be used, timelines that apply, and documentation that must be received by DoDGC(EE&I) relating to a notice of a third-party claim. The mailing address and required method of delivery are specified. The proposal also requires a requester to provide DoD with a right of entry at reasonable times for purposes of inspecting the property and obtaining samples. The section specifies that a requester must notify DoD within 30 days of receiving the third-party claim or 30 days before taking an action in order to allow DoD to determine what action to take with regard to the claim.

    V. Summary of Challenges

    Informing all affected persons and entities about this rule will require communication with relevant non-governmental organizations.

    VI. Discussion of Other Major Alternatives A. Status Quo

    The current process is unclear, inefficient, and time-consuming, causes delay, and may be ineffective. This lack of clarity contributes to concern that indemnification is not being addressed adequately and creates the potential for impairment of DoD's ability to present an effective defense of claims under sections 330 or 1502(e). The DoD is committed to sound environmental stewardship in all of its activities while meeting the goal of encouraging the development of land for productive use.

    VII. Costs and Benefits Cost Analysis

    Based on the relatively small number of claims per year, compliance costs under this regulation are expected to be minimal. In fact, this regulation will reduce compliance costs because it will streamline and clarify the process for the submission of information which would have to be submitted in any case in order to obtain a determination regarding indemnification or defense or provide notice to DoD of a third-party claim under sections 330 or 1502(e).

    Benefits Analysis

    This proposal will clarify the process for requesters of indemnification or defense and promote efficient protection of the environment by enhancing communication between requesters and DoD. This enhanced and simplified communication process will result in fewer burdens for both requesters and DoD in the form of avoiding unnecessary, inappropriate, or duplicative paperwork. This proposal does not require any greater disclosure of information from a requester than sections 330 or 1502(e) already require. Enhancing DoDGC(EE&I)'s ability to adjudicate requests for indemnification or respond to requests for defense under sections 330 or 1502(e) will reduce the burden of information requests upon those entities requesting indemnification or defense, or providing notice to DoD, of a third-party claim under sections 330 or 1502(e). This proposal will promote protection of requesters' rights by reducing the possibility of a request for indemnification or defense being acted upon by the wrong agency or a statute of limitations running due to failure to provide timely notification to the proper agency.

    VIII. Administrative Requirements A. Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review”

    Under E.O. 12866 and E.O. 13563, DoD must determine whether this regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB) and to the requirements of this E.O., which include assessing the costs and benefits anticipated as a result of the proposed regulatory action. E.O. 12866 defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866.

    This proposed rule will not have an adverse effect on the economy or cost the economy $100 million or more per year. Requests for indemnification are small in number and do not approach anywhere near $100 million per year, individually or collectively. c Although not economically significant, this rule has been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by OMB under the requirements of these Executive Orders.

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601, et seq., requires Federal agencies to consider “small entities” throughout the regulatory process. Section 603 of the Regulatory Flexibility Act requires an initial screening analysis performance to determine whether small entities will be adversely affected by the regulation. If affected small entities are identified, regulatory alternatives must be considered to mitigate the potential impacts. Small entities as described in the Regulatory Flexibility Act are only those “business, organizations and governmental jurisdictions subject to regulation.” It has been certified that this proposed rule will not add to the current burden for small entities to report their activities based on a request for indemnification or defense under sections 330 or 1502(e). This proposal will benefit small entities by streamlining communication to reduce the cost of making a request for indemnification or defense, or providing notice to DoD, of a third-party claim.

    C. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995, 44 U.S.C. 3501, authorizes the Director of OMB to review certain information collection requests by Federal agencies. The recordkeeping and reporting requirements of this proposed rule do not constitute a “collection of information” as defined in 44 U.S.C. 3502(3), the Paperwork Reduction Act of 1995.

    D. Environmental Justice

    Under E.O. 12898 (59 FR 7629 (February 11, 1994)), Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Federal agencies are required to identify and address disproportionately high and adverse human health and environmental effects of Federal programs, policies, and activities on minority and low-income populations. Given the application of this proposed rule throughout the entire United States, DoD is soliciting comment and input from all public entities and government agencies, including members of the environmental justice community and members of the regulated community.

    Sections 330 and 1502(e) are intended to reduce specified risks from development of former military land by aiding and legally protecting the entities that take title to land on closed military installations for development purposes. Because this rule will equally affect reporting associated with the development of land on a national basis, a disparate impact on minority and low-income population areas is not expected.

    E. Unfunded Mandates

    Title II of the Unfunded Mandates Report Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Indian tribal governments and the private sector. Under Section 202 of the UMRA, DoD generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Indian tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year.

    The DoD has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Indian tribal governments, in the aggregate, or the private sector in any one year. Thus, this proposed rule is not subject to the requirements of Section 202 of the UMRA.

    F. Executive Order 13132, “Federalism”

    It has been determined that this rule does not have federalism implications. This rule does 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.

    List of Subjects in 32 CFR Part 175

    Indemnification, Claim.

    Accordingly, 32 CFR part 175 is proposed to be added to read as follows: PART 175—INDEMNIFICATION OR DEFENSE, OR PROVIDING NOTICE TO THE DEPARTMENT OF DEFENSE, RELATING TO A THIRD-PARTY ENVIRONMENTAL CLAIM Sec. 175.1 Purpose. 175.2 Applicability. 175.3 Definitions. 175.4 Responsibilities. 175.5 Notice to DoD relating to a third-party claim. 175.6 Filing a request for indemnification or defense. Authority:

    10 U.S.C. 113, 5 U.S.C. 301, section 330 of the National Defense Authorization Act for Fiscal Year 1993, Public Law 102-484, October 23, 1992, 106 Stat. 2371, as amended, and section 1502(e) of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Public Law 106-398, October 30, 2000, 1014 Stat. 1654A-350, as amended.

    § 175.1 Purpose.

    This part describes the process for filing a request for indemnification or defense, or providing proper notice to DoD, of a third-party claim pursuant to section 330 of the National Defense Authorization Act for Fiscal Year 1993, Public Law 102-484, October 23, 1992, 106 Stat. 2371, as amended (hereafter “section 330”), or section 1502(e) of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Public Law 106-398, October 30, 2000, 1014 Stat. 1654A-350, as amended (hereafter “section 1502(e)”). This process identifies the minimum information that a request for indemnification or defense or notice to DoD of a third-party claim for indemnification must include, where that information must be sent, how to make such a request or provide such a notice, the time limits that apply to such a request or notice, and other requirements.

    § 175.2 Applicability.

    (a) This part applies to—

    (1) The Office of the General Counsel of the Department of Defense and the Military Departments.

    (2) Any person or entity making a request for indemnification or defense, or providing notice to DoD, of a third-party claim pursuant to section 330 or section 1502(e).

    (b) In the case of a property that is subject to an earlier agreement containing different notification requirements, the requirement for notice to the Deputy General Counsel in sections 175.5 and 175.6 are in addition to those notification requirements.

    § 175.3 Definitions.

    (a) Commercial delivery service. Federal Express or United Parcel Service, or other similar service that provides for delivery of packages directly from the sender to the recipient for a fee, but excluding the United States Postal Service (USPS).

    (b) Deputy General Counsel. The Deputy General Counsel (Environment, Energy, and Installations), Department of Defense (DoDGC(EE&I)).

    (c) Received. Actual physical receipt by the intended recipient.

    (d) Request. Any request for indemnification or defense made to the Department of Defense (DoD) by a requester pursuant to section 330 or section 1502(e).

    (e) Requester. A person or entity making a request pursuant to section 330 or section 1502(e). When the requester is acting by way of subrogation, the requester is subject to the same requirements and limitations as though it were the subrogee.

    (f) Section 330. Section 330 of the National Defense Authorization Act for Fiscal Year 1993, Pub. L. 102-484, October 23, 1992, 106 Stat. 2371, as amended.

    (g) Section 1502(e). Section 1502(e) of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Public Law 106-398, October 30, 2000, 114 Stat. 1654A-350. (This provision applies only to certain portions of the former Naval Ammunition Support Detachment on the island of Vieques, Puerto Rico.)

    (h) Third-party claim. A claim from a person or entity (other than the requester) to a requester resulting from a suit, claim, demand or action, liability, judgment, cost or other fee, demanding, seeking, or otherwise requiring that the requester pay an amount, take an action, or incur a liability for alleged personal injury or property damage and such payment, action, or liability is eligible for indemnification or defense pursuant to section 330 or section 1502(e). A third-party claim may consist of a notice, letter, order, compliance advisory, compliance agreement, or similar direction from a governmental regulatory authority exercising its authority to regulate the release or threatened release of any hazardous substance, pollutant or contaminant, or petroleum or petroleum derivative if the notice, letter, order, compliance advisory, compliance agreement, or similar notification imposes, directs, or demands requirements for environmental actions or asserts damages related thereto that is eligible for indemnification or defense pursuant to section 330 or section 1502(e).

    § 175.4 Responsibilities.

    (a) The General Counsel of the Department of Defense has been delegated the authorities and responsibilities of the Secretary of Defense under section 330 or section 1502(e), with certain limitations as to re-delegation.

    (b) The General Counsel has re-delegated the authority and responsibility to adjudicate requests for indemnification or defense and to process notices to DoD of a third-party claim under section 330 and section 1502(e) to the Deputy General Counsel, Environment, Energy, and Installations, of the Department of Defense or, when the position of Deputy General Counsel is vacant, the acting Deputy General Counsel. The authority to acknowledge receipt of a request has been delegated to an Associate General Counsel under the Deputy General Counsel, Environment, Energy, and Installations.

    § 175.5 Notice to DoD relating to a third-party claim.

    (a) Where to file a notice to DoD of a third-party claim. Notice to DoD of receipt of a third-party claim, or intent to enter into, agree to, settle, or solicit such a claim, must be received by the Deputy General Counsel at the following address: Deputy General Counsel, Environment, Energy, and Installations, 1600 Defense Pentagon, Room 3B747, Washington, DC 20301-1600. Delivering or otherwise filing a notice of a third-party claim with any other office or location will not constitute proper notice for purposes of this part. Requesters should be aware that all delivery services, and particularly that of the USPS, to the Pentagon can be significantly delayed for security purposes and they should plan accordingly in order to meet any required filing deadlines under this part; use of a commercial delivery service may reduce the delay.

    (b) Individual requests. A notice to DoD of a third-party claim must be filed separately for each person or entity that is filing the notice. Notices may not be filed jointly for a group, a class, or for multiple persons or entities.

    (c) Means of filing a notice of a third-party claim. A notice of a third-party claim must be submitted in writing by mail through the USPS or by a commercial delivery service. While the Deputy General Counsel will affirmatively acknowledge receipt of a notice of a third-party claim, it is recommended that a requester, whether using the USPS or a commercial delivery service, mail its notice by registered or certified mail, return receipt requested, or equivalent proof of delivery.

    (d) Information to be included in a notice to DoD of a third-party claim. A notice to DoD of a third-party claim must include, at a minimum, the following information:

    (1) A complete copy of the third-party claim, or, if not presented in writing, a complete summary of the claim, with the names of officers, employees, or agents with knowledge of any information that may be relevant to the claim or any potential defenses. The third-party claim may consist of a summons and complaint or, in the case of a third-party claim from a governmental regulatory authority, a notice, letter, order, compliance advisory, compliance agreement, or similar notification.

    (2) A complete copy of all pertinent records, including any deed, sales agreement, bill of sale, lease, license, easement, right-of-way, or transfer document for the facility for which the third-party claim is made.

    (3) If the requester is not the first transferee from DoD, a complete copy of all intervening deeds, sales agreements, bills of sale, leases, licenses, easements, rights-of-way, or other transfer documents between the original transfer from DoD and the transfer to the current owner. If the requester is a lender who has made a loan to a person or entity who owns, controls, or leases the facility for which the request for indemnification is made that is secured by said facility, complete copies of all promissory notes, mortgages, deeds of trust, assignments, or other documents evidencing such a loan by the requester.

    (4) A complete copy of any insurance policies related to such facility.

    (5) If the notice to DoD of a third-party claim is being made by a representative, agent, or attorney in fact or at law, proof of authority to make the notice on behalf of the requester.

    (6) Evidence or proof of any claim, loss, or damage alleged to be suffered by the third-party claimant which the requester asserts is covered by section 330 or by section 1502(e).

    (7) In the case where a requester intends to enter into, agree to, settle, or solicit a third-party claim, a description or copy of the proposed claim, settlement, or solicitation, as the case may be.

    (8) To the extent that any environmental response action has been taken, the documentation supporting such response action and its costs included in the request for indemnification.

    (9) To the extent that any environmental response action has been taken, a statement as to whether the remedial action is consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (Part 300 of title 42, Code of Federal Regulations) or other applicable regulatory requirements.

    (10) A complete copy of any claims made by the requester to any other entity related to the conditions on the property which are the subject of the claim, and any responses or defenses thereto or made to any third-party claims, including correspondence, litigation filings, consultant reports, and other information supporting a claim or defense.

    (e) Entry, inspection, and samples. The requester must provide DoD a right of entry at reasonable times to any facility, establishment, place, or property under the requester's control which is the subject of or associated with the requester's notice of third-party claim and must allow DoD to inspect or obtain samples from that facility, establishment, place, or property.

    (f) Additional information. The Deputy General Counsel will advise a requester in writing of any additional information that must be provided to defend against a claim. Failure to provide the additional information in a timely manner may result in denial of a request for indemnification or defense for lack of information to adjudicate the claim.

    (g) When to file a notice to DoD of a third-party claim.

    (1) A requester must, within 30 days of receiving a third-party claim, file with DoD a notice of such claim in accordance with this part. Failure to timely file such a notice, if it in any way compromises the ability of DoD to defend against such a claim pursuant to section 330(c) or section 1502(e)(3), will result in denial of any subsequent request for indemnification or defense resulting from such a claim. Requesters who take action in compliance with any such third-party claim, or any part of such claim, without first providing DoD with a notice of such claim in accordance with this section do so at their own risk.

    (2) A requester must, at least 30 days prior to the earlier of entering into, agreeing to, settling, or soliciting a third-party claim, file a notice to DoD of such intent in accordance with this part. Failure to file such a notice will compromise the ability of DoD to defend against such a claim pursuant to section 330(c) or section 1502(e)(3) and will result in denial of any subsequent request for indemnification or defense resulting from such a claim.

    (h) No implication from DoD action. Any actions taken by DoD related to defending a claim do not constitute a decision by DoD that the requester is entitled to indemnification or defense.

    (i) Notice also constituting a request for indemnification or defense. Notice of receipt of a third-party claim may constitute a request for indemnification or defense if that notice complies with all applicable requirements for a request for indemnification or defense.

    § 175.6 Filing a request for indemnification or defense.

    (a) Where to file a request for indemnification or defense. In order to notify DoD in accordance with section 330(b)(1) or section 1502(e)(2)(A), a request for indemnification or defense pursuant to section 330 or section 1502(e) must be received by the Deputy General Counsel at the following address: Deputy General Counsel, Environment, Energy, and Installations, 1600 Defense Pentagon, Room 3B747, Washington, DC 20301-1600. Delivering or otherwise filing a request for indemnification or defense with any other office or location will not constitute proper notice of a request for purposes of section 330(b)(1) or section 1502(e)(2)(A). Requesters should be aware that all delivery services, and particularly that of the USPS, to the Pentagon can be significantly delayed for security purposes and they should plan accordingly in order to meet any required filing deadlines under this part; use of a commercial delivery service may reduce the delay.

    (b) When to file a request for indemnification or defense. A request for indemnification must be received by the Deputy General Counsel within two years after the claim giving rise to the request accrues. A request for defense must be received by the Deputy General Counsel in sufficient time to allow the United States to provide the requested defense.

    (c) Means of filing a request for indemnification or defense. A request for indemnification or defense must be submitted in writing by mail through the USPS or by a commercial delivery service. While the Deputy General Counsel will affirmatively acknowledge receipt of a request for indemnification or defense, it is recommended that a requester, whether using the USPS or a commercial delivery service, mail its request by registered or certified mail, return receipt requested, or equivalent proof of delivery.

    (d) Individual requests. A request for indemnification or defense must be filed separately for each person or entity that is making the request. Requests may not be filed jointly for a group, a class, or for multiple persons or entities.

    (e) Information to be included in a request for indemnification or defense. A request for indemnification or defense must include, at a minimum, the following information:

    (1) A complete copy of the third-party claim, or, if not presented in writing, a complete summary of the claim, with the names of officers, employees, or agents with knowledge of any information that may be relevant to the claim or any potential defenses.

    (2) A complete copy of all pertinent records, including any deed, sales agreement, bill of sale, lease, license, easement, right-of-way, or transfer document for the facility for which the request for indemnification or defense is made.

    (3) If the requester is not the first transferee from DoD, a complete copy of all intervening deeds, sales agreements, bills of sale, leases, licenses, easements, rights-of-way, or other transfer documents between the original transfer from DoD and the transfer to the current owner. If the requester is a lender who has made a loan to a person or entity who owns, controls, or leases the facility for which the request for indemnification is made that is secured by said facility, complete copies of all promissory notes, mortgages, deeds of trust, assignments, or other documents evidencing such a loan by the requester.

    (4) A complete copy of any insurance policies related to such facility.

    (5) If the request for indemnification or defense is being made by a representative, agent, or attorney in fact or at law, proof of authority to make the request on behalf of the requester.

    (6) Evidence or proof of any claim, loss, or damage covered by section 330 or by section 1502(e).

    (7) In the case of a request for defense, a copy of the documents, such as a summons and complaint, or enforcement order, representing the matter against which the United States is being asked to defend.

    (8) To the extent that any environmental response action has been taken, the documentation supporting such response action and its costs included in the request for indemnification.

    (9) To the extent that any environmental response action has been taken, a statement as to whether the remedial action is consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (Part 300 of title 42, Code of Federal Regulations) or other applicable regulatory requirements.

    (10) A complete copy of any claims made by the requester to any other entity related to the conditions on the property which are the subject of the claim, and any responses or defenses thereto or made to any third-party claims, including correspondence, litigation filings, consultant reports, and other information supporting a claim or defense.

    (f) Entry, inspection, and samples. The requester must provide DoD a right of entry at reasonable times to any facility, establishment, place, or property under the requester's control which is the subject of or associated with the requester's request for indemnification or defense and must allow DoD to inspect or obtain samples from that facility, establishment, place, or property.

    (g) Additional information. The Deputy General Counsel will advise a requester in writing of any additional information that must be provided to adjudicate the request for indemnification or defense. Failure to provide the additional information in a timely manner may result in denial of the request for indemnification or defense.

    (h) Adjudication. The Deputy General Counsel will adjudicate a request for indemnification or defense and provide the requester with DoD's determination of the validity of the request. Such determination will be in writing and sent to the requester by certified or registered mail.

    (i) Reconsideration. Any such determination will provide that the requester may ask for reconsideration of the determination. Such reconsideration shall be limited to an assertion by the requester of substantial new evidence or errors in calculation. The requester may seek such reconsideration by filing a request to that effect within 30 days of receipt of determination. A request for reconsideration must be received by the Deputy General Counsel within 30 days after receipt of the determination. Such a request must be sent to the same address as provided for in paragraph (a) of this section and provide the substantial new evidence or identify the errors in calculation. Such reconsideration will not extend to determinations concerning the law, except as it may have been applied to the facts. A request for reconsideration will be acted on within 30 days from the time it is received. If a request for reconsideration is made, the six month period referred to in section 330(b)(1) and section 1502(e)(2)(A) will commence from the date the requester receives DoD's denial of the request for reconsideration.

    (j) Finality of adjudication. An adjudication of a request for indemnification constitutes final administrative disposition of such a request, except in the case of a request for reconsideration under paragraph (i) of this section, in which case a denial of the request for reconsideration constitutes final administrative disposition of the request.

    Dated: December 2, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-29367 Filed 12-6-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF THE INTERIOR Office of the Secretary of the Interior 43 CFR Part 49 Bureau of Land Management 43 CFR Part 8360 Fish and Wildlife Service 50 CFR Part 27 [Docket NPS-2016-0003; FWS-93261, FXRS12630900000, FF09R81000, 167; BOR-RR83530000, 178R5065C6, RX.59389832.1009676; BLM-17X.LLW0240000.L10500000.PC0000.LXSIPALE0000; NPS-GPO Deposit Account 4311H2] RIN 1093-AA16 Paleontological Resources Preservation AGENCY:

    Bureau of Land Management, Bureau of Reclamation, National Park Service, U.S. Fish and Wildlife Service; Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Department of the Interior (DOI) proposes to promulgate regulations under the Paleontological Resources Preservation Act. Implementation of the proposed rule would preserve, manage, and protect paleontological resources on lands administered by the Bureau of Land Management, the Bureau of Reclamation, the National Park Service, and the U.S. Fish and Wildlife Service and ensure that these federally owned resources are available for current and future generations to enjoy as part of America's national heritage. The proposed rule would address the management, collection, and curation of paleontological resources from federal lands using scientific principles and expertise, including collection in accordance with permits; curation in an approved repository; and maintenance of confidentiality of specific locality data. The Paleontological Resources Preservation Act authorizes civil and criminal penalties for illegal collecting, damaging, otherwise altering or defacing, or for selling paleontological resources, and the proposed rule further details the processes related to the civil penalties, including hearing requests and appeals of the violation or the amount of the civil penalties.

    DATES:

    Comments on the proposed rule must be received by February 6, 2017. Comments on the information collection requirements must be received by January 6, 2017.

    ADDRESSES:

    You may submit comments, identified by Regulation Identifier Number (RIN) 1093-AA16, by any of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to Docket No. NPS-2016-0003.

    Mail to: Julia Brunner, Geologic Resources Division, National Park Service, P. O. Box 25287 Denver, CO 80225-0287.

    Instructions: All submissions received must include the RIN for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. For additional information, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document. Please make comments on the proposed rule as specific as possible, confine them to issues pertinent to the proposed rule, and explain the reason for any recommended changes. Where possible, comments should reference the specific section or paragraph of the proposed rule that is being addressed. DOI may not necessarily consider or include in the administrative record for the final rule comments that are received after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES).

    Comments on the Information Collection Aspects of the Proposed Rule: You may review the Information Collection Request online at http://www.reginfo.gov. Follow the instructions to review DOI collections under review by OMB. Send comments (identified by RIN 1093-AA16) specific to the information collection aspects of this proposed rule to:

    • Desk Officer for the Department of the Interior at OMB-OIRA at (202) 295-5806 (fax) or [email protected] (email); and

    • Jeffrey Parrillo, Office of the Secretary, Departmental Information Collection Clearance Lead, Department of the Interior, 1849 C Street NW., Mailstop MIB-7056, Washington, DC 20240 (mail); or [email protected] (email).

    System of Records Notice: The Privacy Act of 1974 (5 U.S.C. 552) protects the information submitted in accordance with this part. A System of Records Notice is being developed and will be published in the Federal Register.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov and search for Docket No. NPS-2016-0003.

    FOR FURTHER INFORMATION CONTACT:

    Julia F. Brunner, Geologic Resources Division, National Park Service, by telephone: (303) 969-2012 or email: [email protected] Persons who use a telecommunications device for deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individuals. You will receive a reply during normal business hours.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In 1999, the Senate Interior Appropriations Subcommittee requested that DOI, the U.S. Department of Agriculture (USDA) Forest Service (FS), and the Smithsonian Institution prepare a report on fossil resource management on federal lands (see Sen. Rep. 105-227, at 60 (1998)). The request directed these entities to analyze (1) the need for a unified federal policy for the collection, storage, and preservation of fossils; (2) the need for standards that would maximize the availability of fossils for scientific study; and (3) the effectiveness of current methods for storing and preserving fossils collected from federal lands. During the course of preparing the report, the agencies held a public meeting to gather public input. The DOI report to Congress, “Assessment of Fossil Management of Federal and Indian Lands,” was published in May 2000.

    After the report was released, the Paleontological Resources Preservation Act (PRPA) was introduced in the 107th Congress. PRPA was modeled after the Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 470aa-470mm), and emphasized the recommendations and guiding principles in the May 2000 report. The legislation was reintroduced in subsequent Congresses through the 111th Congress when it was included as a subtitle in the Omnibus Public Land Management Act, which became law on March 30, 2009. Legislative history 1 demonstrates that PRPA, which is now codified at 16 U.S.C. 470aaa-aaa-11, was enacted to preserve paleontological resources for current and future generations because these resources are non-renewable and are an irreplaceable part of America's heritage. PRPA requires that implementation be coordinated between the Secretaries of the Interior and Agriculture (16 U.S.C. 470aaa-1).

    1 S. 2727: 148 Cong. Rec. S. 6708-6709 (2002) (Statement of Sen. Akaka); S. 546: S. Rep. 108-93 (2003); S. 263: S. Rep. 109-36 (2005); S. 320: 153 Cong. Rec. S. 691-693 (2007) (Statement of Sen. Akaka) and S. Rep. 110-18 (2007); H.R. 554: H. Rep. 110-670, Part 1; and S. 22: 155 Cong. Rec. S. 426 (2009) (Statement of Sen. Akaka).

    II. Development of the Proposed Rule

    PRPA requires DOI and USDA to issue regulations as appropriate to carry out the law. Accordingly, DOI and USDA formed an interagency coordination team in April 2009 to draft the proposed regulations. The interagency coordination team included paleontology and archaeology program leads and regulatory specialists from the Bureau of Land Management (BLM), the National Park Service (NPS), the Bureau of Reclamation (Reclamation), the U.S. Fish and Wildlife Service (FWS) (the bureaus), and the FS.

    On May 23, 2013, the FS published a proposed rule that would implement PRPA with respect to National Forest System lands (78 FR 30810). On April 17, 2015, the FS published these regulations as final (80 FR 21588).

    III. Section-by-Section Analysis of the Proposed Rule

    This proposed rule would address management of paleontological resources on federal lands under the jurisdiction of the Secretary of the Interior, and managed by BLM, Reclamation, NPS, and FWS. The proposed rule would amend title 43 of the Code of Federal Regulations (CFR) by adding a new part 49 entitled “Paleontological Resources Preservation.” In accordance with 16 U.S.C. 470aaa-1, the proposed rule would outline how the four bureaus would manage, protect, and preserve paleontological resources on federal land using scientific principles and expertise. Most of the proposed rule, specifically subparts A through H, would apply to all four bureaus. The only exception is subpart I, which would apply only to BLM and Reclamation, governing casual collecting (collecting common invertebrate and plant paleontological resources without a permit) on certain lands administered by those bureaus. PRPA does not allow casual collecting in areas administered by NPS or FWS, and therefore subpart I would not apply to these two bureaus. The following is a section-by-section analysis of subparts A through I.

    Managing, Protecting, and Preserving Paleontological Resources (Subpart A) What does this part do (§ 49.1)?

    Proposed § 49.1 would restate the purposes of PRPA and summarize the contents of the proposed rule.

    What terms are used in this part (§ 49.5)?

    Proposed § 49.5 would define certain terms used in the proposed rule. The bureaus believe that most of the terms are readily understood, but discuss the following in more detail below:

    Associated records would mean original records or copies of those records, in the context of collections. If original records are not available for some reason, copies of those records are acceptable. Associated records would include primary, public, and administrative records.

    Authorized officer would mean the bureau director or employees to whom the Secretary of the Interior has delegated authority to make a decision or to take action, or both, under PRPA. Bureaus may have multiple authorized officers. The authorized officer consults as appropriate with bureau technical specialists, outside experts, bureau partners, museum curators, or others in making decisions and taking action.

    Collection would mean paleontological resources removed from geological context or taken from federal lands and any associated records, consistent with the definition of museum property in Part 411 of the Departmental Manual (411 DM). Because permits may be issued only to further paleontological knowledge, public education, or management of paleontological resources, any collections made under those permits should likewise further these goals. Such collections would be deposited in an approved repository. Paleontological resources that are determined by the authorized officer as not furthering or no longer furthering paleontological knowledge, public education, or management of paleontological resources (such as resources that lack provenience or are overly redundant) may, nevertheless, because they are still of paleontological interest and provide information about the history of life on earth, be assigned to project or working collections, including non-museum collections.

    Curatorial services would mean managing and preserving a museum collection over the long term according to DOI (currently 411 DM) and bureau museum and archival standards and practices.

    Nature would mean physical features, identifications, or attributes of the paleontological resource. Including this definition in the proposed regulations would clarify the type of information that PRPA exempts from disclosure.

    Paleontological resources would mean any fossilized remains, traces, or imprints of organisms preserved in or on the Earth's crust, except for:

    (1) Those that are found in an archaeological context and are an archaeological resource as defined in section 3(1) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb(1)); or

    (2) Cultural items, as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.); or

    (3) Resources determined in writing by the authorized officer to lack paleontological interest or not provide information about history of life on earth, based on scientific and other management considerations.

    Thus, under PRPA and the proposed regulation, fossils are “paleontological resources” unless they are found in an archaeological context and are archaeological resources, or are cultural items under the Native American Graves Protection and Repatriation Act, or are determined by an authorized officer to lack paleontological interest or not provide information about the history of life on earth.

    An example of a fossil that is found in an archaeological context and is therefore an archaeological resource would be a fossil that was collected by prehistoric peoples and is now part of an archaeological site. In this case, the fossil has been removed from its original geological context and is now important primarily for its archaeological informational value. A fossil found in an archaeological context is not a paleontological resource under PRPA or the proposed rule, but may still have scientific value for paleontological investigations and be protected under other authorities. Fossils that are merely in geographical proximity to archaeological resources but are not necessarily in an archaeological context, are therefore not necessarily archaeological resources.

    Fossils that the authorized officer determines to not have paleontological interest or not provide information about the history of life on earth, such as fossil fuel deposits or limestone units, would not be considered paleontological resources under PRPA or the proposed rule, although they would remain subject to other laws and regulations. For example, fossils on NPS-administered lands that are not considered paleontological resources would still be protected as natural and cultural resources under the NPS Organic Act of 1916, NPS regulations, and NPS policies. As another example, fossils on BLM-administered lands that are not considered paleontological resources would still be subject to consideration under the Federal Land Policy and Management Act of 1976 (FLPMA), thus allowing BLM to track and report scientific activities, such as research on non-vertebrate microfossils, without requiring that those fossils be managed as paleontological resources or otherwise be subject to PRPA.

    Petrified wood is managed as a paleontological resource when on or from lands administered by NPS, Reclamation, and FWS. On lands administered by BLM, petrified wood (defined by the Petrified Wood Act of 1962, Pub. L. 87-713, 76 Stat. 652, Sept. 28, 1962 as agatized, opalized, petrified, or silicified wood, or any material formed by the replacement of wood by silica or other matter, and identified as a mineral material under the Materials Act of 1947) is subject to commercial sale at 43 CFR part 3600 and free use regulations at 43 CFR part 3622. Therefore, on BLM lands, petrified wood may be managed as a paleontological resource, but the savings provisions in PRPA (16 U.S.C. 470aaa-10) prevent the imposition of additional restrictions on the sale or free use of petrified wood. When it is not subject to sale or free use, petrified wood on BLM-administered lands may be managed as a paleontological resource and/or under the authority of FLPMA.

    Geological units including but not limited to limestones, diatomites, chalk beds, and fossil soils (i.e., paleosols) would not be considered paleontological resources under the proposed rule. However, the occurrence of discrete paleontological resources within geological units would be considered paleontological resources and, therefore, subject to PRPA and the proposed rule. Determinations about whether a fossil is or is not a paleontological resource would be committed to the authorized officer's discretion, based on scientific or other management considerations. A determination that a fossil is or is not a paleontological resource may be reversed at a later time, at the authorized officer's discretion, based on scientific or other management considerations.

    Fossils such as conodonts and nonvertebrate microfossils would be considered paleontological resources when they, as part of a scientific research design, provide critical information toward the understanding of geological units, biological evolution, climate change, and other scientific questions. However, in accordance with section 6311 of PRPA, the proposed rule would not require a permit for the collection of conodonts or nonvertebrate microfossils in association with authorized oil, gas, geothermal, or other minerals activities that are permitted under other authorities. Casual collection of conodonts or nonvertebrate microfossils may be permissible on certain BLM- or Reclamation-managed lands consistent with the limitations defined in subpart I of the proposed rule. Bureaus may individually determine that certain conodonts or nonvertebrate microfossils lack paleontological interest and therefore are not paleontological resources on all or on portions of land they administer.

    When paleontological resources on certain BLM- and Reclamation-managed lands are common plant or invertebrate fossils, they may be casually collected in compliance with subpart I of the proposed rule. They are still paleontological resources (meaning that they have paleontological interest and provide information about the history of life on earth), but PRPA authorizes the limited collection of these resources on lands administered by BLM and Reclamation where such collection is consistent with the laws governing the management of those lands, PRPA, and subpart I of the proposed rule.

    Paleontological site would mean a locality, location, or area where a paleontological resource is found; the site can be relatively small or large. The definition of paleontological site is never synonymous with “archaeological site” as used in 43 CFR part 7.

    Working collection would mean paleontological resource collections that are not intended for long-term preservation and care as museum collections. Departmental policy on working collections is expanded in Section 1.7, 411 DM, Identifying and Managing Museum Property.

    Does this part affect existing authorities (§ 49.10)?

    Proposed § 49.10 would state that the proposed rule preserves the authority of the Secretary of the Interior under this and other laws and regulations to manage, protect, and preserve paleontological resources on federal land under the jurisdiction of the Secretary. PRPA and the proposed rule complement the bureaus' other authorities for paleontological resource management. The proposed rule would be consistent with existing bureau practices and would clarify the responsibilities of the bureaus to preserve, protect, and manage paleontological resources.

    When does this part not apply (§ 49.15)?

    Proposed § 49.15 would state that the proposed rule does not impose additional requirements on activities permitted under the general mining or mineral laws, does not apply to Indian land, and does not apply to land other than federal land as defined in the proposed rule. This is consistent with the savings provisions of the PRPA. This section means that the bureaus will not add requirements under PRPA and the proposed rule to mining- and mineral-related permits. For example, the bureaus may not cite PRPA or the proposed rule in the list of mitigation measures that is attached to an approved mining plan of operations. However, because PRPA and the proposed rule do not limit the applicability of other legal authorities such as the Mining in the Parks Act and FLPMA, the bureaus may continue to cite those other authorities as protection for paleontological resources when authorizing or conditioning land or resource uses under those authorities. This section would also clarify that, under PRPA, the word “reclamation” means reclamation in the context of mining and mineral activities and not the broader context of all federal reclamation activities.

    Does this part create new rights or entitlements (§ 49.20)?

    Proposed § 49.20 would state that the proposed rule would not create a right or standing to file suit for persons who are not officers or employees of the United States acting in that capacity. It would repeat section 6311 of PRPA (16 U.S.C. 470aaa-10) for public notice and clarity.

    What information concerning the nature and specific location of paleontological resources is confidential (§ 49.25)?

    Proposed § 49.25 would implement the provision in PRPA that exempts information about the nature and specific location of a paleontological resource from disclosure under the Freedom of Information Act and any other law unless the authorized officer determines that disclosure would: (1) Further the purposes of PRPA; (2) not create risk of harm to or theft or destruction of the resource or site containing the resource; and (3) be in accordance with other applicable laws. This proposed section would also require a written agreement between the bureau and the party seeking the disclosure, which would ensure that the recipient of the disclosure does not publicly distribute or otherwise release, disclose, or share the information. For example, a partner repository would not be permitted to post specific locality information on-line, but if authorized to do so in a written agreement could still share such information for educational or scientific uses that would not create harm or risk to the resource. The agreement to maintain confidentiality of released information would ensure that the release of confidential information in one situation would not trigger the requirement of the bureau to release that same information to other requestors.

    How will the bureaus conduct inventory, monitoring, and preservation activities (§ 49.30)?

    Proposed § 49.30 would explain that the bureaus will conduct inventory, monitoring, and preservation activities based upon scientific and resource management principles and practices, and clarify that these activities are undertaken by each bureau internally or may be coordinated with other agencies, non-federal partners, scientists, and the general public where appropriate and practical. Such coordination might take place through mechanisms such as agreements, permits, grants, citizen science efforts, or other arrangements. For public notice and clarity, § 49.30 would repeat section 6302 of PRPA, 16 U.S.C. 470aaa-1.

    How will the bureaus foster public education and awareness (§ 49.35)?

    Proposed § 49.35 would explain that the bureaus will establish a program to increase public awareness, coordinated with other agencies, non-federal partners, scientists, and the general public where appropriate and practical. National Fossil Day, an annual multi-agency and multi-partner event, is a successful example of how the bureaus are already working to increase public awareness. For public notice and clarity, § 49.35 would repeat section 6303 of PRPA, 16 U.S.C. 470aaa-2.

    When may the bureaus restrict access to an area (§ 49.40)?

    Proposed § 49.40(a) would state that the authorized officer may restrict access to or close areas to collection to protect resources or provide for public safety. For public notice and clarity, paragraph (a) would repeat section 6304(e) of PRPA, 16 U.S.C. 470aaa-3(e). Proposed § 49.40(b) would clarify that other authorities may also be used to restrict access to or close areas in order to preserve or protect paleontological resources or provide for public safety. This authority supplements the bureaus' existing authority and procedures for restricting access to areas or closing areas to collection (see BLM regulations at 43 CFR 8364.1; Reclamation regulations at 43 CFR 423.29; FWS regulations at 50 CFR 25.21; and NPS regulations at 36 CFR 1.5).

    Paleontological Resources Permitting—Requirements, Modifications, and Appeals (Subpart B)

    Since 1906, the bureaus have permitted the collection of paleontological resources under various legal and regulatory authorities. Permitting will continue under PRPA and the proposed regulations.

    When is a permit required on federal land (§ 49.50)?

    Proposed § 49.50 would clarify when a permit is required and who must have a permit. A permit would be required for collecting paleontological resources or disturbing paleontological sites except for casual collecting on certain lands managed by BLM or Reclamation where casual collecting is allowed. The conditions for casual collecting are defined in subpart I of this proposed rule. Proposed § 49.50(b) states a permit may be required by a bureau for paleontological investigative activities that do not involve collection or disturbance in order to track and report on scientific activities or for other purposes. Proposed § 49.50(c) states a permit would be required for federal employees to disturb paleontological sites or collect paleontological resources although bureaus may implement this requirement on a programmatic basis, consistent with their internal processes. The bureau personnel so authorized must meet the professional requirements defined in § 49.60 of the proposed rule, and have experience appropriate to the planned work. The approval must be issued by the bureau managing the land. All collected materials are the property of the Federal Government, and must be managed and curated consistent with the requirements of subpart C of the proposed rule.

    Who can receive a permit (§ 49.55)?

    Proposed § 49.55 would establish that applicants who meet the qualification requirements of proposed § 49.60, provide a complete application, and meet the permit issuance criteria may receive a permit. This proposed section would not affect valid permits issued before the effective date of the proposed rule.

    What criteria must a permit applicant meet (§ 49.60)?

    Proposed § 49.60(a)(1)-(4) would describe qualifications needed for an applicant to receive a permit. PRPA requires the bureaus to ensure that proposed work under a permit will further paleontological knowledge or public education and that the applicant is qualified to carry out the permitted activity. In order to accomplish both requirements, the proposed regulations would require the applicant and others overseeing work under the permit to have experience and qualifications in paleontology appropriate to the tasks they are to perform. For the applicant, an advanced degree in paleontology or equivalent experience and prior field experience has been the baseline for this requirement for all of the bureaus for more than 20 years and is consistent with similar policy for archaeology permits that are authorized under the Archaeological Resources Protection Act of 1979. The authorized officer may grant a permit to an applicant who lacks an advanced degree or specialized experience if the authorized officer is satisfied that the applicant's education and experience are sufficient to carry out the work that is proposed. The authorized officer may grant the permit, grant the permit with limitations, or deny the permit based on the applicant's education, experience, and past performance, and qualifications of persons named in the application as overseeing work.

    Proposed § 49.60(b) states that past performance will also be considered, and includes any aspect that could affect performance under the permit being applied for. This would include compliance with previous permits, relevant civil or criminal violations, or relevant indictments or charges.

    Where must a permit application be filed and what information must it include (§ 49.65)?

    In order to ensure consistency among bureaus, proposed § 49.65 lists the information that a permit applicant is required to provide before a bureau can issue a permit under this subpart. Proposed § 49.65(a) would require permit applicants to submit an application to the bureau that administers the federal land where the proposed activity would be conducted. For activities on lands administered by BLM, Reclamation, and FWS, permit applicants would use DI Form 9002 (Paleontological Resource Use Permit Application). For activities on lands administered by NPS, permit applicants would use NPS's Research Permit and Reporting System (RPRS). This paragraph would also clarify that it is the permit applicant's responsibility to determine which bureau has jurisdiction, use that bureau's permit application form and process, and respond to that bureau's requests for information in a timely manner.

    Proposed § 49.65(b) would describe the information requirements that the permit application forms would include.

    How will a bureau make a decision about a permit application (§ 49.70)?

    Proposed § 49.70(a) and (b) would identify how a bureau evaluates and decides on a permit application. Because permit approval would be partially based on whether the proposed repository for the collection under the permit would meet the standards of 411 DM, proposed § 49.70(c) would require the authorized officer to work with the permit applicant and proposed repository to decide whether to approve that repository for the collection. The phrase “the authorized officer may” means that the authorized officer has discretion to approve or deny a permit based on information provided by the applicant, past and present performance, management considerations, bureau policy, and other considerations.

    What terms and conditions will a permit contain (§ 49.75)?

    Proposed § 49.75(a) would specify that a permit would include but not be limited to certain terms and conditions. Section 6304 of PRPA lists three required permit terms and conditions. The proposed rule would require additional terms and conditions in order to enhance consistency among bureaus as emphasized by section 6302(b) of PRPA. For approved activities on lands administered by BLM, Reclamation, and FWS, the authorized officer would issue the permit using DI Form 9003 (Paleontological Resource Use Permit). For approved activities on lands administered by NPS, the authorized officer would issue the permit under the NPS RPRS.

    Proposed § 49.75(a)(3) would clarify that the permittee is responsible for ensuring that the resource site or recovered paleontological materials are not put at risk as a result of work that is done under the permit. For example, if fossils are exposed by collection or excavation, they must be protected from damage, theft, or other harm for the period they are exposed to risk. Additionally, the permit would not authorize permittees to modify the environment around an area of work. For example, permittees would not be allowed to cut trees, create roads, or grade parking areas.

    Proposed § 49.75(a)(8) would require a permittee to report suspected resource damage or theft to the authorized officer after learning of such damage or theft. Such reporting should be done as soon as possible, but in all cases must be done within 48 hours. Based on the bureaus' experience, 48 hours is a reasonable timeframe for such reporting.

    Proposed § 49.75(a)(9) would clarify that collections made under a permit must be deposited in the approved repository, and that the permittee must notify the bureau of the deposit. The notification of deposit is required because the bureau must know the nature, condition, and location of federally owned paleontological resources in order to meet PRPA's mandate to manage these resources using scientific principles and expertise, and to meet Departmental museum management requirements. Documentation of the transfer of paleontological resources from the care of the permittee to the care of the approved repository is necessary so that the bureau, the permittee, and the approved repository will each know which party is responsible for the care and management of the paleontological collection.

    To avoid a situation where bureaus or repositories could have large collections of paleontological resources that are costly to maintain or no longer contribute to science, the proposed rule would allow the authorized officer to determine that specimens that are found to be redundant, lack adequate associated data, or otherwise are determined not to further paleontological knowledge, public education, or management of paleontological resources may be removed from museum collections and placed into working collections.

    Proposed § 49.75(a)(10) would clarify that all paleontological resources collected under a permit remain federal property. The resources that are not collected, but instead are left in situ or otherwise are left in the field by the permittee, also remain federal property. Removal of any paleontological resources from federal land not in accordance with this subpart may constitute theft of federal property.

    Proposed § 49.75(a)(12) would state that the permittee is responsible for the costs of carrying out the permitted activity, including curation costs, consistent with specific or programmatic direction from the authorized officer.

    Proposed § 49.75(a)(13) would require a permittee to provide reports as required by the bureau in the permit. The permittee will ensure that reports are submitted in a timely fashion and contain the information necessary to ensure accountability for federal resources. For activities that were conducted on lands administered by BLM, Reclamation, or FWS, reports would be submitted using DI Form 9005 (Paleontological Permit Report Cover Sheet) or DI Form 9006 (Paleontology Consulting Report Summary Sheet). For activities that were conducted on lands administered by NPS, reports would be submitted under the NPS RPRS. Proposed § 49.75(a)(16) would state that a permittee may not transfer the permit to another person.

    Proposed § 49.75(b) would authorize the bureau to hold a permittee responsible for complying with applicable permit terms and conditions after it has expired or been cancelled, suspended, or revoked. Like all terms and conditions, this requirement would be enforceable under the criminal and civil penalties provision of this part, and would enable bureaus to preserve paleontological resources and maintain accountability by requiring that affected resource sites be left in a good condition, collections be transferred to the approved repository in a timely manner, that associated records be produced, and that reports be submitted, regardless of the status of the permit.

    Proposed § 49.75(c) would provide that the authorized officer may include in the permit additional terms and conditions necessary to carry out the purposes of this part.

    Proposed § 49.75(d) would provide that for activities approved on lands administered by BLM or Reclamation, the authorized officer may provide a permittee with DI Form 9007 (Paleontology Work Notice to Proceed), which contains site-specific guidance and stipulations for the permittee. The Notice to Proceed is considered part of or an addendum to the permit. Proposed § 49.75(e) would provide that persons who do not comply with the terms of a permit issued under this part may be subject to civil or criminal penalties.

    When and how may a permit be modified, suspended, revoked, or cancelled (§ 49.80)?

    Proposed § 49.80 would identify when and how a permit may be modified, suspended, revoked, or cancelled. The authorized officer would notify a permittee of such actions verbally or in writing. Any verbal notification would be confirmed by a written order delivered as soon as practicable after issuance of the verbal order. The notification would be immediately effective upon the permittee's receipt of the verbal or written notification, whichever is received first.

    Proposed § 49.80(a) would identify when a permit may be modified. Common permit modifications may include changing the duration of a permit, changing personnel that are named on a permit, changing the geographic area that is authorized under a permit, making minor modifications to the stratigraphic context or scope of work, or adding or altering supplemental terms and conditions to a permit. These modifications may be requested by the permittee or initiated by the bureau. The authorized officer may issue a new permit or require the permittee to submit a new application when a modification would substantially change the scope of the existing permit.

    Proposed § 49.80(b) would identify when activities under a permit may be suspended. Common reasons for a suspension include the discovery of potential resource conflicts, failure of the permittee to follow terms and conditions, resource protection issues, or budget or staffing concerns. A suspension would last no longer than 45 days, and may be lifted by the authorized officer when the reasons for suspension no longer apply, or when conditions for lifting a suspension have been met. After 45 days, if the circumstances prompting the suspension have not been resolved, the suspension will end and the authorized officer may modify, revoke, or cancel the permit, as appropriate to the specific circumstance.

    Proposed § 49.80(c) would identify when a permit may be revoked. A permit will be revoked when, for example, a permittee fails to follow the terms and conditions of a permit, is charged with a civil or criminal violation under PRPA or under other applicable laws, or is found ineligible to hold a paleontology permit.

    Proposed § 49.80(d) would identify when a permit may be cancelled. Cancellation would differ from revocation in that it would terminate a permit for reasons that do not relate to improper or poor performance on the part of the permittee. Cancellation is not a negative action and should not be cause to deny a future permit to the applicant. Cancellation may occur when administrative or resource issues warrant, and may follow a 45-day suspension, or may occur without a suspension occurring. A permittee may request a permit to be cancelled for any reason, or the bureau may need to cancel the permit for administrative or management reasons. Although PRPA does not specifically reference permit cancellation, the proposed regulations include this option because permit cancellation is a form of permit modification (changing the end date of the permit) and is therefore within the scope of PRPA.

    Proposed § 49.80(e) would specify that the authorized officer will notify a permittee of the modification, suspension, revocation, or cancellation either verbally or in writing. Proposed § 49.80(f) would specify that notifications of modification, suspension, revocation, or cancellation are effective upon the permittee's receipt of the written notification.

    Can a permit-related decision be appealed (§ 49.85)?

    Authorized officers have discretion to make permit-related decisions based on information provided by the applicant, past and present performance, management considerations, bureau policy, and other considerations. Proposed § 49.85 would state that permit-related decisions may be appealed.

    What is the process for appealing a permit-related decision (§ 49.90)?

    Proposed § 49.90 would specify the processes for appealing permit-related decisions. BLM and FWS each have applicable regulations, and NPS already has a process in place. Reclamation will develop an appeals process for permit decisions and will document the process in Reclamation's system of written directives. The appeals process may include a review by the applicable Reclamation Regional Director, followed by appeal to Reclamation's Commissioner, similar to the process in place for land use decisions found at 43 CFR part 429.

    Has OMB approved the information collection provisions of this part (§ 49.95)?

    Proposed § 49.95 would describe the information collection status of this part.

    Management of Paleontological Resource Collections (Subpart C)

    The proposed requirements provided in subpart C are consistent with requirements provided for archaeological collections at 36 CFR part 79.

    Where are collections deposited (§ 49.200)?

    Proposed § 49.200 would clarify that collections made under a permit issued under this part must be deposited in a repository approved by the authorized officer. Collections made prior to the effective date of the proposed rule would be subject to the terms and conditions of the original collection permit or agreement, which is also consistent with guidance in current DOI museum policy.

    How will bureaus approve a repository for a collection made under this part (§ 49.205)?

    Proposed § 49.205(a) would grant the authorized officer discretion to approve a repository for a collection based on several factors, including appropriate scope of collections, qualified curation staff, adequate public access, compliance with DOI museum collection standards, and consistency with bureau management goals. Approval of a repository is necessary for both federal and non-federal repositories.

    Proposed § 49.205(b) would clarify that when the authorized officer approves a repository for the collection, that repository will be listed in the approved permit and will remain approved to curate the collection unless the authorized officer determines that any one of the considerations in paragraph (a) of this section is no longer met. In that case, the repository would be notified and would have a reasonable amount of time to:

    (1) Correct the deficiency;

    (2) Move the collection to another approved repository; or

    (3) Take other actions the authorized officer requests.

    In situations involving movement of the collection to another approved repository, the first repository would likely ship the collection to the second repository in accordance with the authorized officer's instructions. The bureau would then close the deposit agreement with the first repository and enter into a new agreement with the second repository.

    What is the process for depositing the collection at the approved repository (§ 49.210)?

    Proposed § 49.210 would clarify the process for depositing paleontological collections at the approved repository. Under proposed § 49.210(a), the authorized officer would work with the permittee and approved repository, using scientific principles and expertise, to ensure that the collection is complete and that the content of the collection would further paleontological knowledge, public education, or management of paleontological resources. In addition, the authorized officer would review any existing agreement between the bureau and the approved repository to determine if that agreement adequately addresses requirements that are specific to the collection and either develop a new agreement, or amend an existing agreement, if an adequate agreement does not exist.

    Under proposed § 49.210(b), the permittee or the repository would submit DI Form 9008 (Repository Receipt for Collections (Paleontology)) to the authorized officer. This form would include but not be limited to a certification by the permittee that the collection was deposited at the repository, and a certification by the approved repository's authorized official that the collection has been received.

    For repository managers concerned that the curation requirements of PRPA and the proposed rule could lead to unrealistic or burdensome curation requirements, the proposed rule addresses these concerns in three ways. First, a repository may agree or decline to curate a collection of paleontological resources. Second, the authorized officer is ultimately responsible for determining the content of the collection, with input from the permittee and the repository, and ensuring that the collection meets bureau management goals. Third, the proposed rule specifies that the standard for collection under permit and deposit into an approved repository is that the collection furthers paleontological knowledge, public education, or management goals for paleontological resources. If a proposed collection would not meet this standard, then the collection should not be permitted. If the authorized officer determines that a collection formerly met this standard but no longer does, then part or all of the collection may be removed from the approved repository, transferred to a working collection, or managed in other ways consistent with DOI standards in 411 DM and bureau museum management procedures. Note that, in such a circumstance, that collection is still comprised of paleontological resources. If the specimens in a collection are determined by the authorized officer to no longer have paleontological interest or provide information about the history of life on earth, then they are not paleontological resources as defined in PRPA and the proposed rule. All of these aspects of the proposed rule should ameliorate the concerns of repository managers that the requirements in PRPA would be burdensome.

    What terms and conditions must the agreement between the bureau and approved repository contain (§ 49.215)?

    Proposed § 49.215 would specify the terms and conditions that must be included in an agreement between the bureau and the repository. The terms and conditions provided in this section are consistent with 411 DM. Several of these terms and conditions are addressed below for further clarification.

    First, proposed § 49.215(a)(2) would clarify that the Federal Government retains ownership of all paleontological resources collected under a permit, regardless of where the resources reside, who discovered or collected them, or who assumes administrative responsibility for their care. Bureaus may transfer all or portions of collections of paleontological resources to other federal bureaus (including the Smithsonian) either by loan or by administrative transfer without changing the fact that they are owned by the Federal Government.

    Proposed § 49.215(a)(6) requires that agreements describe any special procedures or restrictions for access to controlled property, consumptive use, reproduction, or curatorial services, including loans. These terms are all defined in 411 DM.

    Proposed § 49.215(a)(11) would clarify that one of the terms and conditions is a statement that employees cannot take any action that results in collection encumbrance, seizure, theft, damage, or other issues, and closely follows 36 CFR part 79 and DOI policy in 411 DM. The prohibition against damaging a collection does not prevent consumptive use that is approved by the bureau in a permit, agreement, or other written documentation.

    What are the standards for managing the collections (§ 49.220)?

    Proposed § 49.220 would provide standards for managing collections made under this part that are consistent with DOI policy for the management of museum collections found at 411 DM. Particular provisions of this proposed section are addressed below.

    Proposed § 49.220(a)(1) would make collections and locality data available subject to the confidentiality provisions of the proposed rule and PRPA.

    Proposed § 49.220(b) would authorize repositories to charge reasonable fees, consistent with applicable law, to cover their costs of making federal paleontological resources available to the public.

    Prohibited Acts (Subpart D) What acts are prohibited (§ 49.300)?

    For public notice and clarity, proposed § 49.300 would restate the prohibitions contained in section 6306 of PRPA (16 U.S.C. 470aaa-5). Under PRPA and this section, a person may not:

    (a) Excavate, remove, damage, or otherwise alter or deface or attempt to excavate, remove, damage, or otherwise alter or deface any paleontological resource located on federal land unless this activity is conducted in accordance with PRPA and this part. For example, this would prohibit moving or relocating a paleontological resource from its in situ geologic context without authorization under the proposed rule. Such authorization would be in the form of a permit or casual collection consistent with subpart I of this part.

    (b) Exchange, transport, export, receive, or offer to exchange, transport, export, or receive any paleontological resource if the person knew or should have known such resource to have been excavated or removed from federal land in violation of any provision, rule, regulation, law, ordinance, or permit in effect under federal law, including PRPA and this part.

    (c) Sell or purchase or offer to sell or purchase any paleontological resource if the person knew or should have known such resource to have been excavated, removed, sold, purchased, exchanged, transported, or received from federal land.

    (d) Make or submit any false record, account, or label for, or any false identification of, any paleontological resource excavated or removed from federal land. This provision would apply when a person knew or should have known that information was false, or when there was intent to deceive, misrepresent, or mislead.

    Criminal Penalties (Subpart E) What criminal penalties apply to violations of this part (§ 49.400)?

    Proposed § 49.400 would describe what criminal penalties apply to persons who commit prohibited acts under this part. Bureaus may utilize other authorities to issue citations for criminal violations involving paleontological resources.

    Proposed § 49.400(a) would state that criminal penalties would not apply with respect to paleontological resources in the lawful possession of a person on or before March 30, 2009, which is the date that PRPA was enacted.

    Proposed § 49.400(b) would authorize penalties upon conviction for persons who knowingly violate or counsel, procure, solicit, or employ another person to violate subpart D of this proposed rule. If the value of the paleontological resources involved (which means the sum of the commercial and scientific value of the paleontological resources involved and the cost of response, restoration, and repair of the resources and sites involved) is more than $500, penalties would be assessed in accordance with Title 18 of the U.S. Code and/or may include imprisonment for up to 5 years. If the value of the paleontological resources involved is less than $500, penalties would be assessed in accordance with Title 18 of the U.S. Code and/or may include imprisonment for up to 2 years. A court may award restitution, which may also be called penalties or damages, to the bureau for injuries to paleontological resources, in lieu of or in addition to fines.

    Proposed § 49.400(c) would state that the term “value of the paleontological resources involved” would be explained in subpart G of this proposed rule.

    Proposed § 49.400(d) would state that in the case of a second or subsequent violation by the same person, the amount of the penalties assessed under this subpart may be doubled.

    Proposed § 49.400(e) would authorize law enforcement officers to issue citations for minor violations under the bureaus' existing enforcement authorities, such as misdemeanor penalties, rather than relying solely on the criminal penalties provided by PRPA.

    Civil Penalties (Subpart F) When can the authorized officer assess a civil penalty (§ 49.500)?

    Proposed § 49.500 would state that the authorized officer may assess a civil penalty upon any person who violates the provisions of the proposed rule or a permit issued under the proposed rule, and that each violation would be considered a separate offense.

    How does the authorized officer serve a notice of violation (§ 49.505)?

    Proposed § 49.505 would state the authorized officer may serve a notice of violation in person, by certified mail, return receipt requested, or other verifiable delivery method upon a person that the authorized officer believes has committed a violation of the proposed rule.

    What is included in the notice of violation (§ 49.510)?

    Proposed § 49.510 would describe the contents of a notice of violation.

    How is an objection to a notice of violation made and proposed civil penalty made and resolved (§ 49.515)?

    Proposed § 49.515 would state that a person who receives a notice of violation and proposed civil penalty has 30 days from the date of receipt in which to file a written objection with the authorized officer. The person must state the reasons for the objection, provide any supporting documentation, and sign the objection.

    By written notice, the authorized officer would sustain or deny the objection based on the information in the objection and any information provided upon request. If the authorized officer concludes there was no violation, the objection would be sustained, the notice of violation revoked, and no civil penalty would be assessed. If the authorized officer finds that a violation occurred, the objection would be denied. If the authorized officer finds that a violation occurred but the proposed civil penalty was too high, the objection would be denied in part and sustained in part.

    When will the authorized officer issue a final assessment of civil penalty (§ 49.520)?

    Proposed § 49.520 would state that if the person who was served with a notice of violation and proposed civil penalty does not file a timely objection, or files a timely objection which is denied, the authorized officer would issue a final assessment of civil penalty.

    How will the authorized officer calculate the amount of a proposed and final assessment of civil penalty (§ 49.525)?

    Proposed § 49.525 would explain the factors that the authorized officer will take into account when calculating a proposed and a final assessment of civil penalty. For a first violation, the authorized officer considers the factors listed in § 49.525(a) and (b) and assesses a penalty. For example, the penalty might be $1,000.

    Under proposed § 49.525(c), penalties for subsequent violations may be doubled. Thus, if a person who has already been assessed a civil penalty for a particular violation commits another prohibited act, the authorized officer may double the penalty for that act. For example, if the penalty for the second prohibited act would be $1,200 under the factors listed in paragraphs (a) and (b) of this section, the authorized officer would have the discretion to double this penalty and assess the person $2,400. When doubling penalties for subsequent violations, the authorized officer must be mindful of § 49.525(d), which caps penalties at an amount equaling twice the cost of response, restoration, and repair plus twice the cost of scientific or fair market value of the resources (whichever is greater).

    Proposed § 49.525(d)(2) authorizes civil penalties for damages to paleontological resources and paleontological sites. If other resources or sites are damaged, the bureaus can utilize their authorities under laws such as the Endangered Species Act, the Archaeological Resources Protection Act, the National Park System Resources Protection Act, and other statutes to pursue separate legal or administrative remedies.

    Proposed § 49.525(e) would direct the authorized officer to use proposed subpart G of this proposed rule to determine scientific or commercial values and the cost of response, restoration, and repair.

    Proposed § 49.525(f) would state that the final assessment may be equal to, less than, or more than the proposed civil penalty.

    How will the authorized officer issue the final assessment of civil penalty (§ 49.530)?

    Proposed § 49.530 would state that the authorized officer would serve the final assessment of civil penalty by certified mail, return receipt requested, or another verifiable delivery method. The proposed section would also describe the required content of the final assessment.

    What are the options and timeframe to respond to the final assessment of civil penalty (§ 49.535)?

    Proposed § 49.535 would provide that a person who receives a final assessment of civil penalty must exercise one of two options within 30 days of the date the assessment is received: (1) Accept the assessment by filing a written notice with the authorized officer or paying the assessed penalty, or (2) file a request for hearing before an administrative law judge with the Departmental Case Hearings Division (DCHD), Office of Hearings and Appeals, DOI in accordance with § 49.535(b). The request for hearing will be dismissed if it is not timely filed with DCHD and may be dismissed if it does not contain all information described in proposed § 49.535(b).

    If the person fails to file under either option within 30 days, the assessment will be deemed accepted. Acceptance of the assessment waives the right to hearing.

    What procedures govern the DCHD hearing process initiated by a request for hearing on the final assessment (§ 49.540)?

    If a person files a request for a hearing with an administrative law judge, proposed § 49.540 would explain the procedures for that hearing.

    What will be included in the administrative law judge's decision (§ 49.545)?

    Proposed § 49.545 would describe the contents of the administrative law judge's decision and would state that such decision would become effective 31 days from the date of the decision absent a timely appeal of the decision.

    How can the administrative law judge's decision be appealed (§ 49.550)?

    Proposed § 49.550 would provide the person who filed a request for the hearing with an administrative law judge, as well as the bureau, with the opportunity to appeal that judge's decision by submitting a written dated appeal of the decision to the DOI Office of Hearing and Appeals via certified mail, return receipt requested, or other verifiable delivery method, and would also describe the contents of the appeal documents and the mailing addresses where the appeal documents must be sent.

    What procedures govern an appeal of an administrative law judge's decision to the OHA Director (§ 49.555)?

    Proposed § 49.555 would state that the appeal to OHA is governed by 43 CFR part 4, subparts A and G, and other provisions of 43 CFR part 4, where applicable.

    When must the civil penalty be paid (§ 49.560)?

    Proposed § 49.560 would explain decisions that are considered final administrative decisions. A person has 30 days from the date of those final decisions to fully pay the final assessment of civil penalty or agree to a payment schedule.

    When may a person assessed a civil penalty seek judicial review (§ 49.565)?

    Proposed § 49.565 would explain that, within 30 days of the OHA decision, a person may file a petition for judicial review in the United States District Court for the District of Columbia or in the district where the violation occurred, and that the deadline for payment of the civil penalty will be stayed pending resolution of the judicial review.

    What happens if a civil penalty is not paid on time (§ 49.570)?

    Proposed § 49.570 would describe the consequences of failing to fully pay the final assessment of civil penalty by the required deadlines.

    How will collected civil penalties be used (§ 49.575)?

    Proposed § 49.575 would state that civil penalties collected under this subpart are available without further appropriation to the bureau that administers the federal land or paleontological resources that were the subject of the violation, and may be used by the bureau for several purposes, including: Protection, restoration, or repair of the paleontological resources and sites that were the subject of the action, and protection, monitoring, and study of the resources and sites; and provision of educational materials to the public about paleontological resources, paleontological sites, or resource protection; or payment of rewards.

    Determining Values and the Costs of Response, Restoration, and Repair (Subpart G).

    Proposed subpart G would provide direction on determining values and the cost of response, restoration, and repair under this part. The authorized officer may consult with subject matter experts, such as resource specialists, area specialists, and law enforcement specialists, in determining these values.

    What is scientific value (§ 49.600)?

    Proposed § 49.600 would describe scientific value. PRPA uses the term “paleontological value” in the section on prohibited acts and criminal penalties, and then switches to “scientific value” in the section on civil penalties. The bureaus agree that the two terms are synonymous and that for purposes of consistency and clarity only the term “scientific value” would be used in the proposed rule.

    What is commercial value (§ 49.605)?

    Proposed § 49.605 would describe commercial value. PRPA uses the term “commercial value” in the section on prohibited acts and criminal penalties, and then switches to “fair market value” in the section on civil penalties. The bureaus agree that the two terms are synonymous and for the purposes of consistency and clarity only the term “commercial value” would be used in the proposed rule.

    What is the cost of response, restoration, and repair (§ 49.610)?

    Proposed § 49.610 would define the cost of response, restoration, and repair. In some cases, it may be appropriate for the estimated cost of response, restoration, and repair to be peer reviewed. The values and costs should be determined by paleontologists with appropriate expertise.

    Forfeiture and Rewards (Subpart H). Will a violation lead to forfeiture of a paleontological resource (§ 49.700)?

    Proposed § 49.700 would explain when a violation will lead to the forfeiture of paleontological resources. When there are civil or criminal forfeitures, paleontological resources are either returned to, or remain in, the administrative authority of the Federal Government. Where appropriate, the bureau will initiate forfeiture under a cooperative agreement with agencies that have forfeiture regulations.

    What rewards may bureaus pay to those who assisted in enforcing this part (§ 49.705)?

    Proposed § 49.705 would describe the rewards that may be paid for assistance in enforcing the proposed rule. Proposed § 49.705(a) would establish that the bureau may pay a reward to the person or persons who assist the bureau by furnishing information that leads to a finding of a civil or criminal violation. Rewards will not be paid for the discovery or reporting of a paleontological resource (i.e., there is no bounty for discovering a fossil).

    Casual Collection of Common Invertebrate or Plant Paleontological Resources on Bureau of Land Management and Bureau of Reclamation Administered Lands (Subpart I) Is casual collecting allowed on lands administered by NPS or FWS (§ 49.800)?

    Proposed § 49.800 would explain that PRPA does not allow casual collecting in areas managed by NPS or FWS. In those areas, collecting any paleontological resource must be conducted in accordance with a permit issued by NPS or FWS under subpart B of this proposed rule.

    Is casual collecting allowed on lands administered by BLM or Reclamation (§ 49.805)?

    Under proposed § 49.805(a), casual collecting would continue as currently authorized on lands administered by BLM, except that the PRPA terms “negligible disturbance” and “reasonable amount” defined under § 49.810 must be followed. Casual collecting will not be allowed on BLM lands that are or become closed to casual collecting, BLM-administered national monuments, BLM-administered national conservation areas, outstanding natural areas, forest reserves, or cooperative management and protection areas, except where the bureau has specifically determined that casual collection would not impair the intent of the preservation designation. Because BLM must “conserve, protect, and restore [these] nationally significant landscapes that have outstanding cultural, ecological, and scientific values for the benefit of current and future generations,” the bureau must ensure that these areas would not be negatively affected by casual collecting (establishment of the National Landscape Conservation System, 16 U.S.C. 7202). Closures or restrictions may be short term, long term, or permanent. The BLM is requesting public comment regarding the range of designations listed in § 49.805(a)(2) as prohibiting or restricting casual collection, including whether and why additional designations should be included or currently proposed designations excluded from the list.

    Proposed § 49.805(b) would explain that casual collecting of common invertebrate or plant paleontological resources will be allowed on land administered by Reclamation only in locations where Reclamation has established a special use area for casual collecting using processes defined in Reclamation's regulation at 43 CFR part 423, Public Conduct on Bureau of Reclamation Facilities, Lands, and Waterbodies. This proposed paragraph would also state that casual collecting is prohibited on Reclamation project land that is administered by NPS or FWS.

    Proposed § 49.805(c) would clearly place full responsibility on persons interested in casual collecting to ascertain which bureau manages the land where those persons would like to collect paleontological resources, whether the land is open to casual collecting, and what may be collected in an area, and to obtain information about the managing bureau's casual collecting procedures.

    What is casual collecting (§ 49.810)?

    Proposed § 49.810(a) would restate the PRPA definition of casual collecting. Proposed § 49.810(a)(1) through (a)(5) would provide specific definitions for the terms used in the PRPA definition.

    Under proposed § 49.810(a)(1), only common invertebrate and common plant paleontological resources may be casually collected. Common invertebrate and common plant paleontological resources are invertebrate or plant fossils that have been established by the bureaus, based on available scientific information and current professional standards, as having ordinary occurrence and wide-spread distribution.

    Although these particular resources may be common, they are still paleontological resources as defined in PRPA and the proposed rule. That is, they have paleontological interest and provide information about the history of life on earth.

    Not all invertebrate or plant paleontological resources are common. If the resources are not common, they may only be collected under a permit. It may not always be possible for a collector to identify in the field whether a fossil is common. When in doubt, collectors should err on the side of caution and collect only the resources that they know are common. The bureaus may hold a trained amateur, avocational paleontologist, or professional to a higher standard of knowledge than the general public about whether or not a fossil is common.

    If a knowledgeable collector makes an unanticipated discovery of an uncommon paleontological resource while casually collecting, that collector shall not collect that resource because he or she is not authorized to do so. Instead, the collector should alert the relevant bureau. If the collector wishes to pursue collection, he or she must obtain a permit to collect the uncommon resource. If the collector does collect the uncommon resource without a permit, that collector may be subject to penalties.

    Proposed § 49.810(a)(2) would establish “reasonable amount” for casual collecting as 25 pounds per day per collector, not to exceed 100 pounds per year per collector. This proposed definition would also clarify that pooling of multiple daily amounts by one or more collectors to obtain pieces in excess of 25 pounds is not allowed. The bureaus determined that the 25 pounds per day per collector, and the 100 pounds per year per collector, are reasonable amounts based on BLM's long experience with the collecting of petrified wood and other fossils from BLM lands before PRPA was enacted. These amounts represent a balance between PRPA's mandate to allow casual collecting and other laws that require the bureaus to protect and manage other natural and cultural resources.

    The proposed prevention of the pooling of multiple daily amounts would add clarification and be consistent with existing BLM regulations at 43 CFR 3622.4 governing the collecting of petrified wood.

    The bureaus considered defining “reasonable amount” as equaling two quarts instead of 25 pounds, but decided that the use of a weight limit, rather than a size limit, is more consistent with existing collection standards that are already understood by the public and the bureaus.

    Proposed § 49.810(a)(3) would clarify that “negligible disturbance” for casual collecting means little or no change to the surface of the land, and minimal or no effect to natural and cultural resources. This proposed definition would specify that in no circumstance may the surface disturbance exceed 1 square yard (3 feet by 3 feet) per individual collector; that in cases of multiple collectors each square yard of surface disturbance must be separated by at least 10 feet; and that all areas of surface disturbance must be backfilled with the material that was removed in order to render the disturbance substantially unnoticeable to the casual observer. The reason for using the “1 square yard” maximum is that this would be similar to longstanding BLM practice, and such consistency is encouraged by PRPA. In the context of compliance with the National Environmental Policy Act (NEPA) in the issuance of research permits for BLM, for instance, a proposal to engage in surface disturbance of anything larger than 1 square meter is not usually subject to categorical exclusion but is subject to further analysis under NEPA. The fossil-collecting community should, therefore, already be familiar with this type of threshold. For purposes of managing “negligible disturbance,” 1 square yard is considered to be approximately equal to 1 square meter.

    The proposed definition would also specify that collecting areas need to be separated by at least 10 feet where there is surface disturbance. The separation would reduce cumulative effects to other resources. Where there is no surface disturbance, there is no need to separate collecting areas.

    Proposed § 49.810(a)(4) would address the uses to which casually collected resources can be put. Casually collected resources may be used only for noncommercial personal use, which means a use other than purchase, sale, financial gain, or research. The restriction on any commercial use of casually collected resources is not new. For instance, rules of conduct applicable to BLM-managed public lands currently allow casual collecting of paleontological resources only for “noncommercial purposes” (43 CFR 8365.1-5(b)).

    Proposed § 49.810(a)(5) would define the kinds of tools that may be used to casually collect these resources. These tools must be small, such as a geologic hammer, trowel, or sieve; they cannot use or be operated by a motor, engine, or other mechanized power source; and they must be light and small enough to be hand-carried by one person. A tool that exceeds this definition cannot be used to casually collect these resources.

    Proposed § 49.810(b) would enable the authorized officer to establish limitations on casual collecting, in addition to the limitations already contained in the proposed rule. Examples of additional limitations include reducing the maximum weight for “reasonable amount,” decreasing the threshold for negligible disturbance, limiting depth of allowable disturbance, limiting specific tools that may be used, defining what is common in a specific area, establishing time or duration limits for collecting, establishing limits to avoid cumulative effects, and establishing parameters for safety.

    Proposed § 49.810(c) would clarify that casual collecting is not allowed when any of the parameters that restrict casual collecting (reasonable amount, common invertebrate and plant paleontological resources, personal noncommercial use, negligible disturbance and non-powered hand tools) is exceeded or does not apply. Casual collecting is a limited exception to the overarching permit requirement of PRPA, and is allowed under the presumption that the “commonness” of these resources, in combination with limitations on amount, surface disturbance, tools, and eventual use of the collected resources, contributes to the underlying objective of protecting paleontological resources on federal lands. Proposed § 49.810(c) also clarifies that casual collecting in excess of the specified limitations is prohibited and subject to civil and criminal penalties.

    IV. Proposed Conforming Amendment to 43 CFR part 8360—Visitor Services; Sections 8360.0-3, Authority, and 8365.1-5, Property and Resources

    PRPA requires the BLM to allow the casual collecting of common invertebrate and plant paleontological resources, which is consistent with existing BLM policy. However, this rule would amend the text at existing 43 CFR 8365.1-5 to conform to the language used by PRPA.

    The authority citations for 43 CFR part 8360 and the list of authorities at § 8360.0-3 would each be amended to add PRPA (16 U.S.C. 470aaa et seq.). PRPA introduces the term “casual collecting” to define the noncommercial collection of invertebrate and plant fossils, which was previously authorized by the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.). PRPA and the proposed regulations at part 49 use the term “paleontological resources” instead of the term “fossils” to describe resources that are managed under PRPA.

    The current § 8365.1-5 would be amended to conform to the terms introduced by PRPA. The specific changes are:

    • § 8365.1-5(b)(2) would be amended to remove the phrase “common invertebrate and common plant fossils;”

    • § 8365.1-5(b)(4) would be amended to remove “and” in order to maintain grammatical structure;

    • § 8365.1-5(b)(5) would be amended to add “and” in order to maintain grammatical structure; and

    • A proposed new § 8365.1-5(b)(6) would be added to include “common invertebrate and plant paleontological resources” on the list of things that may be collected from BLM public lands in reasonable amounts for noncommercial purposes. The paragraph also provides a reference to proposed part 49, which would authorize and provide rules for casual collecting.

    V. Proposed Conforming Amendment to 50 CFR Part 27—Prohibited Acts, § 27.63, Search for and Removal of Other Valued Objects

    PRPA states that a paleontological resource may not be collected from federal land without a permit issued under that authority. The proposed amendment at § 27.63 would add a paragraph that states that a permit is required in order to collect paleontological resources and would provide a reference to proposed part 49, which would authorize and provide rules for issuing permits under PPRA.

    Proposed new § 27.63(c) would state that permits are required for paleontological studies on national wildlife refuges in accordance with the provisions at proposed 43 CFR part 49.

    VI. Compliance With Other Laws, Executive Orders, and Department Policy Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is not significant.

    Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

    Regulatory Flexibility Act (RFA)

    This proposed rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq.). This certification is based on the cost-benefit and regulatory flexibility analyses found in the report titled “Proposed Paleontological Resources Preservation Regulations, 43 CFR part 49: Economic Analysis In Support Of E.O. 12866 and Regulatory Flexibility Act Compliance,” which can be viewed at www.blm.gov/paleontology by clicking on the link entitled “Proposed Paleontological Resources Preservation Regulations, 43 CFR part 49: Economic Analysis In Support Of E.O. 12866 and Regulatory Flexibility Act Compliance.”

    Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

    a. Does not have an annual effect on the economy of $100 million or more.

    b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

    c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

    Unfunded Mandates Reform Act (UMRA)

    This proposed rule does not impose an unfunded mandate on state, local, or tribal governments or the private sector of more than $100 million per year. This rule will not have a significant or unique effect on state, local, or tribal governments or the private sector. The rule addresses the management of paleontological resources from lands managed by BLM, Reclamation, FWS, and NPS, and imposes no requirements on other agencies or governments. A statement containing information required by the UMRA (2 U.S.C. 1531 et seq.) is not required.

    Takings (Executive Order 12630)

    This proposed rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. This proposed rule is not a government action capable of interfering with constitutionally protected property rights. It would implement the new statutory authority for managing, preserving, and protecting paleontological resources on federal lands and is consistent with prior policies, procedures, and practices for the collection and curation of paleontological resources on federal land. Private property is not affected. A takings implication assessment is not required.

    Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rule addresses the management of paleontological resources on and from lands managed by the BLM, Reclamation, FWS, and NPS, and imposes no requirements on other agencies or governments. It does not have a substantial direct effect on the states, on the relationship between the Federal Government and the states, or on the distribution of power and responsibilities among the levels of government. A federalism summary impact statement is not required.

    Civil Justice Reform (Executive Order 12988)

    This proposed rule complies with the requirements of Executive Order 12988. Specifically, this rule:

    (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

    (b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

    Consultation and Coordination With Indian Tribal Governments (Executive Order 13175 and Departmental Policy)

    DOI strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this proposed rule under DOI's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation is not required. This proposed rule applies to lands managed by BLM, Reclamation, FWS, and NPS. It does not apply to and has no direct effect on tribal trust lands or lands subject to a restriction on alienation imposed by the United States.

    DOI is sending a letter to notify the 566 federally recognized Indian tribes that the proposed rulemaking is being published in the Federal Register. DOI invites responses to the notification letter.

    Paperwork Reduction Act of 1995 (PRA)

    This proposed rule contains a collection of information that has been submitted to OMB for approval under the PRA (44 U.S.C. 3501 et seq.). DOI and its bureaus may not conduct or sponsor, and no one is required to respond to, a collection of information unless it displays a currently valid OMB control number.

    OMB has reviewed and approved the information collection requirements associated with the NPS' application and reports for paleontological permits (OMB Control Number 1024-0236).

    DOI proposes to collect the following information associated with paleontological permits for work on lands administered by the BLM, Reclamation, and FWS:

    Permit application (§ 49.65). Permit applicants proposing to work in areas administered by BLM, Reclamation, or FWS must provide the information requested by DI Form 9002 (Paleontological Resource Use Permit Application). Such information includes:

    (1) Applicant's name, affiliation, and contact information.

    (2) Current resume for the applicant and all other persons who will oversee fieldwork and other work.

    (3) Description, estimated start and end dates of proposed work, and maps and other location information.

    (4) Purpose and methodology of proposed work, including a detailed scope of work or research plan for the proposed activity, logistical information, methods that will be employed to explore for or remove the paleontological resources, proposed content and nature of any collection to be made under the permit.

    (5) Bonding information.

    (6) Information about the proposed repository.

    (7) Information on the applicant's past performance on previous permits.

    Change of personnel (§ 49.75(a)(2)). Permittee must report changes in the persons who are conducting activities under the permit, and submit the credentials of any new persons to the authorized officer for approval.

    Locality information (§ 49.75(a)(1) & (7)). Permittee will record locality information on DI Form 9004 (Paleontological Locality Form), or in another format approved by the bureau in the permit that captures the same information.

    Resource damage or theft (§ 49.75(a)(8)). Permittee must report suspected resource damage or theft of paleontological or other resources to the authorized officer as soon as possible, but not to exceed 48 hours after learning of such damage or theft.

    Repository receipt (§ 49.75(a)(9) & (10)). Permittee must deposit the collection in the approved repository and provide the bureau with DI Form 9008 (Repository Receipt for Collections (Paleontology)), which includes a certification by the permittee that the collection was transferred to the repository and a certification by the approved repository's authorized official that the collection was received.

    List and description of paleontological resources (§ 49.75(a)(11)). If the permittee has not transferred the collection to the approved repository by the due date of the annual report or other schedule approved for the permit, the permittee must provide the authorized officer a complete list and description of all paleontological resources collected and the current location of the paleontological resources.

    Reports (§ 49.75(a)(15)). Permittees conducting activities on lands administered by BLM, Reclamation, or FWS must submit reports to the bureaus using DI Form 9005 (Paleontological Permit Report Cover Sheet), or DI Form 9006 (Paleontology Consulting Report Summary Sheet).

    Amendments to permits (§ 49.80(a)). Permittees may request a modification to a permit. Modification requests will include permittee name, permit number, and the reason(s) for the modification request.

    Objecting to a Notice of Violation (§ 49.515(a) & (b)). When a person receives a notice of violation, the person has 30 days from the date the notice was received to object by submitting to the authorized officer documentation to support the position that the person did not commit a violation or that the proposed penalty should be reduced or eliminated.

    Responding to a civil penalty (§ 49.535(a)). A person may request a hearing on the authorized officer's final assessment of a civil penalty by filing a request for hearing via certified mail (return receipt requested or other verifiable delivery method) to the Departmental Cases Hearings Division, Office of Hearings and Appeals, Department of the Interior, 351 S. West Temple, Room 6.300, Salt Lake City, Utah 84101. The request for hearing must include the following information:

    (1) The reasons for challenging the final assessment;

    (2) The relief sought and the basis for the relief;

    (3) A copy of the original notice of civil violation and proposed civil penalty assessment;

    (4) A copy of any objection and supporting documentation filed under § 49.515(a);

    (5) A copy of the final assessment of civil penalty; and

    (6) A certificate of service acknowledging service of the request for hearing with the accompanying documentation on the Office of the Solicitor.

    OMB Control No.: 1093-NEW.

    Title: Application and Reports for Paleontological Permits, 43 CFR part 49.

    Form Number(s): DI Forms 9002, 9004, 9005, 9006, and 9008.

    Description of Respondents: Individuals; organizations; businesses (museums and universities); state, tribal, or local governments that collect paleontological resources or disturb paleontological sites on DOI lands.

    Respondent's Obligation: Required to obtain or retain a benefit.

    Frequency of Collection: On occasion.

    Requirement Total annual responses Completion time per
  • response
  • (hours)
  • Total annual burden hours
    Permit Application—DI Form 9002—§ 49.65; DI Form 9003—§ 49.75(a); DI Form 9007—§ 49.75(d) 440 4 1,760 Report Change of Personnel—§ 49.75(a)(2) 100 1 100 Locality Information—DI Form 9004—§ 49.75(a)(1) & (7) 300 1 300 Report Resource Damage or Theft -§ 49.75(a)(8) 50 1 50 Repository Receipt—DI Form 9008-§ 49.75(a)(9)&(10) 300 1 300 List and Description of Paleontological Resources—§ 49.75(a)(11) 100 1 100 Reports—DI Form 9005, Permit Report Cover Sheet—§ 49.75(a)(15) 374 5 1,870 Reports—DI Form 9006, Consulting Summary Report—§ 49.75(a)(15) 66 5 330 Request Amendment to Permit—§ 49.80(a) 200 1 200 Objecting to a Notice of Violation—§ 49.515(a)&(b) 10 10 100 Responding to a Civil Penalty—§ 49.535(a) 5 10 50 Totals 1,945 5,160

    Estimated Nonhour Cost Burden: None.

    Send comments specific to the information collection aspects of this proposed rule to the Desk Officer for the Department of the Interior with a copy to the Office of the Secretary Information Collection Clearance Officer, Department of the Interior. See the DATES and ADDRESSES sections for specific instructions.

    National Environmental Policy Act

    This proposed rule is anticipated to be categorically excluded from National Environmental Policy Act analysis under DOI categorical exclusion, 43 CFR 46.210(i), which covers “Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively, or case-by-case.”

    The categorical exclusion is appropriate and applicable for the following reasons. Several of the provisions of this proposed rule are specifically administrative, financial, legal or procedural in nature, and therefore are subject to the first part of the categorical exclusion. For instance, the provisions for permit modification, suspension, revocation, or cancellation are all administrative or procedural in character, as are the rule's provisions establishing procedures to challenge any of these decisions. Similarly, the proposed rule sets forth specifics of the administration of civil and criminal penalties associated with violation of the provisions of the rule and of PRPA.

    Both the establishment of the permit system, and future decisions to close lands to casual collecting (and, conversely, to open lands to casual collecting where that use is not already authorized) are subject to the second part of the categorical exclusion. Issuance of a permit (whether programmatic or individual in scope) for the collection of paleontological resources itself requires agency compliance with NEPA. Moreover, a permit must contain permit conditions, supported by appropriate NEPA analysis, that ensure the underlying project or action will continue to meet regulatory requirements throughout the entire duration of the permit. Likewise, any decision to close or open lands to casual collecting also requires agency compliance with NEPA and may contain conditions, supported by appropriate NEPA analysis, that ensure the appropriate management of these resources. Because the environmental effects of this proposed rule are too speculative to lend themselves to meaningful analysis, and the environmental consequences of any of these decisions will be analyzed in detail at the time the permit application or proposed opening or closing to casual collecting is evaluated and before a decision is made, the rule is subject to the second part of DOI categorical exclusion, 43 CFR 46.210(i).

    Pursuant to 43 CFR 46.205(c), DOI has reviewed its reliance upon this categorical exclusion against the list of extraordinary circumstances, at 43 CFR 46.215, and has found that none applies to this rule. Therefore, neither an environmental assessment (EA) nor an environmental impact statement (EIS) is required for this rulemaking.

    Even though neither an EA nor an EIS must be prepared for this rule, the BLM has elected to prepare an EA to inform decision makers regarding the possible effects of two specific provisions as applied to the public lands BLM manages, as allowed under DOI's regulations implementing NEPA, 43 CFR 46.300(b)(1). BLM-administered lands are open to casual collection of paleontological resources unless specifically closed by a site-specific decision. As such, casual collection has been and will continue to occur on certain public lands.

    PRPA provides specific authority and limits under which this activity can take place. In particular, PRPA allows for “casual collecting,” which is defined as “the collecting of a reasonable amount of common invertebrates and plant paleontological resources for non-commercial personal use, either by surface collection or the use of non-powered hand tools resulting in only negligible disturbance to the Earth's surface and other resources” (Pub. L. 111-11, section 6301(1), 123 Stat. 1172), and specifies that the Secretary of the Interior is to determine how these terms are to be defined. The rule's proposed definitions for “negligible disturbance” and “reasonable amount” describe the conditions limiting any casual collection activities on certain public lands managed by the BLM. The BLM is preparing an EA for these proposed definitions, which will immediately apply to casual collection on BLM public lands when this rule is finalized. The EA is under development and may be found at www.blm.gov/paleontology. The BLM welcomes input from the public on the EA, which may be revised in response to public input as well as further agency review. It is expected that analysis will be qualitative and descriptive in character, and consist largely of presenting the possible negative consequences that might result from not defining these terms carefully, as well as describing the considerations that informed the proposed definitions and the alternatives considered.

    Effects on the Energy Supply (Executive Order 13211)

    This proposed rule is not a significant energy action under the definition in Executive Order 13211. DOI has determined that this proposed rule will not have substantial direct effects on energy supply, distribution, or use, including a shortfall in supply or price increase. The rule has no bearing on energy development and will have no effect on the volume or consumption of energy supplies. A Statement of Energy Effects is not required.

    Clarity of This Regulation

    DOI is required by Executive Orders 12866 (section 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (a) Be logically organized;

    (b) Use the active voice to address readers directly;

    (c) Use common, everyday words and clear language rather than jargon;

    (d) Be divided into short sections and sentences; and

    (e) Use lists and tables wherever possible.

    If you believe the DOI has not met these requirements, send comments by one of the methods listed in the ADDRESSES section. To better help us to revise the rule, please make comments as specific as possible. For example, tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you believe lists or tables would be useful, etc.

    Drafting Information

    This proposed rule reflects the efforts of staff in BLM, Reclamation, FWS, and NPS.

    Public Participation

    DOI, whenever practicable, affords the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments regarding this proposed rule by one of the methods listed in the ADDRESSES section. All comments must be received by midnight of the close of the comment period. We will not accept bulk comments in any format (hard copy or electronic) submitted on behalf of others.

    Public Availability of Comments

    Before including your address, phone number, email address, or other personal identifying information in your comment, please know that we may make your entire comment—including your personal identifying information—publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

    List of Subjects 43 CFR Part 49

    Casual collecting, Civil penalties, Collecting, Commercial value, Confidentiality, Criminal penalties, Curation, Museums, Natural resources, Paleontological resources, Paleontology, Permits, Prohibited acts, Prohibitions, Public awareness, Public education, Recreation, Reporting and record keeping requirements, Repository, Research, Scientific principles, Scientific value.

    43 CFR Part 8360

    Penalties, Public lands, Recreation activities, Recreation and recreation areas.

    50 CFR Part 27

    Wildlife refuges.

    For reasons stated in the preamble, the Department of the Interior proposes to amend title 43 of the CFR by adding part 49 and amending part 8360 and to amend part 27 of title 50, as set forth below:

    Title 43: Public Lands: Interior Subtitle A—Office of the Secretary of the Interior 1. Add part 49 to title 43 to read as follows: PART 49—PALEONTOLOGICAL RESOURCES PRESERVATION Subpart A—Managing, Protecting, and Preserving Paleontological Resources Sec. 49.1 What does this part do? 49.5 What terms are used in this part? 49.10 Does this part affect existing authorities? 49.15 When does this part not apply? 49.20 Does this part create new rights or entitlements? 49.25 What information concerning the nature and specific location of paleontological resources is confidential? 49.30 How will the bureaus conduct inventory, monitoring, and preservation activities? 49.35 How will the bureaus foster public education and awareness? 49.40 When may the bureaus restrict access to an area? Subpart B—Paleontological Resources Permitting—Requirements, Modifications, and Appeals 49.50 When is a permit required on federal land? 49.55 Who can receive a permit? 49.60 What criteria must a permit applicant meet? 49.65 Where must a permit application be filed and what information must it include? 49.70 How will a bureau make a decision about a permit application? 49.75 What terms and conditions will a permit contain? 49.80 When and how may a permit be modified, suspended, revoked, or cancelled? 49.85 Can a permit-related decision be appealed? 49.90 What is the process for appealing a permit-related decision? 49.95 Has OMB approved the information collection provisions of this part? Subpart C—Management of Paleontological Resource Collections 49.200 Where are collections deposited? 49.205 How will bureaus approve a repository for a collection made under this part? 49.210 What is the process for depositing the collection at the approved repository? 49.215 What terms and conditions must the agreement between the bureau and approved repository contain? 49.220 What are the standards for managing the collections? Subpart D—Prohibited Acts 49.300 What acts are prohibited? Subpart E—Criminal Penalties 49.400 What criminal penalties apply to violations of this part? Subpart F—Civil Penalties 49.500 When can the authorized officer assess a civil penalty? 49.505 How does the authorized officer serve a notice of violation? 49.510 What is included in the notice of violation? 49.515 How is an objection to a notice of violation and proposed civil penalty made and resolved? 49.520 When will the authorized officer issue a final assessment of civil penalty? 49.525 How will the authorized officer calculate the amount of a proposed and final assessment of civil penalty? 49.530 How will the authorized officer issue the final assessment of civil penalty? 49.535 What are the options and timeframe to respond to the final assessment of civil penalty? 49.540 What procedures govern the DCHD hearing process initiated by a request for hearing on the final assessment? 49.545 What will be included in the administrative law judge's decision? 49.550 How can the administrative law judge's decision be appealed? 49.555 What procedures govern an appeal of an administrative law judge's decision to the OHA Director? 49.560 When must the civil penalty be paid? 49.565 When may a person assessed a civil penalty seek judicial review? 49.570 What happens if a civil penalty is not paid on time? 49.575 How will collected civil penalties be used? Subpart G—Determining Values and the Costs of Response, Restoration, and Repair 49.600 What is scientific value? 49.605 What is commercial value? 49.610 What is the cost of response, restoration, and repair? Subpart H—Forfeiture and Rewards 49.700 Will a violation lead to forfeiture of a paleontological resource? 49.705 What rewards may bureaus pay to those who assisted in enforcing this part? Subpart I—Casual Collection of Common Invertebrate or Plant Paleontological Resources on Bureau of Land Management and Bureau of Reclamation Administered Lands 49.800 Is casual collecting allowed on lands administered by NPS or FWS? 49.805 Is casual collecting allowed on lands administered by BLM or Reclamation? 49.810 What is casual collecting? Authority:

    16 U.S.C. 470aaa-aaa-11.

    Subpart A—Managing, Protecting, and Preserving Paleontological Resources
    § 49.1 What does this part do?

    This part:

    (a) Directs the Bureau of Land Management (BLM), Bureau of Reclamation (Reclamation), U.S. Fish and Wildlife Service (FWS), and National Park Service (NPS) (collectively referred to as “the bureaus”) to manage, protect, and preserve paleontological resources on federal land using scientific principles and expertise;

    (b) Coordinates paleontological resources management among the bureaus;

    (c) Promotes public awareness; provides for collection under permit; clarifies that paleontological resources cannot be collected from federal land for sale or purchase; establishes civil and criminal penalties; sets curation standards; and

    (d) Authorizes casual collecting of common invertebrate and plant fossils from certain BLM-administered land and certain Reclamation-administered land.

    § 49.5 What terms are used in this part?

    The terms used in this part have the following definitions.

    Act means title VI, subtitle D of the Omnibus Public Land Management Act on Paleontological Resources Preservation (16 U.S.C. 470aaa-470aaa-11).

    Ad Hoc Board means an Ad Hoc Board of Appeals appointed by the Director, Office of Hearings and Appeals, Department of the Interior.

    Approved repository means a federal or non-federal facility that provides curatorial services and that is approved by the authorized officer to receive collections made under this part.

    Associated records means original records or copies thereof, regardless of format, that include but are not limited to:

    (1) Primary records relating to identification, evaluation, documentation, study, preservation, context, or recovery of a paleontological resource;

    (2) Public records including, but not limited to, land status records, bureau reports, publications, court documents, and agreements; and

    (3) Administrative records and reports generated during the permitting process that pertain to survey, excavation, or study of the paleontological resource.

    Authorized officer means the bureau director or employee to whom the Secretary of the Interior has delegated authority to take action under the Act. Delegation will follow applicable Department and bureau procedures.

    Bureau means Bureau of Land Management (BLM), Bureau of Reclamation (Reclamation), U.S. Fish and Wildlife Service (FWS), or National Park Service (NPS).

    Collection means paleontological resources removed from geological context or taken from federal land, and associated records or replicas.

    Consumptive use means the alteration or destruction of a paleontological specimen or portion of a specimen for scientific research.

    Cost of response, restoration, and repair means the costs to respond to a violation of the provisions of this part or a permit issued under this part and the costs of restoration and repair of the paleontological resources or paleontological sites damaged as a result of the violation. Those costs are described in greater detail in § 49.610.

    Curatorial services means managing and preserving a museum collection over the long term according to Department and bureau museum and archival standards and practices.

    Day means a calendar day.

    DCHD means the Departmental Cases Hearings Division, Office of Hearings and Appeals, Department of the Interior.

    Department or DOI means the Department of the Interior.

    Federal land means land controlled or administered by the Secretary of the Interior, except for Indian land.

    Fossilized means preserved by natural processes, such as burial in accumulated sediments, preservation in ice or amber, or replacement by minerals, which may or may not alter the original organic content.

    Indian land means land of federally-recognized Indian tribes or Indian individuals which is either held in trust by the United States or subject to a restriction against alienation imposed by the United States.

    Nature means physical features, identifications, or attributes of the paleontological resource.

    OHA means the Office of Hearings and Appeals, DOI.

    OHA Director means the Director, Office of Hearings and Appeals, DOI.

    Paleontological resource means any fossilized remains, traces, or imprints of organisms preserved in or on the Earth's crust, except for:

    (1) Those that are found in an archaeological context and are an archaeological resource as defined in section 3(1) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb(1)); or

    (2) “Cultural items,” as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.); or

    (3) Resources determined in writing by the authorized officer to lack paleontological interest or not provide information about history of life on earth, based on scientific and other management considerations.

    Paleontological site means a locality, location, or area where a paleontological resource is found; the site can be relatively small or large.

    Specific location means any description or depiction of a place in such detail that it would allow a person to find a paleontological resource or the site from which it was collected.

    State means one of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

    Working collections means paleontological resource collections that are not intended for long-term preservation and care as museum collections.

    § 49.10 Does this part affect existing authorities?

    No. This part preserves the authority of the Secretary of the Interior and the bureaus under this and other laws and regulations to manage, protect, and preserve paleontological resources on federal land.

    § 49.15 When does this part not apply?

    (a) The regulations in this part do not invalidate, modify, or impose additional restrictions or permitting requirements on mineral, reclamation, or related multiple use activities for which authorization exists or permits are issued under the general mining, mineral leasing, geothermal leasing, or mineral materials disposal laws.

    (b) The regulations in this part do not apply to Indian land.

    (c) The regulations in this part do not apply to any land other than federal land as defined in this part, or resources other than paleontological resources as defined in this part.

    § 49.20 Does this part create new rights or entitlements?

    (a) This part does not create any right, privilege, benefit, or entitlement for any person who is not an officer or employee of the United States acting in that capacity.

    (b) Only an officer or employee of the United States acting in that capacity has standing to file a civil action in a court of the United States to enforce this part.

    § 49.25 What information concerning the nature and specific location of paleontological resources is confidential?

    (a) In keeping with section 6309 of the Act, information concerning the nature and specific location of a paleontological resource is exempt from disclosure under the Freedom of Information Act and any other law unless the authorized officer determines that disclosure would:

    (1) Further the purposes of the Act;

    (2) Not create risk of harm to or theft or destruction of the resource or site containing the resource; and

    (3) Be in accordance with other applicable laws.

    (b) If the authorized officer determines that a proposed disclosure would meet the requirements of paragraphs (a)(1)-(a)(3) of this section, then the authorized officer will, prior to disclosing the information, enter into a written agreement with the party seeking the disclosure. Such agreement will provide stipulations focused on ensuring that the recipient of the disclosure does not publicly distribute or otherwise release, disclose, or share the information.

    (c) No disclosure complying with paragraph (b) of this section will be considered an official public disclosure for purposes of the Freedom of Information Act.

    § 49.30 How will the bureaus conduct inventory, monitoring, and preservation activities?

    (a) The bureaus will develop plans and procedures for the inventory and monitoring of paleontological resources on and from federal land in accordance with applicable laws and regulations.

    (b) The bureaus will manage, protect, and preserve paleontological resources on and from federal land using scientific principles and expertise.

    (c) Activities under paragraphs (a) and (b) of this section will be coordinated with other agencies, non-federal partners, the scientific community, and the general public where appropriate and practicable.

    § 49.35 How will the bureaus foster public education and awareness?

    The bureaus will establish a program to increase public awareness about the significance of paleontological resources on or from federal land. This effort will be coordinated with other agencies, non-federal partners, the scientific community, and the general public where appropriate and practicable.

    § 49.40 When may the bureaus restrict access to an area?

    (a) The authorized officer may restrict access to an area or close areas to collection of paleontological resources to protect paleontological or other resources or to provide for public safety.

    (b) The regulations in this part do not preclude the use of other authorities that provide for area restrictions or closures on federal land.

    Subpart B—PALEONTOLOGICAL RESOURCES PERMITTING—REQUIREMENTS, MODIFICATIONS, AND APPEALS
    § 49.50 When is a permit required on federal land?

    (a) A permit is required for any person to collect paleontological resources or disturb paleontological sites, except for casual collecting on certain lands managed by the BLM or Reclamation, which is defined and addressed in subpart I of this part.

    (b) A permit may be required by a bureau for activities that do not involve collection or disturbance.

    (c) A permit is required for Federal Government personnel to collect paleontological resources or disturb paleontological sites unless the bureau authorizes the action by programmatic or other means.

    § 49.55 Who can receive a permit?

    Applicants who demonstrate that they meet the qualification requirements described in § 49.60, who provide a complete application as described in § 49.65, and whose proposed activity meets the issuance criteria described in § 49.70 may receive a permit.

    § 49.60 What criteria must a permit applicant meet?

    (a) Permit applicant qualification requirements include:

    (1) A graduate degree from an accredited institution in paleontology or related field of study with a major emphasis in paleontology or equivalent academic training to undertake the proposed activity;

    (2) Experience in collecting, analyzing, summarizing, and reporting paleontological data, and preparing collections for long-term care;

    (3) Experience in planning, equipping, staffing, organizing, and supervising field crews on projects similar to the type, nature, and scope of work proposed in the application; and

    (4) Other expertise, knowledge, or experience required by the bureau in policies or procedures.

    (b) Past performance by the applicant will also be considered. Past performance includes compliance with previous permits, relevant civil or criminal violations, or current indictments or charges.

    § 49.65 Where must a permit application be filed and what information must it include?

    (a) A permit applicant must submit an application to the bureau that administers the federal land where the proposed activity would be conducted. It is the permit applicant's responsibility to determine which bureau has jurisdiction, use that bureau's permit application form and process, and respond to that bureau's requests for information in a timely manner.

    (b) A permit applicant proposing to work in areas administered by BLM, Reclamation, or FWS must provide the information requested by DI Form 9002 (Paleontological Resource Use Permit Application). A permit applicant proposing to work in areas administered by NPS must provide the information requested by the NPS's Research Permit and Reporting System. Such information, for purpose of both DI Form 9002 and the NPS System, includes:

    (1) The applicant's name, affiliation, and contact information.

    (2) A current resume for the applicant and all other persons who oversee work under the permit, and any additional information demonstrating that the applicant possesses the qualifications required by § 49.60.

    (3) A description, estimated start and end dates, and maps and other location information for the proposed work.

    (4) Purpose and methodology of proposed work, including a detailed scope of work or research plan for the proposed activity, logistical information, methods that will be employed to explore for or remove the paleontological resources, proposed content and nature of any collection to be made under the permit, collection management processes, timetable for transfer to the proposed repository, and any additional information that will help the authorized officer identify the extent, nature, and impacts of the proposal.

    (5) Bonding information, if required by the bureau.

    (6) Information about the proposed repository for any collection that would be made under the permit, including:

    (i) Name, location, and contact information for the proposed repository;

    (ii) Written verification from the proposed repository confirming that it will agree to receive the collection; and

    (iii) Names of organizations responsible for costs of curatorial services.

    (7) Information on the applicant's past performance on previous permits.

    (c) Because of the span of activities covered by paleontological permits and the different management needs and resources of each bureau, applicants may not be required to provide all of the information listed in paragraph (b) of this section. Each bureau will have the discretion to ask for less information.

    § 49.70 How will a bureau make a decision about a permit application?

    (a) The authorized officer will assess whether the permit application complies with other applicable authorities.

    (b) The authorized officer may issue a permit upon determining that:

    (1) The applicant possesses the qualifications required by § 49.60;

    (2) The permitted activity and any collection that would be made under the proposed permit would further paleontological knowledge, public education, or management of paleontological resources;

    (3) The permitted activity would be consistent with the purpose and management objectives defined for the federal land; and

    (4) The permitted activity would be conducted in a manner that would avoid or reduce adverse effects to significant natural or cultural resources.

    (c) The authorized officer will work with the permit applicant and proposed repository to decide whether to approve the proposed repository, based on the criteria described in § 49.205(a), for the collection that would be made under the permit.

    § 49.75 What terms and conditions will a permit contain?

    (a) The authorized officer will use DI Form 9003 (Paleontological Resource Use Permit) when issuing permits for activities on lands administered by BLM, Reclamation, and FWS. The authorized officer will use the NPS Research Permit and Reporting System when issuing a permit for activities on lands administered by NPS. Permit terms and conditions will include but are not limited to:

    (1) Permittee must not release, disclose, or share information about the specific location of paleontological resources without the prior written permission of the authorized officer.

    (2) Permittee must report in writing to the authorized officer any change in the persons who are conducting activities under the permit, and submit the credentials of any new persons for approval.

    (3) Permittee must protect paleontological sites and associated resources from harm resulting from the work under the permit, and is responsible for the actions of all persons working under the permit.

    (4) Permittee, or a designee approved by the authorized officer and named on the permit, must be on site at all times when fieldwork is in progress and have a copy of the signed permit on hand.

    (5) Permittee must comply with all vehicle or access restrictions, safety or environmental restrictions, local safety conditions or restrictions, and applicable federal, state, and local laws.

    (6) Permittee acknowledges that the geographic area within the scope of the permit may be subject to other uses, and will take steps to avoid or minimize potential conflicts with such uses.

    (7) Permittee will record locality information on DI Form 9004 (Paleontological Locality Form), or in another format approved for use under the permit that captures the same information.

    (8) Permittee must report suspected resource damage or theft of paleontological or other resources to the authorized officer as soon as possible, but not to exceed 48 hours after learning of such damage or theft.

    (9) A copy of the permit must be kept with the collection during transport and shared with the approved repository.

    (10) Permittee must deposit the collection in the approved repository and provide the bureau with DI Form 9008 (Repository Receipt for Collections (Paleontology)), which includes but is not limited to a certification by the permittee that the collection was transferred to the repository and a certification by the approved repository's authorized official that the collection was received.

    (11) If the permittee has not transferred the collection to the approved repository by the due date of the annual report or other schedule approved for the permit, the permittee must provide the authorized officer a complete list and description of all paleontological resources collected and the current location of the paleontological resources.

    (12) Permittee acknowledges that all paleontological resources collected under the permit will remain federal property, and that he or she will not sell, trade, exchange, or keep for personal use the paleontological resources collected under the permit.

    (13) Permittee must acknowledge the permitting bureau in any report, publication, paper, news article, film, television program, or other media resulting from the work performed under the permit.

    (14) Permittee is responsible for the costs, monetary and otherwise, of the permitted activity, including fieldwork, data analysis, report preparation, curation of the collection and its associated records consistent with subpart C of this part.

    (15) Permittees conducting activities on lands administered by BLM, Reclamation, or FWS must submit reports to the bureaus using DI Form 9005 (Paleontological Permit Report Cover Sheet), or DI Form 9006 (Paleontology Consulting Report Summary Sheet). Permittees conducting activities on lands administered by NPS must submit reports to the NPS under the NPS Research Permit and Reporting System.

    (16) Permittee must comply with timelines established by the permit.

    (17) Permittee must conduct the work consistent with the permit.

    (18) Permittee must not transfer the permit.

    (b) A permittee must continue to comply with applicable terms and conditions in the event of permit expiration, suspension, cancellation, or revocation unless specified otherwise by the authorized officer.

    (c) The authorized officer may include in the permit additional terms and conditions necessary to carry out the purposes of this part, including a bond where warranted.

    (d) For activities approved on lands administered by BLM or Reclamation, the authorized officer may provide permittees with DI Form 9007 (Paleontology Work Notice to Proceed), which contains site-specific guidance and stipulations for the permittee. The Notice to Proceed is part of the permit.

    (e) Persons who do not comply with the terms of a permit issued under this part may be subject to civil or criminal penalties.

    § 49.80 When and how may a permit be modified, suspended, revoked, or cancelled?

    (a) Modification. The authorized officer may modify a permit at the permittee's request; or when resource, safety, or other administrative or management reasons make permit modification appropriate; or when there is a violation of a term or condition of a permit issued under this part.

    (b) Suspension. The authorized officer may suspend for up to 45 days activities under the permit when resource, safety, or other administrative or management reasons make permit suspension appropriate, or when the permittee violates a term or condition of the permit. If the issue prompting suspension is not resolved within the 45-day period, the authorized officer may modify, revoke, or cancel the permit as appropriate to the specific circumstance.

    (c) Revocation. The authorized officer may revoke a permit when the permittee violates a term or condition of a permit, is found to be ineligible for a permit, or when the permittee fails to take the actions necessary for ending a suspension. The authorized officer will revoke a permit immediately if any person working under the authority of the permit is convicted of a criminal offense or assessed a civil penalty under this part.

    (d) Cancellation. The authorized officer may cancel a permit when the permittee requests cancellation, or when resource, safety, or other administrative or management reasons make permit cancellation appropriate. Cancellation of a permit does not imply fault on the part of the permittee.

    (e) Notification of modification, suspension, revocation, or cancellation.

    (1) The authorized officer will notify the permittee of the modification, suspension, revocation, or cancellation verbally or in writing. The authorized officer will, as soon as practicable, confirm a verbal notification with a written notification. A written notification will be served on the permittee by certified mail, return receipt requested, or another verifiable delivery method. The notification will explain the reason for the modification, suspension, revocation, or cancellation.

    (2) In the case of a suspension, the written notification will also include the conditions or actions necessary for ending the suspension; the anticipated duration of the suspension or schedule for resolution of the conditions that led to the suspension; and a statement that the permit will be modified, revoked, or cancelled if the conditions that led to the suspension are not resolved.

    (3) The notification will inform the permittee how to appeal the modification, revocation, suspension, or cancellation.

    (f) Immediately effective. A modification, suspension, revocation, or cancellation is in full force and effective immediately upon the permittee's receipt of the written notification of the modification, suspension, revocation, or cancellation.

    § 49.85 Can a permit-related decision be appealed?

    Permit applicants and permittees may appeal the denial of a permit application, and the modification, suspension, revocation, or cancellation of an issued permit.

    § 49.90 What is the process for appealing a permit-related decision?

    A permit-related decision may be appealed using processes defined by the issuing bureau.

    (a) Permit-related decisions by BLM may be appealed under the process explained at 43 CFR part 4, subpart E.

    (b) Permit-related decisions by FWS may be appealed under the process explained at 50 CFR 36.41(i).

    (c) Permit-related decisions by Reclamation may be appealed under the process used for other types of scientific research and collecting permits issued by Reclamation, which will be specified in writing in the permit-related decision.

    (d) Permit-related decisions by NPS may be appealed under the process used for other types of scientific research and collecting permits issued by NPS, which will be specified in writing in the permit-related decision.

    § 49.95 Has OMB approved the information collection provisions of this part?

    BLM, Reclamation, NPS, and FWS use the information collected under this part to manage, protect, and preserve paleontological resources on and from federal land. The Office of Management and Budget (OMB) reviewed and approved the information collection requirements contained in this part and assigned OMB Control No. 1093-XXXX. OMB has approved the information collection requirements for NPS Research Permit and Reporting System, which includes paleontological permits, and assigned OMB Control No. 1024-0236. A federal agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. You may send comments on the information collection requirements to the Office of the Secretary, Departmental Information Collection Clearance Lead, Department of the Interior, 1849 C Street NW., Mailstop MIB-7056, Washington, DC 20240.

    Subpart C—Management of Paleontological Resource Collections
    § 49.200 Where are collections deposited?

    (a) A collection from federal land made under a permit issued under this part will be deposited in the repository approved by the authorized officer under § 49.205.

    (b) The curation of paleontological resources collected from federal land before January 6, 2017 is governed by the terms and conditions of the original collection permit or agreement.

    § 49.205 How will bureaus approve a repository for a collection made under this part?

    (a) During the permit application process under subpart B of this part, the authorized officer will decide whether or not to approve a repository for the deposit of the collection that will be made under the permit, based on whether the:

    (1) Repository has facilities and staff that provide curatorial services as defined in this part;

    (2) Repository has a scope of collections statement or similar policy document that identifies paleontological resources as part of the repository's acquisition policy;

    (3) Repository has access to paleontological and curatorial staff trained and experienced in managing and preserving paleontological resource collections;

    (4) Repository's past and current performance meets applicable Departmental standards;

    (5) Deposit would meet the bureau's management goals for the collection; and

    (6) Repository will not release specific location data to the public except as consistent with § 49.25 or as provided in an agreement between the repository and the bureau.

    (b) When the authorized officer approves a repository for the collection, that repository will be listed in the approved permit, and will remain approved to curate the collection unless the authorized officer determines that any one of the considerations in paragraph (a) of this section is no longer met. In that case, the authorized officer will notify the repository in writing and provide a reasonable time for the repository to:

    (1) Correct the deficiency;

    (2) Move the collection to another approved repository; or

    (3) Take other actions the authorized officer requests.

    § 49.210 What is the process for depositing the collection at the approved repository?

    (a) The authorized officer will take the following actions before the collection is deposited at the approved repository:

    (1) Work with the permittee and approved repository, using scientific principles and expertise, to ensure that the collection is complete and that the content of the collection will further paleontological knowledge, public education, or management of paleontological resources;

    (2) Review any existing agreement between the bureau and the approved repository to determine if that agreement adequately addresses requirements that are specific to the collection; and

    (3) Develop a new agreement, if an adequate agreement does not exist between the repository and the bureau.

    (b) After the collection is deposited at the approved repository, the permittee or the repository will submit DI Form 9008 (Repository Receipt for Collections (Paleontology)), to the authorized officer. This form includes but is not limited to a certification by the permittee that the collection was deposited at the repository, and a certification by the approved repository's authorized official that the collection has been received.

    § 49.215 What terms and conditions must the agreement between the bureau and approved repository contain?

    (a) Agreements between the bureau and approved repository will contain the following information as deemed appropriate by the authorized officer:

    (1) Statement (updated as necessary) that identifies the collection or group of collections at the approved repository.

    (2) Statement that asserts federal ownership of the collection.

    (3) Statement of work to be performed by the approved repository.

    (4) Statement of the responsibilities of the bureau and of the approved repository for the long-term care of the collection.

    (5) Statement that collections are available for scientific and educational uses and that the specific location data may be shared consistent with § 49.25.

    (6) Description of any special procedures or restrictions for access to controlled property, consumptive use, reproductions, or curatorial services, including loans.

    (7) Statement describing the frequency, methods, and reporting process for inventories.

    (8) Statement that all exhibits, publications, and studies of paleontological resources will acknowledge the bureau that administers the collection.

    (9) Statement that copies of any publications or reports resulting from study of the collection will be made available to the bureau.

    (10) Statement describing how collection management records will be made available to the bureau that administers the collection.

    (11) Statement that employees of the repository will take no actions whereby any of the collection shall or may be encumbered, seized, taken, sold, attached, lost, stolen, destroyed or damaged.

    (12) Effective term of the agreement and procedures for modification, cancellation, suspension, extension, and termination of the agreement, including costs.

    (13) Additional terms and conditions as needed to manage the collection.

    (b) The agreement must be signed by an authorized representative of the approved repository and the authorized officer.

    § 49.220 What are the standards for managing the collections?

    (a) Each approved repository must:

    (1) Provide curatorial services consistent with § 49.5, and make the collections available for scientific research, public education, and management uses that further the Act, subject to § 49.25;

    (2) Ensure that use of the collections is consistent with Departmental and bureau museum management standards and the terms of the agreement between the bureau and the approved repository;

    (3) Obtain approval of the authorized officer on a case-by-case basis before conducting or allowing reproduction or consumptive use of part or all of the collection, unless another procedure for obtaining such approval is defined in the agreement between the bureau and the approved repository;

    (4) Obtain approval of the authorized officer and follow Departmental and bureau policy when moving part or all of the collection from museum to working collections; and

    (5) Conduct inventories consistent with Departmental and bureau museum management standards, and report the results to the bureau.

    (b) The approved repository may charge reasonable fees, consistent with applicable law, to persons who use, or institutions that borrow, part or all of a collection. Fees may cover costs for handling, packing, shipping, and insuring the collection, photocopying associated records, and other costs associated with that use.

    Subpart D—Prohibited Acts
    § 49.300 What acts are prohibited?

    A person may not:

    (a) Excavate, remove, damage, or otherwise alter or deface or attempt to excavate, remove, damage, or otherwise alter or deface any paleontological resource located on federal land unless this activity is conducted in accordance with the Act and this part.

    (b) Exchange, transport, export, receive, or offer to exchange, transport, export, or receive any paleontological resource if the person knew or should have known such resource to have been excavated or removed from federal land in violation of any provision, rule, regulation, law, ordinance, or permit in effect under federal law, including the Act and this part.

    (c) Sell or purchase or offer to sell or purchase any paleontological resource if the person knew or should have known such resource to have been excavated, removed, sold, purchased, exchanged, transported, or received from federal land.

    (d) Make or submit any false record, account, or label for, or any false identification of, any paleontological resource excavated or removed from federal land.

    Subpart E—Criminal Penalties
    § 49.400 What criminal penalties apply to violations of this part?

    (a) The penalties in this section do not apply with respect to paleontological resources in the lawful possession of a person on or before March 30, 2009.

    (b) Anyone who knowingly violates or counsels, procures, solicits, or employs another person to commit a prohibited act identified in subpart D of this part will, upon conviction, be assessed:

    (1) Fines in accordance with 18 U.S.C., or imprisonment of up to 5 years, or both, if the sum of the commercial and scientific value of the paleontological resources involved and the cost of response, restoration, and repair of the resources and sites involved is more than $500; or

    (2) Fines in accordance with 18 U.S.C., or imprisonment of up to 2 years, or both, if the sum of the commercial and scientific value of the paleontological resources involved and the cost of response, restoration, and repair of the resources and sites involved is $500 or less.

    (c) Commercial and scientific values and the cost of response, restoration, and repair are determined under subpart G of this part.

    (d) In the case of a second or subsequent violation by the same person, the amount of the penalties assessed under this subpart may be doubled.

    (e) To the extent that a prohibited act under this subpart involves a violation of other applicable law, the violator may be subject to other criminal penalties.

    Subpart F—Civil Penalties
    § 49.500 When can the authorized officer assess a civil penalty?

    (a) The authorized officer may assess a civil penalty upon any person who violates the provisions of this part or a permit issued under this part, in accordance with the process explained in this subpart.

    (b) For purposes of this subpart, each violation is considered a separate offense.

    § 49.505 How does the authorized officer serve a notice of violation?

    The authorized officer may serve a notice of violation in person, by certified mail, return receipt requested, or other verifiable delivery method upon a person that the authorized officer believes has committed a violation of this part.

    § 49.510 What is included in the notice of violation?

    A notice of violation will include:

    (a) A concise statement of the facts believed to show a violation has occurred;

    (b) A citation of the provisions of this part or a permit issued under this part alleged to have been violated;

    (c) The amount of civil penalty proposed;

    (d) Notification of the right to await the final assessment of civil penalty or to object to the notice of violation and proposed civil penalty, and the right to file a request for hearing of the final assessment of civil penalty. The notice shall also inform the person of the right to seek judicial review upon the issuance of the final administrative order under this subpart; and

    (e) The name and contact information of the authorized officer who is serving the notice of violation.

    § 49.515 How is an objection to a notice of violation and proposed civil penalty made and resolved?

    (a) Filing Objection. A person served with a notice of violation and proposed civil penalty may file a written objection with the authorized officer within 30 days of the date the notice was received.

    (b) Content of Objection. The objection must:

    (1) Clearly and concisely state the reasons why the person believes that the person did not commit a violation and/or that the proposed civil penalty should be reduced or eliminated;

    (2) Be accompanied by any documentation supporting the person's reasons for objecting; and

    (3) Be signed by the person or the person's authorized representative.

    (c) Issuing Determination. The authorized officer will issue a determination, served on the person by a verifiable delivery method, sustaining or denying the objection to the notice of violation and/or proposed civil penalty based on the information contained in the written objection or furnished to the authorized officer upon further request.

    (d) Content of Determination. In the determination, the authorized officer will:

    (1) Sustain the objection and revoke the notice of violation and proposed civil penalty, if the authorized officer determines that the information warrants a conclusion that no violation occurred;

    (2) Deny the objection, if the authorized officer determines that the information warrants a conclusion that a violation occurred and that the proposed civil penalty is not too high; or

    (3) Deny the objection in part and sustain it in part, if the authorized officer determines that the information warrants a conclusion that a violation has occurred, but the amount of the civil penalty too high.

    § 49.520 When will the authorized officer issue a final assessment of civil penalty?

    The authorized officer will issue a final assessment of civil penalty:

    (a) If the person served with a notice of violation and proposed civil penalty does not file a timely objection; or

    (b) If the person does file a timely objection that is denied in whole or in part under § 49.515.

    § 49.525 How will the authorized officer calculate the amount of a proposed and final assessment of civil penalty?

    (a) The authorized officer will determine the amount of the civil penalty by taking into account:

    (1) The scientific or commercial value, whichever is greater as determined by the authorized officer, of the paleontological resource involved;

    (2) The cost of response, restoration, and repair of the paleontological resource and the paleontological site involved;

    (3) Other factors that the authorized officer considers relevant, such as prior violations or warnings or evidence of malicious intent;

    (4) Information provided under § 49.515 or furnished to the authorized officer upon his or her request; and

    (5) Mitigating factors, which may include return of paleontological resources and whether the person will provide information that may assist the bureau.

    (b) Scientific and commercial values and the cost of response, restoration, and repair are determined under subpart G of this part.

    (c) In the case of any subsequent violation by the same person, the authorized officer may calculate a penalty in accordance with paragraph (a) of this section and double it for that subsequent violation.

    (d) The maximum penalty assessed under paragraph (c) of this section for any one violation may not exceed the sum of:

    (1) Two times the cost of response, restoration, and repair of paleontological resources and paleontological site damage; plus

    (2) Two times the scientific or commercial value, whichever is greater as determined by the authorized officer, of the paleontological resources and paleontological sites destroyed or not recovered.

    (e) The authorized officer will use subpart G of this part to determine scientific or commercial values and the cost of response, restoration, and repair.

    (f) The final assessment may be equal to, less than, or more than the proposed civil penalty.

    § 49.530 How will the authorized officer issue the final assessment of civil penalty?

    (a) The authorized officer will serve the final assessment of civil penalty by certified mail, return receipt requested, or other verifiable delivery method.

    (b) The final assessment of civil penalty will include:

    (1) The facts and conclusions that are the bases for the authorized officer's determination that a violation occurred;

    (2) The basis for the authorized officer's determination of the amount of civil penalty assessed;

    (3) Notification of the rights to accept the final assessment of civil penalty or, alternatively, to file a request for hearing on the final assessment with a DCHD administrative law judge under § 49.535(a)(2).

    (4) A statement that the civil penalty must be paid within 30 days of the date that the final assessment of civil penalty is received, unless the person served with the final assessment of civil penalty files a request for hearing in accordance with this subpart and the procedures specified in the notice.

    § 49.535 What are the options and timeframe to respond to the final assessment of civil penalty?

    (a) Response Options. A person who receives a final assessment of civil penalty may, within 30 days of the date the assessment is received, do one of the following:

    (1) Accept the final assessment, either in writing, by payment of the proposed penalty, or by failing to timely file a request for hearing under paragraph (a)(2) of this section; or

    (2) File a request for a hearing on the final assessment before a DCHD administrative law judge via certified mail, return receipt requested, or other verifiable delivery method with the Departmental Cases Hearings Division, Office of Hearings and Appeals, Department of the Interior, 351 S. West Temple, Room 6.300, Salt Lake City, Utah 84101.

    (b) Content of Request for Hearing. A request for hearing must:

    (1) Be signed by the person who receives the final assessment of civil penalty or a representative qualified to represent that person under 43 CFR 1.3;

    (2) Identify the final assessment of civil penalty being challenged;

    (3) State clearly and concisely the reasons for challenging the final assessment, including the reasons why the person believes that he or she did not commit a violation and/or that the proposed civil penalty should be reduced or eliminated;

    (4) State the relief sought and the basis for that relief;

    (5) Be accompanied by the following documentation:

    (i) A copy of the notice of violation and proposed civil penalty;

    (ii) A copy of any objection and supporting documentation filed under § 49.515(a); and

    (iii) A copy of the final assessment of civil penalty; and

    (6) Contain a certificate acknowledging service of the request for hearing with the documentation listed in paragraph (b)(5) of this section on the Office of the Solicitor at the address identified in paragraph (c) of this section.

    (c) Service. The person filing a request for hearing must simultaneously send a copy of the request and the accompanying documentation to the Office of the Solicitor, Department of the Interior, 1849 C Street NW., Washington, DC 20240.

    (d) Dismissal of Hearing Request.

    (1) If the request for hearing is not received by DCHD within 30 days of the date of receipt of the final assessment, the request for hearing will not be considered and the hearing will be dismissed.

    (2) The request for hearing may be dismissed for failing to meet any of the requirements of paragraph (c) of this section.

    (e) Waiver of Hearing Right. A person who accepts the final assessment under paragraph (a)(1) of this section waives the right to a hearing.

    § 49.540 What procedures govern the DCHD hearing process initiated by a request for hearing on the final assessment?

    (a) Upon receipt of a request for hearing under § 49.535(a)(2), DCHD will assign an administrative law judge to preside over the hearing process and issue a decision. DCHD will promptly notify the parties of the assignment. Thereafter, all pleadings, papers, and other documents in the hearing process must be filed directly with that judge, with copies served on the other party.

    (b) An attorney from the Office of the Solicitor, DOI, will represent the bureau. The attorney will enter his or her appearance on behalf of the bureau and file all motions and correspondence between the bureau and the person who filed the request for hearing. Subsequently, any service upon the bureau must be made to the attorney.

    (c) To the extent not inconsistent with the provisions of this subpart, the rules in 43 CFR part 4, subparts A and B, and in 43 CFR 4.422 through 4.437 will apply to the hearing process under this subpart.

    (d) The hearing will be conducted in accordance with 5 U.S.C. 554. The bureau will have the burden of proving by a preponderance of the evidence the fact of the violation and the basis for the amount of the civil penalty. Upon completion of the hearing and incorporation of the hearing transcript in the record, the administrative law judge will issue a written decision in accordance with § 49.545 and serve it on the parties.

    § 49.545 What will be included in the administrative law judge's decision?

    (a) The administrative law judge's written decision will set forth:

    (1) The findings of fact and conclusions of law;

    (2) The reasons and bases for the findings; and

    (3) An assessment of the penalty, if any.

    (b) The amount of any penalty assessed will:

    (1) Be determined in accordance with this subpart; and

    (2) Not be limited by the amount assessed by the authorized officer under § 49.525 or by any offer of mitigation or remission previously made.

    (c) The administrative law judge's decision will become effective 31 days from the date of the written decision unless a timely appeal of the decision is filed under § 49.550.

    § 49.550 How can the administrative law judge's decision be appealed?

    (a) Filing appeal. Within 30 days of the date of the administrative law judge's decision, either party to the hearing process (the person who filed the request for hearing or the bureau) may appeal the administrative law judge's decision to the OHA Director by filing a notice of appeal via certified mail, return receipt requested, or other verifiable delivery method to the Director, Office of Hearings and Appeals, Department of the Interior, 801 North Quincy Street, Arlington, Virginia 22203.

    (b) Content of notice of appeal. The notice of appeal must:

    (1) Be signed by the person filing the appeal or a representative qualified to represent that person under 43 CFR 1.3;

    (2) Identify the administrative law judge's decision being appealed, including the DCHD docket number;

    (3) State clearly and concisely the reasons for challenging the decision, including:

    (i) The reasons why the person believes that he or she did not commit a violation and/or that the proposed civil penalty should be reduced or eliminated; and

    (ii) A concise but complete statement of the facts relied upon to challenge the decision;

    (4) State the relief sought and the basis for that relief;

    (5) Be accompanied by the following documentation:

    (i) A copy of the notice of violation and proposed civil penalty;

    (ii) A copy of the final assessment of civil penalty; and

    (iii) A copy of the administrative law judge's decision; and

    (6) Contain a certificate acknowledging service of the notice with the documentation listed in paragraph (b)(5) of this section on the other party to the hearing process at the address listed on the administrative law judge's decision.

    (c) Service. The person filing a notice of appeal must simultaneously send a copy of the notice and the accompanying documentation to each of the following entities at the address listed on the administrative law judge's decision:

    (1) The other party to the hearing process; and

    (2) DCHD.

    (d) Dismissal of appeal. If the notice of appeal is not received by the OHA Director within 30 days of the date of the administrative law judge's decision, the notice of appeal will not be considered and the appeal will be dismissed.

    (e) Stay of payment deadline. If the administrative law judge's decision is appealed to the OHA Director, the deadline for payment of the penalty will be stayed pending resolution of the appeal.

    § 49.555 What procedures govern an appeal of an administrative law judge's decision to the OHA Director?

    (a) Upon receipt of a notice of appeal filed under § 49.550(a), the OHA Director will appoint an Ad Hoc Board to consider the appeal and issue a decision thereon.

    (b) To the extent not inconsistent with the provisions of this subpart, the rules in 43 CFR part 4, subparts A, B, and G, will apply to the appeal proceedings under § 49.550.

    § 49.560 When must the civil penalty be paid?

    A person assessed a civil penalty has 30 days from the date of the final administrative decision in which to make full payment of the final assessment of the civil penalty, or agree to a payment schedule. For the purposes of this subpart, the final administrative decision is:

    (a) The final assessment of civil penalty if the person served with the final assessment does not file a timely request for hearing under § 49.535(a)(2).

    (b) The administrative law judge's decision on the request for hearing if a timely appeal to the OHA Director is not filed under § 49.550(a); or

    (c) The decision of the Ad Hoc Board of Appeals appointed by the OHA Director if a timely appeal of the administrative law judge's decision was filed under § 49.550(a).

    § 49.565 When may a person assessed a civil penalty seek judicial review?

    A person may file a petition for judicial review in the United States District Court for the District of Columbia or in the district where the violation occurred, within 30 days of the decision of the Ad Hoc Board of Appeals appointed by the OHA Director. For purposes of the Act and this part, that decision will be considered a final administrative order. The deadline for payment of the civil penalty will be stayed pending resolution of the judicial review.

    § 49.570 What happens if a civil penalty is not paid on time?

    (a) If the civil penalty is not paid by the required deadlines, the United States may take action to collect the penalty assessed plus interest, attorneys' fees, and collection costs.

    (b) Failure to pay a civil penalty assessed under this subpart is a debt to the United States.

    (c) Failure to pay a civil penalty assessed under this subpart may prevent a person from obtaining a future authorization for activities related to paleontological resources on federal land as well as receiving other future federal funding or assistance.

    (d) By assessing a civil penalty under this subpart, the United States does not waive the right to pursue other legal or administrative remedies.

    § 49.575 How will collected civil penalties be used?

    Civil penalties collected under this subpart are available without further appropriation to the bureau that administers the federal land or paleontological resources that were the subject of the violation, and may be used only to:

    (a) Protect, restore, or repair the paleontological resources and sites that were the subject of the action, and to protect, monitor, and study the resources and sites;

    (b) Provide educational materials to the public about paleontological resources, paleontological sites, or resource protection; or

    (c) Pay rewards under subpart H of this part.

    Subpart G—Determining Values and the Costs of Response, Restoration, and Repair
    § 49.600 What is scientific value?

    The scientific value of a paleontological resource is the value of the scientific and educational information associated with the resource. It is determined by the authorized officer based upon the estimated costs of obtaining the scientific and educational information from the disturbed paleontological site if the prohibited act had not occurred. These costs may include, but are not limited to:

    (a) Research design development;

    (b) Fieldwork;

    (c) Laboratory analysis;

    (d) Curation;

    (e) Reports or educational materials; and

    (f) Lost visitor services or experience.

    § 49.605 What is commercial value?

    The commercial value of a paleontological resource is the monetary value of that resource, and is determined by the authorized officer using comparable sales information, appraisals, market value, or other information for comparable resources. If there is no comparable sales information, appraisal, market value, or other information, the authorized officer will determine the commercial value of the paleontological resource using other methods such as scientific value or the cost of response, restoration, and repair.

    § 49.610 What is the cost of response, restoration, and repair?

    The cost of response, restoration, and repair of a paleontological resource or paleontological site is determined by the authorized officer, and includes but is not limited to the costs of:

    (a) Law enforcement investigations;

    (b) Immediate stabilization;

    (c) Longer term response, restoration, and repair, including but not limited to reconstructing or stabilizing the resource or site, salvaging the resource or site, erecting physical barriers or other protective devices or signs to protect the site, and monitoring the site;

    (d) Fossil preparation, stabilization, and conservation;

    (e) Storage and curation of the resources; and

    (f) Reporting upon the above activities.

    Subpart H—Forfeiture and Rewards
    § 49.700 Will a violation lead to forfeiture of a paleontological resource?

    (a) A paleontological resource with respect to which a violation under this part occurred is stolen federal property and is subject to forfeiture.

    (b) The bureau may either deposit forfeited resources into an approved repository, or transfer or assign administration of the forfeited resources to federal or non-federal institutions to be used for scientific or educational purposes.

    § 49.705 What rewards may bureaus pay to those who assisted in enforcing this part?

    (a) The bureau may pay a reward to the person or persons furnishing information leading to a finding of civil violation or criminal conviction.

    (b) The reward may be no more than half of the penalties collected. If several persons provide the information, the bureau may divide the reward among them.

    (c) The funds for the reward may come from the penalties collected or from appropriated funds.

    (d) An officer or employee of federal, state, or local government who furnishes information or renders service in the performance of official duties is not eligible for a reward under this section.

    Subpart I—Casual Collection of Common Invertebrate or Plant Paleontological Resources on Bureau of Land Management and Bureau of Reclamation Administered Lands
    § 49.800 Is casual collecting allowed on lands administered by NPS or FWS?

    Casual collecting of paleontological resources is not allowed on lands administered by NPS or FWS. On those lands, collecting any paleontological resource must be conducted in accordance with a permit as described in subpart B of this part.

    § 49.805 Is casual collecting allowed on lands administered by BLM or Reclamation?

    (a) Casual collecting of common invertebrate or plant paleontological resources is allowed on lands administered by BLM in accordance with this subpart, except:

    (1) On any BLM-administered land that is closed to casual collecting in accordance with this part, other statutes, executive orders, regulations, or land use plans; or

    (2) On BLM-administered national monuments, national conservation areas, outstanding natural areas, forest reserves, or cooperative management and protection areas, except where allowed by other statutes, executive orders, regulations, or land use plans.

    (b) Casual collecting of common invertebrate or plant paleontological resources is allowed on land administered by Reclamation only in locations where Reclamation has established a special use area for casual collecting using processes defined in 43 CFR part 423, Public Conduct on Bureau of Reclamation Facilities, Lands, and Waterbodies. Casual collecting is prohibited on Reclamation project land that is administered by NPS or FWS.

    (c) Persons interested in casual collecting are responsible for learning which bureau manages the land where they would like to collect paleontological resources, learning if the land is open to casual collecting, learning what may be collected in an area, and obtaining information about the managing bureau's casual collecting procedures.

    § 49.810 What is casual collecting?

    (a) Casual collecting means the collecting without a permit of a reasonable amount of common invertebrate or plant paleontological resources for non-commercial personal use, either by surface collection or the use of non-powered hand tools, resulting in only negligible disturbance to the Earth's surface or paleontological or other resources.

    (1) Common invertebrate or plant paleontological resources are invertebrate or plant fossils that have been established as having ordinary occurrence and wide-spread distribution. Not all invertebrate or plant paleontological resources are common.

    (2) Reasonable amount means a maximum of 25 pounds per day per person, not to exceed 100 pounds per year per person. Pooling of individuals' daily amounts to obtain pieces in excess of 25 pounds is not allowed.

    (3) Negligible disturbance means little or no change to the surface of the land and minimal or no effect to natural and cultural resources, specifically:

    (i) In no circumstance may the surface disturbance exceed 1 square yard (3 feet × 3 feet) per individual collector;

    (ii) For multiple collectors, each square yard of surface disturbance must be separated by at least 10 feet;

    (iii) All areas of surface disturbance must be backfilled with the material that was removed so as to render the disturbance substantially unnoticeable to the casual observer.

    (4) Non-commercial personal use means a use other than for purchase, sale, financial gain, or research.

    (5) Non-powered hand tool means a small tool, such as a geologic hammer, trowel, or sieve, that does not use or is not operated by a motor, engine, or other mechanized power source, and that can be hand-carried by one person.

    (b) In order to preserve paleontological or other resources, or for other management reasons, the authorized officer may establish limitations on casual collecting, including but not limited to reducing the weight of common invertebrate or plant paleontological resources below the amount specified in this subpart; limiting the depth of disturbance; establishing site-specific dates or locations for collecting; or establishing what is common in a specific area.

    (c) Collecting common invertebrate or plant paleontological resources inconsistent with any of the limitations in paragraphs (a) or (b) of this section is not casual collecting, and must be immediately discontinued.

    (d) Collecting common invertebrate or plant paleontological resources inconsistent with this subpart is a prohibited act and may result in civil or criminal penalties.

    Subtitle B—Regulations Relating to Public Lands Subchapter A—General Management
    PART 8360—VISITOR SERVICES 2. Revise the authority citation for part 8360 to read as follows: Authority:

    16 U.S.C. 470aaa et seq., 670 et seq., 877 et seq., 1241 et seq., and 1281c; and 43 U.S.C. 315a and 1701 et seq.

    3. Revise § 8360.0-3 to read as follows:
    § 8365.0-3 Authority.

    The regulations of this part are issued under the provisions of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.), the Sikes Act (16 U.S.C. 670g), the Taylor Grazing Act (43 U.S.C. 315a), the Wild and Scenic Rivers Act (16 U.S.C. 1281c), the Act of September 18, 1960, as amended, (16 U.S.C. 877 et seq.), the National Trails System Act (16 U.S.C. 1241 et seq.), and the Paleontological Resources Preservation Act (16 U.S.C. 470aaa et seq.).

    4. Amend § 8365.1-5 by revising paragraphs (b)(2), (b)(4), and (b)(5) and adding paragraph (b)(6) to read as follows:
    § 8365.1-5 Property and resources.

    (b) * * *

    (2) Nonrenewable resources such as rocks, mineral specimens, and semiprecious gemstones;

    (4) Mineral materials as provided under subpart 3604;

    (5) Forest products for use in campfires on the public lands. Other collection of forest products shall be in accordance with the provisions of Group 5500 of this title; and

    (6) Common invertebrate and plant paleontological resources as provided under subpart 49 of this title.

    Title 50: Wildlife and Fisheries
    PART 27—PROHIBITED ACTS 5. The authority citation for part 27 continues to read as follows: Authority:

    5 U.S.C. 685, 752, 690d; 16 U.S.C. 460k, 460l-6d, 664, 668dd, 685, 690d, 715i, 715s, 725; 43 U.S.C. 315a.

    6. Amend § 27.63 by adding paragraph (c) to read as follows:
    § 27.63 Search for and removal of other valued objects.

    (c) Permits are required for the collection of paleontological resources on national wildlife refuges in accordance with the provisions of 43 CFR part 49.

    Elizabeth Klein, Principal Deputy Assistant Secretary, Policy Management and Budget.
    [FR Doc. 2016-29244 Filed 12-6-16; 8:45 am] BILLING CODE 4333-15-P; 4310-84-P; 4312-52-P; 4332-90-P
    81 235 Wednesday, December 7, 2016 Notices DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2016-0042] National Advisory Committee on Microbiological Criteria for Foods AGENCY:

    Food Safety and Inspection Service, USDA.

    ACTION:

    Notice soliciting nominations for membership on the National Advisory Committee on Microbiological Criteria for Foods.

    SUMMARY:

    The U.S. Department of Agriculture (USDA) is soliciting nominations for membership on the National Advisory Committee on Microbiological Criteria for Foods (NACMCF). There are 15 vacancies. Advisory Committee members serve a two-year term, renewable for two consecutive terms.

    USDA is seeking nominees with scientific expertise in the fields of microbiology, epidemiology, food technology (food, clinical, and predictive), toxicology, risk assessment, infectious disease, biostatistics, and other related sciences. USDA is seeking nominations for NACMCF from persons in academia, industry, State governments, and the Federal Government, as well as all other interested persons with the required expertise. Please note that federally registered lobbyists cannot be considered for USDA advisory committee membership.

    USDA is also seeking nominations for one individual affiliated with a consumer group to serve on the NACMCF. This member will serve as a representative member to provide a consumer viewpoint to the committee. This member will not be required to have a scientific background and will not be subject to a conflict of interest review.

    Members can serve on only one USDA advisory committee at a time. All nominees will undergo a USDA background check.

    With the exception of the consumer representative member, any member who is not a Federal government employee will be appointed to serve as a non-compensated special government employee (SGE). SGEs will be subject to appropriate conflict of interest statutes and standards of ethical conduct.

    Nominations for membership on the NACMCF must be addressed to the Secretary of USDA and accompanied by a cover letter addressing the nomination, a resume or curriculum vitae, and a completed USDA Advisory Committee Membership Background Information form AD-755 available online at: https://www.ocio.usda.gov/document/ad-755. A person may self-nominate, or a nomination can be made on behalf of someone else. The resume or curriculum vitae must be limited to five one-sided pages and should include educational background, expertise, and a list of select publications, if available, that confirm the nominee's expertise for this work. For submissions received that are more than five one-sided pages in length, only the first five pages will be reviewed.

    DATES:

    All materials must be received by January 6, 2017.

    ADDRESSES:

    Nomination packages should be sent via email to [email protected] and mailed to: Tom Vilsack, Secretary, U.S. Department of Agriculture, 1400 Independence Avenue SW., Washington, DC 20250, Attn: FSIS\Office of Public Health Science\National Advisory Committee on Microbiological Criteria for Foods (Karen Thomas-Sharp).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Karen Thomas-Sharp, Advisory Committee Specialist, by telephone at 202-690-6620 or by email [email protected]

    The Food Safety and Inspection Service (FSIS) invites interested persons to submit comments on this notice. Comments may be submitted by either of the following methods: Federal eRulemaking Portal: This Web site (http://www.regulations.gov/) provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments. Follow the online instructions at that site for submitting comments. Mail, including CD-ROMS and hand or courier delivered items: Send to Docket Clerk, USDA, FSIS Docket Room, Patriots Plaza 3, 355 E Street SW., Room 8-163A, Washington, DC 20250-3700 between 8:30 a.m. and 4:30 p.m., Monday through Friday.

    Instructions: All items submitted by mail or email must include the Agency name and docket number FSIS-2016-0042. Comments received in response to this docket will be made available for public inspection and posted without change, including any personal information, to http://www.regulations.gov/.

    Docket: For access to background documents or comments received, go to the FSIS Docket Room at Patriots Plaza 3, 355 E. Street SW., Room 8-164, Washington, DC 20250-3700 between 8:30 a.m. and 4:30 p.m., Monday through Friday. All comments submitted in response to this notice, as well as background information used by FSIS in developing this document, will be available for public inspection in the FSIS Docket Room at the address listed above between 8:30 a.m. and 4:30 p.m., Monday through Friday.

    SUPPLEMENTARY INFORMATION: Background

    The NACMCF was established in March 1988, in response to a recommendation in a 1985 report of the National Academy of Sciences Committee on Food Protection, Subcommittee on Microbiological Criteria, “An Evaluation of the Role of Microbiological Criteria for Foods.” The current charter for the NACMCF and other information about the Committee are available to the public for viewing on the FSIS Web site at: http://www.fsis.usda.gov/nacmcf.

    The Committee provides scientific advice and recommendations to the Secretary of Agriculture and the Secretary of Health and Human Services concerning the development of microbiological criteria by which the safety and wholesomeness of food can be assessed. For example, one of the most recent efforts of the Committee is to provide the best scientific information available on Shiga Toxin producing E. coli, including providing recommendations on optimal detection and identification methodologies.

    Appointments to the Committee will be made by the Secretary of Agriculture after consultation with the Secretary of Health and Human Services to ensure that recommendations made by the Committee take into account the needs of the diverse groups served by the Department.

    The full Committee expects to meet at least once a year by teleconference or in-person, and the meetings will be announced in the Federal Register. The subcommittees will meet as deemed necessary by the chairperson through working group meetings in an open public forum. Subcommittees also may meet through teleconference or by computer-based conferencing (Webinars). Subcommittees may invite technical experts to present information for consideration by the subcommittee. The subcommittee meetings will not be announced in the Federal Register. FSIS will announce the agenda and subcommittee working group meetings through the Constituent Update, available online at: http://www.fsis.usda.gov/cu.

    NACMCF holds subcommittee meetings in order to accomplish the work of NACMCF; all subcommittee work is reviewed and approved during a public meeting of the full Committee, as announced in the Federal Register. All data and records available to the full Committee are expected to be available to the public when the full Committee reviews and approves the work of the subcommittee. Advisory Committee members are expected to attend all in-person meetings during the two-year term to ensure the smooth functioning of the advisory committee. However, on rare occasions, attendance through teleconferencing may be permitted.

    Members must be prepared to work outside of scheduled Committee and subcommittee meetings and may be required to assist in document preparation. Committee members serve on a voluntary basis; however, travel expenses and per diem reimbursement are available.

    Regarding Nominees Who Are Selected

    All SGE and Federal government employee nominees who are selected must complete the Office of Government Ethics (OGE) 450 Confidential Financial Disclosure Report before rendering any advice or before their first meeting. With the exception of the consumer representative committee member, all committee members will be reviewed pursuant to 18 U.S.C. 208 for conflicts of interest relating to specific NACMCF work charges, and financial disclosure updates will be required annually. Members subject to financial disclosure must report any changes in financial holdings requiring additional disclosure. OGE 450 forms are available on-line at: https://www2.oge.gov/web/oge.nsf/Confidential%20Financial%20Disclosure.

    Additional Public Notification

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

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

    USDA Non-Discrimination Statement

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

    How To File a Complaint of Discrimination

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

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

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

    Fax: (202) 690-7442.

    Email: [email protected]

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

    Done at Washington, DC: December 1, 2016. Alfred V. Almanza, Acting Administrator.
    [FR Doc. 2016-29271 Filed 12-6-16; 8:45 am] BILLING CODE 3410-DM-P
    DEPARTMENT OF AGRICULTURE Forest Service White River National Forest; Eagle County, CO El Jebel Administrative Sites, Upper and Lower Parcels, Conveyance Project AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of intent to prepare an environmental impact statement.

    SUMMARY:

    The Forest Service is proposing to convey two adjacent parcels of land, and the associated water rights and mineral estate in El Jebel, Colorado pursuant to the Forest Service Facility Realignment and Enhancement Act of 2005 Public Law 109-54; 16 U.S.C. 580d note, as amended by Public Law 112-74, Title IV, Sec. 421. The property is proposed to be sold as two parcels. The Lower Parcel is approximately 40 acres and is predominantly riparian in nature and the Upper Parcel is approximately 30 acres and consists of three residences, one mobile home pad, horse pastures, and outdoor equipment storage. A conservation easement or deed restriction intended to protect the wetlands, floodplains, aquatic, botanical, wildlife resources, and future public access may be placed on the Lower Parcel at the time of sale. The property may be sold directly to an identified purchaser or may be sold under competitive bidding procedures. The method of sale will be determined at a later date. Conveying the parcel will help the Forest Service to streamline its administrative sites and create a more efficient pattern of land ownership in Eagle County. The proposal includes a project-specific forest plan amendment.

    DATES:

    Comments concerning the scope of the analysis must be received by January 23, 2017. The draft environmental impact statement (EIS) is expected to be available for public review in summer 2017 and the final EIS is expected in winter 2018.

    ADDRESSES:

    Send written comments to Scott Fitzwilliams, Forest Supervisor c/o Carole Huey, White River National Forest, 900 Grand Avenue, Glenwood Springs, CO 81601. Comments may also be submitted via https://cara.ecosystem-management.org/Public//CommentInput?Project=50663, email to [email protected], or via facsimile to (970) 945-3266.

    FOR FURTHER INFORMATION CONTACT:

    Additional information related to the project can be obtained from the project Web page: http://www.fs.fed.us/nepa/fs-usda-pop.php/?project=50663 or Carole Huey, Lands and Conveyance Program Manager, White River National Forest, 900 Grand Avenue, Glenwood Springs, CO 81601. Ms. Huey can be reached by phone at (970) 945-3219 or by email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.

    Responsible Official: The Responsible Official is James S. Bedwell, Director of Recreation, Lands, and Minerals for the Rocky Mountain Region.

    Nature of Decision To Be Made: Based on the analysis that will be documented in the forthcoming EIS, the Responsible Official will decide whether or not to implement, in whole or in part, the Proposed Action or another alternative that may be developed by the Forest Service as a result of scoping.

    Scoping Process: This notice of intent initiates the scoping process, which guides the development of the EIS. The Forest Service is soliciting comments from Federal, State and local agencies and other individuals or organizations that may be interested in or affected by implementation of the proposed project. Public questions and comments regarding this proposal are an integral part of this environmental analysis process. Input provided by interested and/or affected individuals, organizations and governmental agencies will be used to identify alternative actions and resource issues that will be analyzed in the EIS.

    Comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions. A public open house meeting will discuss the proposed action on December 8, 2016 from 5:30-7:00 p.m., (Mountain Standard Time) at the Eagle County Community Center located at 0020 Eagle County Drive, El Jebel, CO 81623. The meeting will be held in the Mt. Sopris Room.

    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 commenters would not have standing to file an objection. Those who submit comments will have eligibility to file an objection following the procedure laid out in 36 CFR 218.8. There will be an additional opportunity to comment when the Notice of Availability of the Draft EIS is published in the Federal Register.

    For objection eligibility, each individual or representative from each entity submitting written comments must either sign the comment or verify identity upon request. Individuals and organizations wishing to be eligible to object must meet the information requirements in 36 CFR 218.5.

    Dated: December 1, 2016. James S. Bedwell, Director of Recreation, Lands and Minerals, Rocky Mountain Region (R-2), USDA Forest Service.
    [FR Doc. 2016-29305 Filed 12-6-16; 8:45 am] BILLING CODE 3410-15-P
    DEPARTMENT OF AGRICULTURE Rural Utilities Service Announcement of Grant Application Deadlines and Funding Levels AGENCY:

    Rural Utilities Service, USDA.

    ACTION:

    Notice of Solicitation of Applications (NOSA), Household Water Well System Grant Program.

    SUMMARY:

    The Rural Utilities Service (RUS) announces its Household Water Well System (HWWS) Grant Program application window for fiscal year (FY) 2017. RUS will make grants to qualified private non-profit organizations to establish lending programs for homeowners to borrow up to $11,000 to construct or repair household water wells for an existing home. The HWWS Grant Program is authorized under 7 U.S.C. 1926e. Regulations may be found at 7 CFR part 1776.

    This year RUS will assign administrative discretion points to applications that:

    1. Direct loans to rural areas where according to the American Community Survey data by census tracts show that at least 20 percent of the population is living in poverty.

    2. Direct loans to areas which lack running water, flush toilets, and modern sewage disposal systems, and areas which have open sewers and high rates of disease caused by poor sanitation, in particular, colonias or Substantially Underserved Trust Areas.

    3. Direct loans to rural areas impacted by severe drought.

    DATES:

    The deadline for completed applications for a HWWS grant is February 6, 2017. Applications in either paper or electronic format must be postmarked or time-stamped electronically on or before the deadline. Late applications will be ineligible for grant consideration.

    ADDRESSES:

    Submit applications to the following addresses:

    1. Electronic applications: http://www.grants.gov/. Submit electronic applications through Grants.gov, following the instructions on that Web site.

    2. Paper applications: Water Programs Division, Rural Development, Rural Utilities Service, STOP: 1570, Room 2234-S, 1400 Independence Avenue SW., Washington, DC 20250-1570.

    Obtain application guides and materials for the HWWS Grant Program electronically or in paper format from the following addresses:

    1. Electronic copies: http://www.rd.usda.gov/programs-services/household-water-well-system-grants;

    2. Paper copies: Water Programs Division, Rural Utilities Service, STOP: 1570, Room 2234-S, 1400 Independence Avenue SW., Washington, DC 20250-1570 or call (202) 720-9583.

    FOR FURTHER INFORMATION CONTACT:

    Derek Jones, Community Programs Specialist, Water and Environmental Programs, Rural Utilities Service, Rural Development, U.S. Department of Agriculture, STOP 1570, Room 2234-S, 1400 Independence Avenue SW., Washington, DC 20250-1570;. Telephone: (202) 720-9640, fax: (202) 690-0649, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Overview

    Federal Agency: Rural Utilities Service, USDA.

    Funding Opportunity Title: HWWS Grant Program.

    Announcement Type: Grant—Solicitation of Applications.

    Catalog of Federal Domestic Assistance (CFDA) Number: 10.862.

    Due Date for Applications: February 6, 2017.

    Items in Supplementary Information

    I. Funding Opportunity: Description of the HWWS Grant Program.

    II. Award Information: To be determined.

    III. Eligibility Information: Who is eligible, what kinds of projects are eligible, what criteria determine basic eligibility.

    IV. Application and Submission Information: Where to get application materials, what constitutes a completed application, how and where to submit applications, deadlines, items that are eligible.

    V. Application Review Information: Considerations and preferences, scoring criteria, review standards, selection information.

    VI. Award Administration Information: Award notice information, award recipient reporting requirements.

    VII. Agency Contacts: Web site, phone, fax, email, contact name.

    VIII. Non-discrimination Statement: USDA non-discrimination statement, how to file a complaint, persons with disabilities.

    I. Funding Opportunity A. Program Description

    The HWWS Grant Program has been established to help individuals with low to moderate incomes finance the costs of household water wells that they own or will own. The HWWS Grant Program is authorized under Section 306E of the Consolidated Farm and Rural Development Act (CONACT), 7 U.S.C. 1926e. The CONACT authorizes RUS to make grants to qualified private non-profit organizations to establish lending programs for household water wells.

    As the grant recipients, private non-profit organizations will receive HWWS grants to establish lending programs that will provide water well loans to individuals. The individuals, as loan recipients, may use the loans to construct, refurbish, and service their household well systems. A loan may not exceed $11,000 and will have a term up to 20 years at a one percent annual interest rate.

    B. Background

    RUS supports the sound development of rural communities and the growth of our economy without endangering the environment. RUS provides financial and technical assistance to help communities bring safe drinking water and sanitary, environmentally sound waste disposal facilities to Rural Americans in greatest need.

    Central water systems may not be the only or best solution to drinking water problems. Distance or physical barriers make public central water systems costly to deploy in remote areas. A significant number of geographically isolated households without water service might require individual wells rather than connections to new or existing community systems. The goal of RUS is not only to make funds available to those communities most in need of potable water but also to ensure that facilities used to deliver drinking water are safe and affordable. There is a role for private wells in reaching this goal.

    C. Purpose

    The purpose of the HWWS Grant Program is to provide funds to private non-profit organizations to assist them in establishing loan programs from which individuals may borrow money for HWWS. Faith-based organizations are eligible and encouraged to apply for this program. Applicants must show that the project will provide technical and financial assistance to eligible individuals to remedy household well problems.

    Due to the limited amount of funds available typically available under the HWWS Grant Program, the RUS anticipates that 10 applications may be funded from FY 2017 funds. Applications from existing HWWS grant recipients are acceptable and will be evaluated as new applications.

    II. Award Information

    Funding Instrument Type: Grant.

    Available Funds: To be announced.

    Anticipated Number of Awards: 10.

    Length of Project Periods: 12-month project.

    Assistance Instrument: Grant Agreement with successful applicants before any grant funds are disbursed.

    III. Eligibility Information A. Who is eligible for grants?

    1. An organization is eligible to receive a HWWS grant if it:

    a. Has an active registration with current information in the System for Award Management (SAM) and has a Dun and Bradstreet (D&B) Data Universal Numbering System (DUNS) number.

    b. Is a private, non-profit organization.

    c. Is legally established and located within one of the following:

    (1) A state within the United States (2) The District of Columbia (3) The Commonwealth of Puerto Rico (4) A United States territory.

    d. Has the legal capacity and authority to carry out the grant purpose.

    e. Has sufficient expertise and experience in lending activities.

    f. Has sufficient expertise and experience in promoting the safe and productive use of individually-owned HWWS and ground water.

    g. Has no delinquent debt to the federal government or no outstanding judgments to repay a federal debt.

    h. Demonstrates that it possesses the financial, technical, and managerial capability to comply with federal and State laws and requirements, and

    i. Is not a corporation that has been convicted of a felony (or had an officer or agent acting on behalf of the corporation convicted of a felony) within the past 24 months. Any Corporation that has any unpaid federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability is not eligible.

    2. An individual is ineligible to receive a HWWS grant. An individual may receive a loan from an organization receiving a grant award.

    B. What are the basic eligibility requirements for a project?

    1. Project Eligibility. To be eligible for a grant, the project must:

    a. Be a revolving loan fund created to provide loans to eligible individuals to construct, refurbish, and service individually-owned HWWS (see 7 CFR 1776.11 and 1776.12). Loans may not be provided for home sewer or septic system projects.

    b. Be established and maintained by a private, non-profit organization.

    c. Be located in a rural area. Rural area is defined as locations other than cities or towns of more than 50,000 people and the contiguous and adjacent urbanized area of such towns and cities.

    2. Required Matching Contributions. Grant applicants must provide written evidence of a matching contribution of at least 10 percent from sources other than the proceeds of a HWWS grant. In-kind contributions will not be considered for the matching requirement. Please see 7 CFR 1776.9 for the requirement.

    3. Other—Requirements.

    a. DUNS Number. The applicant for a grant must supply a DUNS number as part of an application. The Standard Form 424 (SF-424) contains a field for the DUNS number. The applicant can obtain the DUNS number free of charge by calling Dun and Bradstreet. Please see http://fedgov.dnb.com/webform for more information on how to obtain a DUNS number or how to verify your organization's number.

    b. Prior to submitting an application, the applicant must register in System for Award Management (SAM).

    (1) Applicants may register for SAM at https://www.sam.gov/portal/public/SAM/.

    (2) The SAM registration must remain active with current information at all times while RUS is considering an application or while a Federal grant award or loan is active. To maintain the registration in the SAM database the applicant must review and update the information in the SAM database annually from date of initial registration or from the date of the last update. The applicant must ensure that the information in the database is current, accurate, and complete.

    c. Eligibility to receive a HWWS loan will be based on the following criteria:

    (1) An individual must be a member of a household of which the combined household income of all members does not exceed 100 percent of the median non-metropolitan household income for the State or territory in which the individual resides. Household income is the total income from all sources received by each adult household member for the most recent 12-month period for which the information is available. It does not include income earned or received by dependent children under 18 years old or other benefits that are excluded by federal law. The non-metropolitan household income must be based on the 5-year income data from the American Community Survey (ACS) or, if needed, other data from the United States Bureau of the Census.

    RUS publishes a list of income exclusions in 7 CFR 3550.54(b). Also, the Department of Housing and Urban Development published a list of income exclusions in the Federal Register on May 20, 2014, at 79 FR 28938 (see “Federally Mandated Exclusions”).

    (2) The loan recipient must own and occupy the home being improved with the proceeds of the Household Water Well loan or be purchasing the home to occupy under a legally enforceable land purchase contract which is not in default by either the seller or the purchaser.

    (3) The home being improved with the water well system must be located in a rural area.

    (4) The loan for a water well system must not be associated with the construction of a new dwelling.

    (5) The loan must not be used to substitute a water well system for water service available from collective water systems. (For example, a loan may not be used to restore an old well abandoned when a dwelling was connected to a water district's water line.)

    (6) The loan recipient must not be suspended or debarred from participation in Federal programs.

    IV. Application and Submission Information A. Where To Get Application Information

    The HWWS Grant Application Guide (Application Guide), copies of necessary forms and samples, and the HWWS Grant Program regulation are available from these sources:

    1. Internet for electronic copies: http://www.grants.gov/ or http://www.rd.usda.gov/programs-services/household-water-well-system-grants;

    2. Water and Environmental Programs for paper copies: RUS, Water Programs Division, STOP 1570, Room 2233-S, 1400 Independence Avenue SW., Washington, DC 20250-1570, Telephone: (202) 720-9589, Fax: (202) 690-0649.

    B. Content and Form of Application Submission

    1. Rules and Guidelines:

    a. Detailed information on each item required can be found in the HWWS Grant Program regulation (7 CFR part 1776) and the Application Guide. Applicants are strongly encouraged to read and apply both the regulation and the Application Guide. This Notice does not change the requirements for a completed application for any form of HWWS financial assistance specified in the regulation. The regulation and Application Guide provide specific guidance on each of the items listed.

    b. Applications should be prepared in conformance with the provisions in 7 CFR part 1776, subpart B, and departmental and other applicable regulations including 2 CFR parts 180, 182, 200, 400, and 421, or any successor regulations. Applicants should use the Application Guide which contains instructions and other important information in preparing their application. Completed applications must include the items found in the checklist in the next paragraph.

    2. Checklist of Items in Completed Application Packages:

    a. DUNS Number. The applicant for a grant must supply a Dunn and Bradstreet Data Universal Numbering System (DUNS) number as part of an application. The Standard Form 424 (SF-424) contains a field for the DUNS number. The applicant can obtain the DUNS number free of charge by calling Dun and Bradstreet. Please see http://fedgov.dnb.com/webform for more information on how to obtain a DUNS number or how to verify your organization's number.

    b. Prior to submitting an application, the applicant must register in the System for Award Management (SAM).

    (1) Applicants may register for the SAM at: https://www.sam.gov/portal/public/SAM/.

    (2) The SAM registration must remain active with current information at all times while RUS is considering an application or while a Federal Grant Award or loan is active. To maintain the registration in the SAM database the applicant must review and update the information in the SAM database annually from date of initial registration or from the date of the last update. The applicant must ensure that the information in the database is current, accurate, and complete.

    (3) Your organization must be listed in the SAM. If you have not used Grants.gov before, you will need to register with the SAM and the Credential Provider. New registrations can take three to five business days to process. Updating or renewing an active registration has a shorter turnaround, 24 hours. Registrations in SAM are active for one year. The SAM registers your organization, housing your organizational information and allowing Grants.gov to use the information to verify your identity. The DUNS number, Taxpayer Identification Number (TIN), and name and address of the applicant organization must match SAM data files.

    c. The electronic and paper application process requires forms with the prefixes RD and SF as well as supporting documents and certifications.

    Application Items

    (1) SF-424, “Application for Federal Assistance”.

    (2) SF-424A, “Budget Information—Non-Construction Programs”.

    (3) SF-424B, “Assurances—Non-Construction Programs”.

    (4) SF-LLL, “Disclosure of Lobbying Activity”.

    (5) Form RD 400-1, “Equal Opportunity Agreement”.

    (6) Form RD 400-4, “Assurance Agreement (Under Title VI, Civil Rights Act of 1964).

    (7) Project Proposal, Project Summary, Needs Assessment, Project Goals and Objectives, Project Narrative.

    (8) Work Plan.

    (9) Budget and Budget Justification.

    (10) Evidence of Legal Authority and Existence.

    (11) Documentation of private non-profit status and Internal Revenue Service (IRS) Tax Exempt Status.

    (12) List of Directors and Officers.

    (13) Financial information and sustainability (narrative).

    (14) Assurances and certifications of compliance with other Federal Statutes.

    The forms in items 1 through 6 must be completed and signed where appropriate by an official of your organization who has authority to obligate the organization legally. RD forms are used by programs under the RD mission area. Standard forms (SF) are used government-wide. In addition to the sources listed in section A, the forms may be accessed electronically through the RD Web site at http://www.rd.usda.gov/publications.

    See section V, “Application Review Information,” for instructions and guidelines on preparing Items 7 through 13.

    3. Compliance with Other Federal Statutes. The applicant must provide evidence of compliance with other Federal statutes and regulations, including, but not limited to the following:

    a. 7 CFR part 15, subpart A—Nondiscrimination in Federally Assisted Programs of the Department of Agriculture—Effectuation of Title VI of the Civil Rights Act of 1964.

    b. 2 CFR part 417—Governmentwide Debarment and Suspension (Nonprocurement), or any successor regulations.

    c. 7 CFR part 3052—Audits of States, Local Governments, and Non-profit Organizations, or any successor regulations.

    d. Subpart B of 2 CFR part 421, which adopts the Governmentwide implementation (2 CFR part 182) of the Drug-Free Workplace Act.

    e. Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency.” For information on limited English proficiency and agency-specific guidance go to http://www.lep.gov/.

    f. Federal Obligation Certification on Delinquent Debt.

    C. How many copies of an application are required?

    1. Applications Submitted on Paper. Submit one signed original and two additional copies. The original and each of the two copies must include all required forms, certifications, assurances, and appendices, be signed by an authorized representative, and have original signatures. Do not include organizational brochures or promotional materials.

    2. Applications Submitted Electronically. Additional paper copies are unnecessary if the application is submitted electronically through http://www.grants.gov/.

    D. How and Where To Submit an Application

    1. Submitting Paper Applications:

    a. For paper applications, mail or ensure delivery of an original paper application (no stamped, photocopied, or initialed signatures) and two copies by the deadline date to:

    Rural Development, Rural Utility Service, Water Programs Division, STOP 1570, Room 2234-S, 1400 Independence Avenue SW., Washington, DC 20250-1570, Telephone: (202) 720-9583.

    Submit paper applications marked “Attention: Water and Environmental Programs.”

    b. Applications must show proof of mailing or shipping by one of the following:

    (1) A legibly dated U.S. Postal Service (USPS) postmark;

    (2) A legible mail receipt with the date of mailing stamped by the USPS; or,

    (3) A dated shipping label, invoice, or receipt from a commercial carrier.

    c. If a deadline date falls on a weekend, it will be extended to the following Monday. If the date falls on a federal holiday, it will be extended to the next business day.

    d. Due to screening procedures at the Department of Agriculture, packages arriving via the USPS are irradiated, which can damage the contents and delay delivery. RUS encourages applicants to consider the impact of this procedure in selecting an application delivery method.

    2. Submitting Electronic Applications:

    a. Applications will not be accepted by fax or electronic mail.

    b. Electronic applications for grants will be accepted if submitted through Grants.gov at http://www.grants.gov/.

    c. Applicants must preregister successfully with Grants.gov to use the electronic applications option. Application information may be downloaded from Grants.gov without preregistration.

    d. Applicants who apply through Grants.gov should submit their electronic applications before the deadline.

    e. Grants.gov contains full instructions on all required passwords, credentialing, and software. Follow the instructions at Grants.gov for registering and submitting an electronic application.

    f. Grants.gov has two preregistration requirements: A DUNS number and an active registration in SAM. See the “Checklist of Items in Completed Application Packages” for instructions on obtaining a DUNS number and registering in the SAM.

    g. You must be registered with Grants.gov before you can submit an electronic grant application.

    (1) You must register at Grants.gov: http://www.grants.gov/applicants/get_registered.jsp.

    (2) Organization registration user guides and checklists are also available at Grants.gov.

    (3) Grants.gov requires some credentialing and online authentication procedures. When an applicant organization is registered with SAM, the organization designates a point of contact who receives a password authorizing the person to designate staff members who are allowed to submit applications electronically through Grants.gov. These authorized organization representatives must be registered with Grants.gov to receive a username and password to submit applications. These procedures may take several business days to complete.

    (4) Some or all of the SAM and Grants.gov registration, credentialing and authorizations require updates. If you have previously registered at Grants.gov to submit applications electronically, please ensure that your registration, credentialing and authorizations are up to date well in advance of the grant application deadline.

    h. To use Grants.gov:

    (1) Follow the instructions on the Web site to find grant information.

    (2) Download a copy of an application package.

    (3) Complete the package off-line.

    (4) Upload and submit the application via the Grants.gov Web site.

    (5) If a system problem or technical difficulty occurs with an electronic application, please use the customer support resources available at the Grants.gov Web site.

    (6) Again, RUS encourages applicants to take early action to complete the sign-up, credentialing and authorization procedures at Grants.gov before submitting an application at the Web site.

    E. Deadlines

    The deadline for paper and electronic submissions is February 6, 2017. Paper applications must be postmarked and mailed, shipped, or sent overnight no later than the closing date to be considered for FY 2017 grant funding. Electronic applications must have an electronic date and time stamp by midnight of February 6, 2017 to be considered on time. RUS will not accept applications by fax or email. Applications that do not meet the criteria above are considered late applications and will not be considered. RUS will notify each late applicant that its application will not be considered.

    F. Funding Restrictions

    1. Eligible Grant Purposes:

    a. Grant funds must be used to establish and maintain a revolving loan fund to provide loans to eligible individuals for household water well systems.

    b. Individuals may use the loans to construct, refurbish, rehabilitate, or replace household water well systems up to the point of entry of a home. Point of entry for the well system is the junction where water enters into a home water delivery system after being pumped from a well.

    c. Grant funds may be used to pay administrative expenses associated with providing HWWS loans.

    2. Ineligible Grant Purposes:

    a. Administrative expenses incurred in any calendar year that exceed 10 percent of the household water well loans made during the same period do not qualify for reimbursement.

    b. Administrative expenses incurred before RUS executes a grant agreement with the recipient do not qualify for reimbursement.

    c. Delinquent debt owed to the Federal Government does not qualify for reimbursement.

    d. Grant funds may not be used to provide loans for household sewer or septic systems.

    e. Household Water Well loans may not be used to pay the costs of water well systems for the construction of a new house.

    f. Household Water Well loans may not be used to pay the costs of a home plumbing system.

    V. Application Review Information A. Criteria

    This section contains instructions and guidelines on preparing the project proposal, work plan, and budget sections of the application. Also, guidelines are provided on the additional information required for RUS to determine eligibility and financial feasibility.

    1. Project Proposal. The project proposal should outline the project in sufficient detail to provide a reader with a complete understanding of the loan program. Explain what will be accomplished by lending funds to individual well owners. Demonstrate the feasibility of the proposed loan program in meeting the objectives of this grant program. The proposal should include the following elements:

    a. Project Summary. Present a brief project overview. Explain the purpose of the project, how it relates to RUS' purposes, how the project will be executed, what the project will produce, and who will direct it.

    b. Needs Assessment. To show why the project is necessary, clearly identify the economic, social, financial, or other problems that require solutions. Demonstrate the well owners' need for financial and technical assistance. Quantify the number of prospective borrowers or provide statistical or narrative evidence that a sufficient number of borrowers will exist to justify the grant award. Describe the service area. Provide information on the household income of the area and other demographical information. Address community needs.

    c. Project Goals and Objectives. Clearly state the project goals. The objectives should clearly describe the goals and be concrete and specific enough to be quantitative or observable. They should also be feasible and relate to the purpose of the grant and loan program.

    d. Project Narrative. The narrative should cover in more detail the items briefly described in the Project Summary. Demonstrate the grant applicant's experience and expertise in promoting the safe and productive use of individually-owned household water well systems. The narrative should address the following points:

    (1) Document the grant applicant's ability to manage and service a revolving fund. The narrative may describe the systems that are in place for the full life cycle of a loan from loan origination through servicing. If a servicing contractor will service the loan portfolio, the arrangement and services provided must be discussed.

    (2) Show evidence of the availability of funds from sources other than the HWWS grant. Describe the contributions the project will receive from your organization, state agencies, local government, other federal agencies, non-government organizations, private industry, and individuals. The documentation should describe how the contributions will be used to pay your operational costs and provide financial assistance for projects.

    (3) Demonstrate that the organization has secured commitments of significant financial support from other funding sources.

    (4) List the fees and charges that borrowers will be assessed.

    2. Work Plan. The work plan or scope of work must describe the tasks and activities that will be accomplished with available resources during the grant period. It must include who will carry out the activities and services to be performed and specific timeframes for completion. Describe any unusual or unique features of the project such as innovations, reductions in cost or time, or extraordinary community involvement.

    3. Budget and Budget Justification. Use the Form SF-424A, Budget Information—Non-Construction Programs, to show your budget cost elements. The form summarizes resources as Federal and Non-Federal funds and costs. “Federal” refers only to the HWWS Grant Program for which you are applying. “Non-Federal” refers to resources from your organization, state agencies, local government, other federal agencies, non-government organizations, private industry, and individuals. Both Federal and Non-Federal resources shall be detailed and justified in the budget and narrative justification.

    a. Provide a budget with line item detail and detailed calculations for each budget object class identified in section B of the Budget Information form (SF-424A). Detailed calculations must include estimation methods, quantities, unit costs, and other similar quantitative detail sufficient for the calculation to be duplicated. Also include a breakout by the funding sources identified in Block 15 of the SF-424.

    b. Provide a narrative budget justification that describes how the categorical costs are derived for all capital and administrative expenditures, the matching contribution, and other sources of funds necessary to complete the project. Discuss the necessity, reasonableness, and allocability of the proposed costs.

    c. If the grant applicant will use a servicing contractor, the fees may be reimbursed as an administrative expense as provided in 7 CFR 1776.13. These fees must be discussed in the budget narrative. If the grant applicant will hire a servicing contractor, it must demonstrate that all procurement transactions will be conducted in a manner to provide, to the maximum extent practical, open and free competition. Recipients must justify any anticipated procurement action that is expected to be awarded without competition and exceed the simplified acquisition threshold fixed at 41 U.S.C. 134 (currently set at $100,000).

    d. The indirect cost category should be used only when the grant applicant currently has an indirect cost rate approved by the Department of Agriculture or another cognizant Federal agency. A grant applicant that will charge indirect costs to the grant must enclose a copy of the current rate agreement. If the grant applicant is in the process of initially developing or renegotiating a rate, the grant applicant shall submit its indirect cost proposal to the cognizant agency immediately after the applicant is advised that an award will be made. In no event, shall the indirect cost proposal be submitted later than three months after the effective date of the award.

    4. Evidence of Legal Authority and Existence. The applicant must provide satisfactory documentation that it is legally recognized under state or Tribal and Federal law as a private non-profit organization. The documentation also must show that it has the authority to enter into a grant agreement with RUS and to perform the activities proposed under the grant application. Satisfactory documentation includes, but is not limited to, certificates from the Secretary of State, copies of state/Tribal statutes or laws establishing your organization, and copies of your organization's articles of incorporation and bylaws. Letters from IRS awarding tax-exempt status are not considered adequate evidence.

    5. List of Directors and Officers. The applicant must submit a certified list of directors and officers with their respective terms.

    6. IRS Tax Exempt Status. The applicant must submit evidence of tax exempt status from the Internal Revenue Service.

    7. Financial Information and Sustainability. The applicant must submit pro forma balance sheets, income statements, and cash flow statements for the last three years and projections for three years. Additionally, the most recent audit of the applicant's organization must be submitted.

    B. Evaluation Criteria

    Grant applications that are complete and eligible will be scored competitively based on the following scoring criteria:

    Scoring criteria Points Degree of expertise and experience in promoting the safe and productive use of individually-owned household water well systems and ground water Up to 30 points. Degree of expertise and successful experience in making and servicing loans to individuals Up to 20 points. Percentage of applicant contributions. Points allowed under this paragraph will be based on written evidence of the availability of funds from sources other than the proceeds of a HWWS grant to pay part of the cost of a loan recipient's project. In-kind contributions will not be considered. Funds from other sources as a percentage of the HWWS grant and points corresponding to such percentages are as follows: 0 to 9 percent Ineligible. 10 to 25 percent 5 points. 26 to 30 percent 10 points. 31 to 50 percent 15 points. 51 percent or more 20 points. Extent to which the work plan demonstrates a well thought out, comprehensive approach to accomplishing the objectives of this part, clearly defines who will be served by the project, and appears likely to be sustainable Up to 20 points. Extent to which the goals and objectives are clearly defined, tied to the work plan, and measurable Up to 10 points. Lowest ratio of projected administrative expenses to loans advanced Up to 10 points. Administrator's discretion, considering such factors as: Creative outreach ideas for marketing HWWS loans to rural residents; factors include: Up to 10 points. 1. Directs loans to rural areas where according to the American Community Survey data by census tracts show that at least 20 percent of the population is living in poverty. Directs loans to areas which lack running water, flush toilets, and modern sewage disposal systems, and areas which have open sewers and high rates of disease caused by poor sanitation, in particular, colonias or Substantially Underserved Trust Areas. 2. Areas impacted by severe drought C. Review Standards

    1. Incomplete applications as of the deadline for submission will not be considered. If an application is determined to be incomplete, the applicant will be notified in writing and the application will be returned with no further action.

    2. Ineligible applications will be returned to the applicant with an explanation.

    3. Complete, eligible applications will be evaluated competitively by a review team, composed of at least two RUS employees selected from the Water Programs Division. They will make overall recommendations based on the program elements found in 7 CFR part 1776 and the review criteria presented in this notice. They will award points as described in the scoring criteria in 7 CFR 1776.9 and this notice. Each application will receive a score based on the averages of the reviewers' scores and discretionary points awarded by the RUS Administrator.

    4. Applications will be ranked and grants awarded in rank order until all grant funds are expended.

    5. Regardless of the score an application receives, if RUS determines that the project is technically infeasible, RUS will notify the applicant, in writing, and the application will be returned with no further action.

    VI. Award Administration Information A. Award Notices

    RUS will notify a successful applicant by an award letter accompanied by a grant agreement. The grant agreement will contain the terms and conditions for the grant. The applicant must execute and return the grant agreement, accompanied by any additional items required by the award letter or grant agreement.

    B. Administrative and National Policy Requirements

    1. This notice, the 7 CFR part 1776, and the application guide implement the appropriate administrative and national policy requirements. Grant recipients are subject to the requirements in 7 CFR part 1776.

    2. Direct federal grants, sub-award funds, or contracts under the HWWS Grant Program shall not be used to fund inherently religious activities, such as worship, religious instruction, or proselytization. Therefore, organizations that receive direct assistance should take steps to separate, in time or location, their inherently religious activities from the services funded under the HWWS Grant Program. Regulations for the Equal Treatment for Faith-based Organizations are contained in 7 CFR part 16, which includes the prohibition against federal funding of inherently religious activities.

    C. Reporting

    1. Performance Reporting. All recipients of HWWS Grant Program financial assistance must provide quarterly performance activity reports to RUS until the project is complete and the funds are expended. A final performance report is also required. The final report may serve as the last annual report. The final report must include an evaluation of the success of the project.

    2. Financial Reporting. All recipients of HWWS Grant Program financial assistance must provide an annual audit, beginning with the first year a portion of the financial assistance is expended. The Non-Federal Entity (formerly called Grantee) will provide an audit report or financial statements as follows:

    a. Non-Federal Entities expending $500,000 or more Federal funds per fiscal year will submit an audit conducted in accordance with 2 CFR part 200 or successor guidance. The audit will be submitted within nine months after the Non-Federal Entity's fiscal year. Additional audits may be required if the project period covers more than one fiscal year.

    b. Non-Federal Entities expending less than $500,000 will provide annual financial statements covering the grant period, consisting of the organization's statement of income and expense and balance sheet signed by an appropriate official of the organization. Financial statements will be submitted within 90 days after the Non-Federal Entity's fiscal year.

    3. Recipient and Subrecipient Reporting. The applicant must have the necessary processes and systems in place to comply with the reporting requirements for first-tier sub-awards and executive compensation under the Federal Funding Accountability and Transparency Act of 2006 in the event the applicant receives funding unless such applicant is exempt from such reporting requirements pursuant to 2 CFR 170.110(b). The reporting requirements under the Transparency Act pursuant to 2 CFR part 170 are as follows:

    a. First Tier Sub-Awards of $25,000 or more in non-Recovery Act funds (unless they are exempt under 2 CFR part 170) must be reported by the Recipient to http://www.fsrs.gov/ no later than the end of the month following the month the obligation was made.

    b. The Total Compensation of the Recipient's Executives (five most highly compensated executives) must be reported by the Recipient (if the Recipient meets the criteria under 2 CFR part 170) to https://www.sam.gov/portal/public/SAM/ by the end of the month following the month in which the award was made.

    c. The Total Compensation of the Subrecipient's Executives (5 most highly compensated executives) must be reported by the Subrecipient (if the Subrecipient meets the criteria under 2 CFR part 170) to the Recipient by the end of the month following the month in which the subaward was made.

    VII. Agency Contacts

    A. Web site: http://www.rd.usda.gov/programs-services/household-water-well-system-grants

    B. Phone: 202-720-9640.

    C. Fax: 202-690-0649.

    D. Email: [email protected]

    E. Main point of contact: Derek Jones, Community Programs Specialist, Water Programs Division, Water and Environmental Programs, RUS, Rural Development, U.S. Department of Agriculture.

    VIII. USDA Non-Discrimination Statement

    In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

    Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

    To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by:

    (1) By mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410;

    (2) Fax: (202) 690-7442; or

    (3) Email: [email protected]

    USDA is an equal opportunity provider, employer, and lender.

    Dated: November 7, 2016. Brandon McBride, Administrator, Rural Utilities Service.
    [FR Doc. 2016-29336 Filed 12-6-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF AGRICULTURE Rural Utilities Service Announcement of Grant and Loan Application Deadlines AGENCY:

    Rural Utilities Service, USDA.

    ACTION:

    Notice of Solicitation of Applications (NOSA), Revolving Fund Program.

    SUMMARY:

    The Rural Utilities Service (RUS) announces its Revolving Fund Program (RFP) application window for Fiscal Year (FY) 2017. The RFP is authorized under section 306(a)(2)(B) of the Consolidated Farm and Rural Development Act (Con Act), 7 U.S.C. 1926(a)(2)(B). Under the RFP, qualified private, non-profit organizations may receive RFP grant funds to establish a lending program for eligible entities. Eligible entities for the revolving loan fund will be the same entities eligible, under paragraph 1 or 2 of Section 306(a) of the Con Act, 7 U.S.C. 1926(a)(1) or (b)(2), to obtain a loan, loan guarantee, or grant from the RUS Water, Waste Disposal, and Wastewater loan and grant programs.

    This year administrative discretion points may be awarded for work plans that:

    1. Direct loans to the smallest communities with the lowest incomes emphasizing areas where according to the American Community Survey data by census tracts show that at least 20 percent of the population is living in poverty.

    2. Direct loans to areas that lack running water, flush toilets, and modern sewage disposal systems, and areas which have open sewers and high rates of disease caused by poor sanitation, in particular, colonias or Substantially Underserved Trust Areas.

    3. Direct loans that emphasize energy and water efficient components to reduce costs and increase sustainability of rural systems.

    DATES:

    You may submit completed applications for grants on paper or electronically according to the following deadlines:

    • Paper copies must be postmarked and mailed, shipped, or sent overnight no later than February 6, 2017 to be eligible for FY 2017 grant funding. Late or incomplete applications will not be eligible for FY 2017 grant funding.

    • Electronic copies must be received by February 6, 2017 to be eligible for FY 2017 grant funding. Late or incomplete applications will not be eligible for FY 2017 grant funding.

    ADDRESSES:

    You may obtain application guides and materials for the RFP program at the Water and Environmental Programs (WEP) Web site: http://www.rd.usda.gov/programs-services/water-waste-disposal-revolving-loan-funds. You may also request application guides and materials by contacting Lisa Chesnel at (202) 720-0499.

    Submit electronic grant applications at http://www.grants.gov/ and follow the instructions on the Web site.

    Submit completed paper applications for RFP grants to, Rural Utilities Service, Rural Development, U.S. Department of Agriculture, 1400 Independence Avenue SW., Room 2234, STOP 1570, Washington, DC 20250-1570. Applications should be marked Attention: Lisa Chesnel, Water and Environmental Programs.

    FOR FURTHER INFORMATION CONTACT:

    Lisa Chesnel, Community Programs Specialist, Water and Environmental Programs, Rural Utilities Service, Rural Development, U.S. Department of Agriculture STOP 1570, Room 2234-S, 1400 Independence Avenue SW., Washington, DC 20250-1570; Telephone: (202) 720-0499: Fax: (202) 690-0649.

    SUPPLEMENTARY INFORMATION: Overview

    Federal Agency: Rural Utilities Service (RUS), USDA.

    Funding Opportunity Title: Grant Program to Establish a Fund for Financing Water and Wastewater Projects (Revolving Fund Program (RFP)).

    Announcement Type: Notice of Solicitation of Applications.

    Catalog of Federal Domestic Assistance (CFDA) Number: 10.864.

    Due Date for Applications: Applications must be mailed, shipped or submitted electronically through Grants.gov no later than February 6, 2017 to be eligible for FY 2017 grant funding.

    Items in Supplementary Information

    A. Program Description: Brief introduction to the RFP.

    B. Federal Award Information: To be announced.

    C. Eligibility Information: Who is eligible, what kinds of projects are eligible, what criteria determine basic eligibility.

    D. Application and Submission Information: Where to get application materials, what constitutes a completed application, how and where to submit applications, deadlines, items that are eligible.

    E. Application Review Information: Considerations and preferences, scoring criteria, review standards, selection information.

    F. Federal Award Administration Information: Award notice information, award recipient reporting requirements.

    G. Federal Awarding Agency Contacts: Web site, phone, fax, email, contact name.

    H. Other Information: Non-discrimination Statement.

    A. Program Description

    Drinking water systems are basic and vital to both health and economic development. With dependable water facilities, rural communities can attract families and businesses that will invest in the community and improve the quality of life for all residents. Without dependable water facilities, the communities cannot sustain economic development.

    RUS provides financial and technical assistance to help communities bring safe drinking water and sanitary, environmentally sound waste disposal facilities to rural Americans. It supports the sound development of rural communities and the growth of our economy without endangering the environment.

    The Revolving Fund Program (RFP) was established under 7 U.S.C. part 1783 to assist communities with water or wastewater systems. Qualified private, non-profit organizations, who are selected for funding, will receive RFP grant funds to establish a lending program for eligible entities. Eligible entities for the revolving loan fund will be those entities eligible under 7 U.S.C.1926(a)(1) and (2) to obtain a loan, loan guarantee, or grant from the Water and Waste Disposal loan and grant programs administered by RUS. As grant recipients, the non-profit organizations will set up a revolving loan fund to provide loans to finance predevelopment costs of water or wastewater projects, or short-term small capital projects not part of the regular operation and maintenance of current water and wastewater systems. The amount of financing to an eligible entity shall not exceed $100,000.00 and shall be repaid in a term not to exceed 10 years. The rate shall be determined in the approved grant work plan.

    B. Federal Award Information

    Available funds: To be announced.

    C. Eligibility Information

    1. Eligible Applicants. An applicant is eligible to apply for the RFP grant if it:

    a. Is a private, non-profit organization;

    b. Is legally established and located within one of the following:

    i. A state within the United States;

    ii. The District of Columbia;

    iii. The Commonwealth of Puerto Rico; or

    iv. A United States territory;

    c. Has the legal capacity and authority to carry out the grant purpose;

    d. Has a proven record of successfully operating a revolving loan fund to rural areas;

    e. Has capitalization acceptable to the Agency, and is composed of at least 51 percent of the outstanding interest or membership being citizens of the United States or individuals who reside in the United States after being legally admitted for permanent residence;

    f. Has no delinquent debt to the Federal government or no outstanding judgments to repay a Federal debt;

    g. Demonstrates that it possesses the financial, technical, and managerial capability to comply with Federal and state laws and requirements; and

    h. Is not a corporation that has been convicted of a felony (or had an officer or agent acting on behalf of the corporation convicted of a felony) within the past 24 months. Any Corporation that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability is not eligible.

    2. Cost Sharing or Matching: Applicants must contribute at least 20 percent of funds from sources other than the proceeds of an RFP grant to pay part of the cost of a loan recipient's project. In-kind contribution will not be considered.

    3. Other: What are the basic eligibility requirements for a project?

    a. The following activities are authorized under the RFP statute:

    i. Grant funds must be used to capitalize a revolving fund program for the purpose of providing direct loan financing to eligible entities for pre-development costs associated with proposed or with existing water and wastewater systems, or,

    ii. Short-term costs incurred for equipment replacement, small-scale extension of services, or other small capital projects that are not part of the regular operations and maintenance activities of existing water and wastewater systems.

    b. Grant funds may not be used to pay any of the following:

    i. Payment of the Grant Recipient's administrative costs or expenses, or,

    ii. Delinquent debt owed to the Federal Government.

    D. Application and Submission Information

    1. Address to Request Application Package:

    a. The Internet: http://www.rd.usda.gov/programs-services/water-waste-disposal-revolving-loan-funds or Grants.gov Web site: http://www.grants.gov/.

    b. For paper copies of these materials, you may call (202) 720-9583.

    2. Content and Form of Application Submission:

    a. You may file an application in either paper or electronic format. To be considered for support, you must be an eligible entity and must submit a complete application by the deadline date. Applicants should consult the cost principles and general administrative requirements for grants pertaining to their organizational type in order to prepare the budget and complete other parts of the application. You also must demonstrate compliance (or intent to comply), through certification or other means, with a number of public policy requirements. Applications should be prepared in conformance with 7 CFR part 1783, and departmental and other applicable regulations including 2 CFR parts 180, 182, 200, 400 and 421, or any successor regulations.

    Whether you file a paper or an electronic application, you will need a DUNS number and must be registered in the System for Award Management (SAM). Detailed information on obtaining a DUNS number and registering for SAM may be found in section D(3).

    b. Applicants must complete and submit the following forms to apply for a RFP grant:

    i. Standard Form 424, “Application for Federal Assistance”.

    ii. Standard Form 424A, “Budget Information—Non-Construction Programs”.

    iii. Standard Form 424B, “Assurances—Non-Construction Programs”.

    iv. Standard Form LLL, “Disclosure of Lobbying Activity”.

    v. Form RD 400-1, “Equal Opportunity Agreement”.

    vi. Form RD 400-4, “Assurance Agreement (Under Title VI, Civil Rights Act of 1964).

    c. The project proposal should outline the project in sufficient detail to provide a reader with a complete understanding of how the loan program will work. Explain what you will accomplish by lending funds to eligible entities. Demonstrate the feasibility of the proposed loan program in meeting the objectives of this grant program. The proposal should cover the following elements:

    i. Present a brief project overview. Explain the purpose of the project, how it relates to RUS's purposes, how you will carry out the project, what the project will produce, and who will direct it.

    ii. Describe why the project is necessary. Demonstrate that eligible entities need loan funds. Quantify the number of prospective borrowers or provide statistical or narrative evidence that a sufficient number of borrowers will exist to justify the grant award. Describe the service area. Address community needs.

    iii. Clearly state your project goals. Your objectives should clearly describe the goals and be concrete and specific enough to be quantitative or observable. They should also be feasible and relate to the purpose of the loan program.

    iv. The narrative should cover in more detail the items briefly described in the Project Summary. It should establish the basis for any claims that you have substantial expertise in promoting the safe and productive use of revolving funds. In describing what the project will achieve, you should tell the reader if it also will have broader influence. The narrative should address the following points:

    (1) Document your ability to administer and service a revolving fund in accordance with the provisions of 7 CFR part 1783.

    (2) Document your ability to commit financial resources to establish the RFP with funds your organization controls. This documentation should describe the sources of funds other than the RFP grant that will be used to pay your operational costs and provide financial assistance for projects.

    (3) Demonstrate that you have secured commitments of significant financial support from other funding sources, if appropriate.

    (4) List the fees and charges that borrowers will be assessed.

    v. The work plan must describe the tasks and activities that will be accomplished with available resources during the grant period. It must show the work you plan to do to achieve the anticipated outcomes, goals, and objectives set out for the RFP. The plan must:

    (1) Describe the work to be performed by each person.

    (2) Give a schedule or timetable of work to be done.

    (3) Show evidence of previous experience with the techniques to be used or their successful use by others.

    (4) Outline the loan program to include the following: specific loan purposes, a loan application process, priorities, borrower eligibility criteria, limitations, fees, interest rates, terms, and collateral requirements.

    (5) Provide a marketing plan.

    (6) Explain the mechanics of how you will transfer loan funds to the borrowers.

    (7) Describe follow-up or continuing activities that should occur after project completion such as monitoring and reporting borrowers' accomplishments.

    (8) Describe how the results will be evaluated. The evaluation criteria should be in line with the project objectives.

    (9) List all personnel responsible for administering this program along with a statement of their qualifications and experience.

    vi. The written justification for projected costs should explain how budget figures were determined for each category. It should indicate which costs are to be covered by grant funds and which costs will be met by your organization or other organizations. The justification should account for all expenditures discussed in the narrative. It should reflect appropriate cost-sharing contributions. The budget justification should explain the budget and accounting system proposed or in place. The administrative costs for operating the budget should be expressed as a percentage of the overall budget. The budget justification should provide specific budget figures, rounding off figures to the nearest dollar. Applicants should consult 2 CFR 200, Subpart E, “Cost Principals,” for information about appropriate costs for each budget category.

    vii. In addition to completing the standard application forms, you must submit:

    (1) Supplementary material that demonstrate that your organization is legally recognized under state or Tribal and Federal law. Satisfactory documentation includes, but is not limited to, certificates from the Secretary of State, or copies of state statutes or laws establishing your organization. Letters from the IRS awarding tax-exempt status are not considered adequate evidence.

    (2) A certified list of directors and officers with their respective terms.

    (3) Evidence of tax exempt status from the IRS.

    (4) The most recent audit of your organization.

    (5) The following financial statements:

    (a) A pro forma balance sheet at start-up and for at least three additional years; Balance sheets, income statements, and cash flow statements for the last three years.

    (b) If your organization has been formed less than three years, the financial statements should be submitted for the periods from inception to the present. Projected income and cash flow statements for at least three years supported by a list of assumptions showing the basis for the projections. The projected income statement and balance sheet must include one set of projections that shows the revolving loan fund only and a separate set of projections that shows your organization's total operations.

    (6) Additional information to support and describe your plan for achieving the grant objectives. The information may be regarded as essential for understanding and evaluating the project and may be found in letters of support, as resolutions, policies, and other relevant documents. The supplements may be presented in appendices to the proposal.

    d. Compliance with other federal statutes.

    The applicant must provide evidence of compliance with other federal statutes, including but not limited to the following:

    i. Debarment and suspension information is required in accordance with 2 CFR part 417 (Nonprocurement Debarment and Suspension) supplemented by 2 CFR part 180, if it applies. The section heading is “What information must I provide before entering into a covered transaction with the Federal Government?” located at 2 CFR 180.335. It is part of OMB's Guidance for Grants and Agreements concerning Government-wide Debarment and Suspension.

    ii. All of your organization's known workplaces by including the actual address of buildings (or parts of buildings) or other sites where work under the award takes place. Workplace identification is required under the drug-free workplace requirements in Subpart B of 2 CFR part 421, which adopts the Government-wide implementation (2 CFR part 182) of the Drug-Free Workplace Act.

    iii. 2 CFR parts 200 and 400 (Uniform Assistance Requirements, Cost Principles and Audit Requirements for Federal Awards).

    iv. 2 CFR part 182 (Governmentwide Requirements for Drug-Free Workplace (Financial Assistance)) and 2 CFR part 421 (Requirements for Drug Free Workplace (Financial Assistance)).

    v. Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency.” For information on limited English proficiency and agency-specific guidance, go to http://www.LEP.gov.

    e. Requirements for numbers of copies of submitted applications

    i. Send or deliver paper applications by the U.S. Postal Service (USPS) or courier delivery services to: Water and Environmental Programs, Rural Utilities Service, 1400 Independence Avenue SW., Attention: Lisa Chesnel, Mail STOP 1570, Room 2233-S, Washington, DC, 20250-1570.

    ii. For paper applications mail or ensure delivery of an original paper application (no stamped, photocopied, or initialed signatures) and two copies by the deadline date. The application and any materials sent with it become Federal records by law and cannot be returned to you.

    iii. Electronically submitted applications:

    (1). Applications will not be accepted by fax or electronic mail.

    (2). Electronic applications for grants will be accepted if submitted through Grants.gov.

    (3). Applicants must preregister successfully with Grants.gov to use the electronic applications option. Application information may be downloaded from Grants.gov without preregistration.

    (4). Applicants who apply through Grants.gov should submit their electronic applications before the deadline.

    (5). Grants.gov contains full instructions on all required passwords, credentialing, and software. Follow the instructions at Grants.gov for registering and submitting an electronic application.

    (6). Grants.gov has two preregistration requirements: A DUNS number and an active registration in the SAM. See section D(3) below for instructions on obtaining a DUNS number and registering in the SAM.

    3. Unique entity identifier and System for Award Management (SAM). The applicant for a grant must supply a Dun and Bradstreet Data Universal Numbering System (DUNS) number as part of an application. The Standard Form 424 (SF-424) contains a field for the DUNS number. The applicant can obtain the DUNS number free of charge by calling Dun and Bradstreet. Please see http://fedgov.dnb.com/webform for more information on how to obtain a DUNS number or how to verify your organization's number.

    In accordance with 2 CFR part 25, whether applying electronically or by paper, the applicant must register in the System for Award Management (SAM) prior to submitting an application. Applicants may register for the SAM at https://www.sam.gov/portal/SAM/#1. The SAM registration must remain active with current information at all times while RUS is considering an application or while a Federal Grant award or loan is active. To remain registered in the SAM database the applicant must review and update the information in the SAM database annually from date of initial registration or from the date of the last update. The applicant must ensure that the information in the database is current, accurate, and complete.

    4. Submission Dates and Times. You may submit completed applications for grants on paper or electronically according to the following deadlines:

    a. Paper copies must be postmarked and mailed, shipped, or sent overnight no later than February 6, 2017 to be eligible for FY 2017 grant funding. Late or incomplete applications will not be eligible for FY 2017 grant funding.

    b. Electronic copies must be received by February 6, 2017 to be eligible for FY 2017 grant funding. Late or incomplete applications will not be eligible for FY 2017 grant funding.

    5. Funding Restrictions. Grant proceeds may be used solely to establish the revolving loan fund to provide loans to eligible entities for: Pre-development costs associated with proposed or existing water and wastewater projects, and short-term costs incurred for replacement equipment or other small capital projects not part of regular operations and maintenance of existing water and wastewater systems. Grant recipients may not use grant funds in any manner inconsistent with the purposes described in 7 CFR 1783.12 or in the terms of the grant agreement. Administrative expenses may, however, be paid or reimbursed from revolving loan fund assets that are not RFP grant funds, including revolved funds and case originally contributed by the grant recipient.

    E. Application Review Information

    Within 30 days of receiving your application, RUS will send you a letter of acknowledgment. Your application will be reviewed for completeness to determine if you included all of the items required. If your application is incomplete or ineligible, RUS will return it to you with an explanation. A review team, composed of at least two RUS staff members, will evaluate all applications and proposals. They will make overall recommendations based on factors such as eligibility, application completeness, and conformity to application requirements. They will score the applications based on criteria in the following section.

    1. Criteria. All applications that are complete and eligible will be ranked competitively based on the following scoring criteria:

    a. Degree of expertise and successful experience in making and servicing commercial loans, with a successful record, for the following number of full years:

    i. At least 1 but less than 3 years—5 points.

    ii. At least 3 but less than 5 years—10 points.

    iii. At least 5 but less than 10 years—20 points.

    iv. 10 or more years—30 points.

    b. Extent to which the work plan demonstrates a well thought out, comprehensive approach to accomplishing the objectives of this part, clearly defines who will be served by the project, clearly articulates the problem/issues to be addressed, identifies the service area to be covered by the RFP loans and appears likely to be sustainable; Up to 40 points.

    c. Percentage of applicant contributions. Points allowed under this paragraph will be based on written evidence of the availability of funds from sources other than the proceeds of an RFP grant to pay part of the cost of a loan recipient's project. In-kind contributions will not be considered. Funds from other sources as a percentage of the RFP grant and points corresponding to such percentages are as follows:

    i. Less than 20 percent—ineligible.

    ii. At least 20 percent but less than 50 percent—10 points.

    iii. 50 percent or more—20 points.

    d. Extent to which the goals and objectives are clearly defined, tied to the work plan, and are measurable; Up to 15 points.

    e. Lowest ratio of projected administrative expenses to loans advanced; Up to 10 points.

    f. The evaluation methods for considering loan applications and making RFP loans are specific to the program, clearly defined, measurable, and are consistent with program outcomes; Up to 20 points.

    g. Administrator's discretion points up to 10 points may be awarded. To the maximum extent possible, there should be an emphasis on high poverty areas in rural communities and rural areas with the lowest incomes, particularly those areas where at least 45 percent of children qualify for the National School Lunch Program.

    Factors include:

    i. Directs loans to the smallest communities with the lowest incomes emphasizing areas where according to the American Community Survey data by census tracts show that at least 20 percent of the population is living in poverty.

    ii. Directs loans to areas which lack running water, flush toilets, and modern sewage disposal systems, and areas which have open sewers and high rates of disease caused by poor sanitation, in particular, colonias or Substantially Underserved Trust Areas.

    iii. Directs loans that emphasize energy and water efficient components to reduce costs and increase sustainability of rural systems.

    2. Review and Selection Process. RUS will rank all qualifying applications by their final score. Applications will be selected for funding, based on the highest scores and the availability of funding for RFP grants. Each applicant will be notified in writing of the score its application receives.

    a. In making its decision about your application, RUS may determine that your application is:

    i. Eligible and selected for funding,

    ii. Eligible but offered fewer funds than requested,

    iii. Eligible but not selected for funding, or

    iv. Ineligible for the grant.

    c. In accordance with 7 CFR part 1900, subpart B, you generally have the right to appeal adverse decisions. Some adverse decisions cannot be appealed. For example, if you are denied RUS funding due to a lack of funds available for the grant program, this decision cannot be appealed. However, you may make a request to the National Appeals Division (NAD) to review the accuracy of our finding that the decision cannot be appealed. The appeal must be in writing and filed at the appropriate regional office, which can be found at www.nad.usda.gov or by calling (703) 305-1166.

    F. Federal Award Administration Information

    1. Federal Award Notices. RUS generally notifies by mail applicants whose projects are selected for awards. However, the receipt of an award letter does not serve to authorize the applicant to commence performance under the award. RUS follows the award letter with an agreement containing terms and conditions for the grant. Applicants selected for funding will complete and return grant agreement, which outlines the terms and conditions of the grant award.

    2. Administrative and National Policy Requirements. The items listed in Section D of this notice, the RFP program regulation and departmental and other regulations including 2 CFR parts 180, 182, 200, 400, 421 and any successor regulations implement the appropriate administrative and national policy requirements, which include but are not limited to:

    a. SF-270, “Request for Advance or Reimbursement,” will be completed by the Non-Federal Entity and submitted to either the state or national office no more frequently than monthly.

    b. Upon receipt of a properly completed SF-270, the funds will be requested through the field office terminal system. Ordinarily, payment will be made within 30 days after receipt of a proper request for reimbursement.

    c. Non-Federal Entities may use women- and minority-owned banks (a bank which is owned at least 50 percent by women or minority group members) for the deposit and disbursement of funds.

    3. Reporting. a. Any change in the scope of the project, budget adjustments of more than 10 percent of the total budget, or any other significant change in the project must be reported to and approved by the approval official by written amendment to the grant agreement. Any change not approved may be cause for termination of the grant.

    b. Non-Federal Entities shall constantly monitor performance to ensure that time schedules are being met, projected work by time periods is being accomplished, and other performance objectives are being achieved. The Non-Federal Entity will provide project reports as follows:

    i. SF-425, “Financial Status Report (short form),” and a project performance activity report will be required of all Non-Federal Entities on a quarterly basis, due 30 days after the end of each quarter.

    ii. A final project performance report will be required with the last SF-425 due 90 days after the end of the last quarter in which the project is completed. The final report may serve as the last quarterly report.

    iii. All multi-State Non-Federal Entities are to submit an original of each report to the National Office. Non-Federal Entities serving only one State are to submit an original of each report to the State Office. The project performance reports should detail, preferably in a narrative format, activities that have transpired for the specific time period.

    c. Financial reporting. The Non-Federal Entity will provide an audit report or financial statements as follows:

    i. Non-Federal Entities expending $750,000 or more Federal funds per fiscal year will submit an audit conducted in accordance with 2 CFR part 200 The audit will be submitted within nine months after the Non-Federal Entity's fiscal year. Additional audits may be required if the project period covers more than one fiscal year.

    ii. Non-Federal Entities expending less than $750,000 will provide annual financial statements covering the grant period, consisting of the organization's statement of income and expense and balance sheet signed by an appropriate official of the organization. Financial statements will be submitted within 90 days after the Non-Federal Entity's fiscal year.

    iii. Recipient and Subrecipient Reporting. The applicant must have the necessary processes and systems in place to comply with the reporting requirements for first-tier sub-awards and executive compensation under the Federal Funding Accountability and Transparency Act of 2006 in the event the applicant receives funding unless such applicant is exempt from such reporting requirements pursuant to 2 CFR part 170, § 170.110(b). The reporting requirements under the Transparency Act pursuant to 2 CFR part 170 are as follows:

    (1) First Tier Sub-Awards of $25,000 or more in non-Recovery Act funds (unless they are exempt under 2 CFR part 170) must be reported by the Recipient to http://www.fsrs.gov no later than the end of the month following the month the obligation was made.

    (2) The Total Compensation of the Recipient's Executives (five most highly compensated executives) must be reported by the Recipient (if the Recipient meets the criteria under 2 CFR part 170) to https://www.sam.gov/portal/SAM/#1 by the end of the month following the month in which the award was made.

    (3) The Total Compensation of the Subrecipient's Executives (five most highly compensated executives) must be reported by the Subrecipient (if the Subrecipient meets the criteria under 2 CFR part 170) to the Recipient by the end of the month following the month in which the subaward was made.

    G. Federal Awarding Agency Contacts

    1. Web site: http://www.rd.usda.gov/programs-services/water-waste-disposal-revolving-loan-funds. The RUS Web site maintains up-to-date resources and contact information for the RFP.

    2. Phone: (202) 720-9640.

    3. Fax: (202) 690-0649.

    4. Email: [email protected]

    5. Main point of contact: Lisa Chesnel, Community Programs Specialist, Water and Environmental Programs, Rural Utilities Service, Rural Development, U.S. Department of Agriculture.

    H. Other Information

    1. USDA Non-Discrimination Statement. In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

    Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

    To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by:

    (1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) email: [email protected]

    USDA is an equal opportunity provider, employer, and lender.

    Brandon McBride, Administrator, Rural Utilities Service.
    [FR Doc. 2016-29335 Filed 12-6-16; 8:45 am] BILLING CODE 3410-15-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-81-2016] Foreign-Trade Zone (FTZ) 134—Chattanooga, Tennessee; Notification of Proposed Production Activity; Volkswagen Group of America—Chattanooga Operations, LLC; (Passenger Motor Vehicles); Chattanooga, Tennessee

    Volkswagen Group of America—Chattanooga Operations, LLC (VW) submitted a notification of proposed production activity to the FTZ Board for its facility in Chattanooga, Tennessee, within FTZ 134. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on November 25, 2016.

    VW already has authority to produce passenger motor vehicles within Site 3 of FTZ 134. The current request would add foreign status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials/components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt VW from customs duty payments on the foreign-status materials/components used in export production. On its domestic sales, VW would be able to choose the duty rates during customs entry procedures that apply to passenger motor vehicles (duty rate 2.5%) for the foreign-status materials/components noted below and in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.

    The materials/components sourced from abroad include: Gasoline; diesel fuel, polyurea grease; hydraulic oil; polycarbamide grease; refrigerant; urea; clear lacquer; blending solvent; PVC finishing sheet; canvas covers; aluminum chassis plate; screw driver bits; software; spindle drives; aux-in ports; optical fiber cable; white motor vehicle bodies; and, prototype vehicles and engines (duty rate ranges from free to 5.7% + .013/KG).

    Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is January 17, 2017.

    A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Christopher Kemp at [email protected] or (202) 482-0862.

    Dated: November 30, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-29348 Filed 12-6-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Order No. 2019] Reorganization of Foreign-Trade Zone 17; (Expansion of Service Area) Under Alternative Site Framework; Kansas City, Kansas

    Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:

    Whereas, the Board adopted the alternative site framework (ASF) (15 CFR Sec. 400.2(c)) as an option for the establishment or reorganization of zones;

    Whereas, the Greater Kansas City Foreign Trade Zone, Inc., grantee of Foreign-Trade Zone 17, submitted an application to the Board (FTZ Docket B-16-2016, docketed March 31, 2016) for authority to expand the service area of the zone to include Atchison, Jefferson and Franklin Counties, Kansas, as described in the application, adjacent to the Kansas City Customs and Border Protection port of entry;

    Whereas, notice inviting public comment was given in the Federal Register (81 FR 19551-19552, April 5, 2016) and the application has been processed pursuant to the FTZ Act and the Board's regulations; and,

    Whereas, the Board adopts the findings and recommendations of the examiner's report, and finds that the requirements of the FTZ Act and the Board's regulations are satisfied;

    Now, Therefore, the Board hereby orders:

    The application to reorganize FTZ 17 to expand the service area under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, and to the Board's standard 2,000-acre activation limit for the zone.

    Signed at Washington, DC, this 29 day of November 2016. Paul Piquado, Assistant Secretary of Commerce for Enforcement and Compliance, Alternate Chairman, Foreign-Trade Zones Board.

    ATTEST:

    Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-29356 Filed 12-6-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Order No. 2023] Approval of Expansion of Subzone 124D; LOOP LLC; Lafourche and St. James Parishes, Louisiana

    Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:

    Whereas, the Foreign-Trade Zones Act provides for “. . . the establishment . . . of foreign-trade zones in ports of entry of the United States, to expedite and encourage foreign commerce, and for other purposes,” and authorizes the Foreign-Trade Zones Board to grant to qualified corporations the privilege of establishing foreign-trade zones in or adjacent to U.S. Customs and Border Protection ports of entry;

    Whereas, the Board's regulations (15 CFR part 400) provide for the establishment of subzones for specific uses;

    Whereas, the Port of South Louisiana, grantee of Foreign-Trade Zone 124, has made application to the Board to expand Subzone 124D-Site 1 on behalf of LOOP LLC to include an additional parcel in Cut Off, Louisiana (FTZ Docket B-54-2016, docketed August 16, 2016);

    Whereas, notice inviting public comment has been given in the Federal Register (81 FR 56582, August 22, 2016) and the application has been processed pursuant to the FTZ Act and the Board's regulations; and,

    Whereas, the Board adopts the findings and recommendations of the examiner's memorandum, and finds that the requirements of the FTZ Act and the Board's regulations are satisfied;

    Now, therefore, the Board hereby approves the expansion of Subzone 124D on behalf of LOOP LLC, as described in the application and Federal Register notice, subject to the FTZ Act and the Board's regulations, including Section 400.13.

    Dated: November 29, 2016. Paul Piquado, Assistant Secretary of Commerce for Enforcement and Compliance Alternate Chairman Foreign-Trade Zones Board.
    [FR Doc. 2016-29344 Filed 12-6-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-82-2016] Foreign-Trade Zone (FTZ) 226—Merced County, California; Notification of Proposed Production Activity; Brake Parts Inc; (Automotive Parts Kitting); Patterson, California

    Brake Parts Inc (BPI) submitted a notification of proposed production activity to the FTZ Board for its facility in Patterson, California, within FTZ 226. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on November 30, 2016.

    The BPI facility is located within Site 14 of FTZ 226. The facility is used for the kitting of aftermarket automotive parts. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt BPI from customs duty payments on the foreign-status components used in export production. On its domestic sales, BPI would be able to choose the duty rates during customs entry procedures that apply to master cylinder kits, brake drum kits, brake pad kits, brake shoe kits and brake caliper kits (duty rate ranges from free to 2.5%) for the foreign-status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.

    The components and materials sourced from abroad include: Rubber O-rings; rubber seals; rubber brake components; paperboard corrugated boxes; steel hex bolts; steel bolts; steel brake clips; galvanized cast iron brake brackets; master cylinders; brake drums; brake pads; brake shoes; and, wheel cylinders (duty rate ranges from free to 2.5%).

    Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is January 17, 2017.

    A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via www.trade.gov/ftz.

    FOR FURTHER INFORMATION CONTACT:

    Christopher Kemp at [email protected] or (202) 482-0862.

    Dated: December 1, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-29349 Filed 12-6-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Order No. 2021] Reorganization of Foreign-Trade Zone 93; (Expansion of Service Area) Under Alternative Site Framework; Raleigh-Durham, North Carolina

    Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:

    Whereas, the Board adopted the alternative site framework (ASF) (15 CFR Sec. 400.2(c)) as an option for the establishment or reorganization of zones;

    Whereas, the Triangle J Council of Governments, grantee of Foreign-Trade Zone 93, submitted an application to the Board (FTZ Docket B-36-2016, docketed May 17, 2016) for authority to expand the service area of the zone to include Wilson County, North Carolina, as described in the application, adjacent to the Raleigh-Durham Customs and Border Protection port of entry;

    Whereas, notice inviting public comment was given in the Federal Register (81 FR 32721, May 24, 2016) and the application has been processed pursuant to the FTZ Act and the Board's regulations; and,

    Whereas, the Board adopts the findings and recommendations of the examiner's report, and finds that the requirements of the FTZ Act and the Board's regulations are satisfied;

    Now, Therefore, the Board hereby orders:

    The application to reorganize FTZ 93 to expand the service area under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, and to the Board's standard 2,000-acre activation limit for the zone.

    Dated: November 29, 2016. Paul Piquado, Assistant Secretary of Commerce for Enforcement and Compliance, Alternate Chairman, Foreign-Trade Zones Board.

    ATTEST:

    Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-29346 Filed 12-6-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Order No. 2024] Approval of Expansion of Subzone 122J; Valero Refining Company; Nueces County, Texas

    Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:

    Whereas, the Foreign-Trade Zones Act provides for “. . . the establishment . . . of foreign-trade zones in ports of entry of the United States, to expedite and encourage foreign commerce, and for other purposes,” and authorizes the Foreign-Trade Zones Board to grant to qualified corporations the privilege of establishing foreign-trade zones in or adjacent to U.S. Customs and Border Protection ports of entry;

    Whereas, the Board's regulations (15 CFR part 400) provide for the establishment of subzones for specific uses;

    Whereas, the Port of Corpus Christi Authority, grantee of Foreign-Trade Zone 122, has made application to the Board to expand Subzone 122J-Site 1 on behalf of Valero Refining Company to include an additional parcel in Corpus Christi, Texas (FTZ Docket B-59-2016, docketed September 12, 2016);

    Whereas, notice inviting public comment has been given in the Federal Register (81 FR 64130, September 19, 2016) and the application has been processed pursuant to the FTZ Act and the Board's regulations; and,

    Whereas, the Board adopts the findings and recommendations of the examiner's memorandum, and finds that the requirements of the FTZ Act and the Board's regulations are satisfied;

    Now, Therefore, the Board hereby approves the expansion of Subzone 122J on behalf of Valero Refining Company, as described in the application and Federal Register notice, subject to the FTZ Act and the Board's regulations, including Section 400.13.

    Dated: November 29, 2016. Paul Piquado Assistant Secretary of Commerce for Enforcement and Compliance Alternate Chairman Foreign-Trade Zones Board.
    [FR Doc. 2016-29343 Filed 12-6-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-83-2016] Foreign-Trade Zone (FTZ) 24—Pittston, Pennsylvania; Notification of Proposed Production Activity; Brake Parts Inc; (Automotive Parts Kitting); Hazleton, Pennsylvania

    Brake Parts Inc (BPI) submitted a notification of proposed production activity to the FTZ Board for its facility in Hazleton, Pennsylvania. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on November 30, 2016.

    A separate application for subzone designation at the BPI facility was submitted and will be processed under Section 400.31 of the Board's regulations. The facility is used for the kitting of aftermarket automotive parts. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt BPI from customs duty payments on the foreign-status components used in export production. On its domestic sales, BPI would be able to choose the duty rates during customs entry procedures that apply to master cylinder kits, brake drum kits, brake pad kits, brake shoe kits and brake caliper kits (duty rate ranges from free to 2.5%) for the foreign-status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.

    The components and materials sourced from abroad include: Rubber O-rings; rubber seals; rubber brake components; paperboard corrugated boxes; steel hex bolts; steel bolts; steel brake clips; galvanized cast iron brake brackets; master cylinders; brake drums; brake pads; brake shoes; and, wheel cylinders (duty rate ranges from free to 2.5%).

    Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is January 17, 2017.

    A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via www.trade.gov/ftz.

    FOR FURTHER INFORMATION CONTACT:

    Christopher Kemp at [email protected] or (202) 482-0862.

    Dated: December 1, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-29351 Filed 12-6-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-169-2016] Foreign-Trade Zone 24—Pittston, Pennsylvania; Application for Subzone; Brake Parts Inc.; Hazleton, Pennsylvania

    An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Eastern Distribution Center, Inc., grantee of FTZ 24, requesting subzone status for the facility of Brake Parts Inc., located in Hazleton, Pennsylvania. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on December 1, 2016.

    The proposed subzone (28 acres) is located at 62 Green Mountain Road, Hazleton, Schuylkill County. A notification of proposed production activity has been submitted and will be published separately for public comment and processed under 15 CFR 400.37. The proposed subzone would be subject to the existing activation limit of FTZ 24.

    In accordance with the Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.

    Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is January 17, 2017. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to January 31, 2017.

    A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Elizabeth Whiteman at [email protected] or (202) 482-0473.

    Dated: December 1, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-29352 Filed 12-6-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-171-2016] Foreign-Trade Zone 92—Gulfport, Mississippi; Application for Subzone; TopShip, LLC; Gulfport, Mississippi

    An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Mississippi Coast Foreign Trade Zone, Inc., grantee of FTZ 92, requesting subzone status for the facility of TopShip, LLC, located in Gulfport, Mississippi. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on December 1, 2016.

    The proposed subzone (114.23 acres) is located at 13301 Seaway Road in Gulfport. The proposed subzone would be subject to the existing activation limit of FTZ 92. A notification of proposed production activity has been submitted and is being processed under 15 CFR 400.37 (Doc. B-57-2016).

    In accordance with the Board's regulations, Camille Evans of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.

    Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is January 17, 2017. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to January 31, 2017.

    A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Camille Evans at [email protected] or (202) 482-2350.

    Dated: December 1, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-29353 Filed 12-6-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Order No. 2020 ] Reorganization of Foreign-Trade Zone 20 (Expansion of Service Area) Under Alternative Site Framework; Norfolk, Virginia

    Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:

    Whereas, the Board adopted the alternative site framework (ASF) (15 CFR Sec. 400.2(c)) as an option for the establishment or reorganization of zones;

    Whereas, the Virginia Port Authority, grantee of Foreign-Trade Zone 20, submitted an application to the Board (FTZ Docket B-31-2016, docketed May 9, 2016) for authority to expand the service area of the zone to include Elizabeth City, North Carolina and the Counties of Camden, Chowan, Currituck, Gates, Hertford, Pasquotank and Perquimans, North Carolina as described in the application, adjacent to the Norfolk-Newport News Customs and Border Protection port of entry;

    Whereas, notice inviting public comment was given in the Federal Register (81 FR 29838, May 13, 2016) and the application has been processed pursuant to the FTZ Act and the Board's regulations; and,

    Whereas, the Board adopts the findings and recommendations of the examiner's report, and finds that the requirements of the FTZ Act and the Board's regulations are satisfied;

    Now, therefore, the Board hereby orders:

    The application to reorganize FTZ 20 to expand the service area under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, and to the Board's standard 2,000-acre activation limit for the zone.

    Dated: November 29, 2016. Paul Piquado, Assistant Secretary of Commerce for Enforcement and Compliance, Alternate Chairman, Foreign-Trade Zones Board. Attest: Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-29350 Filed 12-6-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Order No. 2022] Reorganization of Foreign-Trade Zone 244; (Expansion of Service Area) Under Alternative Site Framework; Riverside, California

    Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:

    Whereas, the Board adopted the alternative site framework (ASF) (15 CFR Sec. 400.2(c)) as an option for the establishment or reorganization of zones;

    Whereas, the March Joint Powers Authority, grantee of Foreign-Trade Zone 244, submitted an application to the Board (FTZ Docket B-35-2016, docketed May 12, 2016, amended September 7, 2016) for authority to expand the service area of the zone to include a portion of the City of Lake Elsinore, California, as described in the application, adjacent to the Los Angeles/Long Beach U.S. Customs and Border Protection port of entry;

    Whereas, notice inviting public comment was given in the Federal Register (81 FR 31226, May 18, 2016) and the application has been processed pursuant to the FTZ Act and the Board's regulations; and,

    Whereas, the Board adopts the findings and recommendations of the examiner's report, and finds that the requirements of the FTZ Act and the Board's regulations are satisfied;

    Now, Therefore, the Board hereby orders:

    The amended application to reorganize FTZ 244 to expand the service area under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, and to the Board's standard 2,000-acre activation limit for the zone.

    Dated: November 29, 2016. Paul Piquado, Assistant Secretary of Commerce for Enforcement and Compliance, Alternate Chairman, Foreign-Trade Zones Board.

    ATTEST:

    Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-29345 Filed 12-6-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF016 Schedules for Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops AGENCY:

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

    ACTION:

    Notice of public workshops.

    SUMMARY:

    Free Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops will be held in January, February, and March of 2017. Certain fishermen and shark dealers are required to attend a workshop to meet regulatory requirements and to maintain valid permits. Specifically, the Atlantic Shark Identification Workshop is mandatory for all federally permitted Atlantic shark dealers. The Protected Species Safe Handling, Release, and Identification Workshop is mandatory for vessel owners and operators who use bottom longline, pelagic longline, or gillnet gear, and who have also been issued shark or swordfish limited access permits. Additional free workshops will be conducted during 2017 and will be announced in a future notice.

    DATES:

    The Atlantic Shark Identification Workshops will be held on January 12, February 9, and March 9, 2017.

    The Protected Species Safe Handling, Release, and Identification Workshops will be held on January 17, January 20, February 1, February 3, March 7, and March 16, 2017.

    See SUPPLEMENTARY INFORMATION for further details.

    ADDRESSES:

    The Atlantic Shark Identification Workshops will be held in Kenner, LA; Norfolk, VA; and Fort Pierce, FL.

    The Protected Species Safe Handling, Release, and Identification Workshops will be held in Kenner, LA; Wilmington, NC; Port Saint Lucie, FL; Portsmouth, NH; Largo, FL; and Houston, TX.

    See SUPPLEMENTARY INFORMATION for further details on workshop locations.

    FOR FURTHER INFORMATION CONTACT:

    Rick Pearson by phone: (727) 824-5399, or by fax: (727) 824-5398.

    SUPPLEMENTARY INFORMATION:

    The workshop schedules, registration information, and a list of frequently asked questions regarding these workshops are posted on the Internet at: http://www.nmfs.noaa.gov/sfa/hms/compliance/workshops/index.html.

    Atlantic Shark Identification Workshops

    Since January 1, 2008, Atlantic shark dealers have been prohibited from receiving, purchasing, trading, or bartering for Atlantic sharks unless a valid Atlantic Shark Identification Workshop certificate is on the premises of each business listed under the shark dealer permit that first receives Atlantic sharks (71 FR 58057; October 2, 2006). Dealers who attend and successfully complete a workshop are issued a certificate for each place of business that is permitted to receive sharks. These certificate(s) are valid for 3 years. Approximately 127 free Atlantic Shark Identification Workshops have been conducted since January 2007.

    Currently, permitted dealers may send a proxy to an Atlantic Shark Identification Workshop. However, if a dealer opts to send a proxy, the dealer must designate a proxy for each place of business covered by the dealer's permit which first receives Atlantic sharks. Only one certificate will be issued to each proxy. A proxy must be a person who is currently employed by a place of business covered by the dealer's permit; is a primary participant in the identification, weighing, and/or first receipt of fish as they are offloaded from a vessel; and who fills out dealer reports. Atlantic shark dealers are prohibited from renewing a Federal shark dealer permit unless a valid Atlantic Shark Identification Workshop certificate for each business location that first receives Atlantic sharks has been submitted with the permit renewal application. Additionally, trucks or other conveyances that are extensions of a dealer's place of business must possess a copy of a valid dealer or proxy Atlantic Shark Identification Workshop certificate.

    Workshop Dates, Times, and Locations

    1. January 12, 2017, 12 p.m.—4 p.m., DoubleTree Hotel, 2150 Veterans Memorial Highway, Kenner, LA 70062.

    2. February 9, 2017, 12 p.m.—4 p.m. LaQuinta Inn, 1387 North Military Highway, Norfolk, VA 32502.

    3. March 9, 2017, 12 p.m.—4 p.m. LaQuinta Inn, 2655 Crossroads Parkway, Fort Pierce, FL 34945.

    Registration

    To register for a scheduled Atlantic Shark Identification Workshop, please contact Eric Sander at [email protected] or at (386) 852-8588.

    Registration Materials

    To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items to the workshop:

    • Atlantic shark dealer permit holders must bring proof that the attendee is an owner or agent of the business (such as articles of incorporation), a copy of the applicable permit, and proof of identification.

    • Atlantic shark dealer proxies must bring documentation from the permitted dealer acknowledging that the proxy is attending the workshop on behalf of the permitted Atlantic shark dealer for a specific business location, a copy of the appropriate valid permit, and proof of identification.

    Workshop Objectives

    The Atlantic Shark Identification Workshops are designed to reduce the number of unknown and improperly identified sharks reported in the dealer reporting form and increase the accuracy of species-specific dealer-reported information. Reducing the number of unknown and improperly identified sharks will improve quota monitoring and the data used in stock assessments. These workshops will train shark dealer permit holders or their proxies to properly identify Atlantic shark carcasses.

    Protected Species Safe Handling, Release, and Identification Workshops

    Since January 1, 2007, shark limited-access and swordfish limited-access permit holders who fish with longline or gillnet gear have been required to submit a copy of their Protected Species Safe Handling, Release, and Identification Workshop certificate in order to renew either permit (71 FR 58057; October 2, 2006). These certificate(s) are valid for 3 years. As such, vessel owners who have not already attended a workshop and received a NMFS certificate, or vessel owners whose certificate(s) will expire prior to the next permit renewal, must attend a workshop to fish with, or renew, their swordfish and shark limited-access permits. Additionally, new shark and swordfish limited-access permit applicants who intend to fish with longline or gillnet gear must attend a Protected Species Safe Handling, Release, and Identification Workshop and submit a copy of their workshop certificate before either of the permits will be issued. Approximately 244 free Protected Species Safe Handling, Release, and Identification Workshops have been conducted since 2006.

    In addition to certifying vessel owners, at least one operator on board vessels issued a limited-access swordfish or shark permit that uses longline or gillnet gear is required to attend a Protected Species Safe Handling, Release, and Identification Workshop and receive a certificate. Vessels that have been issued a limited-access swordfish or shark permit and that use longline or gillnet gear may not fish unless both the vessel owner and operator have valid workshop certificates onboard at all times. Vessel operators who have not already attended a workshop and received a NMFS certificate, or vessel operators whose certificate(s) will expire prior to their next fishing trip, must attend a workshop to operate a vessel with swordfish and shark limited-access permits that uses longline or gillnet gear.

    Workshop Dates, Times, and Locations

    1. January 17, 2017, 9 a.m.-5 p.m., Hilton Hotel, 901 Airline Drive, Kenner, LA 70062.

    2. January 20, 2017, 9 a.m.-5 p.m., Hilton Garden Inn, 6745 Rock Spring Road, Wilmington, NC 28405.

    3. February 1, 2017, 9 a.m.-5 p.m., Holiday Inn, 10120 South Federal Highway, Port St Lucie, FL 34952.

    4. February 3, 2017, 9 a.m.-5 p.m., Holiday Inn, 300 Woodbury Avenue, Portsmouth, NH 03801.

    5. March 7, 2017, 9 a.m.-5 p.m., Holiday Inn, 210 Seminole Boulevard, Largo, FL 33770.

    6. March 16, 2017, 9 a.m.-5 p.m., Holiday Inn Express, 8080 Main Street, Houston, TX 77025.

    Registration

    To register for a scheduled Protected Species Safe Handling, Release, and Identification Workshop, please contact Angler Conservation Education at (386) 682-0158.

    Registration Materials

    To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items with them to the workshop:

    • Individual vessel owners must bring a copy of the appropriate swordfish and/or shark permit(s), a copy of the vessel registration or documentation, and proof of identification.

    • Representatives of a business-owned or co-owned vessel must bring proof that the individual is an agent of the business (such as articles of incorporation), a copy of the applicable swordfish and/or shark permit(s), and proof of identification.

    • Vessel operators must bring proof of identification.

    Workshop Objectives

    The Protected Species Safe Handling, Release, and Identification Workshops are designed to teach longline and gillnet fishermen the required techniques for the safe handling and release of entangled and/or hooked protected species, such as sea turtles, marine mammals, and smalltooth sawfish. In an effort to improve reporting, the proper identification of protected species will also be taught at these workshops. Additionally, individuals attending these workshops will gain a better understanding of the requirements for participating in these fisheries. The overall goal of these workshops is to provide participants with the skills needed to reduce the mortality of protected species, which may prevent additional regulations on these fisheries in the future.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: December 2, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-29323 Filed 12-6-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Telecommunications and Information Administration First Responder Network Authority First Responder Network Authority Combined Committee and Board Meeting AGENCY:

    First Responder Network Authority (FirstNet), U.S. Department of Commerce.

    ACTION:

    Notice of public meeting of the First Responder Network Authority Board.

    SUMMARY:

    The Board of the First Responder Network Authority (Board) will convene an open public meeting on December 14, 2016, preceded by open public meetings of the Board Committees on December 13, 2016.

    DATES:

    A joint meeting of the four FirstNet Board Committees will be held on December 13, 2016, between 8:00 a.m. and 3:30 p.m. (PST). The meeting of the Governance and Personnel, Technology, Consultation and Outreach, and Finance Committees will be open to the public from 8:00 a.m. to 10:15 a.m. (PST). The FirstNet Committees will be in a closed session from 10:15 a.m. to 3:30 p.m. (PST). The FirstNet Board will hold an open public meeting on December 14, 2016 between 8:00 a.m. and 9:55 a.m. (PST) and between 10:20 a.m. and 11:00 a.m. (PST). The FirstNet Board will be in closed session on December 14, 2016 between 9:55 a.m. and 10:20 a.m. (PST).

    ADDRESSES:

    The meetings on December 13 and December 14, 2016 will be held at the Doubletree by Hilton Hotel Sacramento, 2001 Point West Way, Sacramento, CA 95815. Members of the public may listen to the meeting by dialing toll free 1-888-324-8109 and entering participant code 2827944#.

    FOR FURTHER INFORMATION CONTACT:

    Karen Miller-Kuwana, Board Secretary, FirstNet, 12201 Sunrise Valley Drive, M/S 243, Reston, VA 20192; telephone: (571) 665-6177; email: [email protected] Please direct media inquiries to Ryan Oremland at (571) 665-6186.

    SUPPLEMENTARY INFORMATION:

    This notice informs the public that the Board of the First Responder Network Authority (Board) will convene an open public meeting on December 14, 2016, preceded by open public meetings of the Board Committees on December 13, 2016.

    Background: The Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96, Title VI, 126 Stat. 256 (codified at 47 U.S.C. 1401 et seq.)) (Act) established FirstNet as an independent authority within the National Telecommunications and Information Administration that is headed by a Board. The Act directs FirstNet to ensure the building, deployment, and operation of a nationwide, interoperable public safety broadband network. The FirstNet Board is responsible for making strategic decisions regarding FirstNet's operations. The FirstNet Board held its first public meeting on September 25, 2012.

    Matters to be Considered: FirstNet will post a detailed agenda for the Combined Committee and Board Meetings on its Web site, http://www.firstnet.gov, prior to the meetings. The agenda topics are subject to change. Please note that the subjects that will be discussed by the Committees and the Board may involve commercial or financial information that is privileged or confidential or other legal matters affecting FirstNet. As such, the Committee Chairs and Board Chair may call for a vote to close the meetings only for the time necessary to preserve the confidentiality of such information, pursuant to 47 U.S.C. 1424(e)(2).

    Times and Dates of Meeting: A joint meeting of the four FirstNet Board Committees will be held on December 13, 2016, between 8:00 a.m. and 3:30 p.m. (PST). The meeting of the Governance and Personnel, Technology, Consultation and Outreach, and Finance Committees will be open to the public from 8:00 a.m. to 10:15 a.m. (PST). The FirstNet Committees will be in a closed session from 10:15 a.m. to 3:30 p.m. (PST). The FirstNet Board will hold an open public meeting on December 14, 2016 between 8:00 a.m. and 9:55 a.m. (PST) and between 10:20 a.m. and 11:00 a.m. (PST). The FirstNet Board will be in closed session on December 14, 2016 between 9:55 a.m. and 10:20 a.m. (PST). The times listed above are subject to change. Please refer to FirstNet's Web site at www.firstnet.gov for the most up-to-date information.

    Place: The meetings on December 13 and December 14, 2016 will be held at the Doubletree by Hilton Hotel Sacramento, 2001 Point West Way, Sacramento, CA 95815. Members of the public may listen to the meeting by dialing toll free 1-888-324-8109 and entering participant code 2827944#.

    Other Information: These meetings are open to the public and press on a first-come, first-served basis. Space is limited. To ensure an accurate headcount, all expected attendees are asked to provide notice of intent to attend by sending an email to [email protected] If the number of RSVPs indicates that expected attendance has reached its capacity, FirstNet will respond to all subsequent notices indicating that capacity has been reached and that in-person viewing may no longer be available but that the meeting may still be viewed by webcast as detailed below. For access to the meetings, valid government issued photo identification may be requested for security reasons.

    The Combined Committee and Board Meetings are accessible to people with disabilities. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, are asked to notify Ms. Miller-Kuwana by telephone (571) 665-6177 or email at [email protected] at least five (5) business days before the applicable meeting.

    The meeting will also be webcast. Please refer to FirstNet's Web site at www.firstnet.gov for webcast instructions and other information. Viewers experiencing any issues with the live webcast may email [email protected] or call 202-684-3361 x3 for support. A variety of automated troubleshooting tests are also available via the “Troubleshooting Tips” button on the webcast player. The meetings will also be available to interested parties by phone. To be connected to the meetings in listen-only mode by telephone, please dial toll free 1-888-324-8109 and enter participant code 2827944#. If you experience technical difficulty, please contact the Conferencing Center customer service at 1-866-900-1011.

    Records: FirstNet maintains records of all Board proceedings. Minutes of the Board Meeting and the Committee meetings will be available at www.firstnet.gov.

    Dated: December 1, 2016. Karen Miller-Kuwana, Board Secretary, First Responder Network Authority.
    [FR Doc. 2016-29302 Filed 12-6-16; 8:45 am] BILLING CODE 3510-TL-P
    DEPARTMENT OF DEFENSE Department of the Air Force U.S. Air Force Scientific Advisory Board Notice of Meeting AGENCY:

    Department of the Air Force, Air Force Scientific Advisory Board.

    ACTION:

    Federal Registrar meeting notice.

    SUMMARY:

    The United States Air Force Scientific Advisory Board plans to hold its Winter Board meeting in January. Portions of this meeting will be open to the public.

    DATES:

    The meeting date is January 24, 2017, from 8 a.m. to 5 p.m.

    ADDRESSES:

    The meeting will take place at the Beckman Center of National Academies of Science and Engineering, 100 Academy Drive, Irvine, California 92617.

    FOR FURTHER INFORMATION CONTACT: The Scientific Advisory Board meeting organizer, Major Mike Rigoni at [email protected] or 240-612-5506, United States Air Force Scientific Advisory Board, 1500 West Perimeter Road, Ste. #3300, Joint Base Andrews, MD 20762.
    SUPPLEMENTARY INFORMATION:

    Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces the United States Air Force (USAF) Scientific Advisory Board (SAB) Winter Board meeting will take place on 24 January 2017 at the Beckman Center of National Academies of Science and Engineering, located at 100 Academy Drive, Irvine, California 92617. The meeting will occur from 8:00 a.m.-5:00 p.m. on Tuesday, 24 January 2017. The session that will be open to the general public will be held from 8:00 a.m. to 8:30 a.m. on 24 January 2017. In accordance with 5 U.S.C. 552b, as amended, and 41 CFR 102-3.155, a number of sessions of the Air Force Scientific Advisory Board Winter Board meeting will be closed to the general public because they will discuss classified information and matters covered by Section 552b of Title 5, United States Code, subsection (c), subparagraph (1).

    Any member of the public that wishes to attend this meeting or provide input to the Air Force Scientific Advisory Board must contact the Scientific Advisory Board meeting organizer at the phone number or email address listed in this announcement at least five working days prior to the meeting date. Please ensure that you submit your written statement in accordance with 41 CFR 102-3.140(c) and section 10(a)(3) of the Federal Advisory Committee Act. Statements being submitted in response to the agenda mentioned in this notice must be received by the Scientific Advisory Board meeting organizer at least five calendar days prior to the meeting commencement date. The Scientific Advisory Board meeting organizer will review all timely submissions and respond to them prior to the start of the meeting identified in this notice. Written statements received after this date may not be considered by the Scientific Advisory Board until the next scheduled meeting.

    Henry Williams, Acting Air Force Federal Register Liaison Officer.
    [FR Doc. 2016-29102 Filed 12-6-16; 8:45 am] BILLING CODE 5001-10-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DOD-2016-OS-0114] Privacy Act of 1974; System of Records AGENCY:

    Office of the Secretary of Defense, DoD.

    ACTION:

    Notice to delete a System of Records.

    SUMMARY:

    Pursuant to the Privacy Act of 1974 and Office of Management and Budget (OMB) Circular No. A-130, notice is hereby given that the Department of Defense proposes to delete a system of records, “International Affairs Personnel Initiatives Database,” last published at 75 FR 19622 on April 15, 2010. This system of records is a single central facility with the Department of Defense (DoD) that maintains and verifies information provided by individuals seeking international affairs certification based on their current experience and training.

    Based on a recent review of DSCA 01, International Affairs Personnel Initiatives Database, it has been determined that this system of records is covered by system of records notice DSCA 07, Security Assistance Network (SAN) (September 22, 2016, 81 FR 65343). All records will be maintained in accordance with the DSCA 07 records retention. Therefore, DSCA 01, International Affairs Personnel Initiatives Database can be deleted.

    DATES:

    Comments will be accepted on or before January 6, 2017. This proposed action will be effective the date following the end of the comment period unless comments are received which result in a contrary determination.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

    * Federal Rulemaking Portal: http://www.regulations.gov.Follow the instructions for submitting comments.

    * Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name and docket number for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    FOR FURTHER INFORMATION CONTACT:

    Mrs. Luz D. Ortiz, Chief, Records, Privacy and Declassification Division (RPD2), 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0478.

    SUPPLEMENTARY INFORMATION:

    The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the Federal Register and are available from the address in FOR FURTHER INFORMATION CONTACT or at the Defense Privacy, Civil Liberties, and Transparency Division Web site at http://dpcld.defense.gov/.

    Dated: December 2, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. Deletion: DSCA 01

    International Affairs Personnel Initiatives Database (April 15, 2010, 75 FR 19622)

    Reason: Based on a recent review of DSCA 01, International Affairs Personnel Initiatives Database, it has been determined that this system of records is covered by system of records notice DSCA 07, Security Assistance Network (SAN) (September 22, 2016, 81 FR 65343). All records will be maintained in accordance with the DSCA 07 records retention. Therefore, DSCA 01, International Affairs Personnel Initiatives Database can be deleted.

    [FR Doc. 2016-29304 Filed 12-6-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2016-ICCD-0137] Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Middle Grades Longitudinal Study of 2017-18 (MGLS: 2017) Operational Field Test (OFT) and Recruitment for Main Study Base-Year Study AGENCY:

    National Center for Education Statistics (NCES), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501 et seq.), ED is proposing a revision of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before January 6, 2017.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2016-ICCD-0137. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 2E-347, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact NCES Information Collections at [email protected]

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: Middle Grades Longitudinal Study of 2017-18 (MGLS: 2017) Operational Field Test (OFT) and Recruitment for Main Study Base-year Study.

    OMB Control Number: 1850-0911.

    Type of Review: A revision of an existing information collection.

    Respondents/Affected Public: Individuals or Households.

    Total Estimated Number of Annual Responses: 34,952.

    Total Estimated Number of Annual Burden Hours: 17,391.

    Abstract: The Middle Grades Longitudinal Study of 2017-18 (MGLS:2017) is the first study conducted by the National Center for Education Statistics (NCES) to follow a nationally-representative sample of students as they enter and move through the middle grades (grades 6-8). The data collected through repeated measures of key constructs will provide a rich descriptive picture of the academic experiences and development of students during these critical years and will allow researchers to examine associations between contextual factors and student outcomes. The study will focus on student achievement in mathematics and literacy along with measures of student socioemotional wellbeing and other outcomes. The study will also include a special sample of students with different types of disabilities that will provide descriptive information on their outcomes, educational experiences, and special education services. Main Study Base-year data for the MGLS:2017 will be collected from a nationally-representative sample of 6th grade students beginning in January 2018, with annual follow-ups beginning in January 2019 and in January 2020 when most of the students in the sample will be in grades 7 and 8, respectively. In preparation for the national data collection, referred to as the Main Study, the data collection instruments and procedures must be field tested. An Item Validation Field Test (IVFT) was conducted in the winter/spring 2016 to determine the psychometric properties of items and the predictive potential of assessment and survey items so that valid, reliable, and useful assessment and survey instruments can be composed for the Main Study. An Operational Field Test (OFT) will begin in January 2017 to test the near final instruments and the recruitment and data collection processes and procedures in preparation for the Main Study. OMB approved the recruitment of schools, school districts, and parents to participate in the OFT in December 2015 with the latest change request approved in March 2016 (OMB# 1850-0911 v.6,9,10). The request to conduct the OFT data collection, Main Study recruitment, and tracking of OFT students is currently under review at OMB (OMB# 1850-0911 v.11), with expected approval in early December 2016. This request is to modify language in the parent contacting materials, the video introductory script for the student session, and the study questionnaires (student, parent, math teacher, special education teacher, school administrator, and facilities observation checklist). These changes are driven by the recently completed analyses of IVFT results. The data collection for the OFT will begin January 23, 2017. Main Study recruitment will also commence in January 2017.

    Dated: December 2, 2016. Kate Mullan, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2016-29327 Filed 12-6-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION Applications for New Awards; Personnel Development To Improve Services and Results for Children With Disabilities—Preparation of Special Education, Early Intervention, and Related Services Leadership Personnel AGENCY:

    Office of Special Education and Rehabilitative Services, Department of Education.

    ACTION:

    Notice.

    Overview Information: Personnel Development to Improve Services and Results for Children with Disabilities—Preparation of Special Education, Early Intervention, and Related Services Leadership Personnel

    Notice inviting applications for a new award for fiscal year (FY) 2017.

    Catalog of Federal Domestic Assistance (CFDA) Number: 84.325D.

    Dates:

    Applications Available: December 7, 2016.

    Deadline for Transmittal of Applications: February 6, 2017.

    Deadline for Intergovernmental Review: April 6, 2017.

    Full Text of Announcement I. Funding Opportunity Description

    Purpose of Program: The purposes of this program are to (1) help address State-identified needs for personnel preparation in special education, early intervention, related services, and regular education to work with children, including infants and toddlers, with disabilities; and (2) ensure that those personnel have the necessary skills and knowledge, derived from practices that have been determined through scientifically based research and experience, to be successful in serving those children.

    Priority: In accordance with 34 CFR 75.105(b)(2)(v), this priority is from allowable activities specified in the statute (see sections 662 and 681 of the Individuals with Disabilities Education Act (IDEA); 20 U.S.C. 1462 and 20 U.S.C. 1481).

    Absolute Priority: For FY 2017 and any subsequent year in which we make awards from the list of unfunded applications from this competition, this priority is an absolute priority. Under 34 CFR 75.105(c)(3), we consider only applications that meet this priority.

    This priority is:

    Preparation of Special Education, Early Intervention, and Related Services Leadership Personnel.

    Background: The purpose of the Preparation of Special Education, Early Intervention, and Related Services Leadership Personnel priority is to support existing doctoral degree programs that prepare special education, early intervention, and related services personnel who are well-qualified for, and can act effectively in, leadership positions as researchers and special education/early intervention/related services personnel preparers in institutions of higher education (IHEs), or as leaders in national organizations, State educational agencies (SEAs), lead agencies (LAs), local educational agencies (LEAs), early intervention services programs (EIS programs), or schools.

    There is a well-documented need for leadership personnel to fill faculty and leadership positions in special education, early intervention, and related services (Castillo, Curtis, & Tan, 2014; Montrosse & Young, 2012; Robb, Smith, & Montrosse, 2012; Smith, Montrosse, Robb, Tyler, & Young, 2011; Smith, Robb, West, & Tyler, 2010; Woods & Snyder, 2009). These leaders conduct research to increase the knowledge of effective interventions and services for children and youth with disabilities. These leaders also teach practices supported by evidence to future special education, early intervention, and related services professionals who will work in a variety of educational settings and provide services directly to these children (Robb et al., 2012; Smith et al., 2010; West & Hardman, 2012). Shortages in these leadership positions could limit the field's capacity to generate new knowledge of effective interventions and to prepare future professionals to improve outcomes for children with disabilities (Smith et al., 2011).

    Shortages of leadership personnel at State and local agencies to fill special education and early intervention administrator positions have also been noted (Billingsley, Crockett, & Kamman, 2014). These administrators supervise and evaluate the implementation of instructional programs supported by evidence to make sure that State or local agencies are meeting the needs of children with disabilities. Administrators also ensure that schools and programs meet Federal, State, and local requirements for special education, early intervention, and related services (Lashley & Boscardin, 2003).

    Federal support can increase the supply of personnel who have the necessary knowledge and skills to assume leadership positions in special education, early intervention, and related services as researchers and special education/early intervention/related services personnel preparers in IHEs, or as leaders in national organizations, SEAs, LAs, LEAs, EIS programs, or schools. Critical competencies for special education, early intervention, and related services personnel vary depending on the type of personnel and the requirements of the preparation program but can include, for example, skills needed for postsecondary instruction, administration, policy development, professional practice, leadership, or research. However, all leadership personnel need to have current knowledge of effective interventions and services that improve outcomes for children with disabilities, including high-need children with disabilities.1

    1 For a definition of “high-need children with disabilities,” please see footnote 2.

    Priority: The purpose of the Preparation of Special Education, Early Intervention, and Related Services Leadership Personnel priority is to support pre-existing doctoral degree programs that prepare special education, early intervention, and related services personnel who are well-qualified for, and can act effectively in, leadership positions as researchers and special education/early intervention/related services personnel preparers in IHEs, or as leaders in national organizations, SEAs, LAs, LEAs, or EIS programs. This priority supports two types of programs:

    Type A programs are designed to prepare special education, early intervention, and related services personnel as researchers and personnel preparers in IHEs. Type A programs culminate in a doctoral degree.

    Note:

    Preparation programs that lead to clinical doctoral degrees in related services (e.g., a Doctor of Audiology degree or Doctor of Physical Therapy degree) are not included in this priority. These types of preparation programs are eligible to apply for funding under the Personnel Preparation in Special Education, Early Intervention, and Related Services priority (CFDA 84.325K) that the Office of Special Education Programs (OSEP) intends to fund in FY 2017.

    Type B programs are designed to prepare special education or early intervention administrators to work as leaders in national organizations, SEAs, LAs, LEAs, or EIS programs. Type B programs prepare personnel for positions such as SEA special education administrators, LEA or regional special education directors, school-based special education directors, including those in youth correctional facilities, preschool coordinators, and early intervention coordinators. Type B programs culminate in a doctoral degree.

    Note:

    The preparation of school principals is not included in this priority.

    Note:

    Applicants must identify the specific program type, A or B, for which they are applying for funding as part of the abstract. Applicants may not submit the same proposal for more than one program type.

    To be considered for funding under the Preparation of Special Education, Early Intervention, and Related Services Leadership Personnel absolute priority, all program applicants must meet the application requirements contained in the priority. All projects funded under this absolute priority also must meet the programmatic and administrative requirements specified in the priority.

    The requirements of this priority are as follows:

    (a) Demonstrate, in the narrative section of the application under “Significance of the Project,” how—

    (1) The project addresses national, State, regional, or district needs for leadership personnel to administer programs or provide, or prepare others to provide, interventions and services that improve outcomes of children with disabilities, ages birth through 21, including high-need children with disabilities.2 To address this requirement, the applicant must—

    2 For purposes of this priority, “high-need children with disabilities” refers to children (ages birth through 21, depending on the State) who are eligible for services under IDEA, and who may be further disadvantaged and at risk of educational failure because they: (1) Are living in poverty, (2) are far below grade level, (3) are at risk of not graduating with a regular high school diploma on time, (4) are homeless, (5) are in foster care, (6) have been incarcerated, (7) are English learners, (8) are pregnant or parenting teenagers, (9) are new immigrants, (10) are migrant, or (11) are not on track to being college- or career-ready by graduation.

    (i) Present appropriate and applicable data (e.g., national, State) demonstrating the need for the leadership personnel the applicant proposes to prepare; and

    (ii) Present data demonstrating the effectiveness of the doctoral program to date in producing leaders in special education, early intervention, or related services such as: the professional accomplishments of program graduates (e.g., public service, honors, or publications) that demonstrate their leadership in special education, early intervention, or related services; the effectiveness of program graduates as educators of teachers, service providers, or administrators, including any results from evaluating the impact of those teachers, service providers, or administrators on the outcomes of children with disabilities; the average amount of time it takes for program graduates to complete the program; the number of program graduates; and the percentage of program graduates finding employment directly related to their preparation.

    Note:

    Data on the effectiveness of a doctoral program should be no older than five years prior to the start date of the project proposed in the application. When reporting percentages, the denominator (i.e., the total number of scholars or program graduates) must be provided.

    (2) Scholar competencies to be acquired in the program relate to knowledge and skills needed by the leadership personnel the applicant proposes to prepare, including knowledge of technologies designed to provide instruction. To address this requirement, the applicant must—

    (i) Identify the competencies needed by leadership personnel in postsecondary instruction, administration, policy development, professional practice, leadership, or research in order to administer programs or provide, or prepare others to provide, interventions and services that improve outcomes of children with disabilities, ages birth through 21, including high-need children with disabilities; and

    (ii) Provide the conceptual framework of the leadership preparation program, including any empirical support, that will promote the acquisition of the identified competencies needed by leadership personnel, including knowledge of technologies designed to provide instruction, and, where applicable, how these competencies relate to the project's specialized preparation area.

    (b) Demonstrate, in the narrative section of the application under “Quality of the Project Services,” how—

    (1) The applicant will recruit and support high-quality scholars. The narrative must—

    (i) Describe the selection criteria the applicant will use to identify high-quality applicants for admission in the program;

    (ii) Describe the recruitment strategies the applicant will use to attract high-quality applicants and any specific recruitment strategies targeting high-quality applicants from traditionally underrepresented groups, including individuals with disabilities; and

    (iii) Describe the approach the applicant will use to help all scholars, including individuals with disabilities, complete the program; and

    (2) The project is designed to promote the acquisition of the competencies needed by leadership personnel to administer programs or provide, or prepare others to provide, interventions and services supported by evidence to improve outcomes, including college- and career-readiness of children with disabilities. To address this requirement, the applicant must—

    (i) Describe how the components of the project, such as coursework, internship or practicum experiences, research requirements, and other opportunities provided to scholars to analyze data, critique research and methodologies, and practice newly acquired knowledge and skills, will enable the scholars to acquire the competencies needed by leadership personnel for postsecondary instruction, administration, policy development, professional practice, leadership, or research in special education, early intervention, or related services;

    (ii) Describe how the components of the project are integrated in order to support the acquisition and enhancement of the identified competencies needed by leadership personnel in special education, early intervention, or related services, including knowledge of technologies designed to provide instruction;

    (iii) Describe how the components of the project prepare scholars to administer programs or provide, or prepare others to provide, interventions and services that are supported by evidence to improve outcomes, including college- and career-readiness, of children with disabilities in a variety of settings, including in high-need LEAs; 3 high-poverty schools; 4 low-performing schools; 5 priority schools (in the case of States that have received the Department of Education's (Department's) approval of a request for ESEA flexibility); 6 and early childhood programs located within the geographical boundaries of a high-need LEA;

    3 For the purposes of this priority, the term “high-need LEA” means an LEA (a) that serves not fewer than 10,000 children from families with incomes below the poverty line; or (b) for which not less than 20 percent of the children served by the LEA are from families with incomes below the poverty line.

    4 For the purposes of this priority, the term “high-poverty school” means a school that is in the highest two quartiles of schools served by an LEA, based on the percentage of enrolled students from low-income families as defined in section 1113(a)(5) of the Elementary and Secondary Education Act of 1965, as amended (ESEA).

    5 For the purposes of this priority, the term “low-performing school” means a school receiving assistance through Title I of the ESEA that, at the time of submission of an application under this competition, is (1) identified as a school in need of corrective action or restructuring under section 1116 of the ESEA, as amended by the No Child Left Behind Act of 2001 (NCLB); or (2) identified as a priority or focus school in a State that implemented ESEA flexibility. The inclusion of these schools as “low-performing schools” reflects the fact that the 2016-2017 school year is a year of transition between requirements of the ESEA as amended by the NCLB and the ESEA as amended by the Every Student Succeeds Act.

    6 For the purposes of this priority, the term “priority school” means a school that has been identified by the State as a priority school pursuant to the State's approved request for ESEA flexibility.

    (iv) Demonstrate, through a letter of support from a partnering agency, school, or program, that there is an agreement with one or more high-need LEAs; publicly funded preschool programs, including Head Start programs, located within the geographic boundaries of a high-need LEA; or programs serving children eligible for services under Part C or Part B, section 619 of IDEA located within the geographic boundaries of a high-need LEA, that it will provide scholars with a high-quality internship or practicum experience in a school in a high-need LEA, publicly funded preschool, or early intervention program;

    (v) Describe how the project will use resources, as appropriate, available through technical assistance centers, which may include centers funded by the Department; and

    (vi) Describe the approach that faculty members will use to mentor scholars with the goal of helping them acquire competencies needed by leadership personnel and promote career goals in special education, early intervention, or related services.

    (c) Demonstrate, in the narrative section of the application under “Quality of the Project Evaluation,” how—

    (1) The applicant will evaluate how well the goals or objectives of the proposed leadership project have been met. The applicant must describe the outcomes to be measured for both the project and the scholars, particularly the acquisition of scholar competencies and their impact on the services provided by future teachers, service providers, or administrators; and the evaluation methodologies to be employed, including proposed instruments, data collection methods, and possible analyses;

    (2) The applicant will collect, analyze, and use data on current scholars and scholars who graduate from the program to improve the proposed program on an ongoing basis; and

    (3) The applicant will report the evaluation results to OSEP in its annual and final performance reports.

    (d) Demonstrate, in the narrative under “Required Project Assurances,” or appendices as directed, that the following program requirements are met. The applicant must—

    (1) Include in the application appendix—

    (i) Course syllabi for all coursework in the major and any required coursework for a minor;

    (ii) Course syllabi for all research methods, evaluation methods, or data analysis courses required by the degree program and elective research methods, evaluation methods, or data analysis courses that have been completed by more than one scholar enrolled in the program in the last five years; and

    (iii) For new coursework, proposed syllabi;

    Note:

    Applicants for Type B programs should provide a syllabus or syllabi for current or proposed courses that provide instruction on, or permit practice with, research and the methodological, statistical, and practical considerations in the use of data on early learning outcomes, student achievement, or growth in student achievement to evaluate the effectiveness of early intervention providers, related services providers, teachers, or principals.

    (2) Ensure that the proposed number of scholars to be recruited into the program can graduate from the program by the end of the grant's project period. The described scholar recruitment strategies, including recruitment of individuals with disabilities, the program components and their sequence, and proposed budget must be consistent with this project requirement;

    (3) Ensure scholars will not be selected based on race or national origin/ethnicity. Per the Supreme Court's decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), the Department does not allow the selection of individuals on the basis of race or national origin/ethnicity. For this reason, grantees must ensure that any discussion of the recruitment of scholars based on race or national origin/ethnicity distinguishes between increasing the pool of applicants and actually selecting scholars;

    (4) Ensure that the project will meet the requirements in 34 CFR 304.23, particularly those related to informing all scholarship recipients of their service obligation commitment. Failure by a grantee to properly meet these requirements is a violation of the grant award that may result in sanctions, including the grantee being liable for returning any misused funds to the Department. Specifically, the grantee must prepare, and ensure that each scholarship recipient signs, the following two documents:

    (i) A Pre-Scholarship Agreement prior to the scholar receiving a scholarship for an eligible program (Office of Management and Budget (OMB) Control Number 1820-0686); and

    (ii) An Exit Certification immediately upon the scholar leaving, completing, or otherwise exiting that program (OMB Control Number 1820-0686);

    (5) Ensure that prior approval from the OSEP project officer will be obtained before admitting additional scholars beyond the number of scholars proposed in the application and before transferring a scholar to another preparation program funded by OSEP;

    (6) Ensure that the project will meet the statutory requirements in section 662(e) through 662(h) of IDEA;

    (7) Ensure that at least 65 percent of the total requested budget over the five years will be used for scholar support;

    (8) Ensure that the IHE will not require scholars enrolled in the program to work (e.g., as graduate assistants) as a condition of receiving support (e.g., tuition, stipends) from the proposed project, unless the work is specifically related to the acquisition of scholars' competencies and the requirements for completion of their personnel preparation program. This prohibition on work as a condition of receiving support does not apply to the service obligation requirements in section 662(h) of IDEA;

    (9) Ensure that the budget includes attendance of the project director at a three-day project directors' meeting in Washington, DC, during each year of the project. The budget may also provide for the attendance of scholars at the same three-day project directors' meetings in Washington, DC;

    (10) Ensure that if the project maintains a Web site, relevant information and documents are in a format that meets government or industry-recognized standards for accessibility;

    (11) Ensure that scholar accomplishments (e.g., publications, awards) will be reported in annual and final performance reports; and

    (12) Ensure that annual data will be submitted on each scholar who receives grant support (OMB Control Number 1820-0686). The primary purposes of the data collection are to track the service obligation fulfillment of scholars who receive funds from OSEP grants and to collect data for program performance measure reporting under the Government Performance and Results Act of 1993 (GPRA). Applicants are encouraged to visit the Personnel Development Program Data Collection System (DCS) Web site at https://pdp.ed.gov/osep for further information about this data collection requirement. Typically, data collection begins in January of each year, and grantees are notified by email about the data collection period for their grant, although grantees may submit data as needed, year round. This data collection must be submitted electronically by the grantee and does not supplant the annual grant performance report required of each grantee for continuation funding (see 34 CFR 75.590). Data collection includes the submission of a signed, completed Pre-Scholarship Agreement and Exit Certification for each scholar funded under an OSEP grant (see paragraph (4) of this section, subparagraphs (i) and (ii)).

    References Billingsley, B. S., Crockett, J., & Kamman, M. L. (2014). Recruiting and retaining teachers and administrators in special education. In P. T. Sindelar, E. D. McCray, M. T. Brownell, & B. Lignugaris/Kraft (Eds.), Handbook of research on special education teacher preparation (pp. 94-112). New York, NY: Routledge. Castillo, J. M., Curtis, M. J., & Tan, S. Y. (2014). Personnel needs in school psychology: A 10-year follow-up study on predicted personnel shortages. Psychology in the Schools, 51, 832-849. Lashley, C., & Boscardin, M. L. (2003). Special education administration at the crossroads: Availability, licensure, and preparation of special education administrators. Gainesville, FL: Center on Personnel Studies in Special Education, University of Florida. Retrieved from www.coe.ufl.edu/copsse/docs/IB-8/1/IB-8.pdf. Montrosse, B. E., & Young, C. J. (2012). Market demand for special education faculty. Teacher Education and Special Education, 35, 140-153. Robb, S. M., Smith, D. D., & Montrosse, B. E. (2012). A context of the demand for special education faculty: A study of special education teacher preparation programs. Teacher Education and Special Education, 35, 128-139. Smith, D. D., Montrosse, B. E., Robb, S. M., Tyler, N. C., & Young, C. (2011). Assessing trends in leadership: Special education's capacity to produce a highly qualified workforce. Claremont, CA: [email protected], Claremont Graduate University. Smith, D. D., Robb, S. M., West, J., & Tyler, N. C. (2010). The changing education landscape: How special education leadership preparation can make a difference for teachers and their students with disabilities. Teacher Education and Special Education, 33, 25-43. West, J. E., & Hardman, H. L. (2012). Averting current and future special education faculty shortages: Policy implications and recommendations. Teacher Education and Special Education, 35, 154-160. Woods, J., & Snyder, P. (2009). Interdisciplinary doctoral leadership training in early intervention. Infants & Young Children, 22(1), 32-34.

    Waiver of Proposed Rulemaking: Under the Administrative Procedure Act (APA) (5 U.S.C. 553) the Department generally offers interested parties the opportunity to comment on proposed priorities. Section 681(d) of IDEA, however, makes the public comment requirements of the APA inapplicable to the priority in this notice.

    Program Authority: 20 U.S.C. 1462 and 1481.

    Applicable Regulations: (a) The Education Department General Administrative Regulations in 34 CFR parts 75, 77, 79, 81, 82, 84, 86, 97, 98, and 99. (b) The Office of Management and Budget Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations of the Department in 2 CFR part 3485. (c) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted and amended as regulations of the Department in 2 CFR part 3474. (d) The regulations for this program in 34 CFR part 304.

    Note:

    The regulations in 34 CFR part 86 apply to IHEs only.

    II. Award Information

    Type of Award: Discretionary grants.

    Estimated Available Funds: The Administration has requested $83,700,000 for the Personnel Development to Improve Services and Results for Children with Disabilities program for FY 2017, of which we intend to use an estimated $3,250,000 for this competition. The actual level of funding, if any, depends on final congressional action. However, we are inviting applications to allow enough time to complete the grant process if Congress appropriates funds for this program.

    Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2018 from the list of unfunded applications from this competition.

    Estimated Range of Awards: $225,000-$250,000 per year.

    Estimated Average Size of Awards: $237,500 per year.

    Maximum Award: We will reject any application that proposes a budget exceeding $250,000 for a single budget period of 12 months.

    Estimated Number of Awards: 13.

    Note:

    The Department is not bound by any estimates in this notice.

    Project Period: Up to 60 months.

    III. Eligibility Information

    1. Eligible Applicants: IHEs, private nonprofit organizations.

    2. Cost Sharing or Matching: This program does not require cost sharing or matching.

    3. Eligible Subgrantees: (a) Under 34 CFR 75.708(b) and (c) a grantee may award subgrants—to directly carry out project activities described in its application—to the following types of entities: IHEs and private nonprofit organizations suitable to carry out the activities proposed in the application.

    (b) The grantee may award subgrants to entities it has identified in an approved application.

    4. Other General Requirements:

    (a) Recipients of funding under this competition must make positive efforts to employ and advance in employment qualified individuals with disabilities (see section 606 of IDEA).

    (b) Each applicant for, and recipient of, funding must, with respect to the aspects of their proposed project relating to the absolute priority, involve individuals with disabilities, or parents of individuals with disabilities ages birth through 26, in planning, implementing, and evaluating the project (see section 682(a)(1)(A) of IDEA).

    IV. Application and Submission Information

    1. Address to Request Application Package: You can obtain an application package via the Internet or from the Education Publications Center (ED Pubs). To obtain a copy via the Internet, use the following address: www.ed.gov/fund/grant/apply/grantapps/index.html. To obtain a copy from ED Pubs, write, fax, or call: ED Pubs, U.S. Department of Education, P.O. Box 22207, Alexandria, VA 22304. Telephone, toll free: 1-877-433-7827. FAX: (703) 605-6794. If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call, toll free: 1-877-576-7734.

    You can contact ED Pubs at its Web site, also: www.EDPubs.gov or at its email address: [email protected]

    If you request an application package from ED Pubs, be sure to identify this competition as follows: CFDA number 84.325D.

    Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the person or team listed under Accessible Format in section VIII of this notice.

    2. Content and Form of Application Submission: Requirements concerning the content and form of an application, together with the forms you must submit, are in the application package for this competition. Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. You must limit Part III to no more than 50 pages, using the following standards:

    • A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.

    • Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, reference citations, and captions, as well as all text in charts, tables, figures, graphs, and screen shots.

    • Use a font that is 12 point or larger.

    • Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.

    The page limit and double-spacing requirements do not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the abstract (follow the guidance provided in the application package for completing the abstract), the table of contents, the list of priority requirements, the resumes, the reference list, the letters of support, or the appendices. However, the page limit and double-spacing requirements do apply to all of Part III, the application narrative, including all text in charts, tables, figures, graphs, and screen shots.

    We will reject your application if you exceed the page limit in the application narrative section, or if you apply standards other than those specified in this notice and the application package.

    3. Submission Dates and Times: Applications Available: December 7, 2016.

    Deadline for Transmittal of Applications: February 6, 2017.

    Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to Other Submission Requirements in section IV of this notice.

    We do not consider an application that does not comply with the deadline requirements.

    Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under FOR FURTHER INFORMATION CONTACT in section VII of this notice. If the Department provides an accommodation or auxiliary aid to an individual with a disability in connection with the application process, the individual's application remains subject to all other requirements and limitations in this notice.

    Deadline for Intergovernmental Review: April 6, 2017.

    4. Intergovernmental Review: This competition is subject to Executive Order 12372 and the regulations in 34 CFR part 79. Information about Intergovernmental Review of Federal Programs under Executive Order 12372 is in the application package for this competition.

    5. Funding Restrictions: We reference regulations outlining funding restrictions in the Applicable Regulations section of this notice.

    6. Data Universal Numbering System Number, Taxpayer Identification Number, and System for Award Management: To do business with the Department of Education, you must—

    a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);

    b. Register both your DUNS number and TIN with the System for Award Management (SAM), the Government's primary registrant database;

    c. Provide your DUNS number and TIN on your application; and

    d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.

    You can obtain a DUNS number from Dun and Bradstreet at the following Web site: http://fedgov.dnb.com/webform. A DUNS number can be created within one to two business days.

    If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.

    The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data you enter into the SAM database. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.

    Note:

    Once your SAM registration is active, it may be 24 to 48 hours before you can access the information in, and submit an application through, Grants.gov.

    If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.

    Information about SAM is available at www.SAM.gov. To further assist you with obtaining and registering your DUNS number and TIN in SAM or updating your existing SAM account, we have prepared a SAM.gov Tip Sheet, which you can find at: www2.ed.gov/fund/grant/apply/sam-faqs.html.

    In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page: www.grants.gov/web/grants/register.html.

    7. Other Submission Requirements: Applications for grants under this competition must be submitted electronically unless you qualify for an exception to this requirement in accordance with the instructions in this section.

    a. Electronic Submission of Applications. Applications for grants under the Preparation of Special Education, Early Intervention, and Related Services Leadership Personnel competition, CFDA number 84.325D, must be submitted electronically using the Governmentwide Grants.gov Apply site at www.Grants.gov. Through this site, you will be able to download a copy of the application package, complete it offline, and then upload and submit your application. You may not email an electronic copy of a grant application to us.

    We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under Exception to Electronic Submission Requirement.

    You may access the electronic grant application for the Preparation of Special Education, Early Intervention, and Related Services Leadership Personnel competition at www.Grants.gov. You must search for the downloadable application package for this competition by the CFDA number. Do not include the CFDA number's alpha suffix in your search (e.g., search for 84.325, not 84.325D).

    Please note the following:

    • When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.

    • Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.

    • The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.

    • You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at www.G5.gov. In addition, for specific guidance and procedures for submitting an application through Grants.gov, please refer to the Grants.gov Web site at: www.grants.gov/web/grants/applicants/apply-for-grants.html.

    • You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.

    • You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.

    • You must upload any narrative sections and all other attachments to your application as files in a read-only, non-modifiable Portable Document Format (PDF). Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF (e.g., Word, Excel, WordPerfect, etc.) or submit a password-protected file, we will not review that material. Please note that this could result in your application not being considered for funding because the material in question—for example, the application narrative—is critical to a meaningful review of your proposal. For that reason it is important to allow yourself adequate time to upload all material as PDF files. The Department will not convert material from other formats to PDF. Additional, detailed information on how to attach files is in the application instructions.

    • Your electronic application must comply with any page-limit requirements described in this notice.

    • After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. This notification indicates receipt by Grants.gov only, not receipt by the Department. Grants.gov will also notify you automatically by email if your application met all the Grants.gov validation requirements or if there were any errors (such as submission of your application by someone other than a registered Authorized Organization Representative, or inclusion of an attachment with a file name that contains special characters). You will be given an opportunity to correct any errors and resubmit, but you must still meet the deadline for submission of applications.

    Once your application is successfully validated by Grants.gov, the Department will retrieve your application from Grants.gov and send you an email with a unique PR/Award number for your application.

    These emails do not mean that your application is without any disqualifying errors. While your application may have been successfully validated by Grants.gov, it must also meet the Department's application requirements as specified in this notice and in the application instructions. Disqualifying errors could include, for instance, failure to upload attachments in a read-only, non-modifiable PDF; failure to submit a required part of the application; or failure to meet applicant eligibility requirements. It is your responsibility to ensure that your submitted application has met all of the Department's requirements.

    • We may request that you provide us original signatures on forms at a later date.

    Application Deadline Date Extension in Case of Technical Issues with the Grants.gov System: If you are experiencing problems submitting your application through Grants.gov, please contact the Grants.gov Support Desk, toll free, at 1-800-518-4726. You must obtain a Grants.gov Support Desk Case Number and must keep a record of it.

    If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.

    If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under FOR FURTHER INFORMATION CONTACT in section VII of this notice and provide an explanation of the technical problem you experienced with Grants.gov, along with the Grants.gov Support Desk Case Number. We will accept your application if we can confirm that a technical problem occurred with the Grants.gov system and that the problem affected your ability to submit your application by 4:30:00 p.m., Washington, DC time, on the application deadline date. We will contact you after we determine whether your application will be accepted.

    Note:

    The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.

    Exception to Electronic Submission Requirement: You qualify for an exception to the electronic submission requirement, and may submit your application in paper format, if you are unable to submit an application through the Grants.gov system because—

    • You do not have access to the Internet; or

    • You do not have the capacity to upload large documents to the Grants.gov system;

    and

    • No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.

    If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.

    Address and mail or fax your statement to: Celia Rosenquist, U.S. Department of Education, 400 Maryland Avenue SW., Room 5146, Potomac Center Plaza (PCP), Washington, DC 20202-5076. FAX: (202) 245-7590.

    Your paper application must be submitted in accordance with the mail or hand-delivery instructions described in this notice.

    b. Submission of Paper Applications by Mail. If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.325D), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.

    You must show proof of mailing consisting of one of the following:

    (1) A legibly dated U.S. Postal Service postmark.

    (2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.

    (3) A dated shipping label, invoice, or receipt from a commercial carrier.

    (4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.

    If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:

    (1) A private metered postmark.

    (2) A mail receipt that is not dated by the U.S. Postal Service.

    Note:

    The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.

    We will not consider applications postmarked after the application deadline date.

    c. Submission of Paper Applications by Hand Delivery. If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.325D), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260.

    The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.

    Note for Mail or Hand Delivery of Paper Applications: If you mail or hand deliver your application to the Department—

    (1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and

    (2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.

    V. Application Review Information

    1. Selection Criteria: The selection criteria for this competition are from 34 CFR 75.210 and are listed in the application package.

    2. Review and Selection Process: We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and