Federal Register Vol. 81, No.241,

Federal Register Volume 81, Issue 241 (December 15, 2016)

Page Range90675-90947
FR Document

81_FR_241
Current View
Page and SubjectPDF
81 FR 90871 - Sunshine Act Meeting; National Science BoardPDF
81 FR 90853 - Sunshine Act MeetingPDF
81 FR 90820 - Agency Information Collection Activities; Comment Request; Application and Employment Certification for Public Service Loan ForgivenessPDF
81 FR 90864 - Notice of Closure: Target Shooting Public Safety Closure on the Lake Mountains in Utah County, UTPDF
81 FR 90723 - National Forest System Land Management PlanningPDF
81 FR 90862 - Supplemental Programmatic Environmental Assessment (SPEA) for the Proposed Establishment and Operations of the Office of Biometric Identity Management and the Homeland Advanced Biometric Technology (HART)PDF
81 FR 90750 - Revised Inspection of Records and Related FeesPDF
81 FR 90787 - Endangered and Threatened Species; Take of Anadromous FishPDF
81 FR 90783 - Endangered and Threatened Species; Take of Anadromous FishPDF
81 FR 90784 - Endangered and Threatened Species; Take of Anadromous FishPDF
81 FR 90754 - Partial Approval, Partial Disapproval of California Air Plan Revisions, Antelope Valley Air Quality Management DistrictPDF
81 FR 90842 - Pesticide Product Registrations; Receipt of Applications for New UsesPDF
81 FR 90843 - Chemical Data Reporting; Requirements for Inorganic Byproduct Chemical Substances; Notice of Intent To NegotiatePDF
81 FR 90840 - TSCA Reporting and Recordkeeping Requirements; Standards for Small Manufacturers and ProcessorsPDF
81 FR 90836 - Pesticide Emergency Exemptions; Agency Decisions and State and Federal Agency Crisis DeclarationsPDF
81 FR 90848 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of OregonPDF
81 FR 90782 - Draft 2016 Marine Mammal Stock Assessment Reports; CorrectionPDF
81 FR 90851 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 90849 - Information Collections Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 90789 - Defense Acquisition University Board of Visitors; Notice of Federal Advisory Committee MeetingPDF
81 FR 90865 - Notice of Availability of the Draft Resource Management Plan Amendment/Draft Environmental Impact Statement for Recreational Target Shooting in the Sonoran Desert National Monument, AZPDF
81 FR 90833 - Combined Notice of Filings #1PDF
81 FR 90789 - 36(b)(1) Arms Sales NotificationPDF
81 FR 90785 - Endangered and Threatened Species; Recovery PlansPDF
81 FR 90773 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF
81 FR 90794 - 36(b)(1) Arms Sales NotificationPDF
81 FR 90903 - Modification of Iran, North Korea, and Syria Nonproliferation Act Measures Against a Russian EntityPDF
81 FR 90867 - Raw-In-Shell Pistachios From Iran; Scheduling of a Full Five-Year ReviewPDF
81 FR 90875 - Combined License Application for Turkey Point Nuclear Plant, Units 6 and 7PDF
81 FR 90871 - South Carolina Electric & Gas Company and South Carolina Public Service Authority; Virgil C. Summer Nuclear Station, Units 2 and 3; Passive Core Cooling System Condensate ReturnPDF
81 FR 90775 - Pasta From Turkey: Final Results of Countervailing Duty Administrative Review; 2014PDF
81 FR 90776 - Large Residential Washers From the People's Republic of China: Final Determination of Sales at Less Than Fair Value and Final Negative Determination of Critical CircumstancesPDF
81 FR 90863 - Endangered Species; Receipt of Applications for PermitPDF
81 FR 90780 - Certain Carbon and Alloy Steel Cut-to-Length Plate From France: Correction to the Amended Preliminary Determination of Sales at Less Than Fair ValuePDF
81 FR 90774 - Certain Frozen Warmwater Shrimp From India: Notice of Final Results of Antidumping Duty Changed Circumstances ReviewPDF
81 FR 90855 - Use of Electronic Informed Consent-Questions and Answers; Guidance for Institutional Review Boards, Investigators, and Sponsors; AvailabilityPDF
81 FR 90854 - Reporting of Pregnancy Success Rates From Assisted Reproductive Technology (ART) Programs; Clarifications and ModificationsPDF
81 FR 90792 - 36(b)(1) Arms Sales NotificationPDF
81 FR 90903 - Petition for Waiver of CompliancePDF
81 FR 90904 - Petition for Waiver of CompliancePDF
81 FR 90921 - Sanctions Actions Pursuant to Executive Order 13413PDF
81 FR 90751 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2016 Commercial Accountability Measure and Closure for South Atlantic Gray Triggerfish; July through December SeasonPDF
81 FR 90921 - Submission for OMB Review; Comment RequestPDF
81 FR 90854 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 90852 - Open Commission Meeting, Thursday, December 15, 2016PDF
81 FR 90870 - United States Assumption of Concurrent Federal Criminal Jurisdiction; Hoopa Valley TribePDF
81 FR 90867 - Proposed Information Collection; National Park Service Office of Public Health Disease Reporting and Surveillance SystemPDF
81 FR 90836 - City of Pasadena, California; Notice of FilingPDF
81 FR 90834 - Combined Notice of FilingsPDF
81 FR 90834 - Combined Notice of Filings #1PDF
81 FR 90835 - Combined Notice of Filings #1PDF
81 FR 90780 - Endangered and Threatened Species; Recovery Plan for Oregon Coast Coho Salmon ESUPDF
81 FR 90773 - General Conference Committee of the National Poultry Improvement Plan; Intent To ReestablishPDF
81 FR 90861 - Approval of Intertek USA, Inc., as a Commercial GaugerPDF
81 FR 90860 - Approval of Intertek USA, Inc., as a Commercial GaugerPDF
81 FR 90859 - Accreditation and Approval of Intertek USA, Inc., as a Commercial Gauger and LaboratoryPDF
81 FR 90860 - Accreditation and Approval of Amspec Services, LLC, as a Commercial Gauger and LaboratoryPDF
81 FR 90860 - Accreditation of Sea, LTD., as a Commercial LaboratoryPDF
81 FR 90773 - Eastern Washington Cascades Provincial Advisory CommitteePDF
81 FR 90857 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Medical Devices; Third-Party Review Under the Food and Drug Administration Modernization ActPDF
81 FR 90870 - Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978PDF
81 FR 90866 - Notice of Public Meeting for the San Juan Islands National Monument Advisory CommitteePDF
81 FR 90869 - Agency Information Collection Activities; Proposed eCollection eComments Requested; COPS Application PackagePDF
81 FR 90808 - Agency Information Collection Activities; Comment Request; Grant Application Form for Project Objectives and Performance Measures InformationPDF
81 FR 90784 - Notice of Availability of Draft Scientific Assessment for Public CommentPDF
81 FR 90871 - Astronomy and Astrophysics Advisory Committee Meeting NoticePDF
81 FR 90797 - Agency Information Collection Activities; Comment Request; Teacher Verification Form for Title II Scholarship RecipientsPDF
81 FR 90922 - Agency Information Collection Activity (Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) (VA Form 21-0781) and Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Assault (VA Form 21-0781a))PDF
81 FR 90895 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 21.5 of Bats BZX Exchange, Inc. To Extend Through June 30, 2017, the Penny Pilot Program in Options Classes in Certain IssuesPDF
81 FR 90774 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF
81 FR 90869 - Certain Air Mattress Bed Systems and Components Thereof Commission Determination Not to Review Two Initial Determinations Terminating the Investigation Based Upon a Consent Order Stipulation and Proposed Consent Order, a Settlement Agreement, and a Withdrawal of the Complaint; Issuance of a Consent Order; Termination of the InvestigationPDF
81 FR 90788 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
81 FR 90905 - Funding OpportunityPDF
81 FR 90797 - Applications for New Awards; Education Innovation and Research Program-Expansion GrantsPDF
81 FR 90809 - Applications for New Awards; Education Innovation and Research Program-Early-Phase GrantsPDF
81 FR 90821 - Applications for New Awards; Education Innovation and Research Program-Mid-Phase GrantsPDF
81 FR 90781 - Marine Mammals; File No. 20455PDF
81 FR 90896 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1, Relating To Opening and Closing Rotations Under the HOSS SystemPDF
81 FR 90876 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 3, and Order Granting Accelerated Approval of Proposed Rule Change, as Modified by Amendment No. 3, Relating to the Listing and Trading of Shares of the Long Dollar Gold Trust Under NYSE Arca Equities Rule 8.201PDF
81 FR 90891 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Clearing Rules Regarding German CDS Clearing MembersPDF
81 FR 90893 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Section 902.04 of the NYSE Listed Company ManualPDF
81 FR 90889 - Self-Regulatory Organizations; CBOE Futures Exchange, LLC; Notice of Filing of a Proposed Rule Change Regarding Attempted Fraudulent ActsPDF
81 FR 90753 - Group Registration of Contributions to PeriodicalsPDF
81 FR 90753 - Supplementary RegistrationPDF
81 FR 90858 - National Institute of Biomedical Imaging and Bioengineering; Notice of Closed MeetingPDF
81 FR 90858 - National Institute of Biomedical Imaging and Bioengineering; Notice of MeetingPDF
81 FR 90858 - National Human Genome Research Institute; Notice of Closed MeetingPDF
81 FR 90858 - Center for Scientific Review; Notice of Closed MeetingPDF
81 FR 90753 - Group Registration of PhotographsPDF
81 FR 90835 - Energy Resources USA, Inc.; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments and Motions To IntervenePDF
81 FR 90712 - Addition of Certain Persons to the Entity ListPDF
81 FR 90772 - Submission for OMB Review; Comment RequestPDF
81 FR 90758 - Approval and Promulgation of Air Quality Implementation Plans; Maine, New Hampshire, Rhode Island and Vermont; Interstate Transport of Fine Particle and Ozone Air PollutionPDF
81 FR 90722 - United States Navy Restricted Area, SUPSHIP USN, Gulf Coast, Pascagoula, MississippiPDF
81 FR 90699 - Loan Guarantees for Projects That Employ Innovative TechnologiesPDF
81 FR 90715 - Freedom of Information Act Policies and ProceduresPDF
81 FR 90926 - World Trade Center Health Program; Amendments to Definitions, Appeals, and Other RequirementsPDF
81 FR 90840 - Notice of Proposed Administrative Settlement Pursuant to the Comprehensive Environmental Response, Compensation, and Liability ActPDF
81 FR 90675 - Enhancing Retailer Standards in the Supplemental Nutrition Assistance Program (SNAP)PDF
81 FR 90739 - Maritime Radio Equipment and Related MattersPDF
81 FR 90762 - Endangered and Threatened Wildlife and Plants; Removing the Black-Capped Vireo From the Federal List of Endangered and Threatened WildlifePDF

Issue

81 241 Thursday, December 15, 2016 Contents Agriculture Agriculture Department See

Animal and Plant Health Inspection Service

See

Food and Nutrition Service

See

Forest Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 90772 2016-30060
Animal Animal and Plant Health Inspection Service NOTICES Committee Reestablishment: General Conference Committee of National Poultry Improvement Plan, 90773 2016-30124 Centers Disease Centers for Disease Control and Prevention NOTICES Reporting of Pregnancy Success Rates from Assisted Reproductive Technology Programs, 90854 2016-30145 Commerce Commerce Department See

Economic Development Administration

See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Community Development Community Development Financial Institutions Fund NOTICES Funding Opportunities: Qualified Issuer Applications and Guarantee Applications for Community Development Financial Institutions Bond Guarantee Program, 90905-90920 2016-30087 Copyright Office Copyright Office, Library of Congress PROPOSED RULES Group Registration of Contributions to Periodicals, 90753 2016-30077 Group Registration of Photographs, 90753 2016-30071 Supplementary Registration, 90753-90754 2016-30076 Defense Department Defense Department See

Engineers Corps

NOTICES Arms Sales, 90789-90796 2016-30164 2016-30143 2016-30159 Meetings: Defense Acquisition University Board of Visitors, 90789 2016-30167
Economic Development Economic Development Administration NOTICES Trade Adjustment Assistance Eligibility; Petitions, 90773-90774 2016-30094 2016-30162 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application and Employment Certification for Public Service Loan Forgiveness, 90820-90821 2016-30270 Grant Application Form for Project Objectives and Performance Measures Information, 90808-90809 2016-30106 Teacher Verification Form for Title II Scholarship Recipients, 90797 2016-30097 Applications for New Awards: Education Innovation and Research Program: Early-phase Grants, 90809-90820 2016-30085 Education Innovation and Research Program: Expansion Grants, 90797-90808 2016-30086 Education Innovation and Research Program: Mid-phase Grants, 90821-90833 2016-30084 Energy Department Energy Department See

Federal Energy Regulatory Commission

RULES Loan Guarantees for Projects that Employ Innovative Technologies, 90699-90712 2016-30006
Engineers Engineers Corps RULES Danger Zones and Restricted Areas: SUPSHIP USN, Gulf Coast, Pascagoula, MS, 90722-90723 2016-30015 Environmental Protection Environmental Protection Agency PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; Air Plan Revisions, Antelope Valley Air Quality Management District, 90754-90758 2016-30179 Maine, New Hampshire, Rhode Island and Vermont; Interstate Transport of Fine Particle and Ozone Air Pollution, 90758-90762 2016-30052 NOTICES CERCLA Administrative Settlement Agreements: Scrub-A-Dubb Barrel Co. Superfund Site, Lubbock, Lubbock County, TX, 90840 2016-29886 Chemical Data Reporting: Requirements for Inorganic Byproduct Chemical Substances, 90843-90848 2016-30177 Cross-Media Electronic Reporting: Authorized Program Revision Approval, Oregon, 90848-90849 2016-30172 Pesticide Emergency Exemptions: Agency Decisions and State and Federal Agency Crisis Declarations, 90836-90840 2016-30175 Pesticide Product Registrations: Receipt of Applications for New Uses, 90842-90843 2016-30178 TSCA Reporting and Recordkeeping Requirements: Standards for Small Manufacturers and Processors, 90840-90842 2016-30176 Federal Communications Federal Communications Commission RULES Maritime Radio Equipment and Related Matters, 90739-90750 2016-29612 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 90849-90852 2016-30169 2016-30170 Meetings, 90852-90853 2016-30134 Federal Deposit Federal Deposit Insurance Corporation NOTICES Meetings; Sunshine Act, 90853 2016-30318 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 90833-90836 2016-30127 2016-30128 2016-30129 2016-30165 Filings: Pasadena, CA, 90836 2016-30130 Permit Applications: Energy Resources USA, Inc., 90835 2016-30067 Federal Railroad Federal Railroad Administration NOTICES Petitions for Waivers of Compliance, 90904 2016-30140 Petitions for Waivers of Compliance: Beltway Railway of Chicago, 90903-90904 2016-30142 CSX Transportation, 90904-90905 2016-30139 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 90854 2016-30135 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: Black-capped Vireo; Removal from Federal List of Endangered and Threatened Wildlife, 90762-90771 2016-29547 NOTICES Endangered and Threatened Species: Permit Applications, 90863-90864 2016-30149 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Medical Devices; Third-Party Review under Food and Drug Administration Modernization Act, 90857-90858 2016-30113 Guidance: Use of Electronic Informed Consent: Questions and Answers; Institutional Review Boards, Investigators, and Sponsors, 90855-90857 2016-30146 Food and Nutrition Food and Nutrition Service RULES Supplemental Nutrition Assistance Program: Enhancing Retailer Standards, 90675-90699 2016-29837 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 90921 2016-30138 Forest Forest Service RULES National Forest System Land Management Planning, 90723-90739 2016-30191 NOTICES Meetings: Eastern Washington Cascades Provincial Advisory Committee, 90773 2016-30118 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Food and Drug Administration

See

National Institutes of Health

RULES World Trade Center Health Program: Amendments to Definitions, Appeals, and Other Requirements, 90926-90947 2016-29957
Homeland Homeland Security Department See

U.S. Customs and Border Protection

NOTICES Environmental Assessments; Availability, etc.: Establishment and Operations of Office of Biometric Identity Management and Homeland Advanced Biometric Technology, 90862-90863 2016-30187
Industry Industry and Security Bureau RULES Addition of Certain Persons to the Entity List, 90712-90715 2016-30061 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Frozen Warmwater Shrimp from India: Final Results of Antidumping Duty Changed Circumstances Review, 90774-90775 2016-30147 Pasta from Turkey: Final Results of Countervailing Duty Administrative Review; 2014, 90775-90776 2016-30151 Determinations of Sales at Less than Fair Value: Certain Carbon and Alloy Steel Cut-To-Length Plate from France: Correction to Amended Preliminary Determination of Sales at Less Than Fair Value, 90780 2016-30148 Large Residential Washers from People's Republic of China, 90776-90779 2016-30150 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Raw-In-Shell Pistachios from Iran; Full Five-Year Review, 90867-90868 2016-30155 Investigations; Determinations, Modifications, and Rulings, etc.: Certain Air Mattress Bed Systems and Components Thereof, 90869 2016-30093 Justice Department Justice Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Community Oriented Policing Services Application Package, 90869-90870 2016-30108 United States Assumption of Concurrent Federal Criminal Jurisdiction: Hoopa Valley Tribe, 90870 2016-30132 Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Recreational Target Shooting in Sonoran Desert National Monument, AZ, 90865-90866 2016-30166 Public Safety Closures: Target Shooting on Lake Mountains in Utah County, UT, 90864-90865 2016-30268 San Juan Islands National Monument Advisory Committee, 90866 2016-30111 Library Library of Congress See

Copyright Office, Library of Congress

National Institute National Institutes of Health NOTICES Meetings: Center for Inherited Disease Research Access Committee, 90858-90859 2016-30073 Center for Scientific Review, 90858 2016-30072 National Advisory Council for Biomedical Imaging and Bioengineering, 90858 2016-30074 National Institute of Biomedical Imaging and Bioengineering, 90858 2016-30075 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: South Atlantic Gray Triggerfish; Commercial Accountability Measure and Closure; July through December Season, 90751-90752 2016-30137 NOTICES Climate Science Special Report, 90784 2016-30102 Draft 2016 Marine Mammal Stock Assessment Reports; Correction, 90782-90783 2016-30171 Endangered and Threatened Species: Recovery Plan for Oregon Coast Coho Salmon Evolutionarily Significant Unit, 90780-90781 2016-30126 Recovery Plans, 90785-90787 2016-30163 Take of Anadromous Fish, 90783-90785, 90787-90788 2016-30180 2016-30181 2016-30182 Meetings: Gulf of Mexico Fishery Management Council, 90788-90789 2016-30088 Permits: Marine Mammals; File No. 20455, 90781-90782 2016-30083 National Park National Park Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Park Service Office of Public Health Disease Reporting and Surveillance System, 90867 2016-30131 National Science National Science Foundation NOTICES Meetings: Astronomy and Astrophysics Advisory Committee, 90871 2016-30100 Meetings; Sunshine Act, 90871 2016-30355 Permit Applications under the Antarctic Conservation Act, 90870-90871 2016-30112 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Applications: South Carolina Electric and Gas Co. and South Carolina Public Service Authority; Virgil C. Summer Nuclear Station, Units 2 and 3 Passive Core Cooling System Condensate Return; Exemptions and Combined License Amendments, 90871-90875 2016-30152 Turkey Point Nuclear Plant, Units 6 and 7; Combined License, 90875-90876 2016-30154 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Bats BZX Exchange, Inc., 90895-90896 2016-30095 CBOE Futures Exchange, LLC, 90889-90890 2016-30078 Chicago Board Options Exchange, Inc., 90896-90903 2016-30082 ICE Clear Europe, Ltd., 90891-90893 2016-30080 New York Stock Exchange, LLC, 90893-90895 2016-30079 NYSE Arca, Inc., 90876-90889 2016-30081 State Department State Department NOTICES Modification of Iran, North Korea, and Syria Nonproliferation Act Measures Against Russian Entity, 90903 2016-30158 Surface Transportation Surface Transportation Board RULES Inspection of Records and Related Fees, 90750-90751 2016-30183 Trade Representative Trade Representative, Office of United States RULES Freedom of Information Act Policies and Procedures, 90715-90722 2016-29985 Transportation Department Transportation Department See

Federal Railroad Administration

Treasury Treasury Department See

Community Development Financial Institutions Fund

See

Foreign Assets Control Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 90921-90922 2016-30136
Customs U.S. Customs and Border Protection NOTICES Commercial Gaugers and Laboratories; Accreditations and Approvals: AmSpec Services, LLC, 90860-90861 2016-30120 Intertek USA, Inc., 90859-90862 2016-30123 2016-30121 2016-30122 SEA, Ltd., 90860 2016-30119 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Support of Claim for Service Connection for Post-Traumatic Stress Disorder and for Post-Traumatic Stress Disorder Secondary to Personal Assault, 90922-90923 2016-30096 Separate Parts In This Issue Part II Health and Human Services Department, 90926-90947 2016-29957 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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81 241 Thursday, December 15, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Parts 271 and 278 [FNS-2016-0018] RIN 0584-AE27 Enhancing Retailer Standards in the Supplemental Nutrition Assistance Program (SNAP) AGENCY:

Food and Nutrition Service (FNS), U.S. Department of Agriculture (USDA or the Department).

ACTION:

Final rule.

SUMMARY:

The Food and Nutrition Service (FNS or the Agency) is updating Supplemental Nutrition Assistance Program (SNAP or the Program) regulations pertaining to the eligibility criteria for retail food stores to participate in the Program by finalizing a proposed rule that was published on February 17, 2016. The Agricultural Act of 2014 (the 2014 Farm Bill) amended the Food and Nutrition Act of 2008 (the Act) to increase the requirement that certain SNAP authorized retail food stores have available on a continuous basis at least three varieties of items in each of four staple food categories, to a mandatory minimum of seven varieties. The 2014 Farm Bill also amended the Act to increase, for certain SNAP authorized retail food stores, the minimum number of staple food categories in which perishable foods are required from two to three. This final rule codifies these mandatory requirements.

In addition, FNS is codifying several other discretionary changes to the existing eligibility criteria. The first is to address depth of stock by establishing a minimum of three stocking units per staple food variety. The rule also amends the definitions of “staple food,” “retail food store,” and “ineligible firms”, and defines the term “firm” as discussed in the Supplementary Information. Finally, this rule allows FNS to consider the need for food access when making a SNAP authorization determination for applicant firms that fail to meet certain authorization requirements and reaffirms FNS's authority to disclose to the public certain information about retailers who have violated SNAP rules.

DATES:

Effective date: This rule is effective on January 17, 2017.

Implementation dates: See the Supplementary Information.

FOR FURTHER INFORMATION CONTACT:

Vicky Robinson, Chief, Retailer Management and Issuance Branch (RMIB), Retailer Policy and Management Division (RPMD), Food and Nutrition Service (FNS), U.S. Department of Agriculture (USDA), 3101 Park Center Drive, Alexandria, Virginia 22302. Ms. Robinson can also be reached by telephone at (703) 305-2476 or by email at [email protected] during regular business hours (8:30 a.m. to 5:30 p.m.), Monday through Friday.

SUPPLEMENTARY INFORMATION:

I. Executive Summary Purpose of the Regulatory Action

In this final rule, FNS is amending SNAP regulations at 7 CFR parts 271 and 278 to clarify and enhance current regulations governing the eligibility of firms to participate in SNAP. This rulemaking also codifies mandatory provisions of the 2014 Farm Bill, as well as other provisions to strengthen current regulations and conform to statutory intent. These changes will improve SNAP households' access to a variety of healthy food options and they reflect the Agency's ongoing commitments to provide vital nutrition assistance to the most vulnerable Americans, protect taxpayer dollars, and build on aggressive efforts to ensure Program integrity. The final rule allows FNS to ensure that firms authorized to participate in SNAP as retail food stores are consistent with and further the purposes of the Program. This final rule reinforces the statutory intent of SNAP—that participants are able to use their benefits to purchase nutritious foods intended for home preparation and consumption. In the interests of preserving SNAP households' food access, minimizing the burden on participating retail food stores and reflective of the many comments received in response to the proposed rule, this final rule has been substantially modified from its proposed form, including to reduce burden on retailers participating in the program and to help retain their participation in the program.

Summary of the Main Provisions & Changes From the Proposed Rule

The proposed rule generated a great deal of interest and concern among a diverse array of Program stakeholders. In consideration of these comments FNS has clarified, modified, or excised several provisions contained in the proposed rule. In summary:

• Definition of “Staple Food”—Multiple Ingredient Food Items

The proposed language excluding multiple ingredient food items from being counted towards any staple food category has been removed from the final rule.

• Definition of “Staple Food”—Accessory Food Items

The proposed language has been clarified to specify that “accessory food items” are not defined by consumption between meals or package size and that foods with an accessory food main ingredient (e.g., sugar) are considered accessory foods. Specific examples have been added to the amendatory language at 7 CFR 271.2 and a longer list of examples is included in the preamble of the final rule.

• Definition of “Retail Food Store”—85-15% Prepared Foods Threshold

The proposed language defining “retail food store” as a firm with at least 85 percent of its total food sales in items not cooked or heated on-site before or after purchase has been removed from the final rule. However, related to this proposed provision, language was added to existing regulations on “ineligible firms” to specify that a firm is ineligible for SNAP authorization if at least 50 percent of its total gross sales come from the sale of hot and/or cold prepared foods, including foods cooked or heated on-site, before or after purchase.

• Definition of “Retail Food Store”—Co-located Firms

The proposed language regarding co-located businesses was clarified and narrowed to specify that multiple businesses that operate under one roof will only be considered a single firm for purposes of determining SNAP retailer eligibility if the businesses have common ownership, sale of similar food, and shared inventory.

• Definition of “Retail Food Store”—Depth of Stock

The proposed depth of stock requirement was halved, from six to three stocking units per staple food variety. Additionally, language was added to specify that a firm may not be denied or withdrawn based on certain stocking shortfalls at the time of the Agency inspection if that firm can produce documentation proving that, no more than 21 days prior to the Agency inspection, the firm had ordered and/or received the required stock.

• Definition of “Retail Food Store”—Breadth of Stock

Per statute, no changes were made to this provision, which increased the number of varieties required per staple food category from three to seven and increased the number of staple food categories required to contain at least one perishable variety from two to three.

• Definition of “Firm”

No changes were made to this provision which defines the term “firm”.

• Need for Access

Language was added to this provision to specify that “need for access” factors would not be limited to those enumerated in the regulatory language, that “need for access” would only be considered for applicant firms that fail to meet certain authorization requirements, and that the consideration of “need for access” would be part of the existing SNAP authorization process under 7 CFR 278.1(a).

• Definition of “Staple Food”—Acceptable Varieties in the Four Staple Food Categories

Language was added to the definition of “staple food” to include in the meat, poultry, or fish staple food category three types of plant-based protein sources (beans, peas, and nuts/seeds) as well as plant-based meat analogues (e.g., tofu and seitan) and traditional animal-based protein sources (e.g., chicken and beef). Language was also added to the definition of “staple food” to include in the dairy products staple food category plant-based dairy alternatives (e.g., rice milk and soy yogurt). Finally, language was added to the definition of “staple food” to specify what constitutes a variety in all four staple food categories. These changes are in keeping with USDA's MyPlate nutrition guidelines, allow retailers more flexibility in stocking sufficient variety in this staple food category and help to ensure that SNAP households will have access to an array of healthy food options that meet diverse dietary needs and preferences.

• Public Disclosure of Firms Sanctioned for SNAP Violations

Language was added to this provision to specify that the public disclosure of firms subject to term sanctions would last for the term of the sanction.

Implementation Dates

The following provisions of this final rule will be implemented on the effective date of this final rule: The definition of “firm” provision (i.e., define “firm” at 7 CFR 271.2 so as to clarify that it also includes retailers, entities, and stores) and the public disclosure of sanctioned firms provision (i.e., reaffirm at 7 CFR 278.1(q)(5) the Agency's authority and intent to publicly disclose the store and owner name for firms sanctioned for SNAP violations).

The following provisions of this final rule will be implemented for all retailers 120 days after the effective date of this final rule: The co-located firms provision (i.e., establish at 7 CFR 271.2 that establishments that include separate businesses that operate under one roof and share the following commonalities: Ownership, sale of similar foods, and shared inventory are considered to be a single firm) and the prepared foods threshold provision (i.e., establish at 7 CFR 271.2 and 7 CFR 278.1(b)(1)(iv) that firms that have more than 50 percent of their total gross sales in hot and/or cold prepared foods, including foods cooked or heated on-site before or after purchase, shall not qualify).

The stocking provisions of this final rule will be implemented for all new applicant firms and all firms eligible for reinstatement 120 days after the effective date of this final rule and 365 days after the effective date of this final rule for all currently authorized firms. The stocking provisions of this final rule include: The accessory food items provision (i.e., amend at 7 CFR 271.2 and 7 CFR 278.1(b)(1)(ii)(C) the definition of “staple food” so as to modify the regulatory definition of “accessory food items”, to exclude certain items from being counted in any staple food category), the depth of stock provision (i.e., establish at 7 CFR 271.2 and 7 CFR 278.1(b)(1)(ii)(A) the requirement that certain firms must stock at least three stocking units of each staple food variety), the breadth of stock provision (i.e., codify at 7 CFR 271.2 and 7 CFR 278.1(b)(1)(ii)(A) statutory requirements to increase the number of varieties required of certain firms in each of the four staple food category from three to seven and increase the number of staple food categories that must contain at least one perishable staple food variety from two to three), the acceptable varieties provision (i.e., clarify and amend at 7 CFR 271.2 and 7 CFR 278.1(b)(1)(ii)(C) the definition of “variety” as it pertains to staple food varieties in the four staple food categories), and the need for access provision (i.e., allow at 7 CFR 278.1(b)(6) the Agency to consider “need for access” when a retailer does not meet all of the requirements for SNAP authorization).

As it is used in this document the phrase “existing policy” refers to Agency policy in place as of December 15, 2016. Changes to existing policy included in the final rule will be implemented on or after the effective date of the final rule, January 17, 2017, as described above in this section.

Retailer Guidance for Implementation of Final Rule

Many Program stakeholders specifically requested that FNS provide retailers with detailed guidance and training materials on the rule to ensure that all retailers fully understand all of the provisions of the final rule. In addition to the clarifications and lists of examples provided in the preamble of the final rule, FNS will answer retailer inquiries and provide retailers with additional notice, guidance, and training materials during the aforementioned implementation period per 7 CFR 278.1(t). This will include extensive outreach to ensure that the retailer community is provided with sufficient technical assistance to ensure that all firms are adequately informed regarding these changes to SNAP rules.

II. Background

On August 20, 2013, FNS published a notice entitled, “Request for Information: Supplemental Nutrition Assistance Program (SNAP) Enhancing Retail Food Store Eligibility” in the Federal Register (78 FR 51136). This Request for Information (RFI), which included 14 specific questions, focused on ways to enhance the definitions of “retail food store” and “staple foods”, and overall eligibility requirements to participate in SNAP, in order to improve access to healthy foods and ensure that only firms that effectuate the purposes of SNAP are authorized to accept SNAP benefits. FNS received a total of 211 comments from a diverse group of commenters, including retailers, academics, trade associations, policy advocates, professional associations, government entities, and the general public. These RFI comments were considered in drafting the proposed rule. A copy of the RFI comment summary can be viewed at http://www.fns.usda.gov/snap/rfi-retailer-enhancement.

On February 17, 2016, the Agency published a Notice of Proposed Rulemaking (NPRM) rule in the Federal Register (81 FR 8015), in which FNS proposed to amend SNAP regulations at 7 CFR parts 271 and 278 in order to strengthen the criteria for the eligibility of certain SNAP retail food stores utilizing existing authority in the Act and to codify statutory provisions in the 2014 Farm Bill. On April 5, 2016, FNS published a document in the Federal Register (81 FR 19500) clarifying certain provisions of the proposed rule and extending the proposed rule's comment period.

The proposed rule included statutory changes to the breadth of stock (seven varieties in each of the four staple food categories and at least one variety of perishable foods in at least three staple food categories) required of certain SNAP retailers which were mandated by the 2014 Farm Bill. Additionally, the rule proposed discretionary changes such as provisions to address depth of stock, amend the definition of “staple food”, amend the definition of “retail food store”, and reaffirm the Agency's authority to disclose to the public certain information about retailers who have violated SNAP rules.

The 91-day public comment period ended on May 18, 2016. FNS received 1,284 public comments, including one comment not considered as it was submitted untimely, and reviewed all 1,283 timely public comments when drafting this final rule. Of these 1,283 comments, 23 were considered duplicative or non-germane, 738 or about 58% of all comments were template or form letters, and 522 or about 41% of all comments were unique submissions. Comments were considered duplicative only if the actual submission and submitter were identical to those of a previously received comment (e.g., a comment that was both submitted to the Agency electronically and by mail) and comments were considered non-germane only if the contents of the submission had no relation to the general subject or specific provisions of the proposed rule (e.g., comments referencing other disparate rulemaking actions).

III. Summary of Comments and Explanation of Revisions Summary of Comments

Of the 1,260 germane and non-duplicative comments considered by FNS, most of the comments received came from retail food store representatives, owners, managers, or employees (901 or about 72% of total public comments). This total was largely comprised of retailer template comments which either repeated boilerplate language verbatim or with minor modifications and/or personalizations. The retailer template comments (henceforth Template A) submitted by the employees and owners of one chain of firms (a national take-and-bake pizzeria chain which claims over 1,300 locations nationally, about 800 of which are currently authorized to participate in SNAP) accounted for more than one quarter of all public comments received and more than one third of all retailer comments received (333 Template A comments, about 26% of total public comments, or about 37% of all retailer comments). The retailer template comments (henceforth Template B) submitted by the employees and owners of another chain of firms (a regional chain of convenience stores which claims over 600 locations, about 550 of which are SNAP authorized firms) accounted for about a seventh of all public comments received and about a fifth of all retailer comments received (183 Template B comments, about 15% of total public comments, or about 20% of all retailer comments). The comments submitted by the owners, operators, or representatives of convenience stores using the template (henceforth Template C) provided by an international convenience store trade association, which professes to represent more than 1,500 supplier company members and 2,100 retailer company members with over 50,000 convenience store locations nationally, accounted for about a ninth of all comments received and about a sixth of all retailer comments received (143 Template C comments, about 11% of total public comments, or about 16% of all retailer comments). Other retailer comment templates accounted for about 3% of total public comments received and about 5% of all retailer comments received (42 other retailer template comments). In total, retailer template comments (701 total retailer template comments) constitute about 78% of all retailer comments (901 total retailer comments) and about 56% of all total comments (1,260 total germane and non-duplicative public comments). The remaining 200 retailer comments were unique submissions (about 16% of total public comments, or about 22% of all retailer comments).

The remaining approximately 28% of comments received included feedback from the following entities: 259 private citizens, 29 industry trade associations, 28 medical practitioners/organizations, 21 advocacy or food access organizations, and 22 governmental entities.

Of the 1,260 germane and non-duplicative public comments received, overall opinions on the rule were mixed. A majority of public comments (about 54% of all germane and non-duplicative public comments) neither wholly opposed, nor wholly supported the rule as proposed. This number includes comments that suggested improvements or modifications to the proposed provisions. About 40% of public comments specifically opposed at least one provision of the proposed rule while not voicing support for any specific provision of the proposed rule or offering any improvements or modifications to the proposed provisions. About 5% of public comments specifically supported at least one provision of the proposed rule while not opposing any specific provision of the proposed rule or offering any improvements or modifications to the proposed provisions. Finally, less than 1% of public comments were considered out of scope (e.g., general comments supporting or opposing the Supplemental Nutrition Assistance Program). Comments from medical practitioners/organizations tended to generally support the proposed rule, while comments from private citizens, advocacy organizations, and governmental entities were generally divided between those in favor and opposed to various provisions of the proposed rule. Industry trade associations, largely representing food retailers, manufacturers, and distributors, generally opposed some provisions of the proposed rule. Analysis of the comments which addressed each of the ten provisions in the proposed rule follows.

Definition of “Staple Food”—Multiple Ingredient Food Items

This discretionary provision proposed to amend language, at 7 CFR 271.2 and 7 CFR 278.1(b), to exclude multiple ingredient food items from being counted towards any staple food category. This provision was specifically opposed by more public comments than any other provision in the proposed rule. Based on the strength of the arguments of these comments, FNS has stricken this provision from the final rule. Of the total 1,260 germane and non-duplicative public comments received, 867 comments addressed this provision and 685 comments, or about 54% of all public comments, specifically opposed this provision. About 69% of total retailer commenters and a majority of total industry trade group commenters specifically opposed this provision. Private citizens, medical groups, advocacy organizations, and governmental entities that commented on this provision were generally divided and/or expressed mixed opinions.

About one quarter of the total 1,260 germane and non-duplicative public comments were Template A comments submitted by the owners and employees of a take-and-bake pizzeria chain. This chain relies exclusively on cold pizza, a multiple ingredient food item, for their SNAP eligibility under Criterion B (this criterion requires firms to have 50 percent of total gross retail sales in staple food sales). Template A comments expressed opposition to this provision on the grounds that it would categorically eliminate them from the Program and that multiple ingredient foods such as pizza may be healthy and affordable options for low income Americans. Other retailer template comments, such as Templates B and C from convenience store owners and employees, also opposed this provision on similar grounds.

Many of the retailers opposing the multiple ingredient food items provision were from the convenience store industry. Such commenters pointed out that the exclusion of these products from eligibility towards SNAP Criterion A (under this final rule, Criterion A would require firms to stock on a continuous basis seven varieties in each of the four staple food categories and at least one variety of perishable foods in at least three staple food categories) would substantially increase the difficulty of retailer compliance with concurrent proposed enhancements in the required depth and breadth of stock, given the limited space in convenience stores. For example, one comment, jointly submitted by the international convenience store trade association noted above and a petroleum marketers trade association which professes to represent about half of the chain petroleum retailers nationally, stated that, “Today, in over 99,000 convenience stores, 75 percent of the items in stock are multiple ingredient items, including mixed fruit cups, frozen vegetable meat medley dinners, or canned soups. To comply with the proposal, these small format retailers would have to completely overhaul their food offerings—and remove items they now sell—to remain eligible to participate in SNAP. This will be quite costly and, for many, will make it too costly to continue participating in SNAP.”

Several retailer commenters also pointed out that, although this change was intended to clear up confusion, it would create more confusion among retailers than under current regulations. As noted by one commenter, an international chain of convenience stores which claims over 50,000 convenience store members in 17 countries including over 7,000 SNAP authorized firms, “The `main ingredient' for most items is easily determined from the principal display panel and/or the FDA-mandated ingredients list.”

Currently, per 7 CFR 271.2 and 7 CFR 278.1(b)(ii)(C), multiple ingredient food items are assigned to the staple food category of their main ingredient as determined by FNS. The final rule titled “Food Stamp Program: Revisions to the Retail Food Store Definition and Program Authorization Guidance”, published in the Federal Register on January 12, 2001 (66 FR 2795) was further clarified by Benefits Redemption Division Policy Memorandum 01-04, titled, “Implementation of Final Retail Store Eligibility Rule” which was issued on August 14, 2001. In this Agency policy memorandum it is stated that the label may be read to determine the main ingredient in a multiple ingredient food item. The label referenced herein is the ingredients list included at the bottom of the U.S. Department of Health and Human Services (HHS) Food and Drug Administration (FDA) mandated “Nutrition Facts” label. On this label, ingredients are listed in descending order of weight (i.e., from most to least). The first listed ingredient, therefore, makes up the largest share of the product's composition.

Long-standing FNS policy, therefore, holds that a multiple ingredient food will be assigned to the staple food category of its first listed ingredient on this label. Under this existing policy, for example, a product such as canned ravioli, with tomato puree as its listed main ingredient, is considered a variety (i.e., tomato) in the vegetables or fruits staple food category. If the main ingredient of a multiple ingredient food item is an accessory food item (e.g., salt), then that multiple ingredient food item is considered an accessory food item. Per Benefits Redemption Division Policy Memorandum 01-04, one exception to this is the accessory food item water. If the main ingredient of a multiple ingredient food item is listed as water, then that item is assigned to the staple food category of its second listed ingredient. Under this existing policy, for example, a product such as canned tomato soup, with water and tomato paste as its first and second listed ingredients respectively, is considered a variety in the vegetables or fruits staple food category (i.e., tomato). If that second ingredient is also an accessory food item (e.g., sugar) then that item is considered an accessory food item.

In general, a majority of industry groups opposed the proposed multiple ingredient provision. In addition to the concerns about higher costs for certain types of retailers and greater retailer confusion, industry groups opposed to this provision were also concerned about the effect of the provision on SNAP households, which industry groups claim rely heavily on multiple ingredient food items as part of their nutritional intake. For example, the international convenience store trade association and the petroleum marketers' trade association jointly stated that, “multiple ingredient items are often the main sources of nutrition intake for families in the United States”. Likewise, other industry groups, such as those representing the manufacturers and distributors of canned and frozen food products, pointed out that multiple ingredient food items, such as “frozen pizza rolls” or “canned soup”, can be major sources of important nutritional intake for SNAP households and all Americans.

In addition, about two thirds of advocacy groups opposed this provision. Opposed advocacy group commenters were primarily concerned about the importance of multiple ingredient food items in lower-income Americans' diets, especially for those unable to prepare meals at home due to barriers such as time constraints and/or a lack of adequate kitchen facilities. Additionally, some advocacy groups pointed out that some multiple ingredient food items may have high nutritional value. One national, anti-poverty organization stated that:

USDA has recognized before how essential convenient, multiple ingredient foods are to food purchasing and preparation among SNAP participants. The Thrifty Food Plan is the government market basket upon which SNAP benefit amounts are based. In an effort to be more realistic about the time available for food preparation in the home, USDA incorporated more convenience foods in the 2006 revision of the Thrifty Food Plan . . . Therefore, it is especially odd that many of the foods specifically added to Thrifty Food Plan market baskets in 2006 would be excluded as staple foods under the proposed rule. So long as retail food stores are meeting the increased amounts, variety of staple items and perishable items called by the statute, there is no compelling purpose to exclude multiple ingredient items from counting (as they do under current regulations) under one of the SNAP staple food categories.

However, some advocacy groups, particularly those that are nutrition-focused, supported this provision. A national non-profit consumer advocacy group focused on nutrition and food safety which claims over 750,000 members stated that, “Disallowing multiple ingredient products to count as a staple food (e.g., pizza because the first ingredient is bread) ensures that the minimum stocking requirements for SNAP authorized retailers are for healthier foods”.

Governmental entities were divided on this provision while medical entities largely supported it. Overall, medical organizations supported this provision on the grounds that it would compel retailers to stock healthier food options and help steer SNAP households away from calorie-dense and nutrient-poor multiple ingredient food items, while also stressing the need for Agency clarification and guidance of this proposed provision prior to implementation. A representative of one such organization, a national, non-profit, medical association which claims 64,000 pediatrician, pediatric medical subspecialist, and pediatric surgical specialist members, noted that “multiple ingredient foods available in small retail outlets, like pizza and other mixed dish frozen and boxed entrees like casseroles and macaroni and cheese, tend to be higher in sodium, saturated fats, and sugar” and, as a result, supported this provision adding that “nutritional profile should be considered in determining how to define a staple food” and that “FNS [should] provide clear and comprehensive guidance, at the time the rule is finalized, that includes a list of specific foods that would qualify as staple foods”.

State and local governmental commenters were divided on this provision. One mayor of a city of 600,000 containing over 1,000 SNAP authorized firms supported the provision, stating, “Currently, the staple food category determination for foods with multiple ingredients is very subjective. We support the proposed changes to the definition of `staple food' in order to bring clarity to a very complex regulatory process. This is [a] strong policy that will increase the availability of staple foods in all [of the city's] neighborhoods”. Other governmental commenters such as the deputy mayor from another city with a population over 600,000 that contains nearly 500 SNAP authorized firms opposed this provision, stating, “Disqualifying all prepared foods for SNAP eligibility is risky as these are shelf-stable staples in small stores and can serve as primary foodstuffs for SNAP families.”

While FNS does agree with the commenters that argued that this provision would likely increase healthy options for SNAP participants, the Agency believes that other provisions in this final rule also help increase healthy options for SNAP participants. The proposed rule would have increased the required depth and breadth of staple food stock while simultaneously expanding the list of accessory foods excluded from the definition of “staple foods” and excluding multiple ingredient food items from the definition of “staple foods”. According to some comments received, taken together, these four provisions would constitute an unreasonably burdensome stocking requirement for small format retailers. The Agency shares these concerns and, for these reasons, the proposed multiple ingredient food items provision has been stricken from this final rule. Multiple ingredient food items will, therefore, continue to be assigned to the staple food category of their main listed ingredient per current regulations at 7 CFR 271.2.

Definition of “Staple Food”—Accessory Food Items

This discretionary provision proposed to amend the definition of “staple food” so as to modify the regulatory definition of “accessory food items”, to exclude certain items from being counted in any staple food category, in keeping with statutory intent. The proposed provision would have expanded the list of accessory foods to include: “Foods that are generally consumed between meals and/or are generally considered snacks or desserts such as, but not limited to, chips, dips, crackers, cupcakes, cookies, popcorn, pastries, and candy, or food items that complement or supplement meals, such as, but not limited, to coffee, tea, cocoa, carbonated and uncarbonated drinks, condiments, spices, salt and sugar”.

This proposed provision was specifically addressed by a low number of public commenters. Of the total 1,260 germane and non-duplicative public comments received, 65 comments, or approximately 5% of all public comments, specifically addressed this provision. Of the 65 comments that specifically addressed this provision, about half supported it, about a quarter opposed it, and about a quarter were mixed. Less than 1% of total retailer commenters specifically opposed this provision. Industry trade groups and governmental entities that commented on this provision were generally divided and/or expressed mixed opinions. Medical groups, private citizens, and advocacy organizations that commented on this provision were generally supportive. FNS has retained this provision in the final rule with some modifications and clarifications.

Trade group comments, such as a comment jointly submitted by the international convenience store trade association and the trade petroleum marketers' trade association, contended that this provision would incur costs not captured in the Agency's proposed Regulatory Impact Analysis (RIA) and Regulatory Flexibility Analysis (RFA), as accessory food items with higher profit margins, such as potato chips, would need to be replaced with staple food items with lower profit margins, such as fruits and vegetables. This “opportunity cost” is a significant contributing factor toward compliance cost estimates, such as the estimate submitted by these trade groups in their joint comment, which exceed the Agency's estimates in the proposed RIA and RFA. The Agency appreciates these comments and has incorporated “opportunity costs” into the cost estimates which appear in the final RIA and RFA. This subject is examined in further detail the final rule's RIA and RFA.

This provision was largely supported by advocacy, medical, and local governmental commenters. One State university's nutrition research institute commented that it “. . . strongly supports . . . [the expansion] of the definition of accessory foods to include chips, desserts, and other snack foods, such that these items are not counted as staple foods.” Another international, nutrition-focused, non-profit organization professing to represent over 1,000 nutrition professionals stated that, “We support the proposed changes to the definition of `accessory foods' that would not qualify as staple foods to include snack foods and dessert items such as chips, dips, cookies, cakes and pastries that are typically consumed between meals.” A city health department commissioner, representing a city with a population of about 400,000 containing about 450 SNAP authorized firms noted that, “We support the proposed changes to the definition of `accessory foods' that would not qualify as staple foods to include snack foods and dessert items such as chips, dips, cookies, cakes and pastries that are typically consumed between meals. Many of these items have limited nutritional value, and no longer defining them as staple foods will support the intent of this rule to encourage SNAP retailers to stock healthier items.”

The large, international chain of convenience stores stated that it “. . . does not object to the exclusion of accessory food items from the definition of `Staple Food' ” and another national food retailer trade association which professes to represent nearly 40,000 retail food stores and 25,000 pharmacies stated it, “. . . supports this change conceptually, but notes that retailers will need flexibility and considerable guidance from the agency on the revised definition”. Finally, a national trade association for the travel plaza and truck stop industry which professes to represent about 200 corporate members and over 1,200 locations, acknowledges the validity of this provision, but like those that had opposed the provision, cautioned that this could inadvertently eliminate stores “that market healthy snack food items such as fruit cups, vegetable-and-dip to go packs, and the like” and argued that this provision should be “well tailored [to] prevent retailers that sell predominantly accessory foods from qualifying to redeem SNAP benefits”.

Some commenters, however, do not believe that this proposed provision went far enough in excluding unhealthy foods from being counted as staple food items for the purposes of SNAP authorization. One health commissioner from a city of over 8.5 million containing over 10,000 SNAP authorized firms stated that, “We recommend the USDA avoid defining accessory food items and concentrate efforts in establishing a comprehensive list of staple food items that may be used to determine eligibility to participate in SNAP.”

In their opposition to this provision the comment jointly submitted by the international convenience store trade association and the petroleum marketers' trade association noted that “[this] provision will drastically limit the number of items that can be counted towards stocking requirements, effectively knocking out nutrient-dense products including healthy `to go' packs such as apple slices and cheese . . .”. Other trade group commenters also pointed out that this provision should be considered carefully to avoid eliminating from consideration healthy snacks like dried fruit and yogurt cups, stating that such healthy snack foods are integral to the diet of the increasing number of Americans who eat on the go.

As explained in the preamble to the proposed rule, the statutory language defining “accessory food items” was explicitly not intended to limit this class of food items to the eight items specifically enumerated in the Section 3(q)(2) of the Act which reads, “ `Staple foods' do not include accessory food items, such as coffee, tea, cocoa, carbonated and uncarbonated drinks, candy, condiments, and spices [emphasis added].” This language, which creates an illustrative and not exhaustive list, reflects the original statutory intent in defining “accessory food items” as demonstrated in the legislative history of the Food Stamp Act of 1977. The language in the House Report to the Food Stamp Act of 1977 indicated that Congress had intended its list of accessory food items to be an illustrative, but not exhaustive, list. For example, the House Report stated that “donut, bakery, and pastry shops which specialize in donuts and sweet baked goods . . . [that] do not do a substantial business in the sale of staple foods, such as bread” are not authorized to accept and redeem benefits. This language also indicates that Congress did not consider “donuts, pastries, and other sweet baked goods” to be staple food items. See H. Rep. No. 95-464 at 328 (June 24, 1977). Similarly, even though snacks and ice cream were not specifically listed as accessory food items, the House Report indicated that Congress did not intend for snack-type foods and ice cream to be considered staple foods. See H. Rep. No. 95-464 at 328 (June 24, 1977) (“Stores whose primary business is the sale of snack-type foods . . . are not authorized to accept food coupons because they do not enable recipients to obtain a low-cost nutritious diet and, therefore, do not effectuate the purpose of the food stamp program.” and “Candy stores and ice cream stores and vendors are not authorized to redeem food stamp coupons because they do not provide recipients with an opportunity to obtain any basic staples.”).

In response to commenters who expressed concern about needing flexibility and additional guidance on this provision, FNS has made some clarification changes to the final rule, has provided a longer list of examples below in Section IV, and will issue additional Agency guidance on this subject following promulgation of this final rule including training materials intended for retail food store owners as needed per 7 CFR 278.1(t). FNS has removed the language “generally consumed between meals” in order to address concerns that this language is vague or overly broad. Likewise, the listed example of “dips” has been removed as such terminology could be construed to include potential staple foods such as guacamole, hummus, and salsa as noted earlier by commenters. Primarily this provision will expand the definition of “accessory food items” to include snack and dessert foods, as well as specified food items that complement or supplement meals. These foods are typically deficient in important nutrients and are high in sodium, saturated fats, and/or sugar. FNS believes that this approach to excluding typically salty and sugary snack and dessert foods from counting towards retailer eligibility is a logical extension of the statute and is consistent with the USDA 2015-2020 Dietary Guidelines for Americans, which recommend limiting calories from added sugars and saturated fats and to reduce sodium. For administrative purposes FNS cannot consider the nutritional contents of individual products, such as different brands of potato chips, on a case by case basis. FNS, therefore, must generalize to a certain extent. As a result FNS has identified a list of accessory foods that generally meet the criteria above. It will help to ensure that SNAP clients will have access to a range of healthy food products intended for home preparation and consumption when they shop with their benefits. This final rule, however, will not change which products are eligible for purchase with SNAP benefits.

The list of accessory foods in the final rule now reads: “Accessory food items include foods that are generally considered snacks or desserts such as, but not limited to, chips, ice cream, crackers, cupcakes, cookies, popcorn, pastries, and candy, and food items that complement or supplement meals such as, but not limited to, coffee, tea, cocoa, carbonated and uncarbonated drinks, condiments, spices, salt, and sugar.”

In response to commenters' concerns regarding the effect of this proposed provision on small portion size products, FNS notes that existing regulations at 7 CFR 278.1(b)(1)(ii)(C) specifically state that the “package size” of a product shall not be a determinant of variety. Both an apple and a single-serving package of apple slices would count as the same variety of a staple food item (i.e., apple) in the vegetables or fruits staple food category. Similarly, under existing regulations, both a tub of yogurt and a single-serving yogurt cup are counted as the same variety of staple food item (i.e., yogurt) in the dairy products staple food category. Therefore, under existing regulations, neither a single-serving package of apple slices nor a single-serving cup of cow milk-based yogurt would be categorized as an accessory food due to its package size. This sentence in 7 CFR 278.1(b)(1)(ii)(C) remained substantively the same in the proposed rule, and nothing in the proposed rule would have classified staple food items sold in “single-serving”, “snack-sized” or “to-go” packs as accessory food items simply on the basis of their packaging size.

However, in response to the confusion expressed by many commenters regarding packaging size, clarifying language explicitly stating that items shall not be classified as accessory food items exclusively based on packaging size has been added in 7 CFR 271.2: “Items shall not be classified as accessory food exclusively based on packaging size . . .” Small-portion packages of staple food items such as apple slices, grapefruit cups, carrot sticks, cheese slices, celery sticks, yogurt cups, bags of nuts, and hummus will continue to be counted as staple food items in their respective staple food categories.

As described above, some commenters recommended that FNS avoid defining accessory food items and establish a comprehensive list of staple food items and that the Agency further exclude unhealthy food items from being classified as staple foods items. While FNS appreciates the goals of such suggestions, creating a comprehensive list of all staple food items is outside of the intended scope of the Agency's rulemaking action. Per research conducted by the USDA's Economic Research Service (ERS), about 20,000 new food products are introduced into the retail marketplace annually. Therefore, the Agency does not believe it is practical to make an exhaustive list of acceptable staple varieties. However, to address concerns about excluding unhealthy foods items from being classified as staple food items, FNS will be amending the final rule to change existing policy, which has limited “accessory food items” to include only the eight products explicitly enumerated in regulations at 7 CFR 271.2. Under existing policy a chocolate hazelnut spread (with the first three listed ingredients of sugar, oil, and hazelnuts, in that order) can currently be considered a staple variety in the vegetables or fruits staple food category (i.e., hazelnuts), for example. The accessory food items provision will change this policy such that any food product with an accessory food main ingredient (with the previously mentioned exception of “water”) will also be considered an accessory food item itself. To revise existing policy, the final rule provides that, “A food product containing an accessory food item as its main ingredient shall be considered an accessory food item.”

Because the existing regulations and standing policy on accessory foods has resulted in potato chips being counted as a variety in the vegetables or fruits staple food category (i.e., potatoes) and pork rinds being counted as a variety in the meat, poultry, or fish staple food category (i.e., pork), this final rule will amend the definition of staple food in 7 CFR 271.2 to read as set forth in the regulatory text of this rule. The final rule now provides that accessory food items include foods that are generally considered snacks or desserts such as, but not limited to chips, ice cream, crackers, cupcakes, cookies, popcorn, pastries, and candy, and other food items that complement or supplement meals, such as, but not limited to coffee, tea, cocoa, carbonated and uncarbonated drinks, condiments, spices, salt, and sugar. The final rule further clarifies that items shall not be classified as accessory food exclusively based on packaging size but rather based on the aforementioned definition and as determined by FNS, consistent with the guidance in this preamble and/or with future guidance. Additionally, the final rule provides that a food product containing an accessory food item as its main ingredient shall be considered an accessory food item and that accessory food items shall not be considered staple foods for purposes of determining the eligibility of any firm. This provision will be implemented for all new applicant firms and all firms eligible for reinstatement 120 days after the effective date of this final rule and 365 days after the effective date of this final rule for all currently authorized firms.

Definition of “Retail Food Store”—85-15% Prepared Foods Threshold

This discretionary provision proposed to redefine “retail food store” so as to consider firms that had more than 15% of their total food sales coming from the sale of food items that were cooked or heated on-site, before or after purchase, to be restaurants and to exclude such restaurants from the Program. Existing regulations at 7 CFR 278.1(b)(1)(iv) currently consider firms that have more than 50% of their total gross retail sales coming from items that are hot and/or cold prepared foods not intended for home preparation and consumption to be restaurants and exclude such restaurants from the Program. The purpose of the proposed provision was to supplement this existing regulation and exclude from the Program firms that have circumvented Congressional intent and achieved SNAP authorization by selling food cold and offering to cook or heat it on the premises after sale. This proposed provision received a high number of adverse comments and based on the strength of the arguments in these comments, FNS has stricken this provision as proposed from the final rule, instead opting to modify existing regulations at 7 CFR 278.1(b)(1)(iv) to close this loophole. The final rule now provides that firms that are considered to be restaurants, that is, firms that have more than 50 percent of their total gross retail sales in (1) foods cooked or heated on-site by the retailer, before or after purchase; and (2) hot and/or cold prepared foods not intended for home preparation and consumption, including prepared foods that are consumed on the premises or sold for carryout, shall not qualify for participation as retail food stores under Criterion A or B.

For example, a firm has $100,000 in total gross retail sales consisting of $60,000 (60%) in nonfood sales and $40,000 (40%) in food sales. The proposed provision would have considered only the food sales for the purposes of the threshold. Under the proposed provision, therefore, this example firm would be considered a restaurant if more than $6,000 (15% of $40,000) of its sales came from the sale of food items that are were cooked or heated on-site, before or after purchase. The final provision, however, considers total gross retail sales rather than only total food sales. Under this final provision, therefore, this example firm could never be considered a restaurant because more than 50% of the firm's total gross retail sales come from nonfood sales. Under this final provision a firm with $100,000 in total gross retail sales could only be considered a restaurant and excluded from the Program if more than $50,000 of its sales came from the sale of foods cooked or heated on-site, before or after purchase, and the sale of hot and/or cold prepared foods not intended for home preparation and consumption.

It should be noted that existing policy, the proposed rule, and the final rule do not impact the restaurants authorized by SNAP State Agencies to participate in the Restaurant Meals Program (RMP). The RMP is a State-option program active in only a handful of States that allows eligible homeless, disabled, and/or elderly SNAP recipients to use their SNAP benefits at participating restaurants to purchase prepared meals.

Of the total 1,260 germane and non-duplicative public comments received, 513 comments, or about 41% of all public comments, specifically addressed this provision. About 48% of total retailer commenters specifically opposed this provision. Medical groups and governmental entities that commented on this provision were generally divided and/or expressed mixed opinions. Industry trade groups, advocacy groups, and private citizens that commented on this provision were generally opposed.

Commenters identifying as retailers and trade associations generally pointed out that a standard convenience store typically has less than 85% of their total food sales coming from the sale of food items that are not cooked or heated on-site before or after purchase. Such commenters indicated that the average convenience store's hot and/or cold prepared foods sales, including sales of foods that are cooked or heated on-site before or after purchase, are closer to 40% of such firms' total food sales, well beyond the 15% threshold for such hot and/or cold prepared foods sales, including sales of foods that are cooked or heated on-site before or after purchase. Commenters opposing this provision stated that this fact would cause the entire convenience store industry to be categorically ineligible for SNAP authorization.

Many advocacy groups also expressed opposition to this provision, noting that this provision could have a deleterious impact on food access for SNAP households. One national, anti-hunger advocacy group noted that, “We remain concerned about access for low-income consumers, particularly in food desert areas, and for all shoppers with mobility issues, such as those who are elderly, have disabilities, and/or lack affordable transportation. We caution the Department against setting a threshold that would cause stores to drop out of SNAP and lessen food access, particularly for these particular SNAP consumers.”

Some retailers also noted that determining and documenting what SNAP household customers did with cold food after purchase would be impractical, especially for a firm with an accessible microwave or other heating element. As noted in comments from the international chain of convenience stores:

. . . the determination of whether an eligible food product constitutes a food heated on-site, post-purchase is not always easy to determine. Each . . . store contains a publicly available microwave available for customer use . . . however, does not monitor its customers' use of store microwaves and does not have a practical method of doing so. Any eligibility requirement which would impose on . . . stores a need to determine, with specificity, which items were heated by customers post-sale would constitute an unreasonable imposition, would unduly disrupt its business and would discourage its customers from using its microwaves. Such monitoring could also have the unintended effect of customers deciding to shop elsewhere. [The company's] stores, especially its franchisees, also lack the technological ability to collect and maintain such data. Imposition of such a requirement would require each store to incur substantial software-related costs and could require the hiring of additional personnel if monitoring of customer activity for SNAP-eligibility purposes is required.

SNAP authorized firms that primarily sell cold food and then offer to cook that food on the premises for customers also specifically opposed this provision. The owner of a SNAP authorized firm that sells primarily prepared meat products commented, “Unfortunately, I am concerned that the FNS proposed rule would jeopardize my future participation in SNAP. . . Currently, the business has more than 15% of the total food sales from items that are `cooked or heated on site before or after purchase.' ” An owner of a SNAP authorized firm that primarily sells pizza, stated opposition to this provision and noted that, “All of our customers are required to pay $1 more than our posted take-n-bake prices on our menus regardless of method of payment to bake their take-n-bake pizza for them. For SNAP cardholders, the products MUST still be unbaked at the point we swipe their card. [sic]”

Supporters of this provision, namely medical groups and State and local governmental entities, argue that removing restaurants from the Program will benefit SNAP households by eliminating a cost-ineffective source of calorie-dense and nutrient-poor food. One health commission director, representing a city of 600,000 with about 200 SNAP authorized firms, commented, “We support the effort to uphold the original intent of SNAP to purchase food items intended for home preparation and consumption . . . The proposed rule adds an additional requirement that at least 85 percent of an entity's total food sales must be for items that are not cooked or heated onsite before or after purchase. These enhancements will help ensure that SNAP retailers offer and sell a variety of foods consistent with the language defining a `retail food store' ”. This position was also echoed by two national advocacy associations, one an organization which claims 37 million members that advocates on behalf of persons over 50, and one that is a non-profit, health advocacy organization.

Several industry groups expressed support for the concept of excluding restaurants as well, but noted that the threshold set by the Agency was not set appropriately in the proposed rule. As noted by the international convenience store chain, “Without question, [our] stores are not `restaurants.' Our stores do not have tables or chairs at which our customers can eat and we do not employ servers. Our customers generally leave the store immediately after completing their purchases. None of our stores charge the higher sales tax on restaurant meals found in many jurisdictions. And heated items do not constitute more than 50% of the food items sold in any of our stores.” A national, independent grocery trade association which claims 1,200 members indicated support for this provision's intent while noting that they “strongly urge the Agency to lower the proposed threshold.” Two State retailer associations, one which claims to represent nearly 400 food retailers, wholesalers, and suppliers and one which claims to represent over 800 corporate members operating more than 3,200 retail food stores, also shared this view. Another national trade association federation of 47 State and regional trade associations which claims to represent approximately 8,000 independent petroleum marketers' nationwide quoted the suggestion of one of their members that the threshold be set at “25% of sites' total gross sales instead of 15% of total food sales.”

Other commenters noted that existing regulations at 7 CFR 278.1(b)(1)(iv) already prohibit the authorization of restaurants with 50% of their gross sales in prepared foods intended for home consumption and saw this proposed provision as redundant and excessive. As the international chain of convenience stores commented, “FNS's current regulation regarding retailer eligibility provides a clear, common sense distinction between retail food stores (which have less than 50% of total sales in hot or cold prepared, ready-to-eat foods for immediate consumption) and restaurants (which have more than 50% of total sales in hot or cold prepared, ready-to-eat foods for immediate consumption).”

As stated in the proposed rule, the Agency's intent in proposing this provision was to eliminate restaurants which circumvented Congressional intent and achieved SNAP authorization by selling food cold and offering to cook or heat it on the premises after the sale. For example, a firm accepts SNAP benefits as payment for the purchase of unpackaged, cold, breaded chicken strips. After making such a sale, the firm then offers to fry this chicken for SNAP customers at the cost of one dollar in cash. Such a firm is taking advantage of a loophole in order to sell hot food and operate as a restaurant within the Program. The Agency still believes that firms that primarily sell seafood, pizza, and other food products cold and then offer to heat or cook these products on the premises are operating as restaurants, not retail food stores. The intent of this proposed provision was to correct shortcomings in the existing regulatory language that have allowed for the authorization of these types of “you-buy-we-fry”-style restaurants and pizza restaurants.

FNS reviewed and considered industry data in response to the concerns from commenters that the 85-15% threshold would have the unintended effect of precluding small-format retail stores with marginal sales in foods cooked or heated on-site, before or after purchase. According to the National Association of Convenience Stores (NACS) State of the Industry (SOI) 2015 Annual Report (NACS State of the Industry Annual Report Convenience and Fuel Retailing Totals, Trends and Analysis of 2015 Industry Data) the average convenience store's total gross sales are divided between 68.22% outside (i.e., fuel) sales and 31.78% inside (i.e., foodservice and merchandise) sales. The inside sales of the average convenience store include 35.93% cigarette and other tobacco sales, 7.21% beer sales, 0.87% health and beauty sales. The remaining 55.99% of inside sales (or about 17.79% of total gross sales) are food sales (including 9.22% of inside sales listed under “All Other”). Of these food sales, about 37.33% come from “Foodservice.” “Foodservice,” as used in the NACS SOI 2015 Annual Report, includes “Prepared Food,” “Commissary/Packaged Sandwiches,” “Hot Dispensed Beverages,” “Cold Dispensed Beverages,” and “Frozen Dispensed Beverages” and is defined as follows: “Foodservice appears in many different forms in the convenience store channel. In some cases, it's a coffee program and a soda fountain, in some it's a roller grill and a condiment bar, and at the other end of the spectrum it's a full-blown made-to-order quick-serve restaurant (QSR) or a well-known branded franchise location.” Based on this definition, “Foodservice” sales appear to include primarily the sale of hot and/or cold prepared foods, including foods cooked or heated on-site before or after purchase, and/or intended for immediate consumption (“Foodservice” constitutes 20.90% of total inside sales and about 6.64% of total gross sales).

Based on this data, it appears that excluding firms with more than 15% of their food sales in foods cooked or heated on-site before or after purchase would render the average convenience store ineligible to participate in the Program. Furthermore, given that hot and/or cold prepared foods, including foods cooked or heated on-site before or after purchase, constitutes approximately 6.63% of total gross sales, this data indicates that a convenience store with more than 50% of its total gross sales issuing from the sale of hot and/or cold prepared foods is very far outside of industry norms as such sales figures would represent a nearly eightfold greater sales amount in hot and/or cold prepared foods over the average convenience store.

In light of the comments and data, FNS recognizes that this provision, if implemented as proposed, would likely have sweeping and unintended consequences for smaller format firms. The Agency never intended for this provision to categorically preclude convenience stores and other small retail food stores with marginal sales in foods cooked or heated on-site, before or after purchase, from SNAP participation. The stated purpose of this provision was to realign SNAP regulations with statutory intent and exclude restaurants from SNAP.

Therefore, the Agency is narrowing the scope of this provision in the final rule and is instead amending existing regulations at 7 CFR 278.1(b)(1)(iv) to specifically exclude from SNAP participation firms with more than 50 percent of their total gross sales in (1) foods cooked or heated on-site by the retailer before or after purchase; and (2) hot and/or cold prepared foods not intended for home preparation or consumption, including prepared foods that are consumed on the premises or sold for carryout. Conforming edits were also made to 7 CFR 271.2 to the definition of “retail food store.” This change to existing regulations will close the existing loophole and align SNAP regulations with Congressional intent to exclude hot food and restaurants from SNAP, while achieving the Agency's stated objectives and addressing concerns that the proposed provision might adversely affect SNAP-authorized firms, such as convenience stores, that do not operate as restaurants.

This provision was never intended to exclude from the Program firms that offer both microwaveable products (e.g., frozen burritos and packages of popcorn) for sale and self-service microwaves for customer use. FNS agrees that is it neither feasible, nor desirable that firms be required to monitor customers' usage of self-service microwaves. Under this final provision microwaveable food products will not be considered foods cooked or heated on-site before or after purchase simply because they could be heated after purchase using a self-service microwave and eaten on-site. The final provision specifies that this prepared food threshold will consider those food products that are cooked or heated “by the retailer”. Such language excludes self-service microwaves from consideration under this provision. The purpose of this provision is to prevent certain types of take-out restaurants from continuing to circumvent Congressional intent to exclude hot food and restaurants from SNAP. While many small format retail food stores may offer some hot and/or cold prepared foods, including foods that are cooked or heated on-site by the retailer before or after purchase, for sale, FNS does not expect this provision to affect convenience stores or similar small format retail food stores as such hot and/or cold prepared foods typically constitute less than 7% of total gross sales for the average convenience store as indicated by industry data, per the aforementioned data in the NACS SOI 2015 Annual Report. While this provision is unlikely to affect the vast majority of retailers, it closes existing loopholes that allowed restaurants to participate in the Program. This provision will be implemented for all retailers 120 days after the effective date of this final rule.

Definition of “Retail Food Store”—Co-Located Firms

This discretionary provision proposed to redefine the term “retail food store” such that multiple co-located businesses sharing certain commonalities would be treated as one firm for the purposes of the Program. As proposed, these commonalities included the sale of similar foods, single management structure, shared space, logistics, bank accounts, employees, and/or inventory. In the proposed rule, FNS specifically sought comments pertaining to any unintended adverse effects of this proposed change and based on the comments that were received this provision was modified to specify that co-located businesses will be treated as one firm by FNS only if they share all of the three following attributes: (1) Ownership; (2) sale of similar or same food products; and (3) shared inventory.

This proposed provision received a moderate number of comments. Of the total 1,260 germane and non-duplicative public comments received, 228 comments, or approximately 18% of all public comments, specifically addressed this provision. About 22% of total retailer commenters specifically opposed this provision. Medical groups that commented on this provision were generally divided and/or expressed mixed opinions while private citizens that commented on this provision were generally supportive. Industry trade groups and advocacy groups that commented on this provision were generally opposed. Support for or opposition to this provision was almost universally concomitant with support for or opposition to the 85-15% prepared foods threshold provision.

Commenters opposing this provision point out that, in conjunction with the 85-15% prepared foods threshold provision, this provision would eliminate from the Program any convenience store co-branded and co-located with a fast food business. The idea of unifying multiple businesses operating “under one roof” for purposes of SNAP authorization was criticized by trade groups and retailers who stated that convenience stores and other small format retail food stores operating in shopping malls, travel plazas, strip malls, truck stops, and other shared structures could face elimination from the Program due to their proximity to a totally unaffiliated fast food restaurant. For example, the national truck stop retailer trade association commented, “As a practical matter, this rule would result in scenarios where [our] members' convenience stores would be ineligible to participate in SNAP simply because they operate adjacent to a separate restaurant. This is arbitrary and contrary to the Program's objectives.” Overall opposed commenters noted that this provision was overly broad and could result in the unfair treatment of numerous discrete businesses.

The Agency proposed this provision to close a loophole that allows firms to obtain SNAP authorization in contravention of clear statutory intent to exclude restaurants from the Program. For example, a firm applying for SNAP authorization purports to operate two businesses within one building. The first business sells hot pizza, is considered a restaurant by FNS, and is, therefore, ineligible for SNAP authorization. The second business sells only cold pizza and is, therefore, eligible for SNAP authorization under Criterion B. Both businesses sell the same product, are managed and owned by the same individuals, employ the same personnel, operate in the same space, draw from the same inventory, and handle their finances through the same accounting mechanisms. The only difference between the two businesses in this example is that the former does not accept SNAP EBT cards as a form of payment at its designated cash register, while the latter does. Firms obtaining SNAP authorization through such a superficial bifurcation of their businesses are clearly circumventing regulatory and statutory intent to exclude restaurants from the Program in order to sell their food, in this example, pizzas. This provision was proposed in order to close this loophole.

It was never the Agency's intent to treat multiple businesses as one firm because such businesses simply share a roof and an owner. The Agency's intent in the proposed provision was not to consider multiple businesses operating within one truck stop or strip mall as a single firm even if they shared some commonalities, such as management and personnel, so long as they were not also engaged in other common practices as well, such as selling similar or the same products drawn from the same inventory. In the commenter's example, therefore, the presence of a fast food restaurant at a travel plaza would not be likely to have any bearing on the SNAP authorization status of a convenience store located in the same travel plaza.

FNS appreciates the comments from stakeholders and other members of the public that highlight the vagueness and possible unintended effects of the proposed provision. In response to these comments, FNS has clarified and narrowed this provision in the final rule. As it is written in the final rule at 7 CFR 271.2, co-located businesses will be treated as one firm by FNS only if they share all of the three following attributes: (1) Ownership; (2) sale of similar or same food products; and (3) shared inventory. This revision clarifies the vagueness in the proposed language and limits the provision's potential effects in keeping with its intent. This provision will be implemented for all retailers 120 days after the effective date of this final rule.

Definition of “Retail Food Store”—Depth of Stock

This discretionary provision proposed to address depth of stock by establishing a minimum of six stocking units per staple food variety which certain SNAP authorized firms must offer for sale and normally display in a public area on a continuous basis. This provision received a high number of adverse comments as proposed. Based on the strength of the arguments made in these comments, in the final rule this depth of stock requirement has been halved to a minimum of three stocking units per staple food variety. When combined with the increases in the number of varieties required per staple food category per the breadth of stock provision of the rule, the proposed depth of stock provision would have required a minimum stock for certain SNAP authorized retailers of 168 items, while under the final rule this depth of stock provision requires 84 items.

Of the total 1,260 germane and non-duplicative public comments received, 490 comments, or approximately 39% of all public comments, specifically addressed this provision. About 91% of commenters that addressed this proposed provision opposed it. About 47% of total retailer commenters specifically opposed this provision. Medical groups that commented on this provision were generally supportive while government entities, private citizens, and advocacy organizations that commented on this provision were generally divided and/or expressed mixed opinions.

Most retailers and industry groups opposed this provision on the grounds that the volume of products required by the proposed depth and breadth of stock provisions (i.e., 168 total items) are untenable, as proposed, for small-scale firms to store, display, and stock. As a representative of an American drug store chain which claims over 8,000 locations, about 7,000 of which are SNAP authorized firms, notes, “Since the 168 items must be continually stocked, a retailer must, in reality, stock far more than 168 items to replace any items that are sold. If a retailer only stocks the required 168 items, they run the risk of non-compliance with Depth of Stock requirements each time an item is sold. We request FNS further clarify this concern.” Other commenters echoed this concern, stating that they feared the loss of SNAP authorization could occur as the result of selling a single item immediately prior to an FNS inspection.

Under existing regulations at 7 CFR 278.1(a), FNS may require an applicant firm to submit to an inspection, or store visit, as a part of the SNAP authorization process. FNS understands that firms may sell out of certain products or experience temporary disruptions to their supply chain and that such occurrences may result in stocking shortfalls at the time of an Agency store visit. If a firm has insufficient food stocked on hand at the time of this store visit, this does not necessarily preclude the firm from receiving SNAP authorization. Under existing regulations at 7 CFR 278.1(b)(1)(ii)(A), if it is not clear that the firm met the stocking requirements at the time of a store visit, FNS may offer applicant firms the opportunity to demonstrate their compliance with such requirements through the submission of supporting documentation, such as invoices or receipts, indicating that the firm had recently ordered or received the required staple foods prior to the store visit.

In order to address the concerns and confusion of the commenters, the final rule retains and clarifies the language at 7 CFR 278.1(b)(1)(ii)(A) that affords firms the opportunity to submit supporting documentation in the case of certain stocking shortfalls at the time of an Agency store visit. Additionally, the final rule specifies that such supporting documentation must be dated within 21 days of the store visit. This timeframe of 21 calendar days, or three weeks, reflects the need for retailers to stock perishable staple foods on a continuous basis. Existing SNAP regulations at 7 CFR 278.1(b)(1)(ii)(B) define “perishable foods” as items that “will spoil or suffer significant deterioration in quality within 2-3 weeks.” This language in 7 CFR 278.1(b)(1)(ii)(A) should not be construed as allowing retailers to submit receipts or invoices to FNS instead of having sufficient stock on hand; the purpose of this language is to acknowledge the realities of the retail marketplace and provide stores that stock sufficient food on a continuous basis some degree of flexibility. The Agency has amended language in this provision at 7 CFR 278.1(b)(1)(ii)(A) to provide that, “Documentation to determine if a firm stocks a sufficient amount of required staple foods to offer them for sale on a continuous basis may be required in cases where it is not clear that the requirement has been met. Such documentation can be achieved through verifying information, when requested by FNS, such as invoices and receipts in order to prove that the firm had purchased and stocked a sufficient amount of required staple foods up to 21 calendar days prior to the date of the store visit.”

Under this final rule firms that are SNAP authorized under Criterion A must offer for sale and display in a public area (e.g., on store shelves) qualifying staple food items on a continuous basis, evidenced by having no fewer than seven different varieties of food items in each of the four staple food categories with a minimum depth of stock of three stocking units for each staple variety. This means that, on any given day of operations, such a firm should offer a total of 84 units for sale (3 stocking units · 7 staple varieties · 4 staple food categories = 84 units). Generally Agency determinations of eligibility under Criterion A are guided by store visit documentation of food items that are being offered for sale and displayed in a public area at the time of store visits. So, for example, if a firm is subject to a store visit on the 22nd of January and is found to have only 83 of the required 84 units on hand, then that firm may be afforded the opportunity to provide FNS with supporting documentation. In this case one acceptable form of supporting documentation would be documentation of order or purchase (e.g., an invoice) verifying that the firm placed an order for food stock, including the missing required unit, that is dated no earlier than the 1st of January and no later than the time of the store visit on the 22nd of January. Another acceptable form of supporting documentation would be documentation of receipt or delivery (e.g., a receipt) verifying that the firm received an order of food stock, including the missing required unit, that is dated no earlier than the 1st of January and no later than the time of the store visit on the 22nd of January. If the firm in this example was able to provide an acceptable form of supporting documentation to verify that the firm stocks the required staple food items on a continuous basis (84 items), then the firm would be authorized to participate in SNAP. However, if, for example, a firm had 0 of the required 84 units on hand at the time of store visit, then that firm would not be given the opportunity to submit supporting documentation and would instead be denied SNAP authorization. Such a result clearly demonstrates the firm has not made a reasonable restocking effort.

Some commenters stated that the failure to meet the stocking requirements of this provision at the time of a store visit would result in substantial costs to firms due to the thousands of dollars in fines FNS would levy against such firms as penalties for failing to meet stocking requirements. Under existing regulations, a firm that fails to meet current stocking requirements is denied SNAP authorization or withdrawn from the Program. Once denied or withdrawn, such a firm must wait six months to reapply for SNAP authorization. FNS does not levy fines against retailers who are denied or withdrawn from the Program on the basis of failing to meet the stocking requirements as no statute or regulations currently authorizes FNS to levy fines against retailers for such a failure. Neither the proposed rule, nor the final rule change this fact. This matter is further examined in the final rule's RFA and RIA. A civil penalty (i.e., a civil money penalty or civil monetary penalty) may be applied in lieu of a period of disqualification when a SNAP authorized retailer violates SNAP rules (e.g., sale of cigarettes, tobacco, or alcohol for SNAP benefits).

Another objection raised to this provision pertained to food waste. Some commenters posited that the increase in the number of staple food categories in which perishable food items are required (a statutorily mandated increase from two to three staple food categories) coupled with this depth of stock requirement would result in spoilage, waste, and exorbitant costs to retailers. As noted by a representative of a convenience store distributor company that professes to service over 1,000 retail food stores in six States, “For many non-perishable items, if [convenience stores] do not sell to the consumer by their expiration date, we can send those products back to the manufacturer who will provide certain types of refunds or will replace product. This practice only applies to select nonperishables and DOES NOT [sic] apply to most products stipulated under the revised FNS rules for SNAP. Perishable items are NEVER [sic] refunded by the manufacturer after the expiration date, so the cost of spoilage on those products is borne completely by the retailer.” Under the proposed rule this depth of stock provision would require a minimum of 18 perishable food items, while in the final rule this depth of stock provision requires a minimum of nine perishable food items where “perishable” is defined by existing regulations at 7 CFR 278.1(b)(1)(ii)(B) to include frozen, fresh, refrigerated, and unrefrigerated food products “that will spoil or suffer significant deterioration in quality within 2-3 weeks” such as loaves of bread and potatoes.

Another common objection raised to this provision pertained to space and stocking logistics. Some commenters argued that, in conjunction with the breadth of stock provision, this depth of stock provision would require stocking a quantity of food items that simply exceed the available shelf space at most small format retail food stores. Some commenters also posited that the quantity of perishable food items required by this rule would force small-format firms to purchase additional refrigerator or freezer units for storage. The regional chain of convenience stores which claims over 600 locations, about 550 of which are SNAP authorized firms, also noted that their “current stocking needs and inventory management systems [cannot] guarantee a minimum of six units at all times for each of the relevant staple foods. At very least, we would need to revise our planograms and general merchandising strategies, and revisit our hardware and software applications.”

As discussed in the RIA and RFA, estimates of the final rule's impacts on retailers are based on an analysis of a nationally representative sample of 1,392 SNAP authorized small-format firms using data gathered by FNS during store inspections, or store visits. Based on this analysis FNS estimates that the average small-format SNAP authorized firm already stocks over 70% of the stock needed to meet the requirements of this final rule and the average small-format SNAP authorized firm will only need to stock an additional 24 items. Moreover, this analysis indicated that over 98% of small-format SNAP authorized firms currently stock at least nine perishable staple food items and, therefore, that the overwhelming majority of small-format SNAP authorized firms will not need to stock any additional perishable items to meet the requirements in this final rule.

Moreover, as discussed in the RFA, the Agency has analyzed examples of stocking units of qualifying staple food varieties to determine the shelf space that will be occupied by the 84 required items. The Agency estimates that the 84 items required under the final rule would occupy approximately 7,500 cubic inches. These 84 items would occupy about 5.6 square feet of non-refrigerated shelf space. Assuming stores choose to display these non-refrigerated items in a standard manner (i.e., cans of fruit cocktail are shelved three items deep on the shelf) the Agency estimates that these non-refrigerated items would occupy less than two full shelves on standard three-shelf wall shelving unit (84″ height x 48″ length x 16″ depth). While FNS estimates that the refrigerated items would require about 4.3 linear feet of refrigerated shelf space (where a refrigerated shelf has a standard 48″ width), 98 percent of small SNAP-authorized firms already stock sufficient perishable items to meet the perishables requirement. Therefore, FNS considers it unlikely that these stores will need additional refrigerated space beyond their current capacity. Furthermore, as our analysis indicates that most stores will need to add far fewer than 84 items to meet the combined stocking requirements of this rule (24 additional items for the average store); the additional shelf space needed is likely to be well below these estimates.

Since the average small-format SNAP authorized firm already stocks most of the items required under this final rule, FNS contends that this provision, and all of the stocking provisions as a whole, will have a negligible impact on retailers from a spatial and logistical perspective. FNS does not anticipate that requiring firms to utilize a fraction of a shelf to stock an additional 24 items will necessitate any major changes to the planograms or general merchandising strategies of the average small-format retailer.

Certain industry groups, such as that national food retail trade association, had questions regarding the definition of “stocking unit” and requested further clarification. Per commenters' requests, a list of examples has been added in Section IV of this document which provides a more complete illustrative, but not exhaustive, examination of what constitutes a stocking unit, and what does not constitute a stocking unit for the purposes of this depth of stock provision.

State and local government entities as well as medical and advocacy groups largely supported this provision, arguing that it would ensure the availability of staple food items on the shelves of SNAP authorized firms. One State public health official, representing a State with a population of 38.8 million that includes over 25,500 SNAP authorized firms, noted that this provision would help by “increasing the likelihood that these foods will be available to SNAP participants on an ongoing basis” and a city health department representing 8.5 million people and over 10,000 SNAP authorized firms, noted that, in concert with other provisions, this provision would increase “the overall diversity of foods stocked on a continuous basis”.

On the other hand, several retailer and industry group commenters stated that the proposed number of required stocking units was simply too great for small format retailers and recommended scaling back the number of stocking units required. The petroleum marketers' trade association federation recommended that, “[to] help the small retailer the depth of stock should be cut to three items of each of the seven varieties in each staple group”. Another State grocer association, which professes to represent about 400 retailer members, recommended that “[reconsideration] of six different units of any food item in a store at any given time should also be made, dropping that requirement to a lower number.”

The proposed rule would have increased the required depth and breadth of staple food stock while simultaneously expanding the list of accessory foods excluded from the definition of “staple foods” and excluding multiple ingredient food items from the definition of “staple foods.” According to some comments received, taken together, these four provisions would constitute an unreasonably burdensome stocking requirement for small format retailers. The Agency acknowledges commenters' concerns about the overall impact of the various provisions in this final rule on small format retailers. However, the Agency also agrees with the comments from some State/local governmental entities and medical groups that having a depth of stock requirement would increase the likelihood of healthy staple food options being available to SNAP recipients. Therefore, FNS is addressing depth of stock by establishing a depth of stock provision, but amending the provision at 7 CFR 278.1(b)(1)(ii)(A) by reducing the required number of stocking units from the proposed six units to three units for each staple food variety in this final rule. Conforming edits were also made to 7 CFR 271.2 to the definition of “retail food store”. As a result of this change the costs and burdens associated with compliance, perishable spoilage, and shelf space have all been significantly reduced, as reflected in the RIA and RFA. This provision will be implemented for all new applicant firms and all firms eligible for reinstatement 120 days after the effective date of this final rule and 365 days after the effective date of this final rule for all currently authorized firms.

Definition of “Retail Food Store”—Breadth of Stock

As explained in the preamble to the proposed rule, the 2014 Farm Bill amended the Act to increase the number of staple food varieties required per staple food category from three to seven and to increase the staple food categories required to contain at least one perishable variety from two to three. The proposed rule sought to codify these mandatory requirements from the 2014 Farm Bill. This proposed breadth of stock provision received a moderate number of largely supportive or mixed comments. Of the total 1,260 germane and non-duplicative public comments received, 482 comments, or approximately 38% of total public comments, specifically addressed the increase from three to seven varieties and 288 comments, or about 23% of total public comments, specifically addressed the increase from two to three categories containing at least one perishable variety. About 56% of comments that specifically addressed the increase from three to seven varieties supported this change while approximately 39% were mixed and about 5% opposed this change. Approximately 90% of comments that specifically addressed the increase from two to three staple food categories containing at least one perishable variety supported this change while about 8% opposed this change and approximately 2% were mixed. Overall less than 1% of total retailer commenters specifically opposed this provision. Medical groups, private citizens, and advocacy groups that commented on this provision were generally supportive while government entities and industry trade groups that commented on this provision were generally divided and/or expressed mixed opinions. This provision was included in the final rule as proposed.

Some governmental, medical, and advocate commenters believed that this provision did not go far enough to ensure that SNAP authorized firms stocked sufficient nutritious food options. Such commenters noted that the SNAP four staple food categories have not kept pace with changes to the USDA's nutritional recommendations, now represented by MyPlate. Such commenters suggested that the vegetables or fruits staple food category should be split into two separate staple food categories—the fruit staple food category and the vegetable staple food category. Such commenters went on to argue that seven varieties should be required for both of these staple food categories (for a total requirement of 14 fruit and vegetable staple food varieties). However, the current four staple food categories are statutorily-mandated in Section 3(q)(1) of the Act and the suggestion of breaking the four staple food categories into five categories would exceed the Agency's statutory authority.

There were other commenters who stated that they expected that retailers would have difficulty reaching seven different varieties in the meat, poultry, or fish and the dairy products staple food categories. As one city mayor, representing a city of 600,000 residents containing 1,000 SNAP authorized firms, pointed out, “It is difficult to list off seven common varieties of dairy that all types of stores will be able to carry. With the majority of dairy products being perishable, retailers cited lack of cooling infrastructure and cold storage, and difficulty in procuring and selling at an affordable cost as barriers to stock seven varieties of dairy.”

FNS acknowledges the difficulties in reaching seven varieties in certain staple food categories. FNS has amended the final rule to address this concern, along with other comments specifically regarding acceptable varieties in the four staple food categories, as explained in the section on “Definition of `Staple Food'—Acceptable Varieties in the Four Staple Food Categories.” However, because the Act requires that stores authorized under Criterion A stock seven varieties in each of the four staple food categories and at least one variety of perishables in three of those staple food categories; this breadth of stock requirement remains unchanged in the final rule. Conforming edits were also made to 7 CFR 271.2 to the definition of “retail food store” and 7 CFR 278.1(b)(1)(ii)(A) to reflect the new breadth of stock requirement. This provision will be implemented for all new applicant firms and all firms eligible for reinstatement 120 days after the effective date of this final rule and 365 days after the effective date of this final rule for all currently authorized firms.

Definition of “Firm”

This discretionary provision proposed to define “firm” so as to clarify that it also includes retailers, entities, and stores. Only one comment, a joint comment submitted by the international convenience store trade association and the petroleum marketers' trade association, specifically addressed this provision. No other retailer commenters specifically opposed this provision.

The one comment that addressed this provision opposed it, stating that “[to] conflate `store' with `firm' may have far-reaching ramifications in terms of licensing, enforcement and other policies” and further added that “[conflating] all of these terms will only introduce confusion and lead to unintended results”. The purpose of this provision is to clarify and unify terms that are currently used interchangeably throughout current SNAP regulations. Therefore, the provision at 7 CFR 271.2 remains unchanged in the final rule. This provision will be implemented on the effective date of this final rule.

Need for Access

In the proposed rule FNS proposed to amend 7 CFR 278.1(b) to allow the Agency to consider “need for access” when a retailer does not meet all of the requirements for SNAP authorization. FNS does not anticipate that large grocery stores and supermarkets will struggle to meet the stocking requirements of this final rule and FNS only expects to consider “need for access” for small format retailers. The purpose of this provision, therefore, is to provide a mechanism to safeguard food access for SNAP recipients especially when an isolated or underserved community relies heavily on small format retail food stores for its grocery shopping needs.

FNS understands that small businesses, such as independent convenience stores, play a vital role in the life of all Americans. These small businesses enrich both urban and rural communities by providing economic prosperity, employment opportunities, and sustainable growth. Very often small format retail food stores are the only venue available in isolated or underserved areas. When drafting this final rule FNS carefully considered the comments from the U.S. Small Business Association Office of Advocacy, as well as the comments submitted by retailers, trade associations, and other commenting entities. Concerns expressed regarding proposed provisions were incorporated into this final rule to minimize potential adverse impacts on small businesses. In addition to these changes, this need for access provision additionally accommodates small businesses and serves as a hedge against potential loss of food access.

With respect to this need for access provision the preamble to the proposed rule stated that “FNS will consider factors such as distance from the nearest SNAP authorized retailer, transportation options to other SNAP authorized retailer locations, the gap between a store's stock and SNAP required stock for authorized eligibility, and whether the store furthers the purpose of the Program.”

In the proposed rule, FNS specifically requested comments from the public to help FNS refine the factors used to determine whether a retailer is located in an area with significantly limited access to food. This provision received few comments. Of the total 1,260 germane and non-duplicative public comments received, 48 comments, or about 4% of total public comments, specifically addressed this provision. About 71% of comments that specifically addressed this provision suggested modifications or alterations to the proposed factors to be considered under this provision. This provision has been retained with modifications based largely on feedback received in the final rule. Few retailer commenters specifically opposed this provision and all other commenter types were considered mixed.

Some retailers opposed this provision on the grounds that the implementation of this provision would result in inequitable treatment of firms. The regional convenience store chain that commented noted that, “FNS should not be positioning itself to pick winners and losers in the competitive marketplace.”

As explained in the proposed rule, the 2014 Farm Bill amended Section 9(a) of the Act to allow FNS to consider whether an applicant retailer is located in an area with significantly limited access to food when determining the qualifications of that applicant. The Manager's Statement accompanying the 2014 Farm Bill indicated that the intent of Congress was to encourage the Secretary “to give broad consideration to the impacts of additional requirements . . . on food access in food deserts or other areas with limited food access.” H. Conf. Rep. 113-333, at 434 (Jan. 27, 2014). As such, this rule is simply implementing a statutory provision that accommodates areas with significantly limited access to food and retailers in such areas for whom the new stocking standards may be a challenge to meet. FNS specifically requested feedback from the public regarding the proposed change during the comment period. FNS has reviewed all comments and will be refining the provision in the final rule as described below. The Agency also intends to provide Program stakeholders with additional guidance on this provision.

Some retailers and industry trade groups also opposed this provision on the grounds that the proposed provision would create additional delays and administrative burdens for applying firms. The proposed process would allow FNS to waive certain retailer eligibility requirements in instances where applying firms served communities with low food access, as determined by FNS. This provision was always intended to function internally to the Agency and in tandem with the existing SNAP authorization process. FNS does not expect to need any additional information from applicant retailers to assist in the Agency determination. Instead, FNS will rely on information that the Agency currently receives as part of the retailer SNAP authorization process and publicly available information about the area in which the store is located, such as data in the U.S. Census Bureau's American Community Survey (ACS). Therefore, FNS does not anticipate any additional burdens, costs, or delays for retailers that would be created by this provision.

FNS, however, acknowledges the confusion of commenters regarding how this provision would work in practice and how it would affect the timeline for applicant firms' authorization to participate in the Program. As a result, the Agency has clarified the language of this provision in the final rule to specify in 7 CFR 278.1(b)(6) that, “Such considerations will be conducted during the application process as described in 7 CFR 278.1(a).” This means that an applicant firm will still receive an authorization determination within 45 days of Agency receipt of a firm's completed application for authorization. During this period need for access will be considered if applicable.

The international convenience store trade association also opposed this provision on grounds of fairness, stating that “If, for example, only one store in a food desert was SNAP authorized, then it could charge whatever it wanted to a captive consumer base.” Under the existing SNAP equal treatment provisions at 7 CFR 278.2(b) and 7 CFR 274.7(f), it is prohibited for firms to treat SNAP households differently than any other customers; therefore, retailers are prohibited from charging SNAP customers different prices than non-SNAP customers for the same products. Such predatory retail price gouging practices targeting SNAP customers would, therefore, already be prohibited under existing SNAP regulations.

Some medical and advocacy groups opposed this provision, or the frequent application of this provision, on the grounds that it would allow firms to avoid compliance and deprive communities that depend on small food retail stores as the most convenient and accessible option for purchasing food of a sufficient variety of healthy food options.

However, most retailer, industry, advocacy, governmental, and medical entities that referenced this provision did not support or oppose the provision, but instead suggested additional factors for FNS to consider. Factors suggested for consideration by commenters, beyond those put forward by the Agency in the proposed rule, included, but were not limited to, car ownership rates, public transportation availability, density of SNAP households, regional food availability, regional food prices, and underserved ethnic communities. In order to ensure that the Agency is able to consider some of these suggested factors, and any other factors needed to determine food access, the language of this provision in the final rule at 7 CFR 278.1(b)(6) provides that the factors listed are not exhaustive.

Additionally, the final rule limits the applicability of this provision to applicant firms that fail to meet both Criterion A (i.e., requiring firms to stock qualifying staple food items on a continuous basis, evidenced by having no fewer than seven different varieties of food items in each of the four staple food categories with a minimum depth of stock of three stocking units for each qualifying staple variety) and Criterion B (i.e., requiring firms to have 50 percent of total gross retail sales in staple food sales), but meet all other SNAP authorization requirements. This change is in keeping with Congressional intent as expressed in the Manager's Statement accompanying the 2014 Farm Bill which indicated that this need for access provision is intended to accommodate retailers in low food access areas for whom the new stocking standards may be a challenge to meet.

The need for access provision in the final rule also clarifies the factors that will be considered by the Agency will pertain to either: (1) Area food access; or (2) firm specific information. Finally, the proposed rule put forward the Agency's intent to implement this need for access provision 60 days after publication of this final rule. As stated earlier, this provision is intended to accommodate small retailers in low food access areas for whom the new stocking standards may be a challenge to meet, therefore this provision will be implemented in tandem with the new stocking standards. This need for access provision, therefore, will be implemented for all new applicant firms and all firms eligible for reinstatement 120 days after the effective date of this final rule and 365 days after the effective date of this final rule for all currently authorized firms.

This language of this provision in the final rule reads as set forth in § 278.1(b)(6) in the regulatory text of this rule. The final rule provides that FNS will consider whether the applicant firm is located in an area with significantly limited access to food when the applicant firm fails to meet Criterion A per 7 CFR 278.1(b)(1)(ii) or Criterion B per 7 CFR 278.1(b)(1)(iii) so long as the applicant firm meets all other SNAP authorization requirements. The final rule further provides that, in determining whether an applicant is located in such an area, FNS will consider access factors such as, but not limited to, the distance from the applicant firm to the nearest currently SNAP authorized firm and the availability of transportation in the vicinity of the applicant firm; and that in determining whether an applicant should be authorized in the Program despite failure to meet Criterion A and Criterion B, FNS will also consider firm factors such as, but not limited to, the extent of the applicant firm's deficiencies in meeting Criterion A and Criterion B and whether the store furthers the purposes of the Program. Furthermore, the final rule provides that such considerations will be conducted during the application process as described in 7 CFR 278.1(a). This provision will be implemented for all new applicant firms and all firms eligible for reinstatement 120 days after the effective date of this final rule and 365 days after the effective date of this final rule for all currently authorized firms.

Definition of “Staple Food”—Acceptable Varieties in the Four Staple Food Categories

This discretionary provision proposed to clarify and amend the definition of “variety” as it pertains to staple food varieties in the four staple food categories. This provision received an overall mixed response. Of the total 1,260 germane and non-duplicative public comments received, 168 comments, or approximately 13% of all public comments, specifically addressed this provision. About 16% of total retailer commenters specifically opposed this provision. Industry groups largely opposed this provision and other commenter types, such as advocacy, medical, and governmental entities, were generally divided and/or expressed mixed opinions.

Some commenters opposed to this provision stated that this provision did not represent a clarification of existing policy, but rather a radical change in the definition of “variety,” especially with respect to the definition of “variety” for the meat, poultry, or fish staple food category. A joint comment submitted by the international convenience store trade association and the petroleum marketers' trade association, for example, stated that “FNS has also proposed to `clarify' the term `variety.' But, the proposed rule advances not a clarification but a redefinition”. The national trade association for the travel plaza and truck stop industry echoed this criticism, asserting that FNS policy currently treats multiple formats of turkey and pork as discrete varieties and that the proposed rule would change this supposed standing definition of “variety”:

For example, under the Proposed regulatory text, ham and salami would both qualify as one `variety' of item—`pork'—for purposes of satisfying the seven-variety staple food threshold. Similarly, turkey burgers, sliced turkey, and ground turkey would all qualify as one variety—`turkey' rather than different [sic] three different `varieties' in the meat, poultry, and fish category. The Proposal's preamble does not attempt to justify this significant shift in policy beyond saying that it is designed to `clear up confusion that may exist in current regulations.' [This organization] is not aware of any such confusion. Indeed, retailer confusion in this area can be sourced entirely to the language in the proposed regulatory text that would treat all food items from the same food source (e.g., chicken) as a single `variety.' There is little policy justification for treating all items from the same food source as a single `variety' of item. [emphasis added]

Additionally, some commenters criticized the standing definition of “variety” specifically in the context of the vegetables or fruits staple food category. As the international convenience store trade association and the petroleum marketers' trade association stated, “For the vegetable or fruit category, there is no reason why Fuji apples and a jar of applesauce should not be considered different varieties; they are different products from the same food family (apples).”

Under existing SNAP regulations at 7 CFR 278.1(b)(1)(ii)(C) multiple formats of the same base product are not construed as constituting multiple varieties for the purpose of Criterion A eligibility. Canned chicken, frozen chicken, and fresh chicken, for example, are currently considered one variety (chicken) under existing SNAP regulations and policies. That this provision counts multiple formats of one variety (e.g., chicken) as a single variety represents a restatement of existing Agency regulation and policy. In fact, the adoption of the suggestions of the international convenience store trade association and the petroleum marketers' trade association that “raw chicken breast, refrigerated grilled chicken, or frozen chicken and vegetable stir fry should be considered different varieties” and that the Agency should “consider cream cheese and Laughing Cow creamy Swiss cheese to be two different [varieties]” would represent a reversal of the existing definition of “variety,” which in accordance with existing regulations at 7 CFR 278.1(b)(1)(ii)(C), “. . . is not to be interpreted as different brands, different nutrient values, different varieties of packaging, or different package sizes.” This existing policy was further examined in the 2001 Benefits Redemption Division (BRD) Policy Memorandum 01-04 which reads, in part, “Examples of unacceptable varieties includes tomato juice, fresh tomatoes and canned stewed tomatoes in the vegetables or fruits category.” As is clear from this memorandum, long-standing Agency policy has not considered multiple formats of a product (e.g., raw chicken, canned chicken, and frozen chicken) to constitute discrete staple food varieties.

Variety has been traditionally defined by the Agency based on the essential composition of the food product (i.e., main ingredient), especially in the meat, poultry, or fish and vegetables or fruits staple food categories. Products that share the same primary component (e.g., sliced turkey and ground turkey—turkey) and very similar kinds of products (e.g., McIntosh apples and Empire apples—apples; mozzarella cheese and cheddar cheese—cheeses) have not generally been considered to represent discrete varieties in their respective staple food categories. Main ingredient and product kind have, therefore, been recognized in Agency policy as the primary determinants of variety. The confusion evidenced by retailers' and trade associations' comments regarding the Agency's current definition of “variety” may be a reflection of the fact that retail food stores may generally meet the current Criterion A stocking requirements (i.e., three varieties in each of the four staple food categories) without deliberately considering the products needed for compliance. The increase in the number of required varieties from three to seven, which was mandated by the 2014 Farm Bill, has caused retailers to carefully consider what stock would affect compliance and may have resulted in the aforementioned comments and confusions.

Some advocacy and local or State government commenters suggested including plant-based proteins in the meat, poultry, or fish staple food category and plant-based dairy alternatives in the dairy products staple food category. One county health department, representing a county with a population over 750,000 and containing over 700 SNAP authorized firms argued that, “Additional staple food items that should be considered include eggs and plant-based protein sources such as canned or frozen legumes, unsalted nuts and seeds, and soy products (i.e., tofu). These products could be included in the staple foods category for meat, poultry and fish, re-framed as a protein category.” As discussed earlier in the context of the breadth of stock provision, there were also commenters who stated that they expected that retailers would have difficulty in reaching seven different varieties in the meat, poultry, or fish and the dairy staple food categories.

In common language usage a “dairy product” is understood to mean an edible food product produced from the milk of a mammal, most commonly cow's milk. Some traditional varieties of dairy include milk, butter, yogurt, and cheese. There are a small number of unique varieties of commonplace dairy products, most of which share the same main ingredient (i.e., milk). Under existing Agency policy, plant-based dairy alternatives are also considered acceptable varieties in the dairy products staple food category. In fact, as proposed, the rule had specified that “plant-based milk” was included as a variety in the dairy products staple food category, which would provide additional choices for retailers in meeting the new breadth of stock requirements.

FNS acknowledges the difficulty in reaching seven varieties in this staple food category. Given this reality, as well as the needs of lactose-intolerant consumers, the final rule will consider plant-based dairy products to be varieties in the dairy products staple food category based on their main ingredient (e.g., cow's milk, goat's milk, almond, and soy) and the traditional dairy product for which they are a substitute (i.e., product kind). For example, almond-based milk, soy-based milk, almond-based cheese, and soy-based cheese will each be considered a discrete variety in the dairy products staple food category under the final rule. Additionally, the final rule modifies existing Agency policy to subdivide certain traditional, animal-based dairy varieties into more than one variety. For example, under existing Agency policy cheese is considered one variety while under the final rule cow's milk-based soft cheese and cow's milk-based firm/hard cheese each will be considered discrete varieties.

Additionally, FNS acknowledges the importance of plant-based sources of protein and the potential difficulties in reaching seven varieties in the meat, poultry, or fish staple food category. The final rule, therefore, will modify existing Agency policy to include three varieties of plant-based protein sources (i.e., nuts/seeds, beans, and peas) in the meat, poultry, or fish staple food category. Under current Agency policy such products (i.e., nuts/seeds, beans, and peas) are counted as varieties in the vegetable or fruits staple food category. Under this final rule beans and peas may only be counted once each as a variety in the meat, poultry, or fish staple food category or once each as a variety in the vegetables or fruits staple food category while nuts/seeds may only be counted once as a variety in the meat, poultry, or fish staple food category. This change is in keeping with the nutritional guidance of USDA's MyPlate, which clarifies that, while beans and peas belong to both the protein foods group and the vegetable group, nuts/seeds are only considered to belong to the protein foods group. This means that if a store stocked one jar of peanut butter, one bag of almonds, and one bag of sunflower seeds, this would be considered three stocking units of one variety (i.e., nuts/seeds) which could be counted towards breadth of stock in the meat, poultry, or fish staple food category. In this example, additional units of these or other nut/seed products (e.g., three bags of walnuts) would not further be counted as additional varieties in the meat, poultry, or fish staple food category. This also means that if a firm stocked three bags of dried kidney beans (i.e., beans) and three bags of dried black eyed peas (i.e., peas), then these products would be counted as two varieties towards the breadth of stock in the meat, poultry, or fish staple food category or in the vegetables or fruits staple food category. Beans and peas can each only be counted once as variety in either the meat, poultry, or fish staple food category or in the vegetables or fruits staple food category. This means that if a firm stocked three bags of dried kidney beans, three bags of dried black beans, and three bags of dried pinto beans, then these products could only be counted as one variety (i.e., beans) in either the meat, poultry, or fish staple food category or in the vegetables or fruits staple food category. Likewise, three bags of dried black-eyed peas, three bags of dried split peas, and three bags of dried lentils could only be counted as one variety (i.e., peas) in either the meat, poultry, or fish staple food category or in the vegetables or fruits staple food category. These varieties may not individually be split between staple food categories. This is a departure from the way in which “variety” is traditionally defined (i.e., by main ingredient and/or product kind). The reason for this unique exception is that these plant-based proteins are being added to the meat, poultry, or fish staple food category in order to supplement, not supplant, the animal-based proteins for which the category is named. Under this provision firms will not be able meet the breadth of stock requirement for the meat, poultry, or fish staple food category by stocking seven kinds of nuts/seeds, peas, and/or beans, each of these may only be counted once.

Plant-based meat substitutes or analogues, marketed as vegetarian or vegan alternatives to meat, will also be counted as varieties in the meat, poultry, or fish staple food. Varieties of such meat analogues may include, but are not limited to, mycoprotein-based meat analogues, soy-based meat analogues (e.g., tofu or tempeh) and gluten-based meat analogues (e.g., seitan). For such meat analogues variety is assigned in the traditional way (i.e., by main ingredient and by product kind). This means that if a firm stocked three packages of tofu this would be considered one staple variety counting toward the breadth of stock in the meal, poultry, or fish staple food category. In this example, additional units of this or other soy-based meat analogues (e.g., three bags of textured soy protein or three boxes of soy-based vegan hot dogs) would not further be counted as additional varieties in the meat, poultry, or fish staple food category. None of these or any other meat analogues may be counted as a variety in any other staple food category.

Even with the addition of these plant-based varieties into the meat, poultry, or fish staple food category it will be necessary for most firms to stock animal-based varieties to meet the breadth of stock requirement for the meat, poultry, or fish staple food category. For example, if a firm stocked five of the aforementioned plant-based varieties (e.g., three jars of peanut butter [nuts/seeds], three bags of dried black beans [beans], three bags of dried lentils [peas], three packages of tofu [soy-based meat analogue], and three packages of seitan [gluten-based meat analogue]), that firm would still be required to stock at least two more varieties in the meat, poultry, or fish staple food category (e.g., three dozen eggs, three packages of frozen chicken cutlets, and three packages of ham).

These changes better align SNAP regulations with the nutritional guidance of USDA's MyPlate, help to ease the burden of compliance on retail food stores, and serve to increase the availability of healthy food options for low-income Americans.

Some governmental, medical, and advocate commenters believed that additional restrictions should be placed on these required varieties to ensure that a certain number of healthy options were available. For example, two city health departments, one noted earlier as representing a city of 8.5 million, and another representing a city of over 1.5 million containing over 2,300 SNAP authorized firms, argued that, within each staple food category, certain kinds of healthy varieties should be mandated by FNS. Examples of such healthy varieties included low-fat dairy, lean meat, fresh vegetables, and whole grain breads. While FNS does agree with the commenters that argued that such changes would likely increase healthful options for SNAP participants, the Agency believes that incorporating such additional enhancements to this provision could be overly burdensome on retailers.

Other commenters suggested that variety shortfalls in one or more staple food categories should be allowed to be covered with additional varieties of fruits or vegetables (e.g., a store may stock only five varieties of dairy but nine varieties of fruits and vegetables). While the Agency supports changes that would encourage firms to stock more nutritious products, including fresh fruit and vegetable products, such a change would run counter to statutory requirements of the 2014 Farm Bill that a retailer offer for sale “a variety of at least 7 foods in each of the 4 categories of staple foods” and exceeds the Agency's statutory authority.

Some commenters who supported the proposed provision pointed out that a lax definition of “variety” would allow stores to skirt variety requirements by stocking seven different formats of one or two kinds of products with the same main ingredient. If a lax definition of “variety” were implemented, for example, the variety requirement for the vegetables or fruits staple food category could be satisfied by frozen French fries, powdered mashed potatoes, frozen hash browns, potato chips, canned cream of potato soup, frozen tater tots, and potatoes. FNS concurs with these concerns and will not be altering the proposed definition of “variety” to allow for different formats of products with the same main ingredient to count as different varieties.

Under both current Agency regulations and the final rule, “variety” is generally defined by product kind or main ingredient for the meat, poultry, or fish and vegetables or fruits staple food categories. This means that chicken, pork, and beef each represent discrete varieties for the former category and that apple, banana, and lettuce each represent discrete varieties for the latter category. Products like Empire apples and McIntosh apples may have different names and slightly different appearances, but they are generally recognized as the same kind of product. For this reason both Empire apples and McIntosh would be not each be considered a discrete variety, but rather the discrete variety is the product kind itself—apples. Likewise although apples, 100% apple juice, and applesauce are different products, they would not each be considered a discrete variety for the purposes of SNAP Criterion A because they share the same main ingredient (i.e., apples). Similarly, although deli-sliced chicken breast, frozen chicken drumsticks, and canned chicken are different products, they would not each be considered a discrete variety for the purposes of SNAP Criterion A because they share the same main ingredient (i.e., chicken). For multiple ingredient food products the first ingredient determines variety such that a frozen microwaveable meal with beef listed as the first ingredient would constitute a variety in the meat, poultry, or fish staple food category (i.e., beef) and a can of ravioli with tomato sauce listed as the first ingredient would constitute a variety in the vegetables or fruits staple food category (i.e., tomato). Most bread or cereals food items sold and consumed in America primarily derive from one or more of the following four grains: Wheat, corn, rice, and/or oats. Based on the limited types of grains and the new breadth of stock requirements, FNS believes it is impractical to strictly define “variety” for the purposes of this staple food category by the aforementioned method (i.e., product kind and main ingredient), as is the standard for two of the other staple food categories. As a result, in the bread or cereals staple food category variety is defined by product kind (i.e., bread and other baked or finished grain-based products) or main ingredient (e.g., wheat and oats) as described in Part IV List of Examples below.

Numerous commenters requested additional Agency guidance on what constituted a variety for each of the four staple food categories. In response, a list of examples in Section IV is included in the preamble of the final rule; this list provides 20 examples of varieties in each of the four staple food categories and is intended to be illustrative, not exhaustive. Additionally, the examples listed in the proposed rule have been amended in the final rule to illustrate the intended flexibility for retailers. The changes made to the examples of varieties in the meat, poultry, or fish and the dairy products staple food categories reflect the inclusion of plant-based alternatives. “Plant-based” milk has been, for example, removed as a listed example and replaced with almond milk to reflect the inclusion of multiple varieties of plant-based milks (e.g., almond milk, soy milk, and rice milk) in the dairy products staple food category. Additionally, the example “melon” was removed and replaced with grapes as melon is not considered a product kind under the definition of “variety” but instead includes several discrete varieties (e.g., honeydew and cantaloupe). Likewise, “breakfast cereal” was removed and replaced with “rice” because the former is not a product kind but instead includes several discrete varieties (e.g., rice-based breakfast cereal and oat-based breakfast cereal).

After review of all comments on this provision, this final rule has largely retained the long-standing Agency definition of “variety” and, as described above, modifies the definition of “variety” to allow retailers more flexibility in meeting the breadth of stock provision in the dairy, bread and cereals, and meat, poultry, and fish staple food categories. This provision will be implemented for all new applicant firms and all firms eligible for reinstatement 120 days after the effective date of this final rule and 365 days after the effective date of this final rule for all currently authorized firms.

Public Disclosure of Firms Sanctioned for SNAP Violations

This discretionary provision proposed to reaffirm the Agency's authority and intent to publicly disclose the store and owner name for firms sanctioned for SNAP violations. This provision received few comments most of which were supportive. Of the total 1,260 germane and non-duplicative public comments received, 14 comments, or about 1% of total public comments, specifically addressed this provision. About 71% of comments that specifically addressed this provision were supportive while approximately 14% opposed this provision and approximately 14% were generally divided and/or expressed mixed opinions. No retailer commenters specifically opposed this provision, industry trade groups that commented specifically on this provision generally opposed this provision and all other commenter types that commented on this provision were generally supportive.

Three retailer associations (i.e., the international convenience store trade association, the petroleum marketers' trade association, and the national food retailer trade association) opposed the disclosure of this information. One noted that it, “. . . does not believe that the name of a store owner should be disclosed if the owner name identifies an individual in the store. [Our] members believe that the owner name disclosure is unnecessary and could lead to mental and emotional harm to the owner” and went on to add, “FNS should also consider and take into consideration the seriousness of the sanctions imposed and whether there have been multiple violations. Publicizing a store owner's private information for a first time sanction that may have resulted from an inadvertent violation is unreasonable and clearly extreme.” Another of these three associations commented, “There is no provision of the proposed rule, however, that would allow for sanction information to be taken down after the passage of a certain amount of time or in the event a store was sold to another owner or placed under new management.” A fourth retailer association representing independent grocers seconded this final point and stated the group, “. . . is not opposed to public disclosure of disqualified retailers who have engaged in fraudulent activity after the appeals process has been exhausted; however [the organization] encourages the Agency to remove or amend the public notice when a store is sold so the new owners are not harmed by this disclosure.”

One State welfare fraud investigator association commented, “We believe the proposed rule changes (increasing the minimum number of categories in which perishable goods are required, amending the depth of stock, redefining `Retail Food Store' to exclude restaurants, and, particularly, disclosing information about retailers who have violated SNAP rules) would serve to deter fraud.” A city health department representing the large city of 8.5 million and over 10,000 SNAP authorized firms also stated that this provision will “increase integrity efforts against fraud, waste, and abuse in SNAP”.

FNS closely monitors retailers to ensure that they comply with Program rules and regulations. FNS may warn or sanction retailers found violating Program rules. Sanctions can include time-limited or permanent Program disqualification as well as civil penalties. This provision is an essential tool in Agency efforts to combat and deter Program fraud and abuse. For example, the names of retail stores and owners whom have been charged, indicted, or convicted for SNAP retailer fraud by federal, state or local authorities are already disclosed publicly through news releases and other means. This provision reaffirms FNS' authority and intent to disclose the store and owner name for firms sanctioned for SNAP violations. In response to the suggestion that encourages the Agency to remove or amend the public notice when a store is sold so the new owners are not harmed by this disclosure, FNS believes that the public disclosure of both the retail store name and the owner who had been sanctioned would mitigate the potential harm to a new store owner.

FNS, however, acknowledges the concerns of these commenters. As a result, FNS has clarified and narrowed this provision in the final rule. Specifically, the final rule stipulates that information regarding firms sanctioned for SNAP violations will be disclosed by FNS only for the duration of the sanction. Firms sanctioned for lesser offenses (e.g., sale of minor ineligibles) may face term disqualifications as short as six months. FNS agrees that making the owner and store name of such firms indefinitely available to the public is neither necessary nor is it judicious. This provision has been modified such that FNS may disclose the name and address of the store, the owner names(s), and information about the sanction itself for the duration of the sanction. The duration of the sanction lasts until the period of disqualification ends or until the civil penalty has been paid in full, whichever is longer. Additionally, this provision has also been modified such that in the event that a sanctioned firm is assigned a civil penalty in lieu of a period of disqualification, as described in 7 CFR 278.6(a), FNS may continue to disclose this information for as long as the duration of the period of disqualification or until the civil penalty has been paid in full, whichever is longer. The information regarding firms sanctioned with permanent disqualification for offenses such as the trafficking SNAP benefits should and will be made publicly available for the duration of the disqualification (i.e., indefinitely). Program violations that result in a permanent disqualification are serious offenses and the Agency is dedicated to fighting Program fraud and abuse in all forms. FNS agrees with the comments from governmental entities that the public disclosure of the owner and store name of firms that violate Program rules is a powerful deterrent to retailer SNAP fraud. This provision will be implemented on the effective date of this final rule.

IV. List of Examples Summary of List of Examples

The final rule codifies a statutory provision to increase the required number of staple food varieties in each of the four staple food categories from three to seven and to increase the required number of staple food categories containing at least one perishable foods variety from two to three, where “perishable foods” are defined as items which are either frozen, fresh, unrefrigerated, or refrigerated staple food items that will spoil or suffer significant deterioration in quality within three weeks. The final rule also codifies a discretionary provision which clarifies and modifies the definition of acceptable “variety” in each of the four staple food categories.

Included below are lists of acceptable varieties in the four staple food categories. Also included is an examination of what constitutes a stocking unit for the purposes of the depth of stock provision. Finally, included is a list of food items which are and are not considered accessory food items. The lists of examples that follow are intended to be illustrative and provide guidance on the final rule. What follows is not to be construed as an exhaustive list of staple food varieties, stocking units, or accessory food items.

The Meat, Poultry, or Fish Staple Food Category

In the meat, poultry, or fish staple food category “variety” is generally defined by product kind or main ingredient. This means that chicken, pork, and beef each represent discrete varieties. For multiple ingredient food products the first ingredient determines variety such that a frozen microwaveable meal with beef listed as the first ingredient would constitute a variety in the meat, poultry, or fish staple food category (i.e., beef).

This list of examples serves to provide guidance on acceptable varieties in the meat, poultry, or fish staple food category. The meat, poultry, or fish staple food category now includes varieties of meat analogues (e.g., soy-based meat analogue and gluten-based meat analogue). The meat, poultry, or fish staple food category also now includes three types of plant-based protein staple foods (i.e., nuts/seeds, beans, and peas). Each of these three aforementioned plant-based protein types may only be counted once each as a variety in the meat, poultry, or fish staple food category. Alternatively, beans and peas may instead be counted once each as a variety in vegetables or fruits staple food category. These two types (i.e., beans and peas) may only be counted once each regardless of the staple food category they are counted in. Nuts/seeds may only be counted once as a variety in the meat, poultry, or fish staple food category, but not in the vegetable or fruits staple food category.

What follows is an illustrative, but not exhaustive, list of 20 acceptable varieties in this staple food category. Included parenthetically with each variety are two different examples of food items which would usually fall within that variety. The examples of multiple ingredient food items in this list would be acceptable only if the listed main ingredient would be considered a variety in the meat, poultry, or fish staple category. Perishable foods are indicated by the presence of an asterisk (*).

Plant-based Protein Types: 1. Nuts/Seeds (e.g., sunflower seeds or peanut butter) 2. Beans (e.g., dried black beans or dried red kidney beans) 3. Peas (e.g., dried lentils or canned split pea soup with a first listed ingredient of split peas) Meat, Poultry, and Fish: 4. Turkey (e.g., fresh deli sliced turkey* or fresh ground turkey*) 5. Goat (e.g., fresh goat chops* or frozen rack of goat ribs*) 6. Salmon (e.g., packaged smoked salmon or canned salmon) 7. Chicken (e.g., fresh chicken cutlets* or frozen chicken nuggets*) 8. Beef (e.g., fresh ground beef* or beef jerky) 9. Tuna (e.g., fresh albacore tuna steak* or canned albacore tuna fish) 10. Shrimp (e.g., frozen shrimp scampi meal* or fresh cocktail shrimp*) 11. Tilapia (e.g., fresh tilapia filet* or panko breaded frozen tilapia meal*) 12. Crab (e.g., fresh crab cakes* or canned crab meat) 13. Soy-based meat analogue (e.g., tofu* or soy-based vegan chicken alternative*) 14. Chicken eggs (e.g., fresh eggs* or liquid egg whites*) 15. Catfish (e.g., frozen catfish filet* or smoked packaged catfish) 16. Lamb/Mutton (e.g., fresh lamb chops* or fresh ground lamb*) 17. Cod (e.g., frozen cod* or fresh cod*) 18. Pork (e.g., pork loin* or fresh sliced ham*) 19. Duck (e.g., fresh duck* or canned duck) 20. Clams (e.g., frozen clams* or canned clam meat) The Vegetables or Fruits Staple Food Category

In the vegetables or fruits staple food category “variety” is generally defined by product kind or main ingredient. This means that apples, bananas, and lettuce each represent discrete varieties. For multiple ingredient food products the first ingredient determines variety such that a can of ravioli with tomato sauce listed as the first ingredient would constitute a variety in the vegetables or fruits staple food category (i.e., tomato).

What follows is an illustrative, but not exhaustive, list of 20 acceptable varieties in this staple food category. Included parenthetically with each variety are two different examples of food items which would usually fall within that variety. The multiple ingredient food item examples in this list would be acceptable only if the main ingredient is in the vegetables or fruits staple category. Perishable foods are indicated by the presence of an asterisk (*).

1. Potatoes (potatoes* or frozen tater tots*) 2. Oranges (100% orange juice* or fresh oranges*) 3. Tomatoes (canned tomato soup or sun dried tomatoes) 4. Apples (dried apples or pre-cut apple go-packs*) 5. Pumpkin (canned pumpkin or fresh whole pumpkin) 6. Bananas (fresh bananas* or frozen bananas*) 7. Onions (canned onions or fresh onions*) 8. Grapes (fresh grapes* or 100% grape juice) 9. Lettuce (fresh head of iceberg lettuce* or pre-cut and bagged romaine lettuce*) 10. Pineapples (canned pineapple rings or fresh whole pineapple*) 11. Cucumbers (fresh cucumbers* or jarred pickles) 12. Strawberries (fresh strawberries* or frozen strawberries*) 13. Peaches (canned peaches or fresh peaches*) 14. Carrots (fresh whole carrots* or pre-cut carrot stick go-packs*) 15. Grapefruit (fresh whole grapefruit* or grapefruit fruit cup*) 16. Cabbage (e.g., fresh head of cabbage* or jarred kimchi) 17. Artichoke (e.g., fresh artichoke* or canned artichoke hearts) 18. Broccoli (e.g., fresh broccoli* or frozen broccoli florets*) 19. Avocados (e.g., ready-made guacamole* or fresh avocado*) 20. Celery (e.g., pre-cut celery stick go-packs* or fresh whole celery*) The Dairy Staple Food Category

In common language usage a “dairy product” is understood to mean an edible food product produced from the milk of a mammal, most commonly cow's milk. Some traditional varieties of dairy include milk, butter, yogurt, and cheese. There are a small number of unique varieties of commonplace dairy products, most of which share the same main ingredient (i.e., milk). Based on the limited types of commonplace dairy products and the new breadth of stock requirements, it is impractical to define “variety” for the purposes of this staple food category based on the main ingredient and it is useful to include plant-based alternatives. Plant-based dairy products will be considered a variety in the dairy products staple food category based on their main ingredient and the traditional dairy product for which they are a substitute. So, for example, almond-based milk, soy-based milk, almond-based cheese, and soy-based cheese will each be considered a discrete variety in the dairy products staple food category under the final rule. Though these items are plant-based, they are recognized as dairy equivalents and therefore, do not count as varieties in the remaining staple food categories. Additionally, some of the traditional types of dairy products have been divided into varieties based on distinct and generally accepted differences. For example, the dairy type cheese has been divided into two discrete varieties: Cow's milk-based soft cheese and cow's milk-based hard/firm cheese based on generally accepted industry norms. What follows is an illustrative, but not exhaustive, list of 20 acceptable varieties in this staple food category. Included parenthetically with each variety are two different examples of food items which would usually fall within that variety. The multiple ingredient food item examples in this list would be acceptable only if the main ingredient is in the dairy products staple category. Perishable foods are indicated by the presence of an asterisk (*).

1. Yogurt (e.g., fresh whole milk French vanilla yogurt* or fresh nonfat peach yogurt*) 2. Soy yogurt (e.g., strawberry soy yogurt* or lite vanilla soy yogurt*) 3. Almond yogurt (e.g., mixed berry almond yogurt* or low-fat plain almond yogurt*) 4. Perishable cow milk (e.g., fresh skim cow milk* or fresh whole cow milk*) 5. Perishable cow kefir (e.g., nonfat fresh blueberry kefir* or fresh banana kefir*) 6. Shelf-stable liquid cow milk (e.g., condensed cow milk or evaporated cow milk) 7. Shelf-stable powdered cow milk (e.g., powdered cow milk or casein/whey powder) 8. Cow milk-based infant formula (e.g., organic, milk-based formula or milk-based, iron-fortified formula) 9. Soy-based infant formula (e.g., iron-fortified, soy-based formula or hypoallergenic, soy-based formula) 10. Butter (e.g., frozen sweet cream butter* or fresh salted butter*) 11. Butter substitute (e.g., margarine or non-dairy spread) 12. Sour cream (e.g., fresh, lite sour cream* or fresh, organic sour cream*) 13. Almond-based milk (e.g., refrigerated almond milk* or shelf-stable almond milk) 14. Soy-based milk (e.g., shelf-stable soy milk or refrigerated soy milk*) 15. Rice-based milk (e.g., shelf-stable rice milk or refrigerated rice milk*) 16. Firm/hard cheese (e.g., fresh deli sliced cheddar cheese* or packaged grated parmesan cheese) 17. Soft cheese (e.g., fresh curd cheese* or pre-wrapped American cheese product slices*) 18. Goat cheese (e.g., fresh honey goat cheese* or fresh plain goat cheese*) 19. Soy-based cheese alternative (e.g., mozzarella-style soy cheese* or American-style soy cheese slices*) 20. Perishable goat milk (e.g., fresh whole goat milk* or fresh low-fat goat milk*) The Bread or Cereals Staple Food Category

Most bread or cereals food items sold and consumed in America primarily derive from one of the following four grains: Wheat, corn, rice, and/or oats. Based on the limited types of common grains and the new breadth of stock requirements, therefore, it is impractical to define “variety” for the purposes of this staple food category based exclusively on the product kind or exclusively on the main ingredient, as is the standard for two of the other staple food categories.

What follows is an illustrative, but not exhaustive, list of 20 acceptable varieties in this staple food category. Included parenthetically with each variety are two different examples of food items which would usually fall within that variety. The multi-ingredient food examples in this list would be acceptable only if the main ingredient is in the bread or cereal staple category. Perishable foods are indicated by the presence of an asterisk (*).

1. Wheat (e.g., whole wheat flour or wheat germ) 2. Corn/maize (e.g., cornmeal or cornbread) 3. Rice (e.g., brown rice or basmati rice) 4. Oats (e.g., oatmeal or honey oat bread*) 5. Barley (e.g., pearled barley or barley meal) 6. Rye (e.g., raw rye or rye bread*) 7. Millet (e.g., millet flour or raw millet) 8. Quinoa (e.g., raw quinoa or quinoa pasta) 9. Teff (e.g., raw teff or injera*) 10. Bread (e.g., a loaf of rye bread* or a loaf of multigrain bread*) 11. Pasta (e.g., gluten-free spaghetti or whole wheat rotini) 12. Baking mixes (e.g., pancake mix or cornbread mix) 13. Tortillas (e.g., corn tortillas* or flour tortillas*) 14. Bagels (e.g., poppy seed bagels* or plain bagels*) 15. Pitas (e.g., low-carb pita* or whole wheat pita*) 16. Cold breakfast cereal (e.g., rice-based cereal or oat-based cereal) 17. English muffins (e.g., whole wheat English muffins* or honey oat English muffins*) 18. Hot breakfast cereal (e.g., cream of wheat or farina) 19. Buns/rolls (e.g., frozen dinner rolls* or hot dog buns*) 20. Infant cereal (e.g., wheat-based infant cereal or oat-based infant cereal)

As an example, a firm could meet the requirements for the bread or cereals staple food category by stocking three loaves of bread, three bags of rice, three boxes of spaghetti, three bags of pitas, three bags of tortillas, three bags of flour and three packages of cornmeal.

Stocking Units

The proposed rule put forward a discretionary provision requiring six stocking units per qualifying staple food variety. The final rule halves that proposed requirement and codifies a discretionary provision that requires three stocking units per qualifying staple food variety. This list of examples serves to define “stocking unit” for the purposes of this provision. If a food item would not usually be sold individually, then it does not individually constitute a stocking unit. Such food items are usually sold in bunches, boxes, bags, or packages with a number of other identical items (e.g., a loaf of bread, a bunch of grapes, a carton of eggs, a bag of rice, or a package of sliced turkey). The individual sale of such food items would be impractical given their small individual size. For such products it is the bunch, box, bag, or package that represents one stocking unit. What follows is an illustrative, but not exhaustive, list of such products and their standard stocking unit size.

• Small fruit and berries: A package of blueberries or a package of strawberries • Leaf vegetables: A head of lettuce or a bunch of collard green leaves • Stalk/root vegetables: A bunch of carrots or a bunch of celery sticks • Deli sliced items: A package of turkey slices or a package of cheddar cheese slices • Grains: A bag or sack of rice or a box of oatmeal

If a food item is usually or often sold singly, then that single unit may constitute one stocking unit. What follows is an illustrative, but not exhaustive, list of such products and their standard stocking unit sizes:

• Hand fruit: A banana or an apple • Large fruits or vegetables: A watermelon or a pumpkin • Small portion or single-serving packages: A yogurt cup or a fruit cup

If a food item (e.g., grains, dried fruits, nuts, deli cold cuts, etc.) is stored singly in a common container or unit, but sold to customers by weight, then the standard stocking unit is considered to be one pound. A bulk container containing three pounds of dried cranberries, available to and sold to the customer by weight, therefore, would constitute three stocking units of one variety in the fruit or vegetable staple food category.

If FNS determines that a bunch, box, bag, or package usually sold as a unit has been subdivided into unreasonably small units in order to meet this depth of stock provision, FNS will not consider such food items to constitute a stocking unit for the purposes of this depth of stock provision.

V. List of Accessory Food Items and Examples of Staple Food Items Accessory Food Items

The final rule codifies a discretionary provision which clarifies the definition of “staple food”. This provision realigns the definition of “accessory food items” with statutory intent, defining “accessory food items” to include snacks, desserts, and foods that complement or supplement meals.

While any food or food product intended for home consumption is generally considered to be eligible for purchase with SNAP benefits, only staple food products are counted toward a retail food store's eligibility to participate in SNAP. Staple foods are generally considered to be basic items of food that make up a significant portion of an individual's diet and are usually prepared at home and consumed as a major component of a meal. Some examples include tomatoes, ground beef, milk, or rice. Accessory food items, on the other hand, are generally considered to be food items consumed as snacks or desserts as well as food items that complement or supplement meals, such as most beverages and spices.

A product is often considered an accessory food item if it is usually consumed on its own, usually as a snack or dessert, without being cooked or prepared (e.g., potato chips or an ice-cream sandwich). Products that are explicitly identified as staple foods, such as hand fruit, are not considered accessory foods even if they are sometimes consumed on their own without being cooked or prepared. A product is also often considered an accessory food item if it is usually used to flavor other foods (e.g., salt or sugar) or if it is a beverage (e.g., soda pop or water). If a product would normally be considered a staple food, but is sold in a small package size (e.g., a small bag of dried apricots or a yogurt cup), that product is still generally considered a staple food.

Commercially processed foods and prepared mixtures with multiple ingredients are usually assigned to the staple food category of their main ingredient on their “Nutrition Facts” label per current regulations and policy. For example, a frozen pizza with enriched white wheat flour listed as its main ingredient would be considered a staple food variety in the bread or cereals staple food category. If the main ingredient of a multiple ingredient food item is an accessory food item (e.g., salt), then that multiple ingredient food item is considered an accessory food item. The one exception to this policy is the accessory food item water. If the main ingredient of a multiple ingredient food item is water, then that item is assigned to the staple food category of its second listed ingredient. If that second ingredient is also an accessory food item (e.g., sugar) then that item is considered an accessory food item.

All food products identified as accessory food items in Agency guidance materials shall not be considered staple foods for the purposes of determining the eligibility of any firm. Any food products with main ingredients identified as accessory food items in Agency guidance shall also be considered accessory food items and shall not be considered staple foods for the purposes of determining the eligibility of any firm. Any other food product that is not identified as an accessory food item in Agency guidance materials shall be considered a staple food in the category of its main ingredient. Agency guidance that explicitly identifies types of accessory food items will be updated as necessary per 7 CFR 278.1(t). If a retail food store owner is unsure as to whether a food item is or is not an accessory food item, they may look online for guidance through the USDA FNS's Ask the Expert system at: http://www.fns.usda.gov/ask-the-expert (--> “Nutrition” --> “Supplemental Nutrition Asst Prgm”). Additional training for retail food store owners will be made available to further clarify this matter as deemed necessary.

What follows is a list of accessory food items; any product not listed below or in future Agency guidance will be considered a staple food, as explained above, provided that its main ingredient is considered a variety in the staple food category.

Snack and Dessert Food Items: • Potato, corn, wheat, tortilla, pita, and vegetable chips, crisps, sticks, and straws; onion ring snacks; corn nuts; snack mixes; crackers; pork rinds; pretzels; pre-popped or un-popped popcorn; and cheese puffs or curls • Doughnuts, cupcakes, cookies, snack cakes, muffins, pastries, sweet rolls, pies, cakes, pudding, churros, scones, gelatin desserts, and any packaged mixes intended to create any of the aforementioned products • Mints, chocolate, marshmallow, gum, toffee, brittle, fudge, marzipan, nougat, candy bars, and candy of all kinds • Ice cream, ice milk, frozen yogurt, custard, whipped cream, sherbet, sorbet, gelato, granita, Italian ices, frozen carbonated beverages, snow cones, and ice pops • Any food product with a main ingredient that appears on this list or in Agency guidance as an accessory food item Food Items That Complement or Supplement Meals: • Powdered, dried, or extracted spices or seasonings • Baking soda and baking powder • Sugar, honey, maple syrup, aspartame, molasses, high fructose corn syrup, and any other natural or artificial sweeteners • Soda pop, sports or energy drinks, iced tea, fruit punch, mixers for alcoholic beverages, water, and all other carbonated or uncarbonated beverages (except milk, plant-based milk alternatives, and 100% fruit or vegetable juice) • Monosodium glutamate, sodium nitrate, olestra, and any other food additives or any food product that is edible but non-caloric and non-digestible • Vegetable oil, olive oil, shortening, lard, safflower oil, and any other solid or liquid oils or fats (except butter) • Ketchup, mayonnaise, salad dressing, hot sauce, mustard, vinegar, relish, horseradish, chutney, duck sauce, marmite, and all other condiments • Vanilla extract or other flavor extracts and cooking wine • Gravy and bouillon • Any food product with a main ingredient that appears on this list or in Agency guidance as an accessory food item

Some mixed packaged food products may consist of more than one discrete element, such as salted crackers and soft cream cheese packaged together. In this example, the salted crackers are considered an accessory food while the soft cream cheese is considered a staple food. If the accessory food item is the main component of the mixed packaged food product, per the ingredients list on the Nutrition Facts label, then such a product is considered an accessory food item. If the staple food item is the main component of the mixed packaged food product, per the ingredients list on the Nutrition Facts label, then such a product is considered a staple food item.

The definition of “accessory food items”, however, is not based on packaging size or style, nor does it include food items identified in any of the four staple food categories. What follows is an illustrative, but not exhaustive, list of staple food items NOT considered accessory food items; any product not listed below will be considered a staple food in the staple food category of its main ingredient as explained previously.

Examples of Staple Foods: • Commercially processed foods and prepared mixtures with multiple ingredients with a staple food main ingredient • Pre-cut, to-go packages or cups of fresh apple, carrot, grapefruit, celery, or other fruits or vegetables • Single-serving yogurt cups containing or not containing fruit, with a staple food main ingredient • Milk, flavored milk (e.g., chocolate milk), and plant-based milk alternatives (e.g., soy milk), with a staple food main ingredient • Yogurt and flavored yogurt (e.g., strawberry yogurt) with a staple food main ingredient • Dehydrated, smoked, fermented, cured, or dried meats such as jerky or salami with a staple food main ingredient (e.g., beef or chicken) • Peanut butter, strawberry jam, and other plant-based spreads with a staple food main ingredient • Fresh vegetables often used as herbs including, but not limited to, fresh basil, fresh thyme, and fresh mint • 100% fruit and/or vegetable juice • Salsa, hummus, guacamole, and other plant-based dips with a staple food main ingredient • Pickled fruits, vegetables, eggs, or meats with a staple food main ingredient • Single-serving packets of dried fruit including, but not limited to, raisins, prunes, dried apples, and dried papaya spears, as well as dried vegetables • To-go packages of nuts or seeds VI. Procedural Matters Executive Order 12866, Executive Order 13563, and Executive Order 13272

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both cost and benefits, of reducing cost, of harmonizing rules, and of promoting flexibility. Finally, Executive Order 13272 and the Small Business Jobs Act of 2010 require agencies engaged in rulemaking actions to respond directly to written comments submitted by the Small Business Administration (SBA) Office of Advocacy.

The SBA Office of Advocacy submitted a comment in response to the proposed rule. This comment identified shortcomings in FNS's Regulatory Impact Analysis (RIA) and Regulatory Flexibility Analysis (RFA) and also conveyed the concerns of small business stakeholders regarding the RIA, RFA, and certain provisions of the rule as proposed. The SBA commented that the RIA and RFA lacked analytical rigor and transparency, and further maintained that the costs, benefits, and other impacts of the proposed rule were not sufficiently quantified in the RIA and RFA. Specifically, the SBA stated that the Agency's “conclusion that the rule's impact on small authorized SNAP retailers will amount to $140 is underestimated.” Furthermore, the SBA indicated that FNS failed to consider alternatives adequately when drafting the proposed rule, especially with respect to a narrower rulemaking action that codified only the statutory breadth of stock provision. In response to these and other concerns FNS has carefully reexamined the proposed RIA and RFA. The final versions of these documents reflect substantial modifications made in order to incorporate the feedback of the SBA as well as industry trade associations. These changes address concerns regarding the consideration of alternatives and the calculation of the cost impact, among others.

Additionally, in its comment the SBA suggested that “FNS should commit to publishing small business compliance guides as this rule becomes finalized as it will help small businesses adapt to the new requirements.” As stated previously in this final rule's section titled “Retailer Guidance for Implementation of Final Rule,” many Program stakeholders specifically requested that FNS provide retailers with detailed guidance and training materials on the rule to ensure that all retailers fully understand all of the provisions of the final rule. In addition to the clarifications and lists of examples provided in the preamble of the final rule, FNS will answer retailer inquiries and provide retailers with additional notice, guidance, and training materials during the aforementioned implementation period per 7 CFR 278.1(t). This will include extensive outreach to ensure that the retailer community is provided with sufficient technical assistance to ensure that all firms are adequately informed regarding these changes to SNAP rules. The SBA also suggested that FNS should consider “granting increased compliance time for a percentage of small retailers.” As stated previously in this final rule's section titled DATES, the stocking provisions of this final rule will be implemented 365 days after the effective date of this final rule for all currently authorized firms. This phased implementation will give small format retailers the time they need to come into compliance with the provisions of this final rule.

This final rule has been determined to be significant and was reviewed by the Office of Management and Budget (OMB). The Regulatory Impact Analysis (RIA) for this rulemaking was published as part of the docket in Supporting Documents on www.regulations.gov. A summary of the RIA follows.

Regulatory Impact Analysis Summary

Need for Action: The final rule is needed to clarify and enhance current regulations governing the eligibility of retail food stores participating in SNAP and to codify mandatory provisions of the 2014 Farm Bill.

Benefits: This final rulemaking will codify mandatory provisions of the 2014 Farm Bill and strengthen provisions in current regulations to conform to the intent of statutory requirements. The final rule will increase the variety of nutrient-dense staple food products offered for sale at SNAP-authorized firms, while also increasing the required depth of stock. Together, these provisions will help to ensure that SNAP households have access to healthier foods on a continuous basis. The final rule reflects the Agency's commitment to provide vital nutrition assistance to our most vulnerable citizens, protect taxpayer monies, and safeguard Program integrity. The final rule allows FNS to ensure that retailers authorized to participate in SNAP as retail food stores are consistent with the purposes of the Program. The final rule reinforces the intent of SNAP that participants use their benefits to purchase more nutritious foods intended for home preparation and consumption.

Costs: There will be costs to the Federal government as a result of the final rule due to a short-term increase in store visits to ensure compliance with the new stocking requirements. The Agency has estimated the total cost to the Federal government as approximately $3.7 million in Fiscal Year (FY) 2018 and $15 million over five years. With respect to the cost impact to retailers, the rule would mainly impact those firms that are minimally stocked and those that are primarily restaurants and, therefore, are inconsistent with the statutory intent of the Act to make nutritious foods available to SNAP participants for home preparation and consumption. Some retailers may incur small costs due to the need to modify their stock. Estimates of the final rule's impacts on retailers are based on an analysis of a nationally representative sample of 1,392 SNAP authorized small-format firms using data gathered by FNS during store inspections, or store visits. Based on this analysis FNS estimates that the average small-format SNAP authorized firm already stocks over 70% of the stock needed to meet the requirements of this final rule and the average small-format SNAP authorized firm will only need to stock an additional 24 items. Moreover, this analysis indicated that over 98% of small-format SNAP authorized firms currently stock at least nine perishable staple food items and, therefore, that the overwhelming majority of small-format SNAP authorized firms will not need to stock any additional perishable items to meet the requirements in this final rule. The average cost to a small SNAP authorized retail food store is estimated at about $245 in the first year and about $620 over five years.

Firms that do not stock sufficient staple food items to meet the new stocking requirements will have the opportunity to modify their staple food stock in order to be eligible to continue participating in SNAP. In the course of store reviews, FNS has observed that stores that are determined to not be eligible typically expand their food offerings to participate in SNAP.

It should be noted that most of the provisions in this final rule have been modified significantly from their proposed language. This final rule, for example, requires less stock than the proposed rule (i.e., 168 item stock requirement proposed and 84 item stock required in the final rule). Nevertheless, the final average retailer cost estimate (about $245 in the first year and about $620 over five years per firm) represents an increase over the cost estimate presented in the proposed RIA and RFA (about $140 in the first year per firm). Several commenters pointed out types of costs, including ongoing costs, not originally accounted for in the Agency's cost estimate (e.g., “opportunity costs”). FNS appreciates this public feedback and has incorporated these types of costs in its calculations of estimated cost for the final rule's RIA and RFA.

Regulatory Flexibility Act

This final rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Pursuant to that review, FNS believes that the rulemaking does not present a substantial economic impact to a considerable number of small businesses; although the number of stores impacted is large, we estimate that the cost to those small businesses for stocking additional stock would be nominal, on average about $245 in the first year and $620 over five years. FNS has prepared a final Regulatory Flexibility Analysis (RFA) to respond to public comments received in reference to the proposed RFA and to reflect revisions to the rule. The complete RFA for this final rule was published as part of the docket in Supporting Documents on www.regulations.gov. A summary of the RFA follows.

Regulatory Flexibility Analysis Statement

This final rule will impact nearly 200,000 small grocery stores and convenience stores by requiring that these stores make changes to their stock in order to comply with the new minimum stocking requirement mandated in this rule. FNS estimates that for the vast majority of stores the changes needed will be minimal and represent a negligible share of a store's total gross sales. The average small store will need to add an estimated 24 items to their existing stock to meet the new minimum requirement in this rule. Costs would be greatest in the first year, as stores make one-time changes to their stock. In future years, costs will be primarily opportunity costs associated with stocking items with lower profit margins and administrative costs associated with reading guidance to ensure compliance with the requirements. The average cost to a SNAP-authorized retailer is estimated at about $245 in the first year and $620 over five years.

Public Law 104-4, the Unfunded Mandate Reform Act

Title II of the Unfunded Mandate Reform 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 Tribal governments, and the private sector. Under Section 202 of the UMRA, the Agency 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, or Tribal governments in the aggregate, or to the private sector, of $146 million or more (when adjusted for 2015 inflation; GDP deflator source: Table 1.1.9 at http://www.bea.gov/iTable) in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective, or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and Tribal governments or the private sector of $146 million or more in any one year. This rulemaking is, therefore, not subject to the requirements of Sections 202 and 205 of the UMRA.

Executive Order 12372

Executive Order 12372 requires Federal agencies to engage in intergovernmental consultation with State and local officials when involved in Federal financial assistance programs and direct Federal development. SNAP is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the Final Rule codified in 7 CFR part 3015, Subpart V and related Notice (48 FR 29115, June 24, 1983), this Program is excluded from the scope of Executive Order 12372.

Executive Order 13132, Federalism Summary Impact Statement

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have Federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agencies' considerations in terms of the three categories called for under Section 6(b)(2)(B) of the Executive Order 13132.

FNS has determined that this rulemaking does not have Federalism implications. This rule does not impose substantial or direct compliance costs on State and local governments. Therefore, under Section 6(b) of the Executive Order, a Federalism summary impact statement is not required.

Executive Order 12988, Civil Justice Reform

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effects with respect to any State or local laws, regulations, or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effects unless so specified in the Dates paragraph of the final rule. Prior to any judicial challenge to the provisions of the final rule or the application of its provisions, all applicable administrative procedures must be exhausted.

Executive Order 13175, Tribal Impact Statement

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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.

Currently, FNS provides regularly scheduled quarterly information sessions as a venue for collaborative conversations with Tribal officials or their designees. Reports from these information sessions are part of the USDA annual reporting on Tribal consultation and collaboration.

During the open comment period FNS received a letter from an Indian Tribal Organization (ITO). On September 28, 2016, the Food and Nutrition Service met with the Tribal Organization and 8 Tribes represented by this Organization to further discuss comments contained in this letter. FNS identified one (1) actionable comment, e.g. SNAP eligibility should be considered circumstantially in areas with limited food access.

The 2014 Farm Bill authorized additional consideration where an applicant retailer is located in an area with significantly limited access to food when determining the qualifications of that applicant. This flexibility of the rule was clarified during the meeting on September 28, to provide a deeper understanding of the agency's underlying rationale in implementing this program in this manner.

If a Tribe requests consultation, the Food and Nutrition Service will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified herein are not expressly mandated by Congress.

USDA Regulation 4300-4, Civil Rights Impact Analysis

FNS has reviewed this final rule in accordance with Departmental Regulations 4300-4, “Civil Rights Impact Analysis” (CRIA) and 1512-1, “Regulatory Decision Making Requirements” to identify and address any major civil rights impacts the final rule might have on minorities, women, and persons with disabilities. This final rule enhances current regulations and codifies statutory requirements and, after a careful review of the final rule's intent and provisions, FNS has determined that this final rule will not have an adverse impact on any retail food store owners or SNAP recipients belonging to protected classes. The complete CRIA for this final rule was published as part of the docket in Supporting Documents on www.regulations.gov.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. There is no new information collection burden associated with this final rule.

E-Government Act Compliance

FNS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to government information and services, and for other purposes. FNS intends to provide Program stakeholders with guidance and technical assistance materials related to this final rule utilizing online media. The Agency also intends to use online media to publicly disclose information regarding firms sanctioned for Program violations.

List of Subjects 7 CFR Part 271

Food stamps, Grant programs—Social programs, Reporting and recordkeeping requirements.

7 CFR Part 278

Claims, Disqualification, Financial institutions, Fines and penalties, Food stamps, Retail food stores, Wholesale food concerns.

Accordingly, for reasons set forth in the preamble, 7 CFR parts 271 and 278 are amended as follows:

1. The authority citation for 7 CFR parts 271 and 278 continue to read as follows: Authority:

7 U.S.C. 2011-2036.

PART 271—GENERAL INFORMATION AND DEFINITIONS 2. In §  271.2: a. Add a definition for Firm in alphabetical order. b. Revise paragraph (1) of the definition of Retail food store. c. Revise the definition of Staple food.

The addition and revisions read as follows:

§  271.2 Definitions.

Firm. (1) Firm means:

(i) A retail food store that is authorized to accept or redeem SNAP benefits;

(ii) A retail food store that is not authorized to accept or redeem SNAP benefits; or

(iii) An entity that does not meet the definition of a retail food store.

(2) For purposes of the regulations in this subchapter and SNAP policies, the terms firm, entity, retailer, and store are used interchangeably.

Retail food store means:

(1) An establishment or house-to-house trade route that sells food for home preparation and consumption normally displayed in a public area, and either offers for sale qualifying staple food items on a continuous basis, evidenced by having no fewer than seven different varieties of food items in each of the four staple food categories with a minimum depth of stock of three stocking units for each qualifying staple variety, including at least one variety of perishable foods in at least three such categories, (Criterion A) as set forth in § 278.1(b)(1) of this chapter, or has more than 50 percent of its total gross retail sales in staple foods (Criterion B) as set forth in § 278.1(b)(1) of this chapter as determined by visual inspection, marketing structure, business licenses, accessibility of food items offered for sale, purchase and sales records, counting of stockkeeping units, or other accounting recordkeeping methods that are customary or reasonable in the retail food industry as set forth in § 278.1(b)(1) of this chapter. Entities that have more than 50 percent of their total gross retail sales in: Food cooked or heated on-site by the retailer before or after purchase; and hot and/or cold prepared foods not intended for home preparation and consumption, including prepared foods that are consumed on the premises or sold for carry-out are not eligible for SNAP participation as retail food stores under § 278.1(b)(1) of this chapter. Establishments that include separate businesses that operate under one roof and share the following commonalities: Ownership, sale of similar foods, and shared inventory, are considered to be a single firm when determining eligibility to participate in SNAP as retail food stores.

Staple food means those food items intended for home preparation and consumption in each of the following four categories: Meat, poultry, or fish; bread or cereals; vegetables or fruits; and dairy products. The meat, poultry, or fish staple food category also includes up to three types of plant-based protein sources (i.e., nuts/seeds, beans, and peas) as well as varieties of plant-based meat analogues (e.g., tofu). The dairy products staple food category also includes varieties of plant-based dairy alternative staple food items such as, but not limited to, almond milk and soy yogurt. Hot foods are not eligible for purchase with SNAP benefits and, therefore, do not qualify as staple foods for the purpose of determining eligibility under §  278.1(b)(1) of this chapter. Commercially processed foods and prepared mixtures with multiple ingredients that do not represent a single staple food category shall only be counted in one staple food category. For example, foods such as cold pizza, macaroni and cheese, multi-ingredient soup, or frozen dinners, shall only be counted as one staple food item and will be included in the staple food category of the main ingredient as determined by FNS. Accessory food items include foods that are generally considered snack foods or desserts such as, but not limited to, chips, ice cream, crackers, cupcakes, cookies, popcorn, pastries, and candy, and other food items that complement or supplement meals, such as, but not limited to, coffee, tea, cocoa, carbonated and uncarbonated drinks, condiments, spices, salt, and sugar. Items shall not be classified as accessory food exclusively based on packaging size but rather based on the aforementioned definition and as determined by FNS. A food product containing an accessory food item as its main ingredient shall be considered an accessory food item. Accessory food items shall not be considered staple foods for purposes of determining the eligibility of any firm.

PART 278—PARTICIPATION OF RETAIL FOOD STORES WHOLESALE FOOD CONCERNS AND INSURED FINANCIAL INSTITUTIONS 3. In §  278.1: a. Amend the last sentence in paragraph (b)(1)(i)(A) by removing the word “two” and adding in its place the word “three”. b. Revise paragraph (b)(1)(ii)(A); c. Amend the first sentence in paragraph (b)(1)(ii)(B) by removing the word “two” and adding in its place the word “three”. d. Revise paragraph (b)(1)(ii)(C); e. Revise the fourth sentence in paragraph (b)(1)(iv); f. Redesignate paragraph (b)(6) as paragraph (b)(7); g. Add new paragraph (b)(6). h. Add paragraph (q)(5).

The additions and revisions read as follows:

§  278.1 Approval of retail food stores and wholesale food concerns.

(b) * * *

(1) * * *

(ii) * * *

(A) Offer for sale and normally display in a public area, qualifying staple food items on a continuous basis, evidenced by having, on any given day of operation, no fewer than seven different varieties of food items in each of the four staple food categories with a minimum depth of stock of three stocking units for each qualifying staple variety and at least one variety of perishable foods in at least three staple food categories. Documentation to determine if a firm stocks a sufficient amount of required staple foods to offer them for sale on a continuous basis may be required in cases where it is not clear that the firm has made reasonable stocking efforts to meet the stocking requirement. Such documentation can be achieved through verifying information, when requested by FNS, such as invoices and receipts in order to prove that the firm had ordered and/or received a sufficient amount of required staple foods up to 21 calendar days prior to the date of the store visit. Failure to provide verifying information related to stock when requested may result in denial or withdrawal of authorization. Failure to cooperate with store visits shall result in the denial or withdrawal of authorization.

(C) Offer a variety of staple foods which means different types of foods within each staple food category. For example: Apples, cabbage, tomatoes, bananas, pumpkins, broccoli, and grapes in the vegetables or fruits category; or cow milk, almond milk, soy yogurt, soft cheese, butter, sour cream, and cow milk yogurt in the dairy products category; or rice, bagels, pitas, bread, pasta, oatmeal, and whole wheat flour in the bread or cereals category; or chicken, beans, nuts, beef, pork, eggs, and tuna in the meat, poultry, or fish category. Variety of foods is not to be interpreted as different brands, nutrient values (e.g., low sodium and lite), flavorings (e.g., vanilla and chocolate), packaging types or styles (e.g., canned and frozen) or package sizes of the same or similar foods. Similar food items such as, but not limited to, tomatoes and tomato juice, different types of rice, whole milk and skim milk, ground beef and beefsteak, or different types of apples (e.g., Empire, Jonagold, and McIntosh), shall count as depth of stock but shall not each be counted as more than one staple food variety for the purpose of determining the number of varieties in any staple food category. Accessory foods shall not be counted as staple foods for purposes of determining eligibility to participate in SNAP as a retail food store.

(iv) * * * In addition, firms that are considered to be restaurants, that is, firms that have more than 50 percent of their total gross sales in foods cooked or heated on-site by the retailer before or after purchase; and hot and/or cold prepared foods not intended for home preparation or consumption, including prepared foods that are consumed on the premises or sold for carryout, shall not qualify for participation as retail food stores under Criterion A orB. * * *

(6) Need for access. FNS will consider whether the applicant firm is located in an area with significantly limited access to food when the applicant firm fails to meet Criterion A per paragraph (b)(1)(ii) or Criterion B per paragraph (b)(1)(iii) of this section so long as the applicant firm meets all other SNAP authorization requirements. In determining whether an applicant is located in such an area, FNS may consider access factors such as, but not limited to, the distance from the applicant firm to the nearest currently SNAP authorized firm and transportation options. In determining whether to authorize an applicant despite its failure to meet Criterion A and Criterion B, FNS will also consider factors such as, but not limited to, the extent of the applicant firm's stocking deficiencies in meeting Criterion A and Criterion B and whether the store furthers the purposes of the Program. Such considerations will be conducted during the application process as described in paragraph (a) of this section.

(q) * * *

(5) Public disclosure of firms sanctioned for SNAP violations. FNS may disclose information to the public when a retail food store has been disqualified or otherwise sanctioned for violations of the Program after the time for administrative and judicial appeals has expired. This information is limited to the name and address of the store, the owner(s') name(s) and information about the sanction itself. FNS may continue to disclose this information for as long as the duration of the sanction. In the event that a sanctioned firm is assigned a civil penalty in lieu of a period of disqualification, as described in § 278.6(a), FNS may continue to disclose this information for as long as the duration of the period of disqualification or until the civil penalty has been paid in full, whichever is longer.

Dated: December 7, 2016. Audrey Rowe, Acting Under Secretary, Food, Nutrition and Consumer Services.
[FR Doc. 2016-29837 Filed 12-14-16; 8:45 am] BILLING CODE 3410-30-P
DEPARTMENT OF ENERGY 10 CFR Part 609 RIN 1901-AB38 Loan Guarantees for Projects That Employ Innovative Technologies AGENCY:

Loan Programs Office, Department of Energy.

ACTION:

Final rule.

SUMMARY:

The Department of Energy (DOE or the Department) publishes a final rule to amend the existing regulations for the loan guarantee program authorized by Title XVII of the Energy Policy Act of 2005 (Title XVII or the Act). Section 1703 of Title XVII (section 1703) authorizes the Secretary of Energy (Secretary) to make loan guarantees for projects that avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases. Such projects must also employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued. The two principal goals of section 1703 are to encourage commercial use in the United States of new or significantly improved energy-related technologies and to achieve substantial environmental benefits. Section 1703 also identifies ten categories of technologies and projects that are potentially eligible for loan guarantees. Commercial use of these technologies is expected to help sustain and promote economic growth, produce a more stable and secure energy supply and economy for the United States, and improve the environment.

As a result of experience gained implementing the loan guarantee program authorized by section 1703, and information received from program participants, including applicants, borrowers, sponsors, and lenders, as well as various energy industry groups, DOE finalizes amendments to the existing regulations to provide increased clarity and transparency, reduce paperwork, and provide a more workable interpretation of certain statutory provisions in light of DOE's experience with operation of the Title XVII program.

DATES:

This rule is effective on January 17, 2017.

FOR FURTHER INFORMATION CONTACT:

Mark S. Westergard, Assistant Chief Counsel Regulatory Affairs, Loan Programs Office, United States Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0121, (202) 287-5621, email: [email protected]

SUPPLEMENTARY INFORMATION: I. Introduction and Background II. Public Comments on the NOPR and DOE's Responses A. Competition with Potential Future Applications B. Risk-Based Charge C. Section 609.8(c)(2) and section 609.8(c)(3) III. Regulatory Review IV. Approval of the Office of the Secretary I. Introduction and Background

This final rule amends the regulations implementing the loan guarantee program authorized by Title XVII of the Energy Policy Act of 2005 (42 U.S.C. 16511-16514) (referred to as Title XVII). Section 1703 of Title XVII (section 1703) authorizes the Secretary of Energy (Secretary) to make loan guarantees for projects that: (1) Avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases; and (2) employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued. (42 U.S.C 16513(a)).

Section 1702 of Title XVII (section 1702) authorizes the Secretary, after consultation with the Secretary of the Treasury, to enter into loan guarantees on such terms and conditions as he or she determines to be appropriate, in accordance with the provisions of section 1702. Section 1702 also directs the Secretary to include in loan guarantees “such detailed terms and conditions as the Secretary determines appropriate to (i) protect the interests of the United States in the case of a default; and (ii) have available all the patents and technology necessary for any person selected, including the Secretary, to complete and operate the project.” (42 U.S.C. 16512(g)(2)(c)).

On October 3, 2016, the Department published a proposed rule and request for comment on amendments to the regulations for the Title XVII loan guarantee program. (81 FR 67924) The proposed rule also provides additional background on DOE's experience in implementing the loan guarantee program and the history of its implementing regulations. In this final rule, DOE adopts the changes set forth in the proposed rule, except where DOE made changes in consideration of comments received on the proposal. In Section II of this final rule, DOE summarizes the comments received, and provides its responses to those comments and a discussion of the changes made to the proposal in this final rule.

In this final rule, DOE adopts the proposed rule changes that clarify the circumstances under which potential applicants may communicate with DOE prior to submitting an application. DOE expects that the changes will increase transparency and result in more applications by qualified applicants with respect to potential eligible projects.

The final rule eliminates the pre-application process and codifies procedures that divide the application into two parts.

The final rule revises the definition of Eligible Project to explicitly state that a project may be located at two or more locations in the United States if the project is comprised of installations or facilities employing a single New or Significantly Improved Technology that is deployed pursuant to an integrated and comprehensive business plan.

The final rule provides for the use of Risk-Based Charges. Use of Risk-Based Charges is permitted pursuant to the grant of authority to the Secretary in Section 1702(a) to determine the terms and conditions of the Title XVII loan guarantee program.

The final rule increases clarity and transparency. For example: Definitions have been clarified, shortened where possible, and added; specific references to the Cargo Preference Act and the Davis Bacon Act have been added; an introductory section on how the rule is to be interpreted has been added; and various provisions of the existing rule have been re-organized to more-appropriate places in the rule.

DOE received comments on the proposed rule, which are summarized in Section II of this final rule. DOE also provides its responses and explains any changes to the proposal made in response to the comments received. (For additional background on DOE's experience in implementing the loan guarantee program and the history of its implementing regulations, please see the proposed rule.)

II. Public Comments on the NOPR and DOE's Responses A. Competition With Potential Future Applications

Public comment: One commenter requests clarification and revision of the proposed changes in § 609.5(a) to the competitive process for evaluating completed Applications, which would require completed Applications to be evaluated against potential projects that may become the subject of an Application. The commenter is concerned that the proposed changed will delay the Application process and put otherwise qualified projects in “limbo” while the DOE awaits the filing of Applications that may be filed on other projects. In the commenter's view, this may result in a longer and more opaque process, because fewer projects would be able to withstand the additional timing delays, as well as in greater market uncertainty about the DOE loan guarantee program.

DOE Response: DOE notes that applications are reviewed against all other applications filed within the same round. For that reason DOE does not believe the proposed change would delay the application process or put otherwise qualified projects in “limbo.” Nevertheless, DOE agrees that the proposed change could cause a more opaque process and market uncertainty regarding, among other matters, whether a project will be competed against potential projects that may become the subject of an application. The proposal to consider potential future Applications is inconsistent with competing filed Applications against all other Applications filed within the same round. For those reasons DOE has decided to withdraw the proposed change to the competitive process which would allow consideration of potential projects during the competition.

B. Risk-Based Charge

Public comments: Both commenters requested clarification regarding the “Risk-based-charge” which they believe is duplicative of other existing fees. The commenters urge DOE not to impose this additional fee on recipients of DOE's Title XVII loan guarantees.

One commenter also pointed out that the Title XVII loan guarantee program currently charges two fees to compensate DOE for the credit risk it assumes. First, the program charges a “Credit-Based Interest Rate Spread” based on the credit rating of the Applicant's project. Second, the program charges a “Credit Subsidy Fee” to directly compensate the United States for the specific credit risk of the applicant's project. The commenter requested clarification that the reference to a “Risk-based charge” means the “Credit Based Interest Rate Spread”, and that the program is not intending to impose a new fee and increase the interest rate spreads beyond the current spreads.

DOE Response: Section 1702(e) of Title XVII requires the Secretary to establish interest rates that do not exceed a level that the Secretary determines appropriate, taking into account the prevailing rate of interest in the private sector for similar loans and risks. In the proposed rule, DOE proposed a “Risk-Based Charge” that, taking into account all interest and interest-related costs, is intended to make DOE's charges and costs consistent with the commercial markets and other federal credit programs. Thus, the Risk-Based Charge will be used only to the extent the aggregate of other interest-related charges do not sufficiently reflect creditworthiness or specific risks arising from individual transactions. The Risk-Based Charge, while distinct from the fee for the Credit Subsidy Cost, may incidentally affect that fee by increasing expected inflows to the United States that are considered in calculating the amount of the fee. In that respect, taking into account the time value of money, the Risk-Based Charge can be viewed as affecting the time of payment rather than the amount of payment based on the creditworthiness of the borrower and the expectations regarding probability of repayment. After factoring in the Risk-Based Charge, DOE does not expect the present value of the interest amounts expected to be paid by the borrower as the cost of the loan should be significantly different than the interest amounts that would be paid without the Risk-Based Charge.

C. Section 609.8(c)(2) and Section 609.8(c)(3)

Public comment: One commenter requested clarification of what it views as an apparent inconsistency between §§ 609.8(c)(2) and 609.8(c)(3) of the proposed rule. The commenter stated that § 609.8(c)(2) appears to require that the guaranteed and nonguaranteed portions of a loan partially guaranteed by DOE be repaid pro rata, and on the same amortization schedule. Section 609.8(c)(3) appears to the commenter to provide for exceptions to this requirement under certain conditions.

The commenter also requested that DOE modify § 609.8 to allow for commercial co-lenders to provide structured loan facilities that would have the same amortization schedule as the guaranteed portion of the facility but with a shorter loan tenor and a related refinancing requirement at maturity of the structured loan facility.

DOE Response: DOE does not view §§ 609.8(c)(2) and 609.8(c)(3) as inconsistent. Section 609.8(c)(2) deals with the guaranteed and nonguaranteed portions of loans partially guaranteed by DOE. Section 609.8(c)(3) deals with financing or credit arrangements not guaranteed by DOE.

The commenter's request for a shorter loan tenor in connection with certain commercial loan products is similar to a comment DOE received in response to a proposed rule to amend the Title XVII regulations published in 2009. (74 FR 39569, Aug. 7, 2009) In the final rule, published on December 4, 2009, DOE made adjustments, retained by the proposed rulemaking and subject to the same conditions set forth in the current rule, to permit shorter or faster amortization schedules for project-related financing or other credit arrangements not guaranteed by DOE. See 74 FR 63544, 63546, Section II.C. Shorter Amortization of Non-Guaranteed Obligations. DOE has reviewed the issue in response to the comment and has determined that the provisions established in the 2009 rule address the concern while at the same time protecting the interests of the United States. For that reason, DOE has determined that no change in the existing language of the final rule is warranted.

Other Changes: While reviewing the proposed rule in response to public comments, DOE found certain areas in the proposed rule that should be modified consistent with DOE's intent to increase transparency and clarity. On further consideration, DOE determined that its treatment of the prohibition in Section 149(b) of the Internal Revenue Code in § 609.8(c)(4) created ambiguity and made application of the provision more complicated. Therefore, DOE eliminated the changes in the proposed rule and restored the language of the existing rule to tie the rule to the requirements of law as they related to tax-exempt debt obligation financing. Finally, DOE clarified a provision relating to communications with applicants by deleting a sentence that was unclear and not required by law.

III. Regulatory Review A. Executive Order 12866

This final rule has been determined to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).

B. National Environmental Policy Act

DOE has determined that this final rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A.5 of appendix A to subpart D, 10 CFR part 1021, which applies to rulemaking that amends an existing rule or regulation which does not change the environmental effect of the rule or regulation being amended.

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 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 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 has made its procedures and policies 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 is not obligated to prepare a regulatory flexibility analysis for this rulemaking because there is not a requirement to publish a general notice of proposed rulemaking for rules related to loans under the Administrative Procedure Act (5 U.S.C. 553(a)(2)).

D. Paperwork Reduction Act

Information collection requirements for the DOE regulations at 10 CFR part 609 have been submitted for approval to OMB pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and the procedure implementing that Act (5 CFR 1320.1 et seq.) under OMB Control Number 1910-5134. The revised recordkeeping and reporting requirements associated with this rulemaking are not mandatory until the information collection is approved by OMB.

Public reporting burden for the revised requirements in this final rule is estimated to average 130 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses are expected to be collected electronically.

Notwithstanding any other provision of law, 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 (Act) (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. The term “Federal mandate” is defined in the Act to mean a Federal intergovernmental mandate or a Federal private sector mandate. Although the final rule would impose certain requirements on non-Federal governmental and private sector applicants for loan guarantees, the Act's definitions of the terms “Federal intergovernmental mandate” and “Federal private sector mandate” exclude among other things, any provision in legislation, statute, or regulation that is a condition of Federal assistance or a duty arising from participation in a voluntary program. The final rule would establish requirements that persons voluntarily seeking loan guarantees for projects that would use certain new and improved energy technologies must satisfy as a condition of a Federal loan guarantee. Thus, the final rule falls under the exceptions in the definitions of “Federal intergovernmental mandate” and “Federal private sector mandate” for requirements that are a condition of Federal assistance or a duty arising from participation in a voluntary program. The Act does not apply to this rulemaking.

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 final rule would 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 13132

Executive Order 13132, “Federalism,” 64 FR 43255 (August 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 final rule and has determined that it would not preempt State law and 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. No further action is required by Executive Order 13132.

H. Executive Order 12988

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 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 12988 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 12988 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 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 final rule meets the relevant standards of Executive Order 12988.

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 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

J. Executive Order 13211

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to 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 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of 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 would not have a significant adverse effect on the supply, distribution, or use of energy and has not been designated by OIRA as a significant energy action, and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

K. Executive Order 12630

The Department has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this rule would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution.

L. Congressional Notification

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

IV. Approval of the Office of the Secretary

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

List of Subjects in 10 CFR Part 609

Administrative practice and procedure, Energy, Loan programs, and Reporting and recordkeeping requirements.

Issued in Washington, DC, on December 6, 2016. Mark A. McCall, Executive Director, Loan Programs Office.

For the reasons stated in the preamble, DOE revises part 609 of chapter II of title 10 of the Code of Federal Regulations as set forth below:

PART 609—LOAN GUARANTEES FOR PROJECTS THAT EMPLOY INNOVATIVE TECHNOLOGIES Sec. 609.1 Purpose and scope. 609.2 Definitions and interpretation. 609.3 Solicitations. 609.4 Submission of applications. 609.5 Programmatic, technical and financial evaluation of applications. 609.6 Term sheets and conditional commitments. 609.7 Closing on the loan guarantee agreement. 609.8 Loan guarantee agreement. 609.9 Lender servicing requirements. 609.10 Project costs. 609.11 Fees and charges. 609.12 Full faith and credit and incontestability. 609.13 Default, demand, payment, and collateral liquidation. 609.14 Preservation of collateral. 609.15 Audit and access to records. 609.16 Deviations. Authority:

42 U.S.C. 7254, 16511-16514.

§ 609.1 Purpose and scope.

(a) This part sets forth the policies and procedures that DOE uses for receiving, evaluating, and approving applications for loan guarantees to support Eligible Projects under section 1703 of the Energy Policy Act of 2005 (Act).

(b) This part applies to all Applications, Conditional Commitments, and Loan Guarantee Agreements.

(c) Part 1024 of chapter X of title 10 of the Code of Federal Regulations shall not apply to actions taken under this part.

§ 609.2 Definitions and interpretation.

(a) Definitions. When used in this part the following words have the following meanings.

Act means Title XVII of the Energy Policy Act of 2005 (42 U.S.C. 16511-16514), as amended. Administrative Cost of Issuing a Loan Guarantee means the total of all administrative expenses that DOE incurs during:

(1) The evaluation of an Application for a loan guarantee;

(2) The negotiation and offer of a Term Sheet;

(3) The negotiation of a Loan Guarantee Agreement and related documents, including the issuance of a Guarantee; and

(4) The servicing and monitoring of a Loan Guarantee Agreement, including during the construction, startup, commissioning, shakedown, and operational phases of an Eligible Project.

Applicant means a Person, including a prospective Borrower or Project Sponsor, that submits an Application to DOE. Application means a written submission of materials responsive to a Solicitation that satisfies § 609.4. Application Fee means the fee or fees required to be paid by an Applicant in connection with submission of an Application and specified in a Solicitation. The Application Fee does not include the Credit Subsidy Cost. Attorney General means the Attorney General of the United States. Borrower means any Person that enters into a Loan Guarantee Agreement with DOE and issues Guaranteed Obligations. Cargo Preference Act means the Cargo Preference Act of 1954, 46 U.S.C. 55305, as amended. Commercial Technology means a technology in general use in the commercial marketplace in the United States at the time the Term Sheet is offered by DOE. A technology is in general use if it is being used in three or more facilities that are in commercial operation in the United States for the same general purpose as the proposed project, and has been used in each such facility for a period of at least five years. The five-year period for each facility shall start on the in-service date of the facility employing that particular technology or, in the case of a retrofit of a facility to employ a particular technology, the date the facility resumes commercial operation following completion and testing of the retrofit. For purposes of this section, facilities that are in commercial operation include projects that have been the recipients of a loan guarantee from DOE under this part. Conditional Commitment means a Term Sheet offered by DOE and accepted by the offeree of the Term Sheet, all in accordance with § 609.6(c); provided, that the Secretary may terminate a Conditional Commitment for any reason at any time prior to the execution of the Loan Guarantee Agreement; and provided, further, that the Secretary may not delegate this authority to terminate a Conditional Commitment. Contracting Officer means the Secretary of Energy or a DOE official authorized by the Secretary to enter into, administer or terminate DOE Loan Guarantee Agreements and related contracts on behalf of DOE. Credit Subsidy Cost has the same meaning as “cost of a loan guarantee” in section 502(5)(C) of the Federal Credit Reform Act of 1990, which is the net present value, at the time the Loan Guarantee Agreement is executed, of the following estimated cash flows, discounted to the point of disbursement:

(1) Payments by the Government to cover defaults and delinquencies, interest subsidies, or other payments; less

(2) Payments to the Government including origination and other fees, penalties, and recoveries; including the effects of changes in loan or debt terms resulting from the exercise by the Borrower, Eligible Lender or other Holder of an option included in the Loan Guarantee Agreement.

Davis-Bacon Act means the statute referenced in section 1702(k) of the Act. DOE means the United States Department of Energy. Eligible Lender means either:

(1) Any Person formed for the purpose of, or engaged in the business of, lending money that, as determined by DOE in each case, is:

(i) Not debarred or suspended from participation in a Federal government contract or participation in a non-procurement activity (under a set of uniform regulations implemented for numerous agencies, such as DOE, at 2 CFR part 180);

(ii) Not delinquent on any Federal debt or loan;

(iii) Legally authorized and empowered to enter into loan guarantee transactions authorized by the Act and these regulations;

(iv) Able to demonstrate experience in originating and servicing loans for commercial projects similar in size and scope to the Eligible Project, or able to procure such experience through contracts acceptable to DOE; and

(v) Able to demonstrate experience as the lead lender or underwriter by presenting evidence of its participation in large commercial projects or energy-related projects or other relevant experience, or able to procure such experience through contracts acceptable to DOE; or

(2) The Federal Financing Bank.

Eligible Project means a project that:

(1) Is located in the United States at one location, except that the project may be located at two or more locations in the United States if the project is comprised of installations or facilities employing a single New or Significantly Improved Technology that is deployed pursuant to an integrated and comprehensive business plan. An Eligible Project in more than one location is a single Eligible Project;

(2) Deploys a New or Significantly Improved Technology; and

(3) Satisfies all applicable requirements of section 1703 of the Act, the applicable Solicitation, and this part.

Equity means cash contributed to the permanent capital stock (or equivalent) of the Borrower or the Eligible Project by the shareholders or other owners of the Borrower or the Eligible Project. Equity does not include proceeds from the non-guaranteed portion of a Guaranteed Obligation, proceeds from any other non-guaranteed loan or obligation, or the value of any government assistance or support. Facility Fee means the fee, to be paid in the amount and in the manner provided in the Term Sheet, to cover the Administrative Cost of Issuing a Loan Guarantee for the period from the Borrower's acceptance of the Term Sheet through issuance of the Guarantee. Federal Financing Bank means an instrumentality of the United States government created by the Federal Financing Bank Act of 1973, under the general supervision of the Secretary of the Treasury. Guarantee means the undertaking of the United States of America, acting through the Secretary pursuant to Title XVII of the Energy Policy Act of 2005, to pay in accordance with the terms thereof, principal and interest of a Guaranteed Obligation. Guaranteed Obligation means any loan or other debt obligation of the Borrower for an Eligible Project for which DOE guarantees all or any part of the payment of principal and interest under a Loan Guarantee Agreement entered into pursuant to the Act. Holder means any Person that holds a promissory note made by the Borrower evidencing the Guaranteed Obligation (or his designee or agent). Intercreditor Agreement means any agreement or instrument (or amendment or modification thereof) among DOE and one or more other Persons providing financing or other credit arrangements to the Borrower or an Eligible Project) or that otherwise provides for rights of DOE in respect of a Borrower or in respect of an Eligible Project, in each case in form and substance satisfactory to DOE. Loan Agreement means a written agreement between a Borrower and an Eligible Lender containing the terms and conditions under which the Eligible Lender will make a loan or loans to the Borrower for an Eligible Project. Loan Guarantee Agreement means a written agreement that, when entered into by DOE and a Borrower, and, if applicable, an Eligible Lender, establishes the obligation of DOE to guarantee the payment of all or a portion of the principal of, and interest on, specified Guaranteed Obligations, subject to the terms and conditions specified in the Loan Guarantee Agreement. New or Significantly Improved Technology means a technology, or a defined suite of technologies, concerned with the production, consumption, or transportation of energy and that is not a Commercial Technology, and that has either:

(1) Only recently been developed, discovered, or learned; or

(2) Involves or constitutes one or more meaningful and important improvements in productivity or value, in comparison to Commercial Technologies in use in the United States at the time the Term Sheet is issued.

OMB means the Office of Management and Budget in the Executive Office of the President. Person means any natural person or any legally constituted entity, including a state or local government, tribe, corporation, company, voluntary association, partnership, limited liability company, joint venture, and trust. Project Costs mean those costs, including escalation and contingencies, that are to be expended or accrued by a Borrower and are necessary, reasonable, customary and directly related to the design, engineering, financing, construction, startup, commissioning and shakedown of an Eligible Project, as specified in § 609.10(a). Project Costs do not include costs for the items set forth in § 609.10(b). Project Sponsor means any Person that assumes substantial responsibility for the development, financing, and structuring of an Eligible Project and, if not the Applicant, owns or controls, by itself and/or through individuals in common or affiliated business entities, a five percent or greater interest in the proposed Eligible Project, the Borrower or the Applicant. Risk-Based Charge means a charge that, together with the principal and interest on the guaranteed loan, or at such other times as DOE may determine, is payable on specified dates during the term of a Guaranteed Obligation. Secretary means the Secretary of Energy or a duly authorized designee or successor in interest. Solicitation means an announcement that DOE is accepting Applications that is widely disseminated to the public on the DOE Web site or otherwise, and which satisfies the requirements of § 609.3(b). Term Sheet means a written offer for the issuance of a loan guarantee, executed by the Secretary (or a DOE official authorized by the Secretary to execute such offer), delivered to the offeree, that sets forth the detailed terms and conditions under which DOE and the Applicant will execute a Loan Guarantee Agreement. United States means the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa and any territory or possession of the United States of America. (b) Interpretations. This part shall be interpreted using the following guidelines.

(1) The word “discretion” when used with reference to DOE, including the Secretary, means “sole discretion.”

(2) Defined terms in the singular shall include the plural and vice versa, and the masculine, feminine or neuter gender shall include all genders.

(3) The word “or” is not exclusive.

(4) References to laws by name or popular name are references to the version of such law appearing in the United States Code and include any amendment, supplement or modification of such law, and all regulations, rulings, and other laws promulgated thereunder.

(5) References to information or documents required or allowed to be submitted to DOE mean information or documents that are marked as provided in 10 CFR 600.15(b). A document or information that is not marked as provided in 10 CFR 600.15(b) will not be considered as having been submitted to or received by DOE.

(6) A reference to a Person includes such Person's successors and permitted assigns.

(7) The words “include,” “includes” and “including” are not limiting and mean include, includes and including “without limitation” and “without limitation by specification.”

(8) The words “hereof,” “herein” and “hereunder” and words of similar import refer this part as a whole and not to any particular provision of this part.

§ 609.3 Solicitations.

(a) DOE may invite the submission of Applications for loan guarantees for Eligible Projects pursuant to a Solicitation.

(b) Each Solicitation must include, at a minimum, the following information:

(1) The dollar amount of loan guarantee authority potentially being made available by DOE in that Solicitation;

(2) The place and deadline for submission of Applications;

(3) The name and address of the DOE representative whom a potential Applicant may contact to receive further information and a copy of the Solicitation;

(4) The form, format, and page limits applicable to the Application;

(5) The amount of the Application Fee and any other fees that will be required;

(6) The programmatic, technical, financial and other factors that DOE will use to evaluate response submissions, and their relative weightings in that evaluation; and

(7) Such other information as DOE may deem appropriate.

(c) Using procedures as may be announced by DOE a potential Applicant may request a meeting with DOE to discuss its potential Application. At its discretion, DOE may meet with a potential Applicant, either in person or electronically, to discuss its potential Application. DOE may provide a potential Applicant with a preliminary response regarding whether its proposed Application may constitute an Eligible Project. DOE's responses to questions from potential Applicants and DOE's statements to potential Applicants are pre-decisional and preliminary in nature. Any such responses and statements are subject in their entirety to any final action by DOE with respect to an Application submitted in accordance with § 609.4.

§ 609.4 Submission of applications.

(a) In response to a Solicitation, an Applicant must meet all requirements and provide all information specified in this part and the Solicitation in the manner and on or before the date specified therein. DOE may direct that Applications be submitted in more than one part; provided, that the parts of such Application, taken as a whole, satisfy the requirements of § 609.4(c) and this part. In such event, subsequent parts of an Application may be filed only after DOE invites an Applicant to make an additional submission. The initial part of an Application may be used by DOE to determine the likelihood that the project proposed by an Applicant will be an Eligible Project, and to evaluate such project's readiness to proceed. If there have been any material amendments, modifications or additions made to the information previously submitted by an Applicant, the Applicant shall provide a detailed description thereof, including any changes in the proposed project's financing structure or other terms, promptly upon request by DOE. Where DOE has directed that an Application be submitted in parts, DOE may provide for payment of the Application Fee in parts.

(b) An Applicant may submit only one Application for one proposed project using a particular technology. An Applicant may not submit an Application or Applications for multiple Eligible Projects using the same technology. An Applicant may submit Applications for multiple proposed projects using different technologies. For purposes of this paragraph (b), the term Applicant shall include the Project Sponsor and any subsidiaries or affiliates of the Project Sponsor.

(c) An Application must include, at a minimum, the following information and materials:

(1) A completed Application form signed by an individual with full authority to bind the Applicant, including the commitments and representations made in each part of the Application;

(2) The applicable Application Fee;

(3) A description of how and to what measurable extent the proposed project avoids, reduces, or sequesters air pollutants and/or anthropogenic emissions of greenhouse gases, including how to measure and verify those effects;

(4) A description of the nature and scope of the proposed project, including:

(i) Key project milestones;

(ii) Location or locations of the proposed project;

(iii) Identification and commercial feasibility of the New or Significantly Improved Technology to be deployed;

(iv) How the Applicant intends to deploy such New or Significantly Improved Technology in the proposed project; and

(v) How the Applicant intends to assure, to the extent possible, the further commercial availability of the New or Significantly Improved Technology in the United States.

(5) An explanation of how the proposed project qualifies as a project within the category or categories of projects referred to in the Solicitation;

(6) A detailed estimate of the total Project Costs together with a description of the methodology and assumptions used;

(7) A detailed description of the engineering and design contractor(s), construction contractor(s), and equipment supplier(s);

(8) The construction schedules for the proposed project, including major activity and cost milestones;

(9) A description of the material terms and conditions of the development and construction contracts to include the performance guarantees, performance bonds, liquidated damages provisions, and equipment warranties;

(10) A detailed description of the operations and maintenance provider(s), the plant operating plan, estimated staffing requirements, parts inventory, major maintenance schedule, estimated annual downtime, and performance guarantees and related liquidated damage provisions, if any;

(11) A description of the management plan of operations to be employed in carrying out the proposed project, and information concerning the management experience of each officer or key person associated with the proposed project;

(12) A detailed description of the proposed project decommissioning, deconstruction, and disposal plan, and the anticipated costs associated therewith;

(13) An analysis of the market for any product (including but not limited to electricity and chemicals) to be produced by, or services to be provided by, the proposed project, including relevant economics justifying the analysis, and copies of

(i) Any contracts for the sale of such products or the provision of such services, or

(ii) Any other assurance of the revenues to be generated from sale of such products or provision of such services;

(14) A detailed description of the overall financial plan for the proposed project, including all sources and uses of funding, equity and debt, and the liability of parties associated with the proposed project over the term of the Loan Guarantee Agreement;

(15) A copy of all material agreements, whether entered into or proposed, relevant to the investment, design, engineering, financing, construction, startup commissioning, shakedown, operations and maintenance of the proposed project;

(16) A copy of the financial closing checklist for the equity and debt to the extent available;

(17) The Applicant's business plan on which the proposed project is based and Applicant's financial model with respect to the proposed project for the proposed term of the Guaranteed Obligations, including, as applicable, pro forma income statements, balance sheets, and cash flows. All such information and data must include assumptions made in their preparation and the range of revenue, operating cost, and credit assumptions considered;

(18) Financial statements for the three immediately preceding fiscal years of the Applicant (or such shorter period as the Applicant has been in existence) that have been audited by an independent certified public accounting firm, including all associated certifications, notes and letters to management, as well as interim financial statements and notes for the current fiscal year for the Applicant and all other Persons the credit of which is material to the success of the transactions described in the Application;

(19) A copy of all legal opinions, and other material reports, analyses, and reviews related to the proposed project that have been delivered prior to submission of any part of the Application;

(20) An independent engineering report prepared by an engineer with experience in the industry and familiarity with similar projects. The report should address the proposed project's siting and permitting arrangements, engineering and design, contractual requirements, environmental compliance, testing, commissioning and operations, and maintenance;

(21) A credit history of the Applicant and each Project Sponsor;

(22) A preliminary credit assessment for the proposed project without a loan guarantee from a nationally recognized rating agency for projects where the estimated total Project Costs exceed $25 million. For proposed projects where the total estimated Project Costs are $25 million or less and where conditions justify, in the sole discretion of the Secretary, DOE may require such an assessment;

(23) A list showing the status of and estimated completion date of Applicant's required applications for federal, state, and local permits, authorizations or approvals to site, construct, and operate the proposed project;

(24) A report containing an analysis of the potential environmental impacts of the proposed project that will enable DOE to—

(i) Assess whether the proposed project will comply with all applicable environmental requirements; and

(ii) Undertake and complete any necessary reviews under the National Environmental Policy Act of 1969;

(25) A listing and description of the assets of or to be utilized for the benefit of the proposed project, and of any other asset that will serve as collateral pledged in respect of the Guaranteed Obligations, including appropriate data as to the value of such assets and the useful life of any physical assets. With respect to real property assets listed, an appraisal that is consistent with the “Uniform Standards of Professional Appraisal Practice,” promulgated by the Appraisal Standards Board of the Appraisal Foundation, and performed by licensed or certified appraisers, is required;

(26) An analysis demonstrating that, at the time of the Application, there is a reasonable prospect that Borrower will be able to repay the Guaranteed Obligations (including interest) according to their terms, and a complete description of the operational and financial assumptions and methodologies on which this demonstration is based; and

(27) If proposed project assets or facilities are or will be jointly owned by the Applicant and one or more other Persons, each of which owns an undivided ownership interest in such proposed project assets or facilities, a description of the Applicant's rights and obligations in respect of its undivided ownership interest in such proposed project assets or facilities.

(d) During the Application evaluation process pursuant to § 609.5, DOE may request additional information, potentially including a preliminary credit rating or credit assessment, with respect to the proposed project.

(e) DOE will not consider any part of any Application or the Application as a whole complete unless the Application Fee (or the required portion of the Application Fee related to a particular part of the Application) has been paid. An Application Fee paid in connection with one Application is not transferable to another Application. Except in the discretion of DOE, no portion of the Application Fee is refundable;

(f) DOE has no obligation to evaluate an Application that is not complete, and may proceed with such evaluation, or a partial evaluation, only in its discretion.

(g) Unless an Applicant requests an extension and such an extension is granted by DOE in its discretion, an Application may be rejected if it is not complete within four years from the date of submission (or date of submission of the first part thereof, in the case of Applications made in more than one part).

(h) Upon making a determination to engage independent consultants or outside counsel with respect to an Application, DOE will proceed to evaluate and process such Application only following execution by an Applicant or Project Sponsor, as appropriate, of an agreement satisfactory to DOE to pay the fees and expenses charged by the independent consultants and outside legal counsel.

§ 609.5 Programmatic, technical and financial evaluation of applications.

(a) In reviewing completed Applications, and in prioritizing and selecting those as to which a Term Sheet should be offered, DOE will apply the criteria set forth in the Act, any applicable Solicitation, and this part. Applications will be considered in a competitive process, i.e. each Application will be evaluated against other Applications responsive to the Solicitation. Applications will be denied if:

(1) The proposed project is not an Eligible Project;

(2) The applicable technology is not ready to be deployed commercially in the United States, cannot yield a commercially viable product or service in the use proposed in the Application, does not have the potential to be deployed in other commercial projects in the United States, or is not or will not be available for further commercial use in the United States;

(3) The Person proposed to issue the loan or purchase other debt obligations constituting the Guaranteed Obligations is not an Eligible Lender;

(4) The proposed project is for demonstration, research, or development;

(5) Significant Equity for the proposed project will not be provided by the date of issuance of the Guaranteed Obligations, or such later time as DOE in its discretion may determine; or

(6) The proposed project does not present a reasonable prospect of repayment of the Guaranteed Obligations.

(b) If an Application has not been denied pursuant to § 609.5(a), DOE will evaluate the proposed Project based on the criteria set forth in the Act, any applicable Solicitation and the following:

(1) To what measurable extent the proposed project avoids, reduces, or sequesters air pollutants or anthropogenic emissions of greenhouses gases, or contributes to the avoidance, reduction or sequestration of air pollutants or anthropogenic emissions of greenhouse gases;

(2) To what extent the technology to be deployed in the proposed project—

(i) Is ready to be deployed commercially in the United States, can be replicated, yields a commercially viable product or service in the use proposed in the proposed project, has potential to be deployed in other commercial projects in the United States, and is or will be available for further commercial use in the United States; and

(ii) Constitutes an important improvement in technology, as compared to available Commercial Technologies, used to avoid, reduce or sequester air pollutants or anthropogenic emissions of greenhouse gases;

(3) To what extent the Applicant has a plan to advance or assist in the advancement of that technology into the commercial marketplace in the United States;

(4) The extent to which the level of proposed support in the Application is consistent with a reasonable prospect of repayment of the Guaranteed Obligations by considering, among other factors:

(i) The extent to which the requested amount of the loan guarantee, the requested amount of Guaranteed Obligations and, if applicable, the expected amount of any other financing or credit arrangements, are reasonable relative to the nature and scope of the proposed project;

(ii) The total amount and nature of the Project Costs and the extent to which Project Costs are to be funded by Guaranteed Obligations; and

(iii) The feasibility of the proposed project and likelihood that it will produce sufficient revenues to service its debt obligations over the life of the loan guarantee and assure timely repayment of Guaranteed Obligations;

(5) The likelihood that the proposed project will be ready for full commercial operations in the time frame stated in the Application;

(6) The amount of Equity committed and to be committed to the proposed project by the Borrower, the Project Sponsor, and other Persons;

(7) Whether there is sufficient evidence that the Borrower will diligently implement the proposed project, including initiating and completing the proposed project in a timely manner;

(8) Whether and to what extent the Applicant will rely upon other Federal and non-Federal Government assistance such as grants, tax credits, or other loan guarantees to support the financing, construction, and operation of the proposed project and how such assistance will impact the proposed project;

(9) The levels of safeguards provided to the Federal Government in the event of default through collateral, warranties, and other assurance of repayment described in the Application, including the nature of any anticipated intercreditor arrangements;

(10) The Applicant's, or the relevant contractor's, capacity and expertise to operate the proposed project successfully, based on factors such as financial soundness, management organization, and the nature and extent of corporate and individual experience;

(11) The ability of the proposed Borrower to ensure that the proposed project will comply with all applicable laws and regulations, including all applicable environmental statutes and regulations;

(12) The levels of market, regulatory, legal, financial, technological, and other risks associated with the proposed project and their appropriateness for a loan guarantee provided by DOE;

(13) Whether the Application contains sufficient information, including a detailed description of the nature and scope of the proposed project and the nature, scope, and risk coverage of the loan guarantee sought to enable DOE to perform a thorough assessment of the proposed project; and

(14) Such other criteria that DOE deems relevant in evaluating the merits of an Application.

(c) After DOE completes its review and evaluation of a proposed project pursuant to § 609.5(b) and this part, DOE will notify the Applicant in writing of its determination whether to proceed with due diligence and negotiation of a Term Sheet in accordance with § 609.6. DOE will proceed only if it determines that the proposed project is highly qualified and suitable for a Guarantee. Upon written confirmation from the Applicant that it desires to proceed, DOE and the Applicant will commence negotiations.

(d) A determination by DOE not to proceed with a proposed project following evaluation pursuant to § 609.5(b) shall be final and non-appealable, but shall not prejudice the Applicant or other affected Persons from applying for a Guarantee in respect of a different proposed project pursuant to another, separate Application.

§ 609.6 Term sheets and conditional commitments.

(a) DOE, after negotiation of a Term Sheet with an Applicant, may offer such Term Sheet to an Applicant or such other Person that is an affiliate of the Applicant and that is acceptable to DOE. DOE's offer of a Term Sheet shall be in writing and signed by the Contracting Officer. DOE's negotiation of a Term Sheet imposes no obligation on the Secretary to offer a Term Sheet to the Applicant.

(b) DOE shall terminate its negotiations of a Term Sheet if it has not offered a Term Sheet in respect of an Eligible Project within four years after the date of the written notification set forth in § 609.5(c), unless extended in writing in the discretion of the Contracting Officer.

(c) If and when the offeree specified in a Term Sheet satisfies all terms and conditions for acceptance of the Term Sheet, including written acceptance thereof and payment of all fees specified in § 609.11(f) and therein to be paid at or prior to acceptance of the Term Sheet, the Term Sheet shall become a Conditional Commitment. Each Conditional Commitment shall include an expiration date no more than two years from the date it is issued, unless extended in writing in the discretion of the Contracting Officer. When and if all of the terms and conditions specified in the Conditional Commitment have been met, DOE and the Applicant may enter into a Loan Guarantee Agreement.

(d) If, subsequent to execution of a Conditional Commitment, the financing arrangements of the Borrower, or in respect of an Eligible Project, change from those described in the Conditional Commitment, the Applicant shall promptly provide updated financing information in writing to DOE. All such updated information shall be deemed to be information submitted in connection with an Application and shall be subject to § 609.4(b). Based on such updated information, DOE may take one or more of the following actions:

(1) Determine that such changes are not material to the Borrower, the Eligible Project or DOE;

(2) Amend the Conditional Commitment accordingly;

(3) Postpone the expected closing date of the associated Loan Guarantee Agreement; or

(4) Terminate the Conditional Commitment.

§ 609.7 Closing on the loan guarantee agreement.

(a) Subsequent to entering into a Conditional Commitment with an Applicant, DOE, after consultation with the Applicant, will set a closing date for execution of a Loan Guarantee Agreement.

(b) Prior to or on the closing date of a Loan Guarantee Agreement, DOE will ensure that:

(1) One of the following has occurred:

(i) An appropriation for the Credit Subsidy Cost has been made;

(ii) The Secretary has received from the Borrower payment in full for the Credit Subsidy Cost and deposited the payment into the Treasury; or

(iii) A combination of one or more appropriations under paragraph (b)(1)(i) of this section and one or more payments from the Borrower under paragraph (b)(1)(ii) of this section has been made that is equal to the Credit Subsidy Cost;

(2) Pursuant to section 1702(h) of the Act, DOE has received from the Applicant the remainder of the Facility Fee referred to in § 609.11(b);

(3) OMB has reviewed and approved DOE's calculation of the Credit Subsidy Cost of the Guarantee;

(4) The Department of the Treasury has been consulted as to the terms and conditions of the Loan Guarantee Agreement;

(5) The Loan Guarantee Agreement and related documents contain all terms and conditions DOE deems reasonable and necessary to protect the interest of the United States;

(6) Each holder of the Guaranteed Obligations is an Eligible Lender, and the servicer of the Guaranteed Obligations meets the servicing performance requirements of § 609.9(b);

(7) DOE has determined the principal amount of the Guaranteed Obligations expected to be issued in respect of the Eligible Project, as estimated at the time of issuance, will not exceed 80 percent of the Project Costs of the Eligible Project;

(8) All conditions precedent specified in the Conditional Commitment are either satisfied or waived by the Contracting Officer and all other applicable contractual, statutory, and regulatory requirements have been satisfied or waived by the Contracting Officer. If the counterparty to the Conditional Commitment has not satisfied all such terms and conditions on or prior to the closing date of the Loan Guarantee Agreement, the Secretary may, in his discretion, set a new closing date, or terminate the Conditional Commitment; and

(9) Where the total Project Costs for an Eligible Project are projected to exceed $25 million, the Applicant must provide a credit rating from a nationally recognized rating agency reflecting the revised Conditional Commitment for the project without a Federal guarantee. Where total Project Costs are projected to be $25 million or less, the Secretary may, on a case-by-case basis, require a credit rating. If a credit rating is required, an updated rating must be provided to the Secretary not later than 30 days prior to closing.

§ 609.8 Loan guarantee agreement.

(a) Only a Loan Guarantee Agreement executed by the Contracting Officer can obligate DOE to issue a Guarantee in respect of Guaranteed Obligations.

(b) DOE is not bound by oral representations.

(c) Each Loan Guarantee Agreement shall contain the following requirements and conditions, and shall not be executed until the Contracting Officer determines that the following requirements and conditions are satisfied:

(1) The Federal Financing Bank shall be the only Eligible Lender in transactions where DOE guarantees 100 percent (but not less than 100 percent) of the principal and interest of the Guaranteed Obligations issued under a Loan Guarantee Agreement.

(i) Where DOE guarantees more than 90 percent of the Guaranteed Obligation, the guaranteed portion cannot be separated from or “stripped” from the non-guaranteed portion of the Guaranteed Obligation if the loan is participated, syndicated or otherwise resold in the secondary market; and

(ii) Where DOE guarantees 90 percent or less of the Guaranteed Obligation, the guaranteed portion may be separated from or “stripped” from the non-guaranteed portion of the Guaranteed Obligation, if the loan is participated, syndicated or otherwise resold in the secondary debt market;

(2) The Borrower shall be obligated to make full repayment of the principal and interest on the Guaranteed Obligations and other debt of a Borrower over a period of up to the lesser of 30 years or 90 percent of the projected useful life of the Eligible Project's major physical assets, as calculated in accordance with U.S. generally accepted accounting principles and practices. The non-guaranteed portion (if any) of any Guaranteed Obligations must be repaid pro rata, and on the same amortization schedule, with the guaranteed portion.

(3) If any financing or credit arrangement of the Borrower or relating to the Eligible Project, other than the Guaranteed Obligations, has an amortization period shorter than that of the Guaranteed Obligations, DOE shall have determined that the resulting financing structure allocates to DOE a reasonably proportionate share of the default risk, in light of:

(i) DOE's share of the total debt financing of the Borrower,

(ii) Risk allocation among the credit providers to the Borrower, and

(iii) Internal and external credit enhancements.

(4) The loan guarantee does not finance, either directly or indirectly tax-exempt debt obligations, consistent with the requirements of section 149(b) of the Internal Revenue Code;

(5) The principal amount of the Guaranteed Obligations, when combined with funds from other sources committed and available to the Borrower, shall be sufficient to pay for expected Project Costs (including adequate contingency amounts), the applicable items specified in § 609.10(b), and otherwise to carry out the Eligible Project;

(6) There shall be a reasonable prospect of repayment by the Borrower of the principal of and interest on the Guaranteed Obligations and all of its other debt obligations;

(7) The Borrower shall pledge collateral or surety determined by DOE to be necessary to secure the repayment of the Guaranteed Obligations. Such collateral or security may include Eligible Project assets and assets not related to the Eligible Project;

(8) The Loan Guarantee Agreement and related documents shall include detailed terms and conditions that DOE deems necessary and appropriate to protect the interests of the United States in the case of default, including ensuring availability of all relevant intellectual property rights, technical data including software, and technology necessary for DOE or any Person selected by DOE, to complete, operate, convey, and dispose of the defaulted Borrower or the Eligible Project;

(9) The Guaranteed Obligations shall not be subordinate to other financing. Guaranteed Obligations are not subordinate to other financing if the lien on property securing the Guaranteed Obligations, together with liens that are pari passu with such lien, if any, take priority or precedence over other charges or encumbrances upon the same property and must be satisfied before such other charges are entitled to participate in proceeds of the property's sale. In DOE's discretion, Guaranteed Obligations may share a lien position with other financing;

(10) There is satisfactory evidence that the Borrower will diligently pursue the Eligible Project and is willing, competent, and capable of performing its obligations under the Loan Guarantee Agreement and the loan documentation relating to its other debt obligations;

(11) The Borrower shall have paid all fees and expenses due to DOE or the U.S. Government, including such amount of the Credit Subsidy Cost as may be due and payable from the Borrower pursuant to the Conditional Commitment, upon execution of the Loan Guarantee Agreement;

(12) The Borrower, any Eligible Lender, and each other relevant party shall take, and be obligated to continue to take, those actions necessary to perfect and maintain liens on collateral in respect of the Guaranteed Obligations;

(13) DOE or its representatives shall have access to the offices of the Borrower and the Eligible Project site at all reasonable times in order to monitor the—

(i) Performance by the Borrower of its obligations under the Loan Guarantee Agreement; and

(ii) Performance of the Eligible Project;

(14) DOE and Borrower have reached an agreement regarding the information that will be made available to DOE and the information that will be made publicly available;

(15) The Borrower shall have filed applications for or obtained any required regulatory approvals for the Eligible Project and is in compliance, or promptly will be in compliance, where appropriate, with all Federal, state, and local regulatory requirements;

(16) The Borrower shall have no delinquent Federal debt;

(17) The Project Sponsors have made or will make a significant Equity investment in the Borrower or the Eligible Project, and will maintain control of the Borrower or the Eligible Project as agreed in the LGA; and

(18) The Loan Guarantee Agreement and related agreements shall include such other terms and conditions as DOE deems necessary or appropriate to protect the interests of the United States.

(d) The Loan Guarantee Agreement shall provide that, in the event of a default by the Borrower:

(1) Interest on the Guaranteed Obligations shall accrue at the rate stated in the Loan Guarantee Agreement or the Loan Agreement, until DOE makes full payment of the defaulted Guaranteed Obligations and, except when such Guaranteed Obligations are funded through the Federal Financing Bank, DOE shall not be required to pay any premium, default penalties, or prepayment penalties; and

(2) The holder of collateral pledged in respect of the Guaranteed Obligations shall be obligated to take such actions as DOE may reasonably require to provide for the care, preservation, protection, and maintenance of such collateral so as to enable the United States to achieve maximum recovery.

(e)(1) An Eligible Lender or other Holder may sell, assign or transfer a Guaranteed Obligation to another Eligible Lender that meets the requirements of § 609.9. Such latter Eligible Lender shall be required to assume all servicing, monitoring and reporting requirements as provided in the Loan Guarantee Agreement. Any transfer of the servicing, monitoring, and reporting functions shall be subject to the prior written approval of DOE.

(2) The Secretary, or the Secretary's designee or contractual agent, for the purpose of identifying Holders with the right to receive payment under the Guaranteed Obligations, shall include in the Loan Guarantee Agreement or related documents a procedure for tracking and identifying Holders of Guaranteed Obligations. Any contractual agent approved by the Secretary to perform this function may transfer or assign this responsibility only with the Secretary's prior written approval.

(f) Each Loan Guarantee Agreement shall require the Borrower to make representations and warranties, agree to covenants, and satisfy conditions precedent to closing and to each disbursement that, in each case, relate to its compliance with the Davis-Bacon Act and the Cargo Preference Act.

(g) The Applicant, the Borrower or the Project Sponsor must estimate, calculate, record, and provide to DOE any time DOE requests such information and at the times provided in the Loan Guarantee Agreement all costs incurred in the design, engineering, financing, construction, startup, commissioning and shakedown of the Eligible Project in accordance with generally accepted accounting principles and practices.

§ 609.9 Lender servicing requirements.

(a) When reviewing and evaluating a proposed Eligible Project, all Eligible Lenders (other than the Federal Financing Bank) shall at all times exercise the level of care and diligence that a reasonable and prudent lender would exercise when reviewing, evaluating and disbursing a loan made by it without a Federal guarantee.

(b) Loan servicing duties shall be performed by an Eligible Lender, DOE, or another qualified loan servicer approved by DOE. When performing its servicing duties, the loan servicer shall at all times exercise the level of care and diligence that a reasonable and prudent lender would exercise when servicing a loan made without a Federal guarantee, including:

(1) During the construction period, monitoring the satisfaction of all of the conditions precedent to all loan disbursements, as provided in the Loan Guarantee Agreement, Loan Agreement or related documents;

(2) During the operational phase, monitoring and servicing the Guaranteed Obligations and collection of the outstanding principal and accrued interest as well as undertaking to ensure that the collateral package securing the Guaranteed Obligations remains uncompromised; and

(3) Until the Guaranteed Obligation has been repaid, providing annual or more frequent financial and other reports on the status and condition of the Guaranteed Obligations and the Eligible Project, and promptly notifying DOE if it becomes aware of any problems or irregularities concerning the Eligible Project or the ability of the Borrower to make payment on the Guaranteed Obligations or its other debt obligations.

§ 609.10 Project costs.

(a) Project Costs include:

(1) Costs of acquisition, lease, or rental of real property, including engineering fees, surveys, title insurance, recording fees, and legal fees incurred in connection with land acquisition, lease or rental, site improvements, site restoration, access roads, and fencing;

(2) Costs of engineering, architectural, legal and bond fees, and insurance paid in connection with construction of the facility;

(3) Costs of equipment purchases, including a reasonable reserve of spare parts to the extent required;

(4) Costs to provide facilities and services related to safety and environmental protection;

(5) Costs of financial, legal, and other professional services, including services necessary to obtain required licenses and permits and to prepare environmental reports and data;

(6) Costs of issuing Eligible Project debt, such as fees, transaction, and costs referred to in § 609.10(a)(5), and other customary charges imposed by Eligible Lenders;

(7) Costs of necessary and appropriate insurance and bonds of all types including letters of credit and any collateral required therefor;

(8) Costs of design, engineering, startup, commissioning and shakedown;

(9) Costs of obtaining licenses to intellectual property necessary to design, construct, and operate the Eligible Project;

(10) To the extent required by the Loan Guarantee Agreement and not intended or available for any cost referred to in § 609.10(b), costs of funding any reserve fund, including without limitation, a debt service reserve, a maintenance reserve, and a contingency reserve for cost overruns during construction; provided that proceeds of a Guaranteed Loan deposited to any reserve fund shall not be removed from such fund except to pay Project Costs, to pay principal of the Guaranteed Loan, or otherwise to be used as provided in the Loan Guarantee Agreement;

(11) Capitalized interest necessary to meet market requirements and other carrying costs during construction; and

(12) Other necessary and reasonable costs.

(b) Project Costs do not include:

(1) Fees and commissions charged to Borrower, including finder's fees, for obtaining Federal or other funds;

(2) Parent corporation or other affiliated entity's general and administrative expenses, and non-Eligible Project related parent corporation or affiliated entity assessments, including organizational expenses;

(3) Goodwill, franchise, trade, or brand name costs;

(4) Dividends and profit sharing to stockholders, employees, and officers;

(5) Research, development, and demonstration costs of readying an innovative technology for employment in a commercial project;

(6) Costs that are excessive or are not directly required to carry out the Eligible Project, as determined by DOE;

(7) Expenses incurred after startup, commissioning, and shakedown before the facility, or, in DOE's discretion, any portion of the facility, has been placed in service;

(8) Borrower-paid Credit Subsidy Costs, the Administrative Cost of Issuing a Loan Guarantee, and any other fee collected by DOE; and

(9) Operating costs.

§ 609.11 Fees and charges.

(a) Unless explicitly authorized by statute, no funds obtained from the Federal Government, or from a loan or other instrument guaranteed by the Federal Government, may be used to pay for the Credit Subsidy Cost, the Application Fee, the Facility Fee, the Guarantee Fee, the maintenance fee and any other fees charged by or paid to DOE relating to the Act or any Guarantee thereunder.

(b) DOE may charge Applicants a non-refundable Facility Fee, with a portion being payable on or prior to the date on which the Applicant executes the Commitment Letter and the remainder being payable on or prior to the closing date for the Loan Guarantee Agreement.

(c) In order to encourage and supplement private lending activity DOE may collect from Borrowers for deposit in the United States Treasury a non-refundable Risk-Based Charge which, together with the interest rate on the Guaranteed Obligation that LPO determines to be appropriate, will take into account the prevailing rate of interest in the private sector for similar loans and risks. The Risk-Based Charge shall be paid at such times and in such manner as may be determined by DOE, but no less frequently than once each year, commencing with payment of a pro-rated payment on the date the Guarantee is issued. The amount of the Risk-Based Charge will be specified in the Loan Guarantee Agreement.

(d) DOE may collect a maintenance fee to cover DOE's administrative expenses, other than extraordinary expenses, incurred in servicing and monitoring a Loan Guarantee Agreement. The maintenance fee shall accrue from the date of execution of the Loan Guarantee Agreement through the date of payment in full of the related Guaranteed Obligations. If DOE determines to collect a maintenance fee, it shall be paid by the Borrower each year (or portion thereof) in advance in the amount specified in the applicable Loan Guarantee Agreement.

(e) In the event a Borrower or an Eligible Project experiences difficulty relating to technical, financial, or legal matters or other events (e.g., engineering failure or financial workouts), the Borrower shall be liable as follows:

(1) If such difficulty requires DOE to incur time or expenses beyond those customarily expended to monitor and administer performing loans, DOE may collect an extraordinary expenses fee from the Borrower that will reimburse DOE for such time and expenses, as determined by DOE; and

(2) For all fees and expenses of DOE's independent consultants and outside counsel, to the extent that such fees and expenses are elected to be paid by DOE notwithstanding the provisions of paragraphs (f) and (g) of this section.

(f) Each Applicant, Borrower or Project Sponsor, as applicable, shall be responsible for the payment of all fees and expenses charged by DOE's independent consultants and outside legal counsel in connection with an Application, Conditional Commitment or Loan Guarantee Agreement, as applicable. Upon making a determination to engage independent consultants or outside counsel with respect to an Application, DOE will proceed to evaluate and process such Application only following execution by an Applicant or Project Sponsor, as appropriate, of an agreement satisfactory to DOE to pay the fees and expenses charged by the independent consultants and outside legal counsel. Appropriate provisions regarding payment of such fees and expenses shall also be included in each Term Sheet and Loan Guaranty Agreement or, upon a determination by DOE, in other appropriate agreements.

(g) Notwithstanding payment by Applicant, Borrower or Project Sponsor, all services rendered by an independent consultant or outside legal counsel to DOE in connection with an Application, Conditional Commitment or Loan Guarantee Agreement shall be solely for the benefit of DOE (and such other creditors as DOE may agree in writing). DOE may require, in its discretion, the payment of an advance retainer to such independent consultants or outside legal counsel as security for the collection of the fees and expenses charged by the independent consultants and outside legal counsel. In the event an Applicant, Borrower or Project Sponsor fails to comply with the provisions of such payment agreement, DOE in its discretion, may stop work on or terminate an Application, a Conditional Commitment or a Loan Guarantee Agreement, or may take such other remedial measures in its discretion as it deems appropriate.

(h) DOE shall not be financially liable under any circumstances to any independent consultant or outside counsel for services rendered in connection with an Application, Conditional Commitment or Loan Guarantee Agreement except to the extent DOE has previously entered into an express written agreement to pay for such services.

§ 609.12 Full faith and credit and incontestability.

The full faith and credit of the United States is pledged to the payment of principal and interest of Guaranteed Obligations pursuant to Guarantees issued in accordance with the Act and this Part. The issuance by DOE of a Guarantee shall be conclusive evidence that it has been properly obtained; that the underlying loan qualified for such Guarantee; and that, but for fraud or material misrepresentation by the Holder, such Guarantee shall be legal, valid, binding and enforceable against DOE in accordance with its terms.

§ 609.13 Default, demand, payment, and foreclosure on collateral.

(a) If a Borrower defaults in making a required payment of principal or interest on a Guaranteed Obligation and such default has not been cured within the applicable grace period, the Holder may make written demand for payment upon the Secretary in accordance with the terms of the applicable Guarantee. If a Borrower defaults in making a required payment of principal or interest on a Guaranteed Obligation and such default has not been cured within the applicable grace period, the Secretary shall notify the Attorney General.

(b) Subject to the terms of the applicable Guarantee, the Secretary shall make payment within 60 days after receipt of written demand for payment from the Holder, provided that the demand for payment complies in all respects with the terms of the applicable Guarantee. Interest shall accrue to the Holder at the rate stated in the promissory note evidencing the Guaranteed Obligation, without giving effect to the Borrower's default in making a required payment of principal or interest on the applicable Guarantee Obligation or any other default by the Borrower, until the Guaranteed Obligation has been fully paid by DOE. Payment by the Secretary on the applicable Guarantee does not change Borrower's obligations under the promissory note evidencing the Guaranteed Obligation, Loan Guarantee Agreement, Loan Agreement or related documents, including an obligation to pay default interest.

(c) Following payment by the Secretary pursuant to the applicable Guarantee, upon demand by DOE, the Holder shall transfer and assign to the Secretary (or his designee or agent) the promissory note evidencing the Guaranteed Obligation, all rights and interests of the Holder in the Guaranteed Obligation, and all rights and interests of the Holder in respect of the Guaranteed Obligation, except to the extent that the Secretary determines that such promissory note or any of such rights and interests shall not be transferred and assigned to the Secretary. Such transfer and assignment shall include, without limitation, all of the liens, security and collateral rights of the Holder (or his designee or agent) in respect of the Guaranteed Obligation.

(d) Following payment by the Secretary pursuant to a Guarantee or other default of a Guaranteed Obligation, the Secretary is authorized to protect and foreclose on the collateral, take action to recover costs incurred by, and all amounts owed to, the United States as a result of the defaulted Guarantee Obligation, and take such other action necessary or appropriate to protect the interests of the United States. In respect of any such authorized actions that involve a judicial proceeding or other judicial action, the Secretary shall act through the Attorney General. The foregoing provisions of this paragraph shall not relieve the Secretary from its obligations pursuant to any applicable Intercreditor Agreement. Nothing in this paragraph shall limit the Secretary from exercising any rights or remedies pursuant to the terms of the Loan Guarantee Agreement.

(e) The cash proceeds received as a result of any foreclosure on the collateral, or other action, shall be distributed in accordance with the Loan Guarantee Agreement (subject to any applicable Intercreditor Agreement).

(f) The Loan Guarantee Agreement shall provide that cash proceeds received by the Secretary (or his designee or agent) as a result of any foreclosure on the collateral or other action shall be applied in the following order of priority:

(1) Toward the pro rata payment of any costs and expenses (including unpaid fees, fees and expenses of counsel, contractors and agents, and liabilities and advances made or incurred) of the Secretary, the Attorney General, the Holder, a collateral agent or other responsible person of any of them (solely in their individual capacities as such and not on behalf of or for the benefit of their principals), incurred in connection with any authorized action following payment by the Secretary pursuant to a Guarantee or other default of a Guaranteed Obligation, or as otherwise permitted under the Loan Agreement or Loan Guarantee Agreement.

(2) To pay all accrued and unpaid fees due and payable to the Secretary, the Attorney General, the Holder, a collateral agent or other responsible person of any of them on a pro rata basis in respect of the Guaranteed Obligation;

(3) To pay all accrued and unpaid interest due and payable to the Secretary, the Attorney General, the Holder, a collateral agent or other responsible person of any of them on a pro rata basis in respect of the Guaranteed Obligation;

(4) To pay all unpaid principal of the Guaranteed Obligation;

(5) To pay all other obligations of the Borrower under the Loan Guarantee Agreement, the Loan Agreement and related documents that are remaining after giving effect to the preceding provisions and are then due and payable; and;

(6) To pay to the Borrower, or its successors and assigns, or as a court of competent jurisdiction may direct, any cash proceeds then remaining following the application of all payment described above.

(g) No action taken by the Holder or its agent or designee in respect of any collateral will affect the rights of any person, including the Secretary, having an interest in the Guaranteed Obligations or other debt obligations, to pursue, jointly or severally, legal action against the Borrower or other liable persons, for any amounts owing in respect of the Guaranteed Obligation or other applicable debt obligations.

(h) In the event that the Secretary considers it necessary or desirable to protect or further the interest of the United States in connection with exercise of rights as a lien holder or recovery of deficiencies due under the Guaranteed Obligation, the Secretary may take such action as he determines to be appropriate under the circumstances.

(i) Nothing in this part precludes, nor shall any provision of this part be construed to preclude, the Secretary from purchasing any collateral or Holder's or other Person's interest in the Eligible Project upon foreclosure of the collateral.

(j) Nothing in this part precludes, nor shall any provision of this part be construed to preclude, forbearance by any Holder with the consent of the Secretary for the benefit of the Borrower and the United States.

(k) The Holder and the Secretary may agree to a formal or informal plan of reorganization in respect of the Borrower, to include a restructuring of the Guaranteed Obligation and other applicable debt of the Borrower on such terms and conditions as the Secretary determines are in the best interest of the United States.

§ 609.14 Preservation of collateral.

(a) If the Secretary exercises his right under the Loan Guarantee Agreement to require the holder of pledged collateral to take such actions as the Secretary (subject to any applicable Intercreditor Agreement) may reasonably require to provide for the care, preservation, protection, and maintenance of such collateral so as to enable the United States to achieve maximum recovery from the collateral, the Secretary shall, subject to compliance with the Antideficiency Act, 31 U.S.C. 1341 et seq., reimburse the holder of such collateral for reasonable and appropriate expenses incurred in taking actions required by the Secretary (unless otherwise provided in applicable agreements). Except as provided in § 609.13, no party may waive or relinquish, without the consent of the Secretary, any such collateral to which the United States would be subrogated upon payment under the Loan Guarantee Agreement.

(b) In the event of a default, the Secretary may enter into such contracts as he determines are required or appropriate, taking into account the term of any applicable Intercreditor Agreement, to care for, preserve, protect or maintain collateral pledged in respect of Guaranteed Obligations. The cost of such contracts may be charged to the Borrower.

§ 609.15 Audit and access to records.

Each Loan Guarantee Agreement and related documents shall provide that:

(a) The Eligible Lender, or DOE in conjunction with the Federal Financing Bank where loans are funded by the Federal Financing Bank or other Holder or other party servicing the Guaranteed Obligations, as applicable, and the Borrower, shall keep such records concerning the Eligible Project as are necessary, including the Application, Term Sheet, Conditional Commitment, Loan Guarantee Agreement, Credit Agreement, mortgage, note, disbursement requests and supporting documentation, financial statements, audit reports of independent accounting firms, lists of all Eligible Project assets and non-Eligible Project assets pledged in respect of the Guaranteed Obligations, all off-take and other revenue producing agreements, documentation for all Eligible Project indebtedness, income tax returns, technology agreements, documentation for all permits and regulatory approvals and all other documents and records relating to the Borrower or the Eligible Project, as determined by the Secretary, to facilitate an effective audit and performance evaluation of the Eligible Project; and

(b) The Secretary and the Comptroller General, or their duly authorized representatives, shall have access, for the purpose of audit and examination, to any pertinent books, documents, papers and records of the Borrower, Eligible Lender or DOE or other Holder or other party servicing the Guaranteed Obligation, as applicable. Such inspection may be made during regular office hours of the Borrower, Eligible Lender or DOE or other Holder, or other party servicing the Eligible Project and the Guaranteed Obligations, as applicable, or at any other time mutually convenient.

§ 609.16 Deviations.

(a) To the extent that the requirements under this part are not specified by the Act or other applicable statutes, DOE may authorize deviations from the requirements of this part upon:

(1) Either receipt from the Applicant, Borrower or Project Sponsor, as applicable, of—

(i) A written request that the Secretary deviate from one or more requirements; and

(ii) A supporting statement briefly describing one or more justifications for such deviation; or

(iii) A determination by the Secretary in his discretion to undertake a deviation;

(2) A finding by the Secretary that such deviation supports program objectives and the special circumstances stated in the request make such deviation clearly in the best interest of the Government; and

(3) If the waiver would constitute a substantial change in the financial terms of the Loan Guarantee Agreement and related documents, consultation by DOE with OMB and the Secretary of the Treasury.

(b) If a deviation under this section results in an increase in the applicable Credit Subsidy Cost, such increase shall be funded either by additional fees paid by or on behalf of the Borrower or, if an appropriation is available by means of an appropriations act. The Secretary has discretion to determine how the cost of a deviation is funded.

[FR Doc. 2016-30006 Filed 12-14-16; 8:45 am] BILLING CODE 6450-01-P
DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Part 744 [Docket No. 161110999-6999-01] RIN 0694-AH21 Addition of Certain Persons to the Entity List AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

This final rule amends the Export Administration Regulations (EAR) by adding seven persons to the Entity List. The seven persons who are added to the Entity List have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. These seven persons will be listed on the Entity List under the destination of Pakistan.

DATES:

This rule is effective December 15, 2016.

FOR FURTHER INFORMATION CONTACT:

Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482-5991, Email: [email protected]

SUPPLEMENTARY INFORMATION:

Background

The Entity List (Supplement No. 4 to part 744) identifies entities and other persons reasonably believed to be involved, or to pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States. The EAR imposes additional license requirements on, and limits the availability, of most license exceptions for, exports, reexports, and transfers (in-country) to those listed. The “license review policy” for each listed entity or other person is identified in the License Review Policy column on the Entity List and the impact on the availability of license exceptions is described in the Federal Register notice adding entities or other persons to the Entity List. BIS places entities and other persons on the Entity List pursuant to sections of part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The ERC, composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.

ERC Entity List Decisions Additions to the Entity List

This rule implements the decision of the ERC to add seven persons to the Entity List. These seven persons are being added on the basis of § 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The seven entries added to the entity list consist of seven entries in Pakistan.

The ERC reviewed § 744.11(b) (Criteria for revising the Entity List) in making the determination to add these seven persons to the Entity List. Under that paragraph, persons and those acting on behalf of such persons may be added to the Entity List if there is reasonable cause to believe, based on specific and articulable facts, that they have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States. Paragraphs (b)(1) through (5) of § 744.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States.

Pursuant to § 744.11(b) of the EAR, the ERC determined that seven persons, located in the destination of Pakistan, be added to the Entity List for actions contrary to the national security or foreign policy interests of the United States. The ERC determined that there is reasonable cause to believe, based on specific and articulable facts, that Ahad International; Engineering Solutions Pvt. Ltd.; National Engineering and Scientific Commission (NESCOM); three NESCOM subsidiaries: Air Weapons Complex (AWC), Maritime Technology Complex (MTC) and New Auto Engineering (NAE); and Universal Tooling Services, have been involved in actions contrary to the national security or foreign policy interests of the United States. These government, parastatal, and private entities in Pakistan are determined to be involved in activities that are contrary to the national security and/or foreign policy of the United States.

Pursuant to § 744.11(b) of the EAR, the ERC determined that the conduct of these seven persons raises sufficient concern that prior review of exports, reexports or transfers (in-country) of items subject to the EAR involving these persons, and the possible imposition of license conditions or license denials on shipments to the persons, will enhance BIS's ability to prevent violations of the EAR. Therefore, these seven persons are being added to the Entity List.

For the seven persons added to the Entity List, BIS imposes a license requirement for all items subject to the EAR and a license review policy of presumption of denial. The license requirements apply to any transaction in which items are to be exported, reexported, or transferred (in-country) to any of the persons or in which such persons act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to the persons being added to the Entity List in this rule. The acronym “a.k.a.” (also known as) is used in entries on the Entity List to help exporters, reexporters and transferors better identify listed persons on the Entity List.

This final rule adds the following seven persons to the Entity List:

Pakistan (1) Ahad International, Suite #5-6, 2nd Floor, Empress Tower, Empress Road, Lahore-54000, Pakistan; and11-12-13, 2nd Floor, Nomro Center, Badami Bagh, Lahore, Pakistan; (2) Air Weapons Complex (AWC), AWC: E-5, Officers Colony, Wah Cantt, Punjab, Pakistan; (3) Engineering Solutions Pvt. Ltd., 726, G-11/2. Ibne-Sina Road, Islamabad, Pakistan; (4) Maritime Technology Complex (MTC), MTC: Plot 94, Karachi, Pakistan; and MTC: System Division, PN Dockyard, Karachi, Pakistan; (5) National Engineering and Scientific Commission (NESCOM), NESCOM Head Quarter, Plot #94, Sector H-11/4, Islamabad, Pakistan; (6) New Auto Engineering (NAE), NAE: 72, Industrial Area, Peshawar Road, Rawalpindi, Pakistan; and (7) Universal Tooling Services, a.k.a., the following three aliases: —Forward Design and Manufacturing; —MSM Enterprises; and —Technopak Engineering. Deen Plaza, 68/62, Adamjee Road, Saddar P.O. Box 1640, GPO Rawalpindi, Pakistan; andG-7, Nimra Centre 7, Badami Bagh, Lahore, Pakistan; and 31/B Faisal Town, Lahore, Punjab, Pakistan; and Model Town, HMC Road, Taxila, Pakistan. Savings Clause

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport, on December 15, 2016, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR).

Export Administration Act

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 4, 2016, 81 FR 52587 (August 8, 2016), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222, as amended by Executive Order 13637.

Rulemaking Requirements

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and carries a burden estimate of 43.8 minutes for a manual or electronic submission. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to [email protected], or by fax to (202) 395-7285.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a delay in effective date are inapplicable to this rule because this regulation involves a military or foreign affairs function of the United States. (See 5 U.S.C. 553(a)(1)). BIS implements this rule to protect U.S. national security or foreign policy interests by preventing items from being exported, reexported, or transferred (in country) to the persons being added to the Entity List. If this rule were delayed to allow for notice and comment and a delay in effective date, the entities being added to the Entity List by this action would continue to be able to receive items without a license and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, publishing a proposed rule would give these parties notice of the U.S. Government's intention to place them on the Entity List and would create an incentive for these persons to either accelerate receiving items subject to the EAR to conduct activities that are contrary to the national security or foreign policy interests of the United States, and/or to take steps to set up additional aliases, change addresses, and other measures to try to limit the impact of the listing on the Entity List once a final rule was published. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

List of Subjects in 15 CFR Part 744

Exports, Reporting and recordkeeping requirements, Terrorism.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:

PART 744—[AMENDED] 1. The authority citation for 15 CFR part 744 continues to read as follows: Authority:

50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice of September 18, 2015, 80 FR 57281 (September 22, 2015); Notice of November 12, 2015, 80 FR 70667 (November 13, 2015); Notice of January 20, 2016, 81 FR 3937 (January 22, 2016); Notice of August 4, 2016, 81 FR 52587 (August 8, 2016).

2. Supplement No. 4 to part 744 is amended by adding under Pakistan, in alphabetical order, seven Pakistani entities to read as follows: Supplement No. 4 to Part 744—Entity List Country Entity License
  • requirement
  • License
  • review policy
  • Federal Register citation
    *         *         *         *         *         *         * PAKISTAN  *         *         *         *         *         * Ahad International, Suite #5-6, 2nd Floor, Empress Tower, Empress Road, Lahore-54000, Pakistan; and
  • 11-12-13, 2nd Floor, Nomro Center, Badami Bagh, Lahore, Pakistan
  • For all items subject to the EAR. (See § 744.11 of the EAR) Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 12/15/16.
    Air Weapons Complex (AWC), AWC: E-5, Officers Colony, Wah Cantt, Punjab, Pakistan For all items subject to the EAR. (See § 744.11 of the EAR) Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 12/15/16.  *         *         *         *         *         * Engineering Solutions Pvt. Ltd., 726, G-11/2. Ibne-Sina Road, Islamabad, Pakistan For all items subject to the EAR. (See § 744.11 of the EAR) Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 12/15/16.  *         *         *         *         *         * Maritime Technology Complex (MTC), MTC: Plot 94, Karachi, Pakistan; and MTC: System Division, PN Dockyard, Karachi, Pakistan For all items subject to the EAR. (See § 744.11 of the EAR) Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 12/15/16.  *         *         *         *         *         * National Engineering and Scientific Commission (NESCOM), NESCOM Head Quarter, Plot #94, Sector H-11/4, Islamabad, Pakistan For all items subject to the EAR. (See § 744.11 of the EAR) Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 12/15/16.  *         *         *         *         *         * New Auto Engineering (NAE), NAE: 72, Industrial Area, Peshawar Road, Rawalpindi, Pakistan For all items subject to the EAR. (See § 744.11 of the EAR) Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 12/15/16.  *         *         *         *         *         * Universal Tooling Services, a.k.a., the following three aliases:
  • —Forward Design and Manufacturing;
  • —MSM Enterprises; and
  • —Technopak Engineering.
  • For all items subject to the EAR. (See § 744.11 of the EAR) Presumption of denial. 81 FR [INSERT FR PAGE NUMBER], 12/15/16.
    Deen Plaza, 68/62, Adamjee Road, Saddar P.O. Box 1640, GPO Rawalpindi, Pakistan; and —G-7, Nimra Centre 7, Badami Bagh, Lahore, Pakistan; and 31/B Faisal Town, Lahore, Punjab, Pakistan; and Model Town, HMC Road, Taxila, Pakistan.  *         *         *         *         *         * *         *         *         *         *         *         *
    Dated: December 8, 2016. Kevin J. Wolf, Assistant Secretary for Export Administration.
    [FR Doc. 2016-30061 Filed 12-14-16; 8:45 am] BILLING CODE 3510-33-P
    OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE 15 CFR Part 2004 [Docket Number USTR-2016-0015] RIN 0350-AA08 Freedom of Information Act Policies and Procedures AGENCY:

    Office of the United States Trade Representative.

    ACTION:

    Final rule.

    SUMMARY:

    This rule amends the Office of the United States Trade Representative's (USTR) regulations under the Freedom of Information Act (FOIA). The final rule is a comprehensive update of the prior USTR implementing rule and describes in plain language how to make a FOIA request to USTR and how the FOIA Office processes requests for records. The FOIA rule appears in subpart B to part 2004.

    DATES:

    The final rule will become effective December 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Janice Kaye, Monique Ricker or Melissa Keppel, Office of General Counsel, United States Trade Representative, Anacostia Naval Annex, Building 410/Door 123, 250 Murray Lane SW., Washington DC 20509, [email protected]; [email protected]; [email protected], or the USTR FOIA Public Liaison at [email protected] or 202-395-3419.

    SUPPLEMENTARY INFORMATION: I. Background

    On September 23, 2016, USTR published a proposed rule to revise its existing regulations under the FOIA. See 81 FR 65586. The 60-day comment period ended on November 22, 2016. USTR received two submissions, one public comment and feedback from the U.S. Department of Justice (DoJ). The USTR rule is modeled after a template provided by DoJ. We have carefully considered both submissions and, in response, we have made several modifications to the rule, described in more detail in part II. The rule is effective upon publication to meet the requirement that we update our FOIA implementing regulation by December 30, 2016, found in section 3 of the FOIA Improvement Act of 2016. See Public Law 114-185, 130 Stat. 544 (June 30, 2016). For convenience, the entire text of the final rule is set out below.

    II. Section-by-Section Analysis

    Section 2004.1: In response to suggestions from DoJ, we have retained only the first sentence in subsection (c) to avoid inconsistencies with the foreseeable harm standard in the FOIA statute, 5 U.S.C. 552(a)(8).

    Section 2004.2: In response to suggestions from DoJ, we added “in an electronic format” after “for public inspection and copying” for consistency with the language of the FOIA statute.

    Section 2004.3: In subsection (a)(3), we combined paragraphs (i) and (ii) and eliminated the requirement for notarization to verify identity and renumbered paragraph (iii) as paragraph (ii). In subsection (b) in response to suggestions from DoJ, we eliminated paragraph (3) and clarified our suggestions for submitting a carefully tailored FOIA request so USTR can identify the records sought and expeditiously process the request.

    Section 2004.5: In response to suggestions from DoJ, we made clarifying changes in subsection (a) and eliminated the language about discretionary releases in subsection (b) to avoid any inconsistences with the statutory foreseeable harm standard, 5 U.S.C. 552(a)(8).

    Section 2004.6: In response to suggestions from DoJ, we added a reminder in subsection (a) that the response time to a FOIA request is measured in working days, not calendar days. In subsection (c) we deleted “such as” since unusual circumstances are defined by statute, 5 U.S.C. 552(a)(6)(B). We also added that when we need additional processing time, we will notify a requester of the services of our FOIA Public Liaison and the Office of Government Information Services of the National Archives and Records Administration (OGIS). We added a definition of the term “OGIS” to subpart A of part 2004.

    Section 2004.7: In response to suggestions from DoJ, we added references to the services of our FOIA Public Liaison and OGIS in subsections (c) and (d). In subsection (b), we indicated that we might ask for clarification of a FOIA request. The public comment, which suggested that we include information about the subject of the request in our response, already is included in subsection (b).

    Section 2004.9: We made several clarifying changes to the section on fees. In response to a 2016 decision (Sack v. U.S. Department of Defense, 823 F.3d 687 (D.C. Cir. 2016)), we revised the definition of “education institution” in subsection (b)(4) to include students and made conforming changes to Example 3. With respect to search fees ((paragraph (c)(1)(ii)), to provide certainty we replaced a variable fee for a set amount—$76/hour—that is a blended hourly rate for all personnel in the FOIA Office, plus 16 percent of that rate to cover benefits. In response to the public comment, we reduced the per page cost we will charge for duplicating records from 15 to 10 cents. We believe subsection (e) on aggregating requests is accurate as proposed and have made no changes. In subsection (f), we believe the $25 threshold is appropriate. When we notify a requester that fees will exceed $25, we will provide a breakdown of the fees and advise if we can readily estimate only a portion of the fee. In subsection (f)(3), we have deleted language that would have placed reformulated requests at the back of the processing queue. In response to a 2015 decision (Cause of Action v. Federal Trade Commission, 799 F.3d 1108 (D.C. Cir. 2015)), we clarified in subsection (h)(ii), that disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject and not the public-at-large.

    III. Regulatory Flexibility Act

    USTR has considered the impact of the final rule and determined that it is not likely to have a significant economic impact on a substantial number of small business entities because it is applicable only to USTR's internal operations and legal obligations. See 5 U.S.C. 601 et seq.

    IV. Paperwork Reduction Act

    The final rule does not contain any information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

    List of Subjects in 15 CFR Part 2004

    Administrative practice and procedure, Courts, Disclosure, Exemptions, Freedom of information, Government employees, Privacy, Records, Subpoenas, Testimony.

    For the reasons stated in the preamble, the Office of the United States Trade Representative is amending chapter XX of title 15 of the Code of Federal Regulations as follows:

    PART 2004—DISCLOSURE OF RECORDS AND INFORMATION Subpart B—Freedom of Information Act Policies and Procedures 1. Add the subpart B authority citation to read as follows: Authority:

    5 U.S.C. 552; 19 U.S.C. 2171(e)(3); Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 FR 10012, Mar. 27, 1987.

    2. Add §§ 2004.1 through 2004.9 to subpart B to read as follows: Sec. 2004.1 Purpose and scope. 2004.2 Proactive disclosures. 2004.3 How do I make a request for records under the FOIA? 2004.4 How will we handle confidential commercial information? 2004.5 Who is responsible for responding to your FOIA request? 2004.6 When will we respond to your FOIA request? 2004.7 What will our response to your FOIA request include? 2004.8 What can I do if I am dissatisfied with USTR's response to my FOIA request? 2004.9 Fees.
    § 2004.1 Purpose and scope.

    (a) This subpart contains the rules we follow when processing requests for records under the FOIA, a Federal law that provides a right of access to certain records and information Federal agencies maintain and control. You should read this subpart in conjunction with the text of the FOIA and the Uniform Freedom of Information Act Fee Schedule and Guidelines published by the Office of Management and Budget (OMB Guidelines). Additionally, our FOIA Reference Guide, which is available on our Web site at http://www.ustr.gov, contains information about the specific procedures for making FOIA requests and descriptions of the types of records we maintain.

    (b) To maximize the amount of information we can provide to you, we may process requests you make for records about yourself under both this subpart and subpart C to part 2004, our rules implementing the Privacy Act.

    (c) We administer the FOIA with a presumption of openness.

    § 2004.2 Proactive disclosures.

    You can access records that the FOIA requires us to make available for public inspection and copying in an electronic format through our Web site: http://www.ustr.gov. You also can find press releases, links to Federal Register notices and comments, fact sheets, speeches and remarks, reports, information about current initiatives, and historical information about U.S. trade issues. If you need assistance to locate a particular record, you can contact the Office of Public and Media Affairs at [email protected] or the FOIA Office at [email protected]

    § 2004.3 How do I make a request for records under the FOIA?

    (a) General information—(1) Where do I send my written request? To make a request for records, you should write directly to the FOIA Office. Heightened security delays mail delivery. To avoid mail delivery delays, we strongly suggest that you email your request to [email protected] Our mailing address is: FOIA Office, Office of the United States Trade Representative, Anacostia Naval Annex, Building 410/Door 123, 250 Murray Lane SW., Washington, DC 20509. To ensure that the FOIA Office receives your request without delay, you should include the notation “FOIA Request” in the subject line of your email or on the front of your envelope and also at the beginning of your request.

    (2) Security concerns. To protect our computer systems, we will not open attachments to emailed requests—you must include your request within the body of the email. We will not process email attachments.

    (3) Verifying your identity. (i) If you are making a request for records about yourself or about another individual, you may receive greater access by verifying your identity if the records are about you, or the other individual's identity if the records are about them. To verify identity, you must provide an unsworn declaration under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury. To fulfill this requirement, you must include the following statement just before the signature on your request letter:

    “I declare under penalty of perjury that the foregoing is true and correct. Executed on [date].”

    (ii) If the other individual is deceased, you should submit proof of death such as a copy of a death certificate or an obituary. As an exercise of administrative discretion, we may require that you provide additional information if necessary in order to verify that a particular individual has consented to disclosure.

    (b) How do I describe the records I want? (1) You must describe the records you seek in sufficient detail to enable USTR personnel to locate them with a reasonable amount of effort. To satisfy this requirement, you should be as detailed as possible when describing the records you seek. To the extent possible, you should include specific information that may help us identify the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. For example, we generally will ask you to clarify a request for all records related to a particular trade negotiation or agreement or a request for all communications between USTR and a particular third party. We suggest that you include a date limitation, particular topics, and if asking for correspondence, the subject matter and the relevant parties with contact information such as their email addresses.

    (2) If a request does not provide sufficient specific descriptive information for the FOIA Office reasonably to ascertain exactly which records you are requesting and to locate them, our response may be delayed. Please note that in response to a FOIA request, we are not required to create records, conduct research for you, analyze data, answer written questions, or parse your narrative to try and determine the specific records you are seeking. You can contact the FOIA Office before you submit your request for assistance in describing the records you are seeking. If we determine that your request does not reasonably describe the records sought, we will explain why we cannot process your request and ask for additional information. For example, we might ask you to clarify your request if you ask for all documents in a certain date range but do not include a specific subject matter, topic or personnel. We can help you reformulate or modify your request.

    (c) Form or format of responsive records. You can specify the preferred form or format (including electronic formats) for the records you seek. We will try to accommodate your request if the record is readily reproducible in that form or format.

    (d) Contact information. You must provide contact information, such as your phone number, email address, and mailing address, so we will be able to communicate with you about your request and provide released records. If we cannot contact you, or you do not respond within thirty calendar days to our requests for clarification, we will close your request.

    § 2004.4 How will we handle confidential commercial information?

    (a) Definitions. For purposes of this section:

    (1) Confidential commercial information means commercial or financial information that we obtain from a submitter that may be protected from disclosure under exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).

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

    (b) How does a submitter designate confidential commercial information? At the time of submission, the submitter of confidential commercial information must use good faith efforts to designate by appropriate markings any portion of its submission that it considers to be protected from disclosure under exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). These designations expire ten years after the date of the submission unless the submitter requests and provides justification for a longer designation period.

    (c) When will we notify a submitter? (1) We promptly will notify the submitter of confidential commercial information in writing whenever we receive a FOIA request or appeal for records containing such information if we determine that we may have to disclose the records, provided:

    (i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under exemption 4 of the FOIA, 5 U.S.C. 552(b)(4); or

    (ii) We have reason to believe that the requested information may be protected from disclosure exemption 4 of the FOIA, 5 U.S.C. 552(b)(4), but have not yet determined whether the information is protected from disclosure under that exemption or any other applicable FOIA exemption.

    (2) Our notice either will describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, we may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure without publicly disclosing the records, instead of sending individual notifications.

    (3) We promptly will notify the submitter whenever a requester files a lawsuit seeking to compel the disclosure of the submitter's confidential commercial information.

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

    (1) We determine that the information is exempt under the FOIA, and therefore will not be disclosed;

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

    (3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987, Predisclosure notification procedures for confidential commercial information; or

    (4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, we will give the submitter written notice of any final decision to disclose the information and a reasonable time period within which to object to disclosure under paragraph (e) of this section.

    (e) How can a submitter object to disclosure? (1) If a submitter has any objections to disclosure, it should provide to us within the period listed in the notice a detailed written statement that specifies all grounds for withholding the particular information under any FOIA exemption. In order to rely on exemption 4 as a basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential.

    (2) A submitter who does not respond within the time period specified in the notice will be considered to have no objection to disclosure of the information. We will not consider any information we receive after the date of any disclosure decision. Any information provided by the submitter under this section may itself be subject to disclosure under the FOIA.

    (f) Analysis of objections. We will consider the submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.

    (g) Notice of intent to disclose. We will notify the submitter whenever we decide to disclose information over the submitter's objection. Our written notice will include:

    (1) A statement of the reasons why we did not sustain each of the submitter's disclosure objections;

    (2) A description of the information to be disclosed or copies of the records as we intend to release them; and

    (3) A specified disclosure date, which will be a reasonable time after the notice.

    (h) When will we notify a requester? We will notify the requester whenever we provide the submitter with notice and an opportunity to object to disclosure; whenever we notify the submitter of our intent to disclose the requested information; and whenever the submitter files a lawsuit to prevent the disclosure of the information.

    § 2004.5 Who is responsible for responding to your FOIA request?

    (a) In general. The FOIA Office is authorized to grant or to deny any requests for agency records that USTR maintains. In determining which records are responsive to a request, we ordinarily will include only the agency records in our possession as of the date that we begin our search. We will notify you if we use any other date.

    (b) Consultation, referral and coordination. If we believe that another Federal agency is better able to determine whether a record we locate in response to your request is exempt from disclosure under the FOIA, then we will proceed in one of the following ways:

    (1) Consultation. When records originated with USTR but contain within them information of significance to another Federal agency or office, we typically consult with that other entity prior to making a release determination.

    (2) Referral. If we believe that a different Federal agency is best able to determine whether to disclose the record, we typically refer responsibility for responding to the request regarding that record to that agency. Ordinarily, the agency that originated the record is presumed to be the best agency to make the disclosure determination. Whenever we refer any part of the responsibility for responding to a request to another agency, we will notify you of the referral, including the name of the agency and that agency's FOIA contact information.

    (3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the Federal agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if a non-law enforcement agency responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if an agency locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, in order to avoid harm to an interest protected by an applicable exemption, we will coordinate with the originating agency to seek its views on disclosure of the record. We then will notify you of the release determination for the record that is the subject of the coordination.

    (c) Classified information. On receipt of any request involving classified information, we will determine whether the information is currently and properly classified. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another Federal agency, we will refer responsibility for responding to the request regarding that information to the agency that classified the information, or that should consider the information for classification. Whenever an agency's record contains information that has been derivatively classified (for example, when it contains information classified by another agency), we will refer responsibility for responding to that portion of the request to the agency that classified the underlying information.

    (d) Timing of responses to consultations and referrals. We will handle all consultations and referrals we receive according to the date that the first agency received the perfected FOIA request.

    (e) Agreements regarding consultations and referrals. We may establish agreements with other agencies to eliminate the need for consultations or referrals with respect to particular types of records.

    § 2004.6 When will we respond to your FOIA request?

    (a) In general. We ordinarily will respond to a request within twenty working days based on the order in which we receive the request. We may toll the twenty-day period if we need additional information from you in order to process the request or need to clarify fee assessment issues.

    (b) Multitrack processing. We use a multitrack processing system that distinguishes between simple and more complex requests based on the estimated amount of work or time we need to process the request. Among the factors we consider are the number of records requested, the number of pages involved in processing the request, and the need for consultations or referrals. We will tell you if we place your request into other than the simple track, and if appropriate, we will offer you an opportunity to narrow or modify your request so that it can be placed in a different processing track.

    (c) Unusual circumstances—(1) What is an unusual circumstance? We will notify you if we extend the twenty-day period for processing your request. The notice will include the unusual circumstances—the need to search for and collect the requested records from separate offices or facilities, a request that involves a voluminous amount of separate and distinct records, or the need for consultation, and the date by which we estimate we will complete processing your request. If the extension exceeds ten days, we will give you the opportunity to modify your request or arrange an alternative time period for processing the original or modified request. If you need assistance, you can contact our FOIA Public Liaison at [email protected], or OGIS at [email protected]

    (2) Aggregating requests. We may aggregate requests if it reasonably appears that multiple requests submitted either by a single requester or by a group of requesters acting in concert, involve related matters and constitute a single request that otherwise would involve unusual circumstances. For example, we may aggregate multiple requests for similar information filed within a short period of time.

    (d) Expedited processing—(1) How do I request expedited processing? When you submit your request or appeal, you can ask us to expedite processing. If you seek expedited processing, you must submit a statement, certified to be true and correct, explaining in detail the basis for your expedited processing request.

    (2) When will we grant expedited processing? We will process requests and appeals on an expedited basis if we determine that:

    (i) Failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;

    (ii) With respect to a request made by a person primarily engaged in disseminating information, there is an urgency to inform the public about the specific government activity that is the subject of the request or appeal that extends beyond the public's right to know about government activity generally;

    (iii) An individual will suffer the loss of substantial due process rights; or

    (iv) the subject is of widespread and exceptional media interest and the information sought involves possible questions about the government's integrity that affect public confidence.

    (3) When will we respond to your request for expedited processing? We will notify you within ten calendar days of the receipt of a request for expedited processing of our decision whether to grant or deny expedited processing. If we grant your request, we will give your request or appeal priority, place it in the processing track for expedited requests, and process it as soon as practicable. If we deny your request, we will process any appeal of that decision expeditiously.

    § 2004.7 What will our response to your FOIA request include?

    (a) In general. We will notify you in writing of our determination regarding your request. To the extent practicable, we will communicate with you electronically.

    (b) Acknowledgement of requests. We will acknowledge your request in writing, including a brief description of the records you are seeking, and assign an individualized tracking number. If we think that we will be unable to make a determination on your request within twenty days, we will send an acknowledgment within ten days and we may ask you to clarify your request or arrange for a longer period for processing.

    (c) Granting requests. If we decide to grant your request in full or in part, our response will include the records we are disclosing unless we have assessed fees under § 2004.9. If your request involves a voluminous amount of material or searches in multiple locations, we may provide interim responses, releasing the records on a rolling basis. If we assessed fees, we will disclose the records promptly upon payment. If you need assistance, you can contact our FOIA Public Liaison at [email protected], or OGIS at [email protected]

    (d) Adverse determinations of requests—(1) What is an adverse determination? Adverse determinations, or denials of requests, include decisions that: the requested record is exempt in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing.

    (2) Our response. If we make an adverse determination denying your request in any respect, our response will include:

    (i) The name and title or position of the person responsible for the determination;

    (ii) A brief statement of the reasons for the denial, including any FOIA exemption(s) we applied;

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

    (iv) Information about our FOIA Public Liaison and the mediation services provided by OGIS; and

    (iv) Your right to appeal our decision under § 2004.8.

    (3) Markings on released documents. If technically feasible, we will clearly mark records that we are disclosing in part to indicate the location and show the amount of information deleted and the exemption under which the deletion was made unless doing so would harm an interest protected by an applicable exemption.

    § 2004.8 What can I do if I am dissatisfied with USTR's response to my FOIA request?

    (a) How do I make an appeal?—(1) What can I appeal? You can appeal any adverse determination in writing to our FOIA Appeals Committee within ninety calendar days after the date of our response. Examples of adverse determinations are provided in § 2004.7(d). You should specify the records that are the subject of your appeal and explain why the Committee should sustain the appeal.

    (2) Where do I send my appeal? To avoid mail delivery delays caused by heighted security, we strongly suggest that you email any appeal to [email protected] Our mailing address is: FOIA Office, Office of the United States Trade Representative, Anacostia Naval Annex, Building 410/Door 123, 250 Murray Lane SW., Washington DC 20509. To make sure that the FOIA Office receives your appeal without delay, you should include the notation “Freedom of Information Act Appeal” and the individualized tracking number in the subject line of your email or on the front of your envelope and also at the beginning of your appeal.

    (b) Who will decide your appeal? (1) The FOIA Appeals Committee or designee will act on all appeals under this section.

    (2) We ordinarily will not adjudicate an appeal if the request becomes a matter of FOIA litigation.

    (3) On receipt of any appeal involving classified information, the FOIA Appeals Committee must take appropriate action to ensure compliance with applicable classification rules.

    (c) Decisions on appeals. The FOIA Appeals Committee will notify you of its appeal decision in writing within twenty days from the date it receives the appeal. A decision that upholds the FOIA Office's determination in whole or in part will identify the reasons for the affirmance, including any FOIA exemptions applied, and notify you of your statutory right to seek judicial review. The notice also will inform you of the mediation services offered by OGIS as a non-exclusive alternative to litigation. If the FOIA Appeals Committee remands or modifies the original response, the FOIA Office will further process the request in accordance with the appeal determination and will respond directly to you.

    (d) When appeal is required. Before seeking review by a court of an adverse determination, you generally first must submit a timely administrative appeal under this section.

    § 2004.9 Fees.

    (a) In general. We will assess a fee to process your FOIA request in accordance with the provisions of this section and the OMB Guidelines. For purposes of assessing fees, the FOIA establishes three categories of requesters: Commercial use requesters, non-commercial scientific or educational institutions or news media requesters, and all other requesters. Different fees are assessed depending on the category. You can seek a fee waiver, which we will consider in accordance with the requirements in paragraph (h) of this section. We will contact you to resolve any fee issues that arise under this section. We will conduct searches, review and duplication in the most efficient and least expensive manner. We ordinarily will collect all applicable fees before sending copies of records to you. You must pay fees by check or money order made payable to the Treasury of the United States.

    (b) Definitions. For purposes of this section:

    (1) Commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade or profit interest, which can include furthering those interests through litigation. Our decision to place you in the commercial use category will be made on a case-by-case basis based on your intended use of the information. We will notify you of your placement in this category.

    (2) Direct costs are the expenses we incur in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order to respond to your FOIA request. For example, direct costs include the salary of the employee performing the work (i.e., the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space and of heating or lighting a facility.

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

    (4) Educational institution is any school that operates a program of scholarly research. You must show that your FOIA request is made in connection with your role at the educational institution. We may seek verification that you are seeking the records to further scholarly research and not for a commercial use. To fall within this fee category, your request must serve the scholarly research goals of the institution rather than an individual research goal. We will advise you of your placement in this category.

    Example 1.

    We would presume that a request from a professor of economics for records relating to the economic effects of a trade agreement, written on letterhead of the university's department of economics, is a request from an educational institution.

    Example 2.

    We would not presume that a request from the same professor of economics seeking drug information from the Food and Drug Administration in furtherance of a murder mystery he is writing is a request from an educational institution, regardless of whether it was written on institutional stationery.

    Example 3.

    We would presume that a request from a student in furtherance of their coursework or other school-sponsored activities evidenced by a course syllabus or other reasonable documentation indicating the research purpose for the request would qualify as part of this fee category.

    (5) Noncommercial scientific institution is an institution that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry and not on a commercial basis, as defined in paragraph (b)(1) of this section. To fall within this fee category, you must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records you seek are to further scientific research and not for a commercial use. We will advise you of your placement in this category.

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

    (7) Review is the examination of a record located in response to a request in order to determine if any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including redacting the record and marking the appropriate exemptions. Review costs are properly charged even if we ultimately do not disclose a record. Review time also includes time spent both obtaining and considering any formal objection to disclosure a confidential commercial information submitter makes under § 2004.4, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.

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

    (c) Charging fees. In responding to FOIA requests, we will charge the following fees unless we granted a waiver or reduction of fees under paragraph (h) of this section, or the total fee to be charged is less than $25. If we do not meet the time limits for responding to your request, and if no unusual circumstance described in § 2004.6(c) applies, we will not assess fees.

    (1) Search. (i) We will not assess any search fees for processing requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media. For all other requesters, we will charge for time spent searching even if we do not locate any responsive records or if we determine that the records are entirely exempt from disclosure. We will provide two hours of free search time except for requesters seeking records for a commercial use.

    (ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, we will charge $76/hour, which is a blended hourly rate for all personnel in the FOIA Office, plus 16 percent of that rate to cover benefits.

    (iii) We will charge the direct costs if it is necessary to create a new computer program to locate the requested records. We will notify you of the costs associated with creating such a program, and you must agree to pay the associated costs before we build the program.

    (iv) If your request requires the retrieval of records stored at a Federal records center, we will charge additional costs in accordance with the Transactional Billing Rate Schedule established by the National Archives and Records Administration.

    (2) Duplication. We will charge duplication fees to all requesters. We will honor your preference for receiving a record in a particular form or format if we can readily reproduce it in the form or format requested. If we provide photocopies, we will make one copy per request at the cost of $.10 per page. For copies of records produced on tapes, disks or other media, we will charge the direct costs of producing the copy, including operator time. Where we must scan paper documents in order to comply with your preference to receive the records in an electronic format, we will charge you the direct costs associated with scanning those materials. For other forms of duplication, we will charge the direct costs. We will provide the first 100 pages of duplication (or the cost equivalent for other media) without charge except for requesters seeking records for a commercial use.

    (3) Review. We will charge review fees to requesters who make commercial use requests. We will assess review fees in connection with the initial review of the record, i.e., the review we conduct to determine if an exemption applies to a particular record or portion of a record. We will not charge for review at the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed no longer to apply, any costs associated with re-review of the records in order to consider the use of other exemptions may be assessed as review fees. We will charge review fees at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section.

    (d) Other charges—(1) Special services. We will charge you the direct cost of providing any special services you request, such as sending records by express mail, certifying that records are true copies, or providing multiple copies of the same document.

    (2) Interest. We may assess interest charges on any unpaid fees starting on the 31st day following the day on which we sent the bill to you at the rate prescribed in Interest and Penalty on Claims, 31 U.S.C. 3717.

    (e) Aggregating requests. We may aggregate separate FOIA requests for the purpose of assessing fees when we reasonably believe that a requester or a group of requesters acting in concert, is dividing a request into a series of requests for the purpose of avoiding or minimizing fees. For example, we may aggregate multiple requests for similar information filed within a short period of time.

    (f) If we anticipate fees will exceed $25. Unless you have indicated in advance a willingness to pay fees as high as anticipated, we will notify you if we estimate that charges will exceed $25 including a breakdown of the fees for search, review or duplication and whether applicable entitlements to duplication and search at no charge have been provided. We will advise you if we can readily estimate only a portion of the fee.

    (1) We will not process your request until you either commit in writing to pay the actual or estimated total fee, or designate some amount of fees you are willing to pay. If you are a noncommercial use requester and we have not yet provided your statutory entitlements (i.e., two hours of search time and 100 free pages), you can tell us to stop when we exhaust the statutory entitlements. We will start the twenty-day response clock when we receive your written reply.

    (2) If you agree to pay some designated amount of fees, but we estimate that the total fee will exceed that amount, we will toll processing when we notify you of the estimated fees in excess of the amount you had indicated a willingness to pay. When we receive your written commitment to pay the actual or estimated total fee, or designate an additional amount of fees you are willing to pay, we will restart the processing clock.

    (3) If you decide to reformulate your request to reduce costs, you can contact USTR's FOIA Public Liaison at [email protected] for assistance.

    (4) We will close your request if you do not respond in writing within thirty calendar days after the date we notify you of the fee estimate.

    (g) Advance payments. (1) If we determine or estimate that the total fee will exceed $250, we may require you to make an advance payment up to the amount of the entire anticipated fee before we begin to process your request.

    (2) If you previously failed to pay a properly charged FOIA fee to any Federal agency within thirty calendar days of the billing date, we may require proof that you paid the full amount due, plus any applicable interest on that prior request, and that you make an advance payment to us of the full amount of any anticipated fee before we begin to process a new request or continue to process a pending request or any pending appeal. If we have a reasonable basis to believe that you have misrepresented your identity in order to avoid paying outstanding fees, we may require you to provide proof of identity.

    (3) If we require advance payment, we will not consider your request received and will not do any additional work until we receive the required payment. We will close your request if you do not pay the advance payment within thirty calendar days after the date of our fee determination.

    (h) Requirements for waiver or reduction of fees. (1) You can seek a fee waiver or reduction by explaining in writing how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in your commercial interest. In determining whether to waive or reduce a fee we will consider whether disclosure of the requested information would:

    (i) Shed light on the operations or activities of the government. The subject of the request must specifically concern identifiable operations or activities of the Federal government with a connection that is direct and clear, not remote or attenuated.

    (ii) Likely contribute significantly to public understanding of those operations or activities. Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding. The disclosure must contribute to the understanding of a reasonably broad audience interested in the subject. We will consider your expertise in the subject area as well as your ability and intention to effectively convey information to the public.

    (iii) Primarily advance your commercial interests. For example, we ordinarily presume that the public's interest is greater than the requester's commercial interest when we receive a request from a representative of the news media. We will not presume that disclosure to data brokers or others who merely compile and market government information for direct economic return primarily serves the public interest.

    (2) We will grant a partial waiver when only some of the records to be released satisfy the requirements in this section.

    (3) You should include your fee waiver or reduction request when you first submit your FOIA request to us. You can submit a fee waiver or reduction request at a later time so long as the underlying record request is pending or on administrative appeal. If you already committed to pay fees and subsequently request a waiver of those fees that we deny, you must pay any costs incurred up to the date the fee waiver request was received.

    Janice Kaye, Chief Counsel for Administrative Law, Office of the U.S. Trade Representative.
    [FR Doc. 2016-29985 Filed 12-14-16; 8:45 am] BILLING CODE 3290-F7-P
    DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers 33 CFR Part 334 United States Navy Restricted Area, SUPSHIP USN, Gulf Coast, Pascagoula, Mississippi AGENCY:

    U.S. Army Corps of Engineers, DoD.

    ACTION:

    Final rule.

    SUMMARY:

    The U.S. Army Corps of Engineers (Corps) is establishing a restricted area around the Huntington Ingalls Incorporated/Ingalls Shipbuilding and Dry Dock (HII) facility located in Pascagoula Mississippi, because of the sensitive nature of the on-going and potential future activities at that facility. The Supervisor of Shipbuilding, Conversion and Repair, Gulf Coast, located in Pascagoula, Mississippi is responsible for United States Navy shipbuilding activities at the HII facility, USA located in Pascagoula, Mississippi. The restricted area will be used for on-going construction when vessels are placed in the water. The restricted area is essential to protect persons and property from the dangers associated with the operation and safeguard the area from accidents, sabotage and other subversive acts.

    DATES:

    Effective date: January 17, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Mr. David Olson, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202-761-4922, or Mr. Philip Hegji, Corps of Engineers, Mobile District, Regulatory Division, at 251-690-3222 or by email at [email protected]

    SUPPLEMENTARY INFORMATION: Background

    Pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat 892; 33 U.S.C. 3), the Corps of Engineers is establishing a restricted area around the Huntington Ingalls Incorporated/Ingalls Shipbuilding and Dry Dock (HII) facility located in Pascagoula Mississippi, due to the sensitive nature of the on-going and potential future activities at that facility.

    The proposed rule was published in the August 18, 2014 issue of the Federal Register (79 FR 48716; docket number COE-2014-0008). Comments were received from one commenter in response to the Federal Register document and the Corps of Engineers Mobile District's local public notice. The commenter objected to the size of the restricted area. The commenter was concerned that depending on the size/configuration of vessels in the navigational channel and river conditions some vessels might end up operating within the outer limits of the restricted area.

    HII amended the restricted area to a smaller more easily avoided configuration.

    Procedural Requirements a. Review Under Executive Order 12866

    This final rule is issued with respect to a military function of the Defense Department and the provisions of Executive Order 12866 do not apply.

    b. Review Under the Regulatory Flexibility Act

    This final rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354). The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities (i.e., small businesses and small governments). The restricted area is necessary for security of this shipbuilding and dry dock facility. Small entities can utilize navigable waters outside of the restricted area. After considering the economic impacts of this final restricted area regulation on small entities, I certify that this action will not have a significant impact on a substantial number of small entities.

    c. Review Under the National Environmental Policy Act

    Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps determined that this amendment to the regulation will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement is not required. An environmental assessment was prepared after the public notice period closed and all comments received from the public were considered. The environmental assessment may be viewed at the District office listed at the end of the FOR FURTHER INFORMATION CONTACT section, above.

    d. Unfunded Mandates Act

    This rule does not impose an enforceable duty among the private sector and, therefore, it is not a Federal private sector mandate and it is not subject to the requirements of either Section 202 or Section 205 of the Unfunded Mandates Act. We have also found under Section 203 of the Act, that small governments will not be significantly and uniquely affected by this rulemaking.

    List of Subjects in 33 CFR Part 334

    Danger zones, Marine safety, Navigation (water), Restricted areas, Waterways.

    For the reasons set out in the preamble, the Corps amends 33 CFR part 334 as follows:

    PART 334—DANGER ZONE AND RESTRICTED AREA REGULATIONS 1. The authority citation for 33 CFR Part 334 continues to read as follows: Authority:

    40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 U.S.C. 3).

    2. Add § 334.781 to read as follows:
    § 334.781 Supervisor of Shipbuilding, Conversion and Repair Gulf Coast, Pascagoula, Mississippi; naval restricted area.

    (a) The area. The datum for all coordinates is in NAD83 in accordance with 33 CFR 334.6. The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, contiguous to the area identified as the Huntington Ingalls Incorporated/Ingalls Shipbuilding and Dry Dock (HII) facility and the mean high water level within an area contained in an “L” shaped area bounded by the shore on the west and north ends of the area and bounded by buoys on the east and south sides of the area starting at: Latitude N. 30°21.13′ longitude W. 88°34.13′, thence to Latitude N. 30°21.08′ longitude W. 88°34.13′, thence to Latitude N. 30°21.03′ longitude W. 88°34.13′, thence to Latitude N. 30°20.98′ longitude W. 88°34.13′, thence to Latitude N. 30°20.93′ longitude W. 88°34.13′, thence to Latitude N. 30°20.88′, longitude W. 88°34.13′, thence to Latitude N. 30°20.83′ longitude W. 88°34.13′, thence to Latitude N. 30°20.78′ longitude W. 88°34.13′, thence to Latitude N. 30°20.73′ longitude W. 88°34.13′, thence to Latitude N. 30°20.68′ longitude W. 88°34.13′, thence to Latitude N. 30°20.63′ longitude W. 88°34.13′, thence to Latitude N. 30°20.64′ longitude W. 88°34.10′, thence to Latitude N. 30°20.64′ longitude W. 88°34.25′, thence to Latitude N. 30°20.64′ longitude W. 88°34.33′, thence to Latitude N. 30°20.64′ longitude W. 88°34.41′, thence to Latitude N. 30°20.59′ longitude W. 88°34.47′, thence to Latitude N. 30°20.59′ longitude W. 88°34.51′, thence to Latitude N. 30°20.59′ longitude W. 88°34.57′, thence to Latitude N. 30°20.59′ longitude W. 88°34.63′, thence to Latitude N. 30°20.59′ longitude W. 88°34.70′, thence to Latitude N. 30°20.64′ longitude W. 88°34.75′, thence to Latitude N. 30°20.64′ longitude W. 88°34.82′, thence to Latitude N. 30°20.64′ longitude W. 88°34.87′, thence to Latitude N. 30°20.71′ longitude W. 88°34.87′. The datum for these coordinates is WGS84.

    (b) The regulations. (1) All persons, swimmers, vessels and other craft, except those vessels under the supervision or contract to local military or Naval authority, vessels of the United States Coast Guard, and local or state law enforcement vessels, are prohibited from entering the restricted area without permission from the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulfcoast or his/her authorized representative.

    (2) The restricted area is in effect twenty-four hours per day and seven days a week (24/7).

    (3) Should warranted access into the restricted navigation area be needed, all entities are to contact the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulf Coast, Pascagoula, Mississippi, or his/her authorized representative on Marine Communication Channel 16.

    (c) Enforcement. The regulation in this section shall be enforced by the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulf Coast and/or such agencies or persons as he/she may designate.

    Dated: December 1, 2016. Susan S. Whittington, Chief, Operations and Regulatory Division, Directorate of Civil Works.
    [FR Doc. 2016-30015 Filed 12-14-16; 8:45 am] BILLING CODE 3720-58-P
    DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Part 219 RIN 0596-AD28 National Forest System Land Management Planning AGENCY:

    Forest Service, USDA.

    ACTION:

    Final rule.

    SUMMARY:

    The U.S. Department of Agriculture is amending regulations pertaining to the National Forest System Land Management Planning. This final rule amends the 2012 rule and is intended to clarify the Department's direction for plan amendments, including direction for amending land management plans developed under the 1982 rule.

    DATES:

    This rule is effective January 17, 2017.

    ADDRESSES:

    For more information, refer to the World Wide Web/Internet at: http://www.fs.usda.gov/planningrule. More information may be obtained on written request from the Director, Ecosystem Management Coordination Staff, Forest Service, USDA Mail Stop 1104, 1400 Independence Avenue SW., Washington, DC 20250-1104.

    FOR FURTHER INFORMATION CONTACT:

    Ecosystem Management Coordination staff's Assistant Director for Planning Andrea Bedell Loucks at 202-295-7968 or Planning Specialist Regis Terney at 202-205-1552.

    SUPPLEMENTARY INFORMATION:

    The Forest Service proposed changing the existing land management planning rule to clarify the amendment process for land management plans. The proposed rule to amend the 2012 rule (hereafter referred to as the proposed rule) was published in the Federal Register on October 12, 2016, at 81 FR 70381.

    Background

    The National Forest Management Act (NFMA) requires the Forest Service to develop land management plans to guide management of the 154 national forests, 20 grasslands, and 1 prairie that comprise the 193 million acre National Forest System (NFS). 16 U.S.C. 1604.

    The NFMA required the Secretary of Agriculture to develop a planning rule “under the principles of the Multiple-Use Sustained-Yield Act of 1960, that set[s] out the process for the development and revision of the land management plans, and the guidelines and standards” (16 U.S.C. 1604(g)). Compliance with this requirement has had a long history, culminating in the current land management planning rule issued April 9, 2012 (77 FR 22160, codified at title 36, Code of Federal Regulations, part 219 (36 CFR part 219)) (hereinafter referred to as the 2012 rule).

    In 1979, the U.S. Department of Agriculture (Department) issued the first regulations to comply with this statutory requirement. The 1979 regulations were superseded by the 1982 planning rule (hereinafter referred to as the 1982 rule).

    Numerous efforts were made over the past three decades to improve on the 1982 rule. On November 9, 2000, the Department issued a new planning rule that superseded the 1982 rule (65 FR 67514). Shortly after the issuance of the 2000 rule, a review of the rule found that it would be unworkable and recommended that a new rule should be developed. The Department amended the 2000 rule so that the Forest Service could continue to use the 1982 rule provisions until a new rule was issued (67 FR 35431, May 20, 2002). Attempts to replace the 2000 rule, in 2005 and 2008, were set aside by the courts on procedural grounds, with the result that the 2000 rule remained in effect. In 2009, the Department reinstated the 2000 rule in the Code of Federal Regulations to eliminate any confusion over which rule was in effect (74 FR 67062, December 18, 2009; 36 CFR part 219, published at 36 CFR parts 200 to 299, revised as of July 1, 2010). In reinstating the 2000 rule in the CFR, the Department specifically provided for the continued use of the 1982 rule provisions, which the Forest Service used for all land management planning done under the 2000 rule. The 1982 rule procedures have therefore formed the basis of all existing Forest Service land management plans.

    In 2012, after extensive public engagement, the Department issued a new planning rule to update the thirty-year old 1982 rule. The 2012 rule sets forth directions for developing, amending, revising, and monitoring land management plans (77 FR 21260, April 9, 2012). The 2012 rule is available online at https://www.thefederalregister.org/fdsys/pkg/CFR-2013-title36-vol2/pdf/CFR-2013-title36-vol2-part219.pdf.

    On February 6, 2015, the Forest Service issued National Forest System Land Management Planning Directives for the 2012 Planning Rule (planning directives; see 80 FR 6683). The planning directives are the Forest Service Handbook (FSH) 1909.12 and Forest Service Manual (FSM) Chapter 1920, which together establish procedures and responsibilities for carrying out the 2012 rule. The planning directives are available online at http://www.fs.fed.us/im/directives/.

    After the issuance of the 2012 rule, the Secretary of Agriculture chartered a Federal Advisory Committee (Committee) to assist the Department and the Forest Service in implementing the new rule. The Committee has been rechartered twice. The Committee has consistently been made up of 21 diverse members who provide balanced and broad representation on behalf of the public; State, local, and tribal governments; the science community; environmental and conservation groups; dispersed and motorized recreation users; hunters and anglers; private landowners; mining, energy, grazing, timber, and other user groups; and other public interests. The Committee has convened regularly since 2012 to provide the Department and Forest Service with recommendations on implementation of the 2012 rule, including recommendations on the planning directives, assessments, and on lessons learned from the first forests to begin revisions and amendments under the 2012 rule. More information about the Committee's membership and work is available online at http://www.fs.usda.gov/main/planningrule/committee.

    The 2012 Rule and Plan Amendments

    There are 127 land management plans for the administrative units of the NFS, all developed using the 1982 rule procedures. Sixty-eight of the 127 land management plans are past due for revision: most were developed between 1983 and 1993 and should have been revised between 1998 and 2008, based on NFMA direction to revise plans at least once every 15 years (16 U.S.C. 1604(f)(5)). The repeated efforts to produce a new planning rule over the past decades contributed to the delay in plan revisions. An additional challenge was that instead of amending plans as conditions on the ground changed, responsible officials often waited to make changes all at once during a plan revision, resulting in a drawn-out, difficult, and costly revision process.

    In promulgating the 2012 rule, the Department intended to create a more efficient and effective planning process. The planning framework set forth in the 2012 rule includes three phases: Assessment; plan development, amendment, or revision; and monitoring. The 2012 rule supports an integrated approach to the management of resources and uses, incorporates a landscape-scale context for management, and is intended to help the Forest Service adapt to changing conditions and improve management based on new information and monitoring.

    The concept of adaptive management is an integral part of the 2012 rule. Recognizing that adaptive management requires a more responsive and iterative approach to modifying land management plans to reflect new information, the Department's intent when developing the 2012 rule was for the planning framework to encourage and support the more regular use of amendments to update plans between revisions. More frequent amendments should also make the revision process less cumbersome because plans will not become as out-of-date between revisions.

    Plans may be amended at any time. The 2012 rule provides that a plan amendment is required to add, modify, or remove one or more plan components, or to change how or where one or more plan components apply to all or part of the plan area (including management areas or geographic areas).

    The 2012 rule included a 3-year transition period during which responsible officials could use either the 2012 rule or the 1982 rule procedures to amend plans approved or revised under the 1982 rule procedures (36 CFR 219.17(b)(2)). The 3-year transition period expired on May 9, 2015, and all plan amendments now must be approved under the requirements of the 2012 rule.

    In 2014, the Forest Service began to use the 2012 rule to amend a number of existing land management plans, all of which were developed using the 1982 rule procedures (2012 rule amendments to 1982 rule plans). Currently amendments to 43 Forest Service land management plans are pending. As the Forest Service gained some experience with the process for making 2012 rule amendments to 1982 rule plans and discussed with the Committee early lessons learned, the Committee recommended additional clarity on how to apply the 2012 rule's substantive requirements (requirements related to sustainability, plant and animal diversity, multiple uses and timber set forth within 36 CFR 219.8 through 219.11) when amending 1982 rule plans.

    While the 2012 rule includes direction specific to amendments, and while there is evidence of the Department and Forest Service's intent in rule wording, preamble text, and planning directives, the 2012 rule did not explicitly direct how to apply the substantive requirements set forth in the 2012 rule when amending 1982 rule plans. Using the 2012 rule to amend 1982 rule plans can be a challenge because there are fundamental structural and content differences between the two rules. Because of the underlying differences, 1982 rule plans likely will not meet all of the substantive requirements of the 2012 rule. It is therefore important for the Department to clarify how responsible officials should apply the substantive requirements of the 2012 rule when amending 1982 rule plans in a way that reflects Departmental expectations.

    While plans developed or revised under the 2012 rule will be expected to meet all of the 2012 rule's substantive requirements at the time those plans are approved, clarity in how to apply the 2012 rule to amend those plans in the future will also be important.

    This final rule amending the 2012 rule (hereinafter referred to as the final rule) is intended to clarify the Department's direction for plan amendments, including direction for amending 1982 rule plans. These clarifications reflect NFMA requirements; the Department's intent and the plain wording of the 2012 rule, the preambles for the proposed and final 2012 rule, and the planning directives implementing the 2012 rule; feedback from the Committee; public comments; and Forest Service planning expertise.

    Applying the 2012 Rule To Amend Plans

    Plans are changed in two distinctly different ways. The NFMA requires revisions “when conditions in a unit have significantly changed,” and “at least every 15 years” (16 U.S.C. 1604(f)(5)). As the 2012 rule states, “[a] plan revision creates a new plan for the entire plan area, whether the plan revision differs from the prior plan to a small or large extent” (36 CFR 219.7(a)). The process for a plan revision requires, among other things, preparation of an environmental impact statement (36 CFR 219.7(c)).

    The NFMA also provides that “plans can be amended in any manner whatsoever” (16 U.S.C. 1604(f)(4)). As the Department explained in the preamble to the 2012 rule, “[p]lan amendments incrementally change the plan as need arises.” (77 FR 21161, 21237, April 9, 2012) (emphasis added). Unlike a plan revision, a plan amendment does not create a new plan; it results in an amended plan, with the underlying plan retained except where changed by the amendment. The Department explained its intent that with the 2012 rule, “plans will be kept more current, effective and relevant by the use of more frequent and efficient amendments, and administrative changes over the life of the plan, also reducing the amount of work needed for a full revision” (Id.).

    The 2012 rule provides that, “[t]he responsible official has the discretion to determine whether and how to amend the plan.” (36 CFR 219.13(a)). The 2012 rule reinforces this discretion by providing that the rule “does not compel a change to any existing plan, except as required in § 219.12(c)(1)” (which establishes monitoring requirements). (36 CFR 219.17(c)).

    Under the 2012 rule, “[p]lan amendments may be broad or narrow, depending on the need for change” (36 CFR 219.13(a)); and amendments “could range from project specific amendments or amendments of one plan component, to the amendment of multiple plan components.” (77 FR 21161, 21237, April 9, 2012). Unlike for a plan revision, the 2012 rule does not require an environmental impact statement for every amendment; such a requirement would be burdensome and unnecessary for amendments without significant environmental effect, and “would also inhibit the more frequent use of amendments as a tool for adaptive management to keep plans relevant, current and effective between plan revisions.” (Preamble to final rule, 77 FR 21161, 21239, April 9, 2012). Instead, the 2012 rule provides that “[t]he appropriate NEPA documentation for an amendment may be an environmental impact statement, an environmental assessment, or a categorical exclusion, depending upon the scope and scale of the amendment and its likely effects.” (36 CFR 219.13(b)(3)).

    The 2012 rule gives responsible officials the discretion, within the framework of the 2012 rule's requirements, to tailor the scope and scale of an amendment to reflect the need to change the plan. No individual amendment is required to do the work of a revision. While the 2012 rule sets forth a series of substantive requirements for land management plans within §§ 219.8 through 219.11, not every section or requirement within those sections will be directly related to the scope and scale of a given amendment. Although the Department recognizes that resources and uses are connected, the Department does not expect an individual plan amendment to do the work of a revision to bring an underlying plan into compliance with all of the substantive requirements identified in §§ 219.8 through 219.11. The determination of which sections or requirements within those sections apply to an amendment will depend on the purpose and effects of the changes being proposed.

    However, a plan amendment must be done “under the requirements of” the 2012 rule (36 CFR 219.17(b)(2)). Therefore the responsible official's discretion is not unbounded. An amendment cannot be tailored so that the amendment fails to meet directly related substantive requirements of the rule. Rather, the responsible official must determine which substantive requirements within §§ 219.8 through 219.11 of the 2012 rule are directly related to the plan direction being added, modified or removed by the amendment, and apply those requirements to the amendment.

    As explained above, unlike a plan revision, a plan amendment does not create a new plan; it results in an amended plan, with the underlying plan retained except where changed by the amendment. Therefore, the amended plan will have plan direction changed by the amendment and plan direction that has not been changed. When amending a plan under the 2012 rule, a responsible official may choose not to change portions of the plan, even if those portions are inconsistent with a substantive requirement within §§ 219.8 through 219.11, when such portions are not directly related to the purpose or effects of the amendment. A unit may have important needs for change beyond those that form the basis of any individual amendment. However, the responsible official's ability to target the scope and scale of an amendment is important for adaptive management, and will be especially critical for responsible officials amending 1982 plans.

    For example, the 2012 planning rule requires that the plan must include plan components to provide for scenic character, which is a term of art associated with the scenic management system that was developed in the mid-1990s. If the scope of an amendment to a 1982 plan includes changes to plan direction for the purpose of, or that would have an effect on, scenery management, then the responsible official must apply the 2012 rule requirement about scenic character to the changes being proposed. However, a responsible official is not otherwise required to review and modify a 1982 rule plan to meet the 2012 rule's requirement to provide for scenic character. This is true even if there is also a separate, additional need to change the plan to protect scenery. The responsible official would have to address the scenic character requirement throughout the plan area in a plan revision, but in an amendment, the responsible official has the discretion to more narrowly focus on a specific need for change.

    The Department's intent that not every requirement within §§ 219.8 through 219.11 will apply to every amendment of 1982 rule plans is reflected in the following planning directives provision at FSH 1909.12, chapter 20, section 21.3:

    Amendment of a plan developed and approved using the 1982 Rule process requires application of the 2012 rule requirements only to those changes to the plan made by the amendment. For example, the 2012 Rule's requirements to establish a riparian management zone (36 CFR 219.8(a)(3)) would apply only if the plan amendment focuses on riparian area guidance.

    See also the Handbook's direction regarding documentation of a decision to approve an amendment of a 1982 rule plan: “[f]or plan amendments, the decision document must discuss only those requirements of 36 CFR 219.8 through 219.11 that are applicable to the plan components that are being modified or added.” (FSH 1909.12 ch. 20, sec. 21.3 (emphasis added)).

    Similar recognition is included in the 2012 rule's requirements for project consistency for 1982 rule plans, at 36 CFR 219.17(c).

    The distinction made in this provision between consistency within an amended plan with direction developed and approved pursuant to the 2012 rule and direction developed or revised under a prior rule reflects that portions of a 1982 rule plan may be changed by an amendment and other portions may remain unchanged until revision.

    During the Department and Forest Service's conversations with the Committee about the Forest Service's early efforts to use the 2012 rule to amend 1982 rule plans, the Committee advised that some members of the public expressed confusion about how to apply the substantive requirements within §§ 219.8 through 219.11 when amending 1982 rule plans.

    For example, some members of the public suggested that because resources and uses are connected and changes to any one resource or use will impact other resources and uses, the 2012 rule therefore requires that all of the substantive provisions in §§ 219.8 through 218.11 be applied to every amendment. Other members of the public suggested an opposite view: That the 2012 rule gives the responsible official discretion to selectively pick and choose which, if any, provisions of the rule to apply, thereby allowing the responsible official to avoid 2012 rule requirements or even propose amendments that would contradict the 2012 rule. Under this second interpretation, some members of the public hypothesized that a responsible official could amend a 1982 rule plan to remove plan direction that was required by the 1982 rule without applying relevant requirements in the 2012 rule.

    This final rule clarifies that neither of these interpretations is correct.

    The Department recognizes that resources and uses are connected and interrelated. However, an interpretation that the 2012 rule prevents a responsible official from distinguishing among connected resources and requires the application of all of the 2012 rule's substantive requirements to every amendment would essentially turn every amendment into a revision. Such an interpretation would curtail the Forest Service's ability to use amendments incrementally to change a plan, and directly contradicts the Department's intent as expressed in the 2012 rule and supporting material that revisions and amendments serve different functions and that amendments be used to keep plans relevant, current and effective between plan revisions. The 2012 rule gives the responsible official the discretion to determine whether and how to amend a plan, including determining the scope and scale of an amendment based on a specific need to change the plan.

    At the same time, the responsible official's discretion to tailor the scope and scale of an amendment is not unbounded; the 2012 rule does not give a responsible official the discretion to amend a plan in a manner contrary to the 2012 rule by selectively applying, or avoiding altogether, substantive requirements within §§ 219.8 through 219.11 that are directly related to the changes being proposed. Nor does the 2012 rule give responsible officials discretion to propose amendments “under the requirements” of the 2012 rule that actually are contrary to those requirements, or to use the amendment process to avoid both 1982 and 2012 rule requirements (§ 219.17(b)(2)).

    This amendment to the 2012 rule clarifies that the responsible official is not required to apply every requirement of every substantive section (§§ 219.8 through 219.11) to every amendment. However, the responsible official is required to apply those substantive requirements that are directly related to the plan direction being added, modified, or removed by the amendment. The responsible official must determine which substantive requirements are directly related to the changes being proposed based on the purpose and effects of the amendment, using the best available scientific information, scoping, effects analysis, monitoring data, and other rationale to inform the determination. The responsible official must provide early notice to the public of which substantive requirements are likely to be directly related to the amendment, and must clearly document the rationale for the determination of which substantive requirements apply and how they were applied as part of the decision document.

    This final rule ensures that the Forest Service can use the 2012 rule to amend 1982 rule plans without any individual amendment bearing the burden of bringing the underlying plan into compliance with all of the 2012 rule's substantive requirements, even if unchanged direction in the 1982 rule plan fails to address, meet or is contrary to 2012 rule requirements. Twenty-two forests are currently using the 2012 rule to revise their 1982 rule plans, but given Forest Service budget constraints and staff capacity, revision of all 127 of the Forest Service's 1982 rule plans will likely take more than 15 years. Because the 2012 rule allowed the continued use of the 1982 rule procedures to complete revisions that were underway at the time the 2012 rule was published (36 CFR 219.17(b)(3)), the most contemporary land management plan published using the 1982 rule procedures was approved in 2016, with a few more to come. The clarifications in this final rule will help ensure that the Forest Service can effectively use the 2012 rule to amend 1982 rule plans until they are revised.

    Future amendments to plans developed or revised under the 2012 rule will likely be less complicated than using the 2012 rule to amend 1982 rule plans, because plans developed or revised under the 2012 rule are expected to meet all of the 2012 rule's substantive requirements at the time of approval. However, this final rule clarifies that responsible officials have the discretion to tailor the scope and scale of amendments to adaptively change plans whether an amendment is to a 1982 rule plan or, in the future, to a 2012 rule plan. The final rule also supports transparency and public participation by clarifying notification and documentation requirements for applying the 2012 rule's substantive requirements to amendments.

    Clarifications

    This amendment to the 2012 rule clarifies that:

    • The responsible official has the discretion to determine whether and how to amend a plan, and the scope and scale of a plan amendment, based on a need to change the plan.

    • The responsible official must use the best available scientific information to inform the amendment process.

    • The responsible official must determine which substantive requirements within §§ 219.8 through 219.11 are directly related to plan direction being added, modified or removed by the amendment and apply those requirements to the amendment in a way that is commensurate with the scope and scale of the amendment.

    • The responsible official is not required to apply any substantive requirement within §§ 219.8 through 219.11 that is not directly related to the amendment.

    • The determination of which requirements are directly related to an amendment must be based on the purpose and effects (beneficial or adverse) of the changes being proposed, and informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale.

    • The responsible official must include information in the initial notice for the amendment about which substantive requirements of §§ 219.8 through 219.11 are likely to be directly related to the amendment.

    • The decision document for an amendment must include a rationale for the responsible official's determination of the scope and scale of the amendment, which requirements within §§ 219.8 through 219.11 are directly related, and how they were applied.

    • If species of conservation concern (SCC) have not yet been identified for a plan area and scoping or NEPA analysis for a proposed amendment reveals substantial adverse impacts to a specific species, or the proposal would substantially lessen protections for a specific species, the responsible official must determine whether that species is a potential SCC. If so, the responsible official must apply the requirements of 2012 rule with respect to that species as if it were an SCC.

    • An amendment that applies only to one project or activity is not considered a significant change in the plan for the purposes of the NFMA, but is still subject to NEPA requirements.

    • The Department corrected a mistake made on July 27, 2012 when the Forest Service inadvertently removed a sentence about the maximum size limits for areas to be cut in one harvest operation in § 219.11(d)(4).

    Response to Comments

    The following is a description of specific comments received on the proposed rule, responses to comments, and changes made in response to comments. Each comment received consideration in the development of the final rule.

    General Comments

    The Department received the following comments not specifically tied to a particular section of the October 12, 2016 proposed rule.

    General Comments on Rulemaking Effort

    Comment: Several respondents argue for changes to the 2012 rule other than the changes in the proposed rule. For example, one respondent requested that the term “aquifer” be included after the term “watershed” in each instance that the term “watershed” is used in the existing rule. That same respondent recommends that groundwater monitoring be added to the monitoring program requirements of §  219.12. A respondent requested we focus more on the forestry side to manage timber better. A respondent recommended the planning rule make it clear that “other content” of § 219.13(c)) does not include 1982 rule monitoring plans, so that changing these monitoring plans would require a plan amendment. The respondent also recommended that the rule clarify project consistency requirements regarding amended plans that include direction based on both the 1982 rule and 2012 rule because the two rules interpret the consistency requirement differently. Yet another respondent recommended that the planning rule require buffers to overly restrictive management policies where the communities and other private landowners within the boundaries of the forest require access or forest resources should be considered for economic development of those adjacent lands and community support.

    Response: These suggestions focus on parts of the 2012 rule for which changes were not proposed. Because these are outside the scope of the proposal, this final rule is not the appropriate means to make such changes. Pursuant to Executive Order 13563—Improving Regulation and Regulatory Review, the Department will consider these comments under retrospective review of the planning rule in the future.

    Comment: Planning directives. A respondent requested the Forest Service issue planning directives about environmental analysis and NFMA diversity requirements to support the rule simultaneously with the rule.

    Response: The Department decided to not issue directives simultaneously with the rule because the need to obtain public comment on those directives before we issued them would unnecessarily delay the final rule and could delay pending amendments to existing plans. The Department also believes that, while great effort has been made to foresee how the clarifications in this final rule will operate, it may be more helpful to issue directives if necessary after gaining practical experience through implementation, and learning the extent to which additional clarification is needed.

    Comment: Consultation with affected Alaska Native Corporations and tribes. An Alaska Native Corporation (ANC) wrote that it appreciated the opportunity to comment on the Planning Rule Amendment. They also said the Forest Service should consult with the ANC and engage in meaningful dialog about these issues much earlier in the process.

    Response: The Forest Service contacted the respondent to clarify the intent and scope of their comment. The spokesman for the respondent stated the ANC does not want consultation prior to publication of this final rule, but was simply pointing out some inefficiencies in the process. He said the respondent will be satisfied to see the response to comments.

    The Forest Service is fully committed to meeting its responsibilities for consultation, and appreciates the outreach from the respondent. The Forest Service had determined at the time of the proposal that consultation was not required for this amendment because there was extensive consultation associated with developing the 2012 rule, the proposed changes were simply clarifications of process for that rule, and there are no direct effects 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. However, the Forest Service Regional Office in Juneau did send a notice of the Proposed Planning Rule Amendment comment period to Alaska Native Corporations and tribes. The notice said that the Forest Service would meet with any Alaska Native Corporation or Tribe expressing an interest in discussing the proposed changes and how the amendment to the 2012 rule might benefit our collective work in forest management and restoration. The Forest Service will continue to be available to meet with any Alaska Native Corporation or Tribe when implementing the 2012 rule and these clarifications for amending plans under the 2012 rule.

    Comment: Several respondents were supportive of the proposed rulemaking. Several respondents agreed with the Forest Service that the 2012 rule intended for amendments to be routine, timely, less cumbersome and flexible, allowing for adaptive management. Several respondents said that they support the Department acting to clarify the expectations for plan amendments, including expectations for amending 1982 rule plans.

    Response: Thank you for taking the time to comment.

    Comment: Plan amendments should identify and give consideration of rural communities. A respondent said that consideration of the community's cultural, social and economic needs, especially in areas struggling economically, should be recognized as the key component in any Plan revision. Another respondent indicated the burden the plan amendment process places on industry supporting small communities particularly local sawmill and ranching industries. These industries were stated to be important to local economies and reliant on National Forests.

    Response: The 2012 rule already has many requirements for the consideration of local communities' cultural, social, and economic needs, including during the amendment process. Section 219.4 requires the responsible official to engage local communities, as well as to coordinate with other public planning efforts, including State and local governments, and Tribes. Section 219.4(a)(3) requires that the responsible official request “information about native knowledge, land ethics, cultural issues, and sacred and culturally significant sites” during consultation and opportunities for Tribal participation. Section 219.6(b) requires in the assessment that responsible officials identify and evaluate existing relevant information about social, cultural, and economic conditions. Section 219.8(b) requires that plans provide plan components to contribute to economic and social sustainability taking into account social, cultural, and economic conditions relevant to the area influenced by the plan. Section 219.10(b)(1)(ii) requires plan components for a new plan or plan revision to provide for “protection of cultural and historic resources,” and “management of areas of tribal importance.” Section 219.12 requires monitoring progress toward meeting the desired conditions and objectives in the plan, including for providing multiple use opportunities.

    In addition, the Forest Service Land Management Planning Handbook requires the plan monitoring program to contain one or more questions and associated indicators addressing the plan's contributions to communities, social and economic sustainability of communities, multiple use management in the plan area, or progress toward meeting the desired conditions and objectives related to social and economic sustainability (FSH 1909.12, ch. 30, sec. 32.13f).

    Comment: Adaptive management. Respondents commented that adaptive management is an essential part of the 2012 rule and as such, additional clarifications should be included to facilitate, rather than discourage, adaptive management. Several respondents expressed concern that the existing and the proposed rule would impose burdens that would discourage the responsible official from undertaking plan amendments because of a lack of clarity. They said it was not clear how the Forest Service would determine which substantive provisions of the 2012 rule require changes to the plan. The respondent indicated that this ambiguity may result in less adaptive management. One respondent said the burden associated with staff and financial capability may make some forests less likely to pursue amendments and adaptive management.

    Response: The Department agrees that adaptive management and preserving the responsible official's flexibility in amending plans are essential to the 2012 rule. The Department made changes between the proposed and final rule to reduce ambiguity and provide clarity. The final rule explains that responsible officials must determine which specific substantive requirement(s) within §§ 219.8 through 219.11 are directly related to a plan amendment and then apply those requirements to the amendment. The Department removed the paragraph that would have required the responsible official to “[e]nsure that the amendment avoids effects that would be contrary” to the rule requirements, which some respondents found confusing. The rule is now clearer. For further details on the changes made to support adaptive management and preserve the responsible official's ability to amend plans under the 2012 rule, see “Amend § 219.13 to add paragraph (b)(5)” below.

    Comment: Proposed changes should not apply to plans revised under the 2012 rule. A respondent stated that a 2012 rule plan is expected to meet all of rule requirements and any amendment to such plan should be evaluated on the basis of how the entire amended plan meets the provision.

    Response: The Department believes that when amending any plan the responsible official should not be required to undertake an extensive review of an entire plan and prove that it continues to meet all of the requirements within §§ 219.8 through 219.11. For an amendment of a 2012 rule plan, the responsible official must apply the substantive requirement(s) within §§ 219.8 through 219.11 that are directly related to the amendment. The clear intent of the 2012 rule is that amendments be used to incrementally change plans. The incremental nature of amendments applies whether the amendment is to a 2012 or a 1982 rule plan, and the clarifications in this final rule must preserve that flexibility and 2012 rule intent.

    Comment: Limiting the applicability of 2012 rule requirements when changing land allocations. One respondent is concerned about the burden the proposed rule imposes on small changes to area allocations. The respondent said that, any change in a land allocation reduces the application of one aspect of the planning rule to favor another (e.g., a change can favor ecological integrity over economic sustainability). The respondents further states that the rule allows the responsible official to find a balance in the overall plan, but it remains unclear how a change in land allocation for a small area can meet these multiple and perhaps contradictory provisions for just the change being considered.

    Response: The 2012 rule did not require that every resource or use be present in every area. The Department clarifies in this final rule that directly related specific substantive requirements within §§ 219.8 through 219.11 apply within the scope and scale of the amendment. Changes in land allocation for a small area would likely require a similarly narrow application of the directly related substantive requirements, depending on the purpose and effects of the changes. It is unlikely that a change in land allocation for a small area would have substantial adverse effects.

    Comment: An alternate approach. A respondent suggested an alternate approach to the proposed rule that would not require the determination of which rule requirements directly relate to a proposed plan amendment. The respondent suggested instead setting clear sideboards for each type of plan amendment based upon the substantive provisions of the 2012 rule. As an example the respondent suggested not allowing plan amendment if the consequences would lead to a sensitive species or an SCC (if identified) no longer having the ecological conditions necessary to provide for a viable population in the plan area. The respondent further suggests that similar specific sideboards can be identified for other requirements including, air, soil and water, riparian areas key ecosystem characteristics, rare communities, tree diversity, and other items including: sustainable recreation, cultural and historic resources, areas of tribal importance, wilderness, research, wild and scenic rivers.

    Response: The Department believes that a rule identifying sideboards for each type of plan amendment and associated substantive provisions of the 2012 rule would be overly complex and may not be able to anticipate or account for variation across the 127 plan areas of the National Forest System. The Department believes the better approach is for responsible officials to apply specific substantive requirements within the 2012 rule to an amendment when directly related to the changes being proposed by that amendment.

    Comment: Environmental Impacts. One respondent commented on the Environmental Impacts discussion in the Regulatory Certification section. The respondent agreed with the Forest Service that the proposed rule's impacts were within the range of environmental analysis in the January, 2012 environmental impact statement prepared for the planning rule. The respondent added, however, that it disagreed with the Forest Service's additional assertion that the proposed rule amendment falls within a Forest Service categorical exclusion of actions from documentation in an environmental assessment or an environmental impact statement (“rule, regulations, or policies to establish service wide administrative procedures, program processes, or instruction.” 36 CFR 220.6 (d)(2)). The respondent contends that the position that categorically excluding planning regulations has been rejected by the courts, and therefore the Department and Forest Service should not apply that category. The respondent cites to Citizens for Better Forestry v. U.S. Department of Agriculture, 341 F. 3d 961 (9th Cir. 2003) and Citizens for Better Forestry v. U.S. Department of Agriculture, 481 F. Supp.2d 1059 (N.D. Cal. 2007).

    Response: Like the respondent, the Department has determined that the scope and scale of the final rule are such that the rule's effects are within the range of effects of the environmental impact statement prepared for the 2012 rule. As the respondent noted, with respect to the 2012 rule, which entirely replaced a prior planning rule, the Forest Service did not rely on the categorical exclusion for rules but prepared an environmental impact statement for that rule. Planning rules that entirely replaced prior rules were also the subject of the court decisions the respondent refers to. However, the Department holds the position that for certain changes to a planning rule, the categorical exclusion may properly apply.

    Section-by-Section Explanation of the Final Rule

    The following section-by-section descriptions are provided to explain the approach taken in the final rule.

    Subpart A—National Forest System Land Management Planning Revise § 219.3—Role of Science in Planning

    The final rule is unchanged from the proposed rule for this section. The Department added the words “for assessment; developing, amending, or revising a plan; and monitoring,” to the first sentence of § 219.3. This change was made to clarify that the best available scientific information is to be used to inform the plan amendment process, as well as all other parts of the planning framework (36 CFR 219.5). Specifically mentioning each part of the planning framework makes the wording of this section more consistent with other sections of the rule.

    Revise § 219.3—Response to Comments

    Comment: Support the clarification. Several respondents expressed support for the amendment to § 219.3 to clarify that the requirement to use the best available scientific information applies equally to plan amendments.

    Response: Thank you for taking the time to comment.

    Amend §§ 219.8 Through 219.11 To Revise the Introductory Text

    The final rule is unchanged from the proposed rule for these sections. The Department added the words “a plan developed or revised under this part” to the introductory text of §§ 219.8 through 219.11 to clarify that the combined set of requirements in each section apply only to entire plans developed or revised under the current planning rule. It was not the Department's intent to imply that an individual plan amendment must meet all of the requirements of §§ 219.8 through 219.11. This clarification distinguishes between new plans and plan revisions, which must comply with all of the requirements in §§ 219.8 through 219.11, and amendments, which do not.

    Amend §§ 219.8 Through 219.11—Response to Comments

    Comment: Support the principle that amendments do not require the application of all of the requirements within §§ 219.8 through 219.11. While no comments directly addressed the changes to §§ 219.8 through 219.11, respondents supported the principle that amendments are different from revisions, and that the 2012 rule should not be interpreted to imply that an amendment must incorporate every substantive requirement within §§ 219.8 through 219.11. Many respondents noted that such an interpretation would trigger premature plan revision and would inappropriately curtail the Forest Service's use of the amendment process to make targeted and efficient changes to plans in response to pressing needs. These respondents strongly supported the Department's stated intent for this amendment to the 2012 rule to preserve the Forest Service's flexibility in using amendments to support adaptive management by clarifying that amendments do not require the application of all of the substantive requirements within these sections.

    Response: The Department agreed and retained the changes to §§ 219.8 through 219.11, which clarify that plans developed or revised under the 2012 rule must meet the combined set of requirements among and within §§ 219.8 through 219.11. However, amendments are not required to meet all of the substantive requirements within these sections. Direction for amendments is clarified at § 219.13.

    Amend § 219.13 To Revise Paragraph (a)

    The final rule is unchanged from the proposed rule for this section. The Department added the words “and to determine the scope and scale of any amendment” to the end of the third sentence of paragraph (a). This change clarifies that responsible official's discretion to determine whether and how to amend any plan includes the discretion to determine the scope and scale of any amendment. The Department received no comments on this revision.

    Amend § 219.13 To Revise the Introductory Text of Paragraph (b)

    The Department added the words “For every plan amendment,” to the introductory text of paragraph (b), so it is clear that the procedural and other requirements outlined in § 219.13(b) apply to all amendments. The proposed rule used similar wording “For all plan amendments,” but the Department changed “all” to “every” in the final rule for grammar's sake to conform the wording to the singular use of the word “amendment” in the paragraphs that followed. The Department also changed the caption of this paragraph from “Amendment process” to “Amendment requirements” to reflect the clarified text in paragraph (b)(5) and in §§ 219.8 through 219.11. The Department received no comments on this revision.

    Amend § 219.13 To Revise Paragraph (b)(1)

    In the final rule, the Department changed the punctuation at the end of paragraph (b)(1) to a period, from a semicolon, to reflect similar punctuation at the end of the other paragraphs under paragraph (b). The Department made no other changes to paragraph (b)(1).

    Amend § 219.13 To Revise Paragraph (b)(2)

    To respond to comments about the proposed rule, the Department added a requirement to include information in the initial notice for the amendment about which substantive requirements of are likely to be directly related to the amendment.

    Amend § 219.13(b)(2)—Response to Comments

    Comment: Inform the public early in the process. A group of respondents stated that the responsible official should inform the public early in the amendment process—likely as part of the preliminary identification of the need to change the plan—about which substantive provisions within §§ 219.8 through 219.11 may be implicated by an amendment, and should allow the public to provide input through the scoping process. The comment noted that early notification would be consistent with the 2012 rule's focus on transparency and public participation.

    Response: The Department agreed and added the requirement to paragraph (b)(2) of § 219.13.

    Amend § 219.13 To Revise Paragraph (b)(3)

    The final sentence of paragraph (b)(3) was modified to state that project specific amendments are not considered a significant change in the plan for the purposes of the NFMA. In addition a conforming change was also made to § 219.16(a)(2).

    The Department made these changes so that an amendment that applies only to one project or activity is not considered a significant change in the plan for the purposes of the NFMA, in response to comments about the proposed rule. This change also clarifies that an amendment that is considered a “significant change in the plan for the purposes of the NFMA” does not trigger a revision-type process; it is subject to the same procedures and requirements otherwise included in § 219.13, as well as the 90-day comment period required by § 219.16(a)(2).

    An amendment that applies only to one project or activity may still have significant environmental effects and require the preparation of an environmental impact statement. The Department added clarification in § 219.16(a)(2) to address minimum NEPA requirements for an amendment that applies only to one project or activity for which a draft EIS is prepared.

    Amend § 219.13(b)(3)—Response to Comments

    Comments: According to the proposed rule a site-specific project amendment would be “significant,” and trigger the process requirements for a plan revision. Several respondents expressed concern about preserving the Forest Service's ability to use amendments that would apply only to one project or activity. One respondent stated that paragraph (b)(3), which provides that an amendment prepared with an EIS would be a significant amendment, would make even a project-specific amendment significant. The respondent further stated that significant amendments under NFMA trigger the requirements for a revision. The respondent requests that the Forest Service rewrite and clarify § 219.13(b)(3) so that an EIS for a project containing a plan amendment does not trigger, in effect, a forest plan revision.

    Response: The final rule includes an exception that when an amendment applies only to one project or activity the amendment is not considered a significant change to the plan for the purposes of NFMA (such a project and associated amendment may have significant effects and require the preparation of a draft EIS under NEPA). Corresponding changes were made to § 219.16(a)(2).

    However, the Department disagrees with the respondent's assertion that if an amendment is significant for the purposes of the NFMA, a revision is automatically triggered. The 2012 rule supports and this final rule preserves the responsible official's discretion to determine the scope and scale of amendments, including amendments that may be broad or have a significant effect. The process and content requirements included in § 219.13 satisfy the NFMA requirements for a significant amendment.

    A brief clarification here may be helpful. The 1982 rule had required the Forest Service to undertake the plan revision process (except for wilderness analysis) when “a proposed amendment would result in a significant change in such plan.” (36 CFR 219.10(f) (2000), (16 U.S.C. 1604(f)(4)). The Forest Service soon learned that the requirement of the 1982 rule to follow the same steps for a significant amendment as for a revision was excessively burdensome. In its 1991 Advanced Notice for proposed rulemaking to revise its land and resource planning regulations, the Forest Service's preliminary proposal would have limited the evaluation process for what it called a “major amendment” to “only . . . the changes being proposed and not the entire forest program.” (56 FR 6508, 6523, February 15, 1991)). Since that time, the Forest Service land management planning rules issued by the Department have distinguished the requirements for significant amendments and plan revisions.

    The 2012 rule retained that distinction and did not carry forward the 1982 rule's requirement that the Forest Service undertake the plan revision process when a proposed amendment would result in a significant change to the plan. The NFMA does not require the Forest Service to carry out the entire process for revision for every significant amendment. Rather, as the 2012 rule provided and the clarifications in this amendment to the 2012 rule reinforce, the responsible official has the discretion to determine the scope and scale of an amendment, and the associated processes and requirements are tailored to the changes being proposed. In some cases, the nature of the proposed changes to the plan may require an analysis of the entire plan direction, so that the Forest Service must “[re]determine forest management systems, harvesting levels, and procedures” in light of the multiple uses for which the forest is administered; and reconsider and if appropriate, adjust the “planned timber sale program” and the proportion of probable methods of timber harvest.” 16 U.S.C. 1604 (e) and (f). However, other amendments, including amendments that require the preparation of an environmental impact statement, may not affect these matters, and would require less analysis. The direction in paragraph (b)(5) of this final rule would require the appropriate application of the 2012 rule's requirements in a way that satisfies the related NFMA requirements.

    The reason the Department included the final sentence of paragraph (b)(3) in the 2012 rule was to avoid applying two different standards for determining significance between the requirements of NFMA and NEPA. In the end, all plans must “provide for multiple use and sustained yield of products and services” and all the other specific information required by the NFMA. (16 U.S.C. 1604 (e) and (f)). The 2012 rule requires in § 219.1(f) that plans meet all applicable laws and regulations; nothing in this amendment changes that requirement.

    The Department's position is that the NFMA's requirements for significant amendments are satisfied by the requirements to prepare an environmental impact statement and to provide at least a 90 day comment period on the proposal and draft EIS, in addition to the other requirements for amendments included in § 219.13. The final rule retains these requirements.

    Amend § 219.13 To Add Paragraph (b)(4)

    The Department retained the proposed paragraph (b)(4) but slightly modified the wording for clarity. The Department removed the phrase “without altering the existing direction” and added the word “simply.”

    The Department added paragraph (b)(4) as a clarification that each plan component added or changed by a plan amendment must conform to the applicable definition for desired conditions, objectives, standards, guidelines, and suitability of lands set forth in § 219.7(e). The planning directives in the Handbook (FSH 1909.12, ch. 20, sec. 21.3) already state this requirement: “All additions or modifications to the text of plan direction that are made by plan amendments using the 2012 rule must be written in the form of plan components as defined at 36 CFR 219.7(e).” This paragraph brings the requirement into the text of the 2012 rule to help consolidate procedural requirements for amendments.

    The Department also included a narrow exception to the plan component formatting requirements of paragraph (b)(4) for amendments to 1982 rule plans. This exception would apply to an amendment or part thereof that would change (add to or reduce) a management or geographic area or other areas to which existing direction applies, but would not change the text of that plan direction. This exception would allow the responsible official to avoid rewriting the plan direction within that management or geographic area to conform to § 219.7(e), because reformatting plan direction might accidentally broaden the scope of the amendment. The Department received one comment on this revision, and that comment supported the addition of this paragraph.

    Amend § 219.13 To Add Paragraph (b)(5)

    The Department modified and added wording to paragraph (b)(5) of this section to specify requirements for applying the substantive requirements within §§ 219.8 through 219.11 to a plan amendment. Elements of the direction provided in the final paragraph (b)(5) were found in paragraphs (b)(5) and (6) and (c)(1) and (2) of this section of the proposed rule. Proposed paragraphs (b)(6), (c)(1), and (c)(2) were removed from the final rule. While the direction in proposed rule paragraphs (c)(1) and (2) was limited to amendments of a plan developed or revised under a prior planning rule, the requirements of paragraph (b)(5) of the final rule apply to all amendments.

    The Department modified the first sentence of paragraph (b)(5) for two reasons. First, this sentence now more clearly describes the required process for responsible officials to first determine and then apply substantive requirements that are directly related to changes being proposed. Second, the Department modified the proposed rule's use of the words “[e]nsure that the amendment meets” to “apply such requirement(s) within the scope and scale of the amendment,” in order to clarify the Department's intent that the application of directly related substantive requirements be commensurate with the scope and scale of the amendment.

    The Department added a sentence to paragraph (b)(5) to clarify that an amendment is not required to bring the amended plan into compliance with all of the substantive requirements of the rule. The Department made this change to apply this clarification to all amendments and to make the wording consistent with the rest of paragraph (b)(5). This sentence makes clear that amendments, unlike revisions, do not require the application of all substantive requirements within §§ 219.8 through 219.11.

    The Department added paragraphs (b)(5)(i) and (ii) to provide further clarification on how the responsible official will determine that a specific substantive requirement within §§ 219.8 through 219.11 is directly related to the plan direction being added, modified, or removed by the amendment.

    The Department added paragraph (b)(5)(i) to provide additional direction to the responsible official on how to determine whether or not a specific substantive requirement is directly related to the changes being proposed by an amendment. When a specific substantive requirement is associated with either the purpose for the amendment or the effects (beneficial or adverse) of the amendment, the responsible official must apply that requirement to the amendment. The Department also added wording from the preamble to the proposed rule explaining that the best available scientific information, scoping, effects analysis, monitoring data or other rationale must inform the responsible official's determination.

    The purpose of an amendment stems from the need to change the plan, which § 219.13(b)(1) requires that responsible official identify. The responsible official would determine which specific substantive requirements within §§ 219.8 through 219.11 are directly related to that purpose, and then would apply those requirements to the amendment. In addition to the purpose of an amendment, the responsible official must apply specific substantive requirements within §§ 219.8 through 219.11 based on the effects of the amendment. The effects of an amendment can be beneficial or adverse. Where the likely effects are beneficial, the intent of paragraph (b)(5)(i) is that the changes being proposed occur within the context and apply the direction of the directly related substantive requirement in a way that is commensurate with the scope and scale of the amendment.

    The Department added paragraph (b)(5)(ii) to provide direction, in addition to the direction in paragraph (b)(5)(i), to the responsible official on when to determine that a substantive requirement is directly related to the amendment based on adverse effects.

    The Department recognizes that an amendment may have adverse effects that are less than “substantial,” and that would not require the application of associated substantive requirements. However, if scoping or NEPA effects analysis for the amendment reveals substantial adverse effects, the responsible official must identify and apply the specific substantive requirement(s) within §§ 219.8 through 219.11 associated with those effects.

    Paragraph (b)(5)(ii)(A) replaces paragraph (b)(6) of the proposed rule. The Department made this change in response to comments about proposed paragraph (b)(6). The Department's intent is that if a substantive requirement is directly related because of adverse effects (§ 219.13(b)(5)(ii)(A)), then the responsible official may decide to modify the proposal to avoid the adverse effects so that the specific substantive requirement is no longer directly related to the changes being proposed. Otherwise, the responsible official must apply the directly related substantive requirement to determine whether the proposal can proceed or whether additional changes to the plan are required as part of the amendment.

    Paragraph (b)(5)(ii)(A) also clarifies that if the proposed amendment would substantially lessen protections for a specific resource or use, the responsible official must identify and apply the associated specific substantive requirement(s). The phrase “when the proposed amendment would substantially lessen protections for a specific resource or use” replaces the proposed rule paragraph (c)(2) of this section that stated: “If the proposed amendment would remove direction required by the prior planning regulation, the responsible official must apply the directly related requirements within §§ 219.8 through 219.11.” This requirement is intended to prevent the removal of protective direction in an underlying plan without the application of the relevant requirements of the 2012 rule.

    The Department added paragraph (b)(5)(ii)(B) to help to expedite amendments, including project-specific amendments, which will not have significant environmental effects. The Department anticipates that, for amendments that can be prepared using a categorical exclusion (CE) or environmental assessment (EA) accompanied by a finding of no significant impact (FONSI), it is unlikely that the amendment will have substantial adverse effects that would require the responsible official to apply a substantive requirement that is not otherwise directly related to the changes being proposed. Therefore, under this paragraph, the responsible official may presume that an amendment prepared under a CE or EA will not have substantial adverse effects, barring evidence to the contrary.

    The clarifications within paragraph (b)(5) will help the Department and public understand how to apply the substantive requirements within §§ 219.8 through 219.11 when amending plans.

    The Department recognizes that resources and uses within the plan area are often connected to one another—nonetheless, the responsible official can distinguish between rule requirements directly related to the amendment and those that may be unrelated or for which the relationship is indirect. For example:

    • Soil and water resources are interrelated, but the responsible official can determine that for a plan amendment that has the purpose of changing standards and guidelines to protect a water body, the water requirements of § 219.8 are directly related, while that section's requirements for soil are not unless the amendment would affect the soil resource.

    • A plan amendment to modify recreation access under § 219.10 could be either directly related or unrelated to that section's requirement for the protection of cultural and historic resources, depending upon the nearness and potential effects of the proposed access to the cultural and historic resources in the plan area.

    A determination that a substantive requirement is directly related to a proposed amendment does not mean that the amendment must be expanded so that the requirement is applied to the entire plan area, or that the amendment must address every aspect of that specific requirement; the application of the substantive requirement is intended to be commensurate with the scope and scale of the amendment. For example:

    • The 2012 rule's requirements for riparian management in § 219.8 would be directly related to an amendment with the purpose of changing plan components in order to reduce sedimentation into a specific riparian area from a particular use, but the responsible official would not be required to apply those requirements to other riparian areas in the plan area. Further, if floodplain values would not be affected by the amendment, it would be beyond the scope of that amendment for the responsible official to be required to apply § 219.8 riparian management requirements to add plan components for the floodplain values of that riparian area.

    • An amendment that changes plan components to support habitat for an at-risk species would require application of § 219.9 to those proposed changes, but would not require application of § 219.9 to the entire underlying plan. For example, if the need to change the plan is to identify lands as suitable for an energy corridor, and the proposed corridor would have substantial adverse effects on critical habitat for a threatened species, then the requirements of § 219.9(b) would be directly related to the amendment as applied to that particular species. The responsible official may therefore be required to add standards or guidelines to protect the critical habitat. However, the determination that § 219.9(b) is directly related to the amendment because of the potential impacts to one species would not trigger the application of § 219.9(b) to evaluate ecological conditions for all other species on the unit.

    Amend § 219.13 To Add Paragraph (b)(5)—Response to Comments

    Comment: Applying the substantive requirements that are directly related. Several respondents were supportive of proposed paragraph (b)(5), and appreciated the clarification that responsible officials must apply the directly related substantive requirements within §§ 219.8 through 219.11 to plan direction modified, added or removed by an amendment. One respondent supported bringing into paragraph (b)(5) the text in the preamble to the proposed rule that stated the Department's intent that the determination of direct relationship be informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale.

    Response: The Department retained the direction in the proposed paragraph (b)(5) that the responsible official must apply the specific substantive requirement(s) within §§ 219.8 through 219.11 that are directly related to the plan direction being added, modified, or removed by the amendment. The Department added paragraph (b)(5)(i) to bring text from the preamble into the final rule and further clarify direction to the responsible official on how to determine that a specific substantive requirement is directly related to the amendment. In addition, the responsible official must document the rationale as required by § 219.14.

    Comment: Amendments do not have to meet all requirements of the rule. Several respondents supported the principle that the 2012 rule intended that amendments be used to incrementally change plans and facilitate adaptive management, and therefore supported proposed paragraph (c)(1) clarifying that amendments of plans developed or revised under a prior planning regulation do not have to bring an amended plan into compliance with all of the requirements within §§ 219.8 through 219.11. Several respondents emphasized that the final rule must provide clarity that an amendment does not trigger application of all of the substantive requirements of the 2012 rule.

    Response: The Department agreed, moved the concept in proposed paragraph (c)(1) into paragraph (b)(5), and modified the wording to make it clearer and more consistent with the rest of paragraph (b)(5). The new wording makes clear that the responsible official is not required to apply any substantive requirement that is not directly related to the changes being proposed by an amendment.

    Paragraph (b) of the final rule applies to all amendments, whereas proposed paragraph (c) applied only to amendments to plans developed or revised under a prior planning regulation. The Department made this change because, although the clarification is most urgent and immediately relevant for amendments to 1982 rule plans, the Department anticipates that similar clarity and flexibility will be needed for amendments to future 2012 rule plans. While plans developed or revised under the 2012 rule must meet all of the substantive provisions of the 2012 rule at the time of approval, the Forest Service will still need the ability to adaptively change those plans in response to conditions that may be rapidly changing. For example, there could be major tree die-offs associated with drought or major fire events that occur a few years after a plan is revised using the 2012 rule, which could make the plan as a whole out of sync with one or more substantive requirements of the 2012 rule. The Forest Service would still need the ability to incrementally change that plan, without re-applying all of the substantive requirements regardless of the scope and scale of the amendment.

    Comment: Avoid effects that would be contrary to a rule requirement. Some respondents were supportive of proposed paragraph (b)(6), which directed the responsible official to ensure that an amendment avoids effects that would be contrary to a specific substantive requirement within §§ 219.8 through 219.11, but some respondents were not supportive and expressed concerns about how the proposed paragraph would be interpreted. For example, one respondent identified concerns about how a responsible official would demonstrate that an amendment avoided contrary effects, and raised the possibility that this paragraph could inadvertently require the premature application of all of the requirements within §§ 219.8 through 219.11, despite express direction otherwise in proposed paragraph (c)(1). However, another respondent supported ensuring that amendments do not erode plan direction necessary to protect forest resources, and the concept of avoiding effects that would be contrary to a rule requirement.

    Response: The Department removed proposed paragraph (b)(6) and replaced it with clearer direction in paragraphs (b)(5)(i) and (ii) of this section. The Department also added a sentence to paragraph (b)(5) to clarify that an amendment is not required to bring the amended plan into compliance with all of the substantive requirements of the rule.

    The underlying purpose of proposed paragraph (b)(6) was to ensure that a responsible official does not avoid the application of a substantive requirement otherwise not directly related to the amendment, when analysis shows that an amendment is likely to have substantial adverse effects associated with that substantive requirement. For example, paragraph (b)(6) was intended to avoid a scenario in which an amendment proposes to modify a plan to identify a corridor suitable for energy development, but avoids the application of § 219.9(b) despite the corridor's likely adverse effects on critical habitat necessary to contribute to the recovery of a threatened species.

    The Department agrees with respondents that proposed paragraphs (b)(5) and (6) could be interpreted as creating two slightly different standards for applying the 2012 rule's substantive requirements in a way that might be confusing to implement. The Department also recognized that there could be confusion about how a responsible official would demonstrate compliance with proposed paragraph (b)(6). The Department therefore removed proposed paragraph (b)(6) and brought the intent of that paragraph into paragraph (b)(5). Instead of the direction to avoid effects contrary to a specific requirement, paragraph (b)(5) instead provides that a responsible official must determine that a substantive requirement is directly related to the changes being proposed by an amendment when the likely effects of those changes are substantially adverse in a way that implicates that substantive requirement.

    The Department's intent with this direction is that if a substantive requirement is directly related to a proposed amendment because of adverse effects, then the responsible official may modify the proposal to avoid the adverse effects so that the specific substantive requirement is no longer directly related to the changes being proposed. Otherwise, paragraph (b)(5) of this section requires that the responsible apply the directly related substantive requirement. For example, if an amendment would have substantial adverse effects to a historic site, the responsible official could modify the proposal so that the changes no longer have any adverse effect on that site, or apply the related substantive requirement (§ 219.10(b)(1)(ii)) to add to the amendment additional plan components that would provide for the protection of that historic site.

    As another example, if a proposed amendment would create an energy corridor that would have substantial adverse effects on critical habitat necessary for the recovery of an endangered species, the responsible official could choose to modify the proposed corridor to avoid the critical habitat. Otherwise, the responsible official must apply § 219.9(b) to review whether the plan provides the ecological conditions necessary to contribute to the recovery of that species. If the plan components would be insufficient to provide such ecological conditions, then the responsible official would be required to develop additional, species-specific plan components, including standards or guidelines, to provide such ecological conditions in the plan area.

    These changes should address the respondents' concerns, and are responsive to respondents' comments that this amendment to the 2012 rule must clearly preserve the Agency's flexibility to make timely amendments.

    Comment: NFMA diversity requirements and application of the 2012 rule to amended plans. A respondent was concerned that the existing 2012 rule could be interpreted to allow amendments that would eliminate or weaken direction in 1982 rule plans that was designed to meet the 1982 rule's diversity requirement, but avoid application of the 2012 rule's diversity provisions until plan revision. The respondent contends that this scenario would create an untenable gap, because NFMA requires that regulations be in place that provide for diversity. The respondent supported the concept of proposed paragraph (c)(2), which stated: “If the proposed amendment would remove direction required by the prior planning regulation, the responsible official must apply the directly related requirements within §§ 219.8 through 219.11.”

    The respondent also supported a possible addition to proposed paragraph (c)(2) that was mentioned in the preamble to the proposed rule, which would allow the responsible official to choose to demonstrate that the amended plan remains consistent with the 1982 rule. The respondent suggested the following wording: “If the proposed amendment would remove direction required by the prior planning regulation, the responsible official must apply the directly related requirements within §§ 219.8 through 219.11 or ensure that the amended plan avoids effects that would be contrary to the prior planning regulations.”

    In addition, the respondent questioned limiting the applicability of 2012 rule requirements to only the amendment as opposed to an amended plan, and questioned, as a practical matter, how one could determine that an amendment by itself meets substantive requirements without looking at the resulting plan in its entirety.

    Response: The Department removed paragraph (c)(2) and instead added direction in paragraph (b)(5)(ii)(A) and paragraph (b)(6) that the responsible official must apply any specific substantive requirement of the rule that is directly related to the amendment when the proposed amendment would substantially lessen protections for a specific resource or use. Paragraph (b)(5)(ii)(A) now requires that the responsible official determine that a specific substantive requirement is directly related to an amendment “when the proposed amendment would substantially lessen protections for a specific resource or use.” Paragraph (b)(6) addresses the application of the 2012 rule's species-specific requirements when amending a 1982 rule plan, and requires that the responsible official identify whether a species is a potential species of conservation concern (SCC) and, if so, apply the requirements of § 219.9(b) if the proposed amendment would substantially lessen protections for that specific species. These changes eliminate the potential for an amendment to remove from a plan direction that was necessary to meet the 1982 rule's diversity requirement, but avoid application of the 2012 rule's related requirements, addressing respondent's concern about a potential gap in application between the 1982 rule and the 2012 rule's diversity requirements. For example, if a proposed amendment to a plan developed under the 1982 planning rule would remove direction that was necessary to meet the 1982 rule's requirement to provide for the viability of a specific species, paragraph (b)(5) would require that responsible official apply § 219.9(b) to the proposed amendment with regard to that specific species.

    The Department decided against adding the suggested wording that would refer back to the 1982 rule for the reasons outlined in the preamble to the proposed rule, and because the Department believes the changes made in the final rule address respondent's concerns and provide clear direction to responsible officials in a way that meets the Department's original intent for the 2012 rule.

    The final rule also continues to require the application of directly related substantive requirements to the changes being proposed by an amendment, and does not require evaluation of the amended plan. In some cases, applying a directly related substantive requirement will lead to the evaluation of plan components across the plan area—for example, to determine whether existing plan components, with the proposed changes, meet the 2012 rule's substantive requirement to provide the ecological conditions necessary for a potential species of conservation concern that would be substantially adversely affected by a proposed amendment. That evaluation, however, is still focused on the amendment itself.

    The environmental analysis for an amendment is programmatic. It would include discussions of reasonably foreseeable direct, indirect, and cumulative effects and identify the spatial and temporal extent of the effects. The responsible official would apply the 2012 rule to make any necessary changes to the amendment based on the environmental analysis.

    Comment: One respondent was concerned that the proposed amendment to the 2012 rule could allow amendments that would fail to comply with the National Forest Management Act (NFMA).

    Response: The 2012 rule clearly requires in § 219.1(f) that plans comply with all applicable laws and regulations, including the NFMA. Nothing in this amendment to the 2012 rule affects that requirement.

    Comment: Possible barriers to amendments that apply only to a project and activity. Several respondents were concerned that the proposed rule could create possible barriers to project-specific amendments. One respondent requested that the Forest Service state in the preamble and the final amendment to the 2012 rule that § 219.13(b)(5), (b)(6), and (c)(2) of the proposed amendment to the rule do not operate to apply the substantive requirements in §§ 219.8 through 219.11 to plan amendments made in project or activity level decisions under § 219.15(c)(4) (project-specific amendments). Other respondents were concerned about the application of § 219.13(b)(3) to project-specific amendments.

    Response: The Department modified the requirements in the final rule to address respondents' concerns. The 2012 rule clearly recognized that amendments can be made together with, and apply only to, specific project and activity decisions (§ 219.13(b)(1); § 219.15(c)(4)). The Department added an exception in § 219.13(b)(3) for project and activity amendments—see an explanation of that change in above section “Amend § 219.13(b)(3)—Response to Comments.”

    The Department also made changes to the requirements in paragraphs (b)(5) and (b)(6) that should make the amendment process easier. Those paragraphs still apply to all amendments, including amendments made under 36 CFR 219.15(c)(4) that only apply to a project or activity, but the Department believes the clarifications will make it easier to apply the modified requirements to project-specific amendments, particularly those that do not have significant effects. Specifically:

    1. The Department clarified in paragraph (b)(5) that the application of directly related substantive requirements is intended to be commensurate with the scope and scale of the amendment. Specifically, the Department modified the words in the proposed rule “Ensure that the amendment meets” to “apply such requirements within the scope and scale of the amendment” in the final rule to make it easier to appropriately tailor the application of paragraph (b)(5). There may be aspects of a specific substantive requirement that would be required for revision, but would be beyond the scope or scale of the amendment. For example, the responsible official would not have to apply a directly related requirement to a geographic area not affected by the amendment. Furthermore, the responsible official may not have to apply every element within a directly related substantive requirement. For example, with respect to the 2012 rule's requirements for riparian areas in § 219.8(a)(3)(i), when a proposed amendment would have substantial adverse effects only with regard to sedimentation in a specific riparian area, the responsible official must apply the direction in § 219.8(a)(3)(i)(C) on deposits of sediment to that riparian area, but would not have to apply the direction in § 219.8(a)(3)(i)(G) on floodplain values to that riparian area.

    While the responsible official is required to apply the directly related substantive requirements to the changes being proposed, the application of those requirements can be as narrow as the amendment. If a project-specific amendment would change only one plan component, or impact only one management area, the responsible official's application of the directly related substantive requirement would reflect the narrow scope and scale of that amendment, and would be based on its purpose and effects.

    2. The Department clarified in paragraph (b)(5) that the responsible official is not required to apply any substantive requirements within §§ 219.8 through 219.11 that are not directly related to the amendment.

    3. Paragraph (b)(5)(ii)(A) recognizes that an amendment may have adverse effects that are less than substantial, and that would not require the application of an otherwise unrelated substantive requirement within §§ 219.8 through 219.11 to the amendment. Evidence of substantial adverse effects would require the application of the associated substantive requirement, but less than substantial adverse effects would not.

    4. The Department added paragraph (b)(5)(ii)(B) to make the process easier for many amendments, including project-specific amendments, by providing that when the environmental documentation for an amendment is a decision memo for a categorical exclusion or an environmental assessment accompanied by a finding of no significant impact, the responsible official may presume that the amendment will not have substantial adverse effects, barring evidence to the contrary.

    5. The Department removed proposed paragraph (c)(3) and replaced it with paragraph (b)(6), clarifying the process for applying the species-specific requirements of § 219.9(b) when amending plans developed or revised under the prior planning regulation, and replying to respondents' concerns about the previous wording. See further discussion of this change in the section “Amend § 219.13 to add paragraph (b)(6)—Response to Comments” below.

    Amend § 219.13 To Add Paragraph (b)(6)

    The Department removed the wording of proposed paragraph (b)(6) that stated: “Ensure that the amendment avoids effects that would be contrary to a specific substantive requirement of this part identified within §§ 219.8 through 219.11.” The Department made corresponding changes to paragraph (b)(5). An explanation of why the Department moved and changed the wording from proposed paragraph (b)(6) is provided in the section “Amend § 219.13 to add paragraph (b)(5).”

    The Department also removed proposed paragraph (c)(3) that stated: “If species of conservation concern (SCC) have not been identified for the plan area, the responsible official must use the regional forester sensitive species list in lieu of SCC when applying the requirements of § 219.9(b) to a plan amendment for a plan developed or revised under a prior planning regulation.”

    The Department added new paragraph (b)(6) to clarify the process a responsible official should use when amending a plan developed or revised under a prior planning regulation, if the regional forester has not yet identified the species of conservation concern (SCC) for the plan area. It is possible that in some cases, the regional forester will have already identified SCC within the plan area before plan revision. Paragraph (b)(6) recognizes that possibility, and focuses on providing direction that applies when SCC have not yet been identified. (A similar process clarification is not needed for the other species identified in § 219.9(b)—threatened and endangered, proposed and candidate species—because those are federally listed rather than identified by the regional forester as part of the planning process.) If SCC have been identified, paragraph (b)(6) would not apply, and the responsible official would follow the direction in paragraph (b)(5).

    If SCC have not yet been identified, paragraph (b)(6) requires that, when scoping or effects analysis reveals that a proposed amendment would have substantial adverse impacts to a specific species, or if the proposed amendment would substantially lessen protections for a specific species, the responsible official must determine whether or not that species is a potential SCC. The responsible official will make the determination using the definition provided in the 2012 rule (§ 219.9(c)). This paragraph is consistent with the approach already provided by the 2012 rule in § 219.6(b)(5), which requires the responsible official to “identify and evaluate existing information relevant to the plan area for . . . potential species of conservation concern present in the plan area,” when developing an assessment. See also Forest Service Planning Handbook 1909.12, Chapter 10, section 12.52, which provides guidance for identifying potential SCC.

    If the responsible official determines that the species being evaluated is a potential SCC, paragraph (b)(6) requires the responsible official to apply § 219.9(b) with respect to that species as if the regional forester had identified it as an SCC.

    By requiring that the responsible official apply the requirements of § 219.9(b) to a specific potential SCC that an amendment could substantially adversely impact, or if an amendment would substantially lessen protections found in the underlying plan for that species, paragraph (b)(6), along with paragraph (b)(5), carries forward the Department's original intent that the species-specific protections of the 2012 rule apply in the context of amendments. At the same time, this paragraph limits unintended process-related delays or barriers to amendments by making clear that amendments to plans developed under a prior planning regulation can proceed prior to the regional forester's identification of SCC for the plan area.

    Amend § 219.13 To Add Paragraph (b)(6)—Response to Comments

    Comment: Using the Regional Forester Sensitive Species (RFSS) as proxy. Several respondents were supportive of clarifying how to apply the species-specific protections of the existing rule when amending plans developed under a prior planning regulation, but several respondents expressed concern about using the regional forester sensitive species (RFSS) as a proxy for species of conservation concern (SCC) when SCC have not yet been identified for the plan area, as well as confusion over the scope of proposed paragraph (c)(3). For example, one respondent interpreted the proposed paragraph (c)(3) as requiring that all species on the RFSS list meet the viability requirement in § 219.9(b). Respondents observed that the RFSS list is an imperfect proxy for SCC, with one respondent noting that the RFSS lists may not reflect best available scientific information, were compiled at a regional rather than a unit scale, and did not include a public comment process.

    Response: The Department agreed that using the RFSS list as a proxy for SCC is an imperfect and potentially confusing procedural approach. The Department therefore removed from the final rule proposed paragraph (c)(3), which directed the responsible official, if SCC have not been identified, to use the RFSS list in lieu of identifying SCC when applying the requirements of § 219.9(b) to amend a plan developed under a prior planning regulation.

    Instead, the Department replaced proposed paragraph (c)(3) with paragraph (b)(6). Paragraph (b)(6) makes clear that SCC do not need to be identified by the regional forester prior to amending a plan developed or revised under a prior planning regulation, or as part of an amendment. Rather, paragraph (b)(6) operates to provide direction and a mechanism for a responsible official to be able to apply the requirements of § 219.9(b) to a specific potential SCC, when that specific species would be adversely impacted by a proposed amendment. The process identified in this new wording relies on the existing definition of SCC in § 219.9(c), and provides guidance similar to that already included in § 219.6(b)(5), which requires that the responsible official identify potential SCC during the assessment phase (an assessment is required prior to plan development or revision, but is optional for an amendment). See also Forest Service Planning Handbook 1909.12, Chapter 10, section 12.52, which provides guidance for identifying potential SCC.

    Amend § 219.14

    The final rule is unchanged from the proposed rule for this section. The Department changed the caption of paragraph (a) from “Decision document” to “Decision document approving a new plan, plan amendment, or revision.” The Department redesignated paragraph § 219.14(b) as § 219.14(d).

    In addition, the Department removed paragraph (a)(2) which requires responsible officials to explain how plan direction meets the provisions of §§ 219.8 through 219.11. The Department replaced paragraph (a)(2) with two new paragraphs (b) and (c) and renumbered paragraphs (a)(3) through (a)(6).

    The new paragraph (b) requires responsible officials to explain in a decision document for a new plan or plan revision how the plan direction meets the provisions of §§ 219.8 through 219.11.

    The new paragraph (c) focuses on documentation for a plan amendment. The decision document must include a rationale for the responsible official's determination of the scope and scale of the amendment, which requirements within §§ 219.8 through 219.11 are directly related to that amendment, and how those requirements were applied.

    Amend § 219.14 Response to Comments

    Comment: Best available scientific information, scoping, effects analysis, monitoring. A respondent was supportive of the documentation requirements and stated that § 219.14 should also require that the responsible official discuss how the best available scientific information, scoping, effects analysis, monitoring data, and other rationale was used to determine which substantive provisions apply. They also stated that the responsible official should be required to explain the relationship between the amendment and the amended plan in the decision document, in the appropriate context of meeting rule requirements.

    Response: The final rule in § 219.13(b)(5) requires that the responsible official base the determination that a specific substantive requirement is directly related to the amendment on the purpose for the amendment and the effects (beneficial or adverse) of the amendment, and requires that the determination be informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale. The requirements for documentation in this section remain the same as in the proposed rule. The decision document must explain how the responsible official determined which specific requirements within §§ 219.8 through 219.11 apply to the amendment and how those requirements were applied to the amendment. Section 219.14 requires responsible officials to explain their rationale and explain the information they used to make the determination required by § 219.13(b)(5).

    Amend § 219.16 To Revise Paragraph (a)(2)

    To be in agreement with the change made to § 219.13(b)(3) that now includes an exception so that an amendment that applies only to one project or activity is not considered a significant change in the plan for the purposes of NFMA, a conforming change is needed in paragraph (a)(2) of § 219.16.

    Therefore, in the final rule paragraph (a)(2) of § 219.16 specifies that a comment period of 90 days is not required for a proposed amendment that would apply only to one project or activity. However, for such amendments, normal NEPA requirements still apply. Therefore, the Department clarifies that the normal comment period is at least 45 days. See also Forest Service Handbook 1909.15, Chapter 20, section 24.1—Circulating and Filing a Draft Environmental Impact Statement.

    Technical Correction to Section 219.11

    The Department added a technical correction to fix a mistake made in a correcting amendment to the 2012 rule on July 27, 2012 (77 FR 44144, July 27, 2012). In that correcting amendment, the Forest Service inadvertently removed a sentence about the maximum size limits for areas to be cut in one harvest operation in § 219.11(d)(4). This change would simply restore to § 219.11 the sentence as published in the 2012 rule on April 9, 2012 (77 FR 21161). The Department received no comments on this correction.

    Compliance With the Endangered Species Act of 1973, as Amended

    In issuing the 2012 rule, the Department prepared both an Environmental Impact Statement (EIS) and a biological assessment to support its final decision. NOAA Fisheries and USFWS each issued a biological opinion pursuant to section 7(a)(2) of the Endangered Species Act. The biological opinions included conservation reviews pursuant to section 7(a)(l) Act (16 U.S.C. 1536(a)(1) and (2)). Copies of the biological assessment, its addendum, and the biological opinions are in the project record for the 2012 rule and can be viewed online at: http://www.fs.usda.gov/planningrule.

    Because this final rule is to clarify the Department's original intent for plan amendment processes and requirements, and the amendment does not change the planning requirements for endangered or threatened species, the Department has concluded that this final rule does not require additional consultation under sections 7(a)(1) and 7(a)(2) of the Endangered Species Act.

    Regulatory Certifications Energy Effects

    This final rule has been analyzed under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that it does not constitute a significant energy action as defined in the Executive Order.

    Environmental Impacts

    In issuing the 2012 planning rule, the Department prepared both an Environmental Impact Statement (EIS) and a biological assessment to support its final decision. The EIS is available online at http://www.fs.usda.gov/planningrule.

    The Department has concluded that this final rule does not require additional documentation under the National Environmental Policy Act. Because this final rule is to clarify the Department's original intent for plan amendment processes and requirements, the range of effects included in the Department's prior NEPA analysis covers this final rule. Therefore, there is no need to supplement the National Forest System Land Management Planning Rule Final Programmatic Environmental Impact Statement of January 2012.

    Consultation and Coordination With Indian Tribal Governments

    This final rule has been reviewed under Executive Order 13175 of November 6, 2000, Consultation and Coordination with Indian Tribal Governments. It has been determined that this final rule would not have Tribal implications as defined by Executive Order 13175, and therefore, advance consultation with Tribes is not required.

    Regulatory Impact

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this 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 innovated, 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

    This final rule has also been considered in light of the Regulatory Flexibility Act, as amended (5 U.S.C. 601 et seq.), and it has been determined that this action will not have a significant economic impact on a substantial number of small business entities as defined by the Regulatory Flexibility Act. Therefore, a regulatory flexibility analysis is not required for this final rule.

    Federalism

    The Forest Service has considered this final rule under the requirements of Executive Order 13132 on federalism. The Agency has determined that the final rule conforms with the federalism principles set out in this Executive Order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Agency has determined that no further determination of federalism implications is necessary at this time.

    No Takings Implications

    This final rule has been analyzed in accordance with the principles and criteria in Executive Order 12630. It has been determined that this final rule does not pose the risk of a taking of private property.

    Civil Justice Reform

    This final rule has been reviewed under Executive Order 12988 on civil justice reform. The Agency has not identified any State or local laws or regulations that are in conflict with this rule or that would impede full implementation of this rule. Nevertheless, in the event that such conflicts were to be identified, (1) all State and local laws and regulations that conflict with the final rule or that would impede its full implementation would be preempted; (2) no retroactive effect would be given to the final rule; and (3) it would not require administrative proceedings before parties may file suit in court challenging its provisions.

    Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Agency has assessed the effects of this final rule on State, local, and Tribal governments and the private sector. This final rule would not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required.

    Controlling Paperwork Burdens on the Public

    This final rule does not contain recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320.

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501- 3520), the Forest Service requested and received approval of a new information collection requirement for subpart B as stated in 36 CFR 219.61 and assigned control number 0596-0158 as stated in the final rule approval (77 FR 21161, April 9, 2012). Subpart B specifies the information that objectors must give in an objection to a plan, plan amendment, or plan revision (36 CFR 219.54(c)).

    However, recently the Agency learned that subpart B is not considered an information collection under the Paperwork Reduction Act of 1995. Subpart B is not an information collection because the notice indicating the availability of the plan, plan amendment, or plan revision, the appropriate final environmental documents, the draft plan decision document, and the beginning of the objection period is a general solicitation. No person is required to supply specific information pertaining to the respondent, other than that necessary for self-identification.

    List of Subjects in 36 CFR Part 219

    Administrative practice and procedure, Environmental impact statements, Indians, Intergovernmental relations, National forests, Reporting and recordkeeping requirements, Science and technology.

    Therefore, for the reasons set forth in the preamble, the Department amends 36 CFR part 219 as follows:

    PART 219—PLANNING 1. The authority citation for part 219 continues to read as follows: Authority:

    5 U.S.C. 301; 16 U.S.C. 1604, 1613.

    2. Revise § 219.3 to read as follows:
    § 219.3 Role of science in planning.

    The responsible official shall use the best available scientific information to inform the planning process required by this subpart for assessment; developing, amending, or revising a plan; and monitoring. In doing so, the responsible official shall determine what information is the most accurate, reliable, and relevant to the issues being considered. The responsible official shall document how the best available scientific information was used to inform the assessment, the plan or amendment decision, and the monitoring program as required in §§ 219.6(a)(3) and 219.14(a)(3). Such documentation must: Identify what information was determined to be the best available scientific information, explain the basis for that determination, and explain how the information was applied to the issues considered.

    3. Revise the introductory text to § 219.8 to read as follows:
    § 219.8 Sustainability.

    A plan developed or revised under this part must provide for social, economic, and ecological sustainability within Forest Service authority and consistent with the inherent capability of the plan area, as follows:

    4. Revise the introductory text to § 219.9 to read as follows:
    § 219.9 Diversity of plant and animal communities.

    This section adopts a complementary ecosystem and species-specific approach to maintaining the diversity of plant and animal communities and the persistence of native species in the plan area. Compliance with the ecosystem requirements of paragraph (a) of this section is intended to provide the ecological conditions to both maintain the diversity of plant and animal communities and support the persistence of most native species in the plan area. Compliance with the requirements of paragraph (b) of this section is intended to provide for additional ecological conditions not otherwise provided by compliance with paragraph (a) of this section for individual species as set forth in paragraph (b) of this section. A plan developed or revised under this part must provide for the diversity of plant and animal communities, within Forest Service authority and consistent with the inherent capability of the plan area, as follows:

    5. Revise the introductory text to § 219.10 to read as follows:
    § 219.10 Multiple use.

    While meeting the requirements of §§ 219.8 and 219.9, a plan developed or revised under this part must provide for ecosystem services and multiple uses, including outdoor recreation, range, timber, watershed, wildlife, and fish, within Forest Service authority and the inherent capability of the plan area as follows:

    6. Amend § 219.11 by revising the introductory text and paragraph (d)(4) to read as follows:
    § 219.11 Timber requirements based on the NFMA.

    While meeting the requirements of §§ 219.8 through 219.10, a plan developed or revised under this part must include plan components, including standards or guidelines, and other plan content regarding timber management within Forest Service authority and the inherent capability of the plan area, as follows:

    (d) * * *

    (4) Where plan components will allow clearcutting, seed tree cutting, shelterwood cutting, or other cuts designed to regenerate an even-aged stand of timber, the plan must include standards limiting the maximum size for openings that may be cut in one harvest operation, according to geographic areas, forest types, or other suitable classifications. Except as provided in paragraphs (d)(4)(i) through (iii) of this section, this limit may not exceed 60 acres for the Douglas-fir forest type of California, Oregon, and Washington; 80 acres for the southern yellow pine types of Alabama, Arkansas, Georgia, Florida, Louisiana, Mississippi, North Carolina, South Carolina, Oklahoma, and Texas; 100 acres for the hemlock-Sitka spruce forest type of coastal Alaska; and 40 acres for all other forest types.

    7. Amend § 219.13 by revising paragraphs (a) and (b) to read as follows:
    § 219.13 Plan amendment and administrative changes.

    (a) Plan amendment. A plan may be amended at any time. Plan amendments may be broad or narrow, depending on the need for change, and should be used to keep plans current and help units adapt to new information or changing conditions. The responsible official has the discretion to determine whether and how to amend the plan and to determine the scope and scale of any amendment. Except as provided by paragraph (c) of this section, a plan amendment is required to add, modify, or remove one or more plan components, or to change how or where one or more plan components apply to all or part of the plan area (including management areas or geographic areas).

    (b) Amendment requirements. For every plan amendment, the responsible official shall:

    (1) Base an amendment on a preliminary identification of the need to change the plan. The preliminary identification of the need to change the plan may be based on a new assessment; a monitoring report; or other documentation of new information, changed conditions, or changed circumstances. When a plan amendment is made together with, and only applies to, a project or activity decision, the analysis prepared for the project or activity may serve as the documentation for the preliminary identification of the need to change the plan.

    (2) Provide opportunities for public participation as required in § 219.4 and public notification as required in § 219.16. The responsible official may combine processes and associated public notifications where appropriate, considering the scope and scale of the need to change the plan. The responsible official must include information in the initial notice for the amendment (§ 219.16(a)(1)) about which substantive requirements of §§ 219.8 through 219.11 are likely to be directly related to the amendment (§ 219.13(b)(5)).

    (3) Amend the plan consistent with Forest Service NEPA procedures. The appropriate NEPA documentation for an amendment may be an environmental impact statement, an environmental assessment, or a categorical exclusion, depending upon the scope and scale of the amendment and its likely effects. Except for an amendment that applies only to one project or activity, a proposed amendment that may create a significant environmental effect and thus requires preparation of an environmental impact statement is considered a significant change in the plan for the purposes of the NFMA and therefore requires a 90-day comment period for the proposed plan and draft environmental impact statement (§ 219.16(a)(2)), in addition to meeting the requirements of this section.

    (4) Follow the applicable format for plan components set out at § 219.7(e) for the plan direction added or modified by the amendment, except that where an amendment to a plan developed or revised under a prior planning regulation would simply modify the area to which existing direction applies, the responsible official may retain the existing formatting for that direction.

    (5) Determine which specific substantive requirement(s) within §§ 219.8 through 219.11 are directly related to the plan direction being added, modified, or removed by the amendment and apply such requirement(s) within the scope and scale of the amendment. The responsible official is not required to apply any substantive requirements within §§ 219.8 through 219.11 that are not directly related to the amendment.

    (i) The responsible official's determination must be based on the purpose for the amendment and the effects (beneficial or adverse) of the amendment, and informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale.

    (ii) When basing the determination on adverse effects:

    (A) The responsible official must determine that a specific substantive requirement is directly related to the amendment when scoping or NEPA effects analysis for the proposed amendment reveals substantial adverse effects associated with that requirement, or when the proposed amendment would substantially lessen protections for a specific resource or use.

    (B) If the appropriate NEPA documentation for an amendment is a categorical exclusion or an environmental assessment accompanied by a finding of no significant impact (§ 219.13(b)(3)), there is a rebuttable presumption that the amendment will not have substantial adverse effects.

    (6) For an amendment to a plan developed or revised under a prior planning regulation, if species of conservation concern (SCC) have not been identified for the plan area and if scoping or NEPA effects analysis for the proposed amendment reveals substantial adverse impacts to a specific species, or if the proposed amendment would substantially lessen protections for a specific species, the responsible official must determine whether such species is a potential SCC, and if so, apply section § 219.9(b) with respect to that species as if it were an SCC.

    8. Amend § 219.14 as follows: a. Revise the heading and introductory text to paragraph (a); b. Remove paragraph (a)(2); c. Redesignate paragraphs (a)(3) through (6) as paragraphs (a)(2) through (5), respectively; d. Redesignate paragraph (b) as paragraph (d) and add new paragraph (b); e. Add paragraph (c).

    The revisions and additions read as follows:

    § 219.14 Decision document and planning records.

    (a) Decision document approving a new plan, plan amendment, or revision. The responsible official shall record approval of a new plan, plan amendment, or revision in a decision document prepared according to Forest Service NEPA procedures (36 CFR part 220). The decision document must include:

    (b) Decision document for a new plan or plan revision. In addition to meeting the requirements of paragraph (a) of this section, the decision document must include an explanation of how the plan components meet the sustainability requirements of § 219.8, the diversity requirements of § 219.9, the multiple use requirements of § 219.10, and the timber requirements of § 219.11.

    (c) Decision document for a plan amendment. In addition to meeting the requirements of paragraph (a) of this section, the decision document must explain how the responsible official determined:

    (1) The scope and scale of the plan amendment; and

    (2) Which specific requirements within §§ 219.8 through 219.11 apply to the amendment and how they were applied.

    9. Amend § 219.16 by revising paragraph (a)(2) to read as follows:
    § 219.16 Public notifications.

    (a) * * *

    (2) To invite comments on a proposed plan, plan amendment, or plan revision, and associated environmental analysis. For a new plan, plan amendment, or a plan revision for which a draft environmental impact statement (EIS) is prepared, the comment period is at least 90 days, except for an amendment that applies only to one project or activity. For an amendment that applies only to one project or activity for which a draft EIS is prepared, the comment period is at least 45 days unless a different time period is required by law or regulation or authorized pursuant to 40 CFR 1506.10(d). For an amendment for which a draft EIS is not prepared, the comment period is at least 30 days;

    Dated: December 9, 2016. Robert Bonnie, Under Secretary, Natural Resources and Environment.
    [FR Doc. 2016-30191 Filed 12-14-16; 8:45 am] BILLING CODE 3411-15-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 25, 80 and 95 [WTB Docket No. 14-36; FCC 16-119] Maritime Radio Equipment and Related Matters AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission or FCC) addresses a number of important issues regarding updating rules and requirements for technologies used to locate and rescue distressed ships and individuals in distress at sea or on land to provide better and more accurate data to rescue personnel. The Commission also addresses issues regarding radar equipment, the use of portable marine Very High Frequency (VHF) transmitters by persons on shore; permitting VHF digital small message service (VDSMS); and allowing assignment or transfer of control of ship station licenses. The Commission is amending its rules to permit the maritime community to make use of the most advanced and reliable communications technologies available for the alerting of search and rescue authorities when a vessel or individual is in distress, and to further the Commission's goal of ensuring that the spectrum allocated for emergency communications is used effectively and efficiently.

    DATES:

    Effective January 17, 2017 except for the amendments to §§ 80.233, 80.1061, 95.1402 and 95.1403 which contain information collection requirements that are not effective until approved by the Office of Management and Budget. The FCC will publish a document in the Federal Register announcing the effective date for those amendments. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of January 17, 2017, except for the publications in §§ 80.7 (amendatory instruction #7), 80.233, 80.1061, 95.1402 and 95.1403 which are in sections that contain information collection requirements that are not effective until approved by the Office of Management and Budget. The FCC will publish a document in the Federal Register announcing the approval date for the incorporation by reference of publications into those sections.

    ADDRESSES:

    Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. In addition to filing comments with the Office of the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Cathy Williams, Federal Communications Commission, 1-C823, 445 12th Street SW., Washington, DC 20554, or send an email to [email protected] The Commission will send a copy of this Report & Order, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    FOR FURTHER INFORMATION CONTACT:

    James Shaffer, [email protected], Wireless Telecommunications Bureau, (202) 418-0687, or TTY (202) 418-7233. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams, [email protected], (202) 418-2918, or send an email to [email protected]v.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Federal Communications Commission's Report and Order (R&O), in WT Docket No. 14-36, FCC 16-119, adopted on August 31, 2016, and released on September 1, 2016. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by sending an email to [email protected] or by calling the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

    1. The Report and Order will permit the maritime community to make use of the most advanced and reliable communications technologies available for the alerting of search and rescue authorities when a vessel is in distress. Our decisions herein also further the Commission's goal of ensuring that the spectrum allocated for maritime communications is used effectively and efficiently.

    2. The Report and Order incorporates by reference standards for certain marine and personal radio safety devices and a standard to provide VHF Digital Small Message Service (VDSMS) on certain marine VHF channels. For 406 MHz Emergency Position Indicating Radiobeacons (EPIRBs) the Radio Technical Commission for Maritime Services (RTCM) Standard 11000.3 provides the latest technical and testing procedures for EPRIBs and requires them to have an internal navigation device designed to provide position data upon activation. For 406 MHz Personal Locator Beacons (PLBs) the RTCM Standard 11010.2 provides updated technical requirements and adds test procedures for PLBs with integral GNSS receivers or internal navigation devices. For Satellite Emergency Notification Devices (SENDs) RTCM Standard 12800.0 provides minimum requirements for the functional and technical performance of SENDs to ensure reliability in emergency situations. For Maritime Survivor Locating Devices (MSLDs) RTCM Standard 11901.1 provides minimum functional and technical performance of MSLDs. For Automatic Identification System Search and Rescue Transmitters (AIS-SARTs) the International Maritime Organization (IMO) Resolution MSC.246(83) and the International Electrotechnical Commission (IEC) 61097-14 provide the minimum performance requirements and technical specifications for AIS-SARTs. Finally, for VHF digital small message services (VDSMS) RTCM Standard 12301.1 provides technical standard that enables transmission of short digital messages without interfering with other communications on the same channel. Copies of the RTCM documents are available and may be obtained from the Radio Technical Commission for Maritime Services, 1611 N. Kent Street, Suite 605, Arlington, Virginia 22209. Copies of the IMO documents are available and may be obtained from the International Maritime Organization (IMO), 4 Albert Embankment, London SE1 7SR, United Kingdom; http://www.imo.org; Tel. + 44 (0)20 7735 7611; Fax + 44 (0)20 7587 3210; email: [email protected] Copies of the IEC documents are available and may be obtained from International Electrotechnical Commission (IEC), 3 Rue de Varembe, CH-1211, Geneva 20, Switzerland; www.iec.ch; phone: + 41 22 919 02 11; fax: + 41 22 919 03 00; email: [email protected] (IEC publications can also be purchased from the American National Standards Institute (ANSI) through its NSSN operation (www.nssn.org), at Customer Service, American National Standards Institute, 25 West 43rd Street, New York NY 10036, telephone (212) 642-4900.) The documents are available for inspection at Commission headquarters at 445 12th Street SW., Washington, DC 20554.

    Emergency Position Indicating Radio Beacons (EPIRBs)

    3. EPIRBs are carried on board ships to alert others of a distress situation, and to assist search and rescue (SAR) personnel in locating those in distress. Specifically, an EPIRB transmits a digital signal on 406.0-406.1 MHz (406 MHz) that is detected by the search and rescue satellite-aided tracking (SARSAT) system operated by the National Oceanic and Atmospheric Administration (NOAA). The digital signal provides distress alerting, homing assistance, country and identification code of the station in distress, and other pertinent information. Traditional EPIRBs rely on satellite Doppler shift to identify the distress location. Some EPIRBs, however, transmit their Global Navigation Satellite System (GNSS) coordinates, which enables SAR authorities to determine an accurate location significantly faster than satellite Doppler shift.

    4. EPIRBs must comply with the Radio Technical Commission for Maritime Services (RTCM) EPIRB standard incorporated by reference in our rules. RTCM updated its EPIRB standard to require, among other conditions, an internal navigation device designed to provide position data upon activation. The Commission asked if the new RTCM EPIRB standard should be incorporated by reference in our rules, and sought comment on the appropriate timetable for phasing out certification, manufacture, sale and use of EPIRBs that do not comply with the new standard.

    5. All commenters addressing the issue support revising Part 80 to incorporate by reference the revised RTCM EPIRB standard. We agree that such an action is in the public interest because better location availability reduces search time and therefore contributes to the success of emergency rescues. Moreover, most commenters state that the price difference between EPIRBs that broadcast position data and those that do not has diminished or even disappeared, so adopting this requirement will impose little or no additional cost on end-users who purchase EPIRBs that comply with the new standard. We amend our rules to incorporate by reference the revised RTCM EPIRB standard 1 as proposed.2

    1 After the Notice of Proposed Rulemaking (Notice) was released, RTCM revised the standard. See RTCM Standard 11000.4 for 406 MHz Satellite Emergency Position Indicating Radio Beacons (EPIRBs), dated June 1, 2015. The amended standard adds an option for the use of AIS position locating in addition to or in lieu of 121.5 MHz homing. NTIA requests that we incorporate the amended standard, but we decline to add the AIS option without notice and comment. Until such time as the amended standard is incorporated into part 80, manufacturers may request waivers to permit the equipment authorization and use of AIS EPIRBs.

    2 We also, as proposed, remove references in part 80 to COSPAS-SARSAT C/S T.001, Specification for COSPAS-SARSAT 406 MHz Distress Beacons, and COSPAS-SARSAT C/S T.007 distress beacons specifications because they are included in the RTCM EPIRB standard, and EPIRBs must be tested for compliance with these specifications before being submitted for equipment authorization. We decline RTCM's suggestion to incorporate by reference the revised version of ITU-R Recommendation M.633-3, “Transmission characteristics of a satellite emergency position-indicating radiobeacon (satellite EPIRB) system operating through a low polar-orbiting satellite system in the 406 MHz band,” 2004 (ITU-R M.633-3), as beyond the scope of the Notice, because the Commission did not propose to amend the rules to revise the version of ITU-R M.633 that is incorporated by reference.

    6. With respect to the appropriate timeline for phasing out EPIRBs that do not comply with the new standard, commenters generally agree that the Commission should cease accepting applications for certification of non-compliant EPIRBs beginning one year after the effective date of the rules adopted herein. With minor variations, commenters support prohibiting the continued manufacture, importation, and sale of non-compliant EPIRBs three years after the effective date. We conclude that these time frames are reasonable, and amend our rules to set forth these deadlines. With respect to continued use of non-compliant EPIRBs, most commenters argue that there is no need to establish a date after which use of such EPIRBs will be prohibited because most boat owners replace their EPIRBs at the battery replacement date, which is typically five years after the EPIRB is sold, and one commenter proposes that use of non-compliant EPIRBs be prohibited six years after the rules become effective to allow owners to obtain the full five-year battery life of their current devices. We agree with the commenters that no deadline is required for vessels that voluntarily carry EPIRBs. We note that use by voluntary vessels of EPIRBs that do not comply with the new standard will continue to provide SAR personnel with the same quality of location information as they do currently. However, we adopt a six-year deadline for vessels that are required under our rules to carry EPIRBs, in order to ensure that these vessels provide better location availability during distress situations. We conclude that these transition periods fairly balance the interest in minimizing the compliance burden against the benefits of deploying new maritime safety features expeditiously.

    7. Finally, we adopt our proposal to amend our rules to make plain that the use of prior-generation EPIRBs that operate only on 121.5/243 MHz and do not operate on 406 MHz is prohibited. Commenters support this proposal, which simply clarifies a prohibition that was adopted in 2002.

    Personal Locator Beacons (PLBs)

    8. Like EPIRBs, PLBs send distress signals on 406 MHz that are detected by the COSPAS-SARSAT satellite system and relayed to SAR authorities, but PLBs can be used on land and are intended to meet the distress alerting needs of the general public. PLB use is licensed by rule under part 95 of the Commission's rules, which governs the Personal Radio Services (PRS).

    9. PLBs must comply with the RTCM PLB standard incorporated by reference in our rules. RTCM revised its PLB standard to update various technical requirements and to add test procedures for PLBs with integral GNSS receivers or internal navigation devices. The Commission asked if the new RTCM PLB standard should be incorporated by reference in our rules and, if so, sought comment on the appropriate timetable for phasing out the certification, manufacture, sale and use of PLBs that do not comply with the new standard.

    10. All commenters who address the question support revising part 95 to incorporate by reference the revised RTCM PLB standard. We agree that such an action is in the public interest because better location availability minimizes search time and therefore contributes to the success of emergency rescues. Moreover, commenters do not believe that compliance with the new testing protocol will materially affect PLB prices, so adopting this requirement will impose little or no additional cost on purchasers of PLBs that comply with the new standard. We amend our rules to incorporate by reference the revised RTCM PLB standard.3

    3 As suggested by commenters, we also remove the technical requirements set forth in section 95.1402(b) of the Commission's rules because those requirements are included in the revised RTCM PLB standard. We also, as above with respect to EPIRBs, remove the references in part 95 to COSPAS-SARSAT T.007 because it is included in the RTCM PLB standard.

    11. With respect to the appropriate timeline for phasing out PLBs that do not comply with the new standard, commenters agree that the Commission should cease accepting applications for certification of non-compliant PLBs beginning one year after the effective date of the rules adopted herein. With some minor variations, commenters support prohibiting the continued manufacture, importation, and sale of non-compliant PLBs three years after the effective date. We conclude that these time frames are reasonable, and amend our rules to set forth these deadlines. We agree with the majority of commenters that there is no need to establish a date after which use of non-compliant PLBs will be prohibited, because PLB use is voluntary and the continued use of PLBs that do not comply with the new standard will deliver the current quality of service to SAR personnel for distress alerting and locating capabilities. We conclude that these transition periods fairly balance the interest in minimizing the compliance burden against the benefits of deploying new safety features expeditiously.

    12. The Commission also sought comment on whether, as recommended by the Secretariat of the International COSPAS-SARSAT Programme (COSPAS-SARSAT), to amend part 95 to limit the use of 406 MHz band by PLBs to “distress and safety of life communications,” instead of “distress and safety communications.” This clarification would make clear that PLB use should be under emergency conditions and for survival purposes. While non-life threatening emergencies or safety communications are important functions, use of PLBs to alert rescuers should be limited to situations of grave and imminent danger. This excludes some situations that might be broadly considered as safety communications. We agree with RTCM, the only commenter addressing this issue, that this clarification of the intended use of PLBs would be beneficial, and we amend the rule accordingly. As recommended by COSPAS-SARSAT, we also amend the rules to clarify that, rather than “issu[ing]” unique identification codes, NOAA recognizes codes that manufacturers create based on COSPAS-SARSAT guidance.

    13. PLB owners must register their beacons with NOAA.4 Part 95 requires manufacturers to include a postage pre-paid registration card with each PLB, and to set forth NOAA's mailing address on the PLB label.5 Commenters state that NOAA's current preferred method of beacon registration is online. We will therefore add the NOAA Web site information to our rules, but decline ACR's suggestion that we require manufacturers to add the Web site address to the PLB label as beyond the scope of the Notice, which did not propose to change the labeling requirements.6 Manufacturers may of course include such information with each PLB if they choose.

    4 No commenter supported COSPAS-SARSAT's request that the Commission amend part 95 to emphasize that PLB owners are required to register their beacons. We conclude that the proposal is unnecessary because the rule already makes this clear.

    5 We note in response to commenters' concern that the mailing address set forth in the rule is obsolete that the rule was updated after those comments were filed.

    6 We note that ACR's suggestion that we prohibit the marketing as a “Personal Locator Beacon” or “PLB” of any device that does not meet the RTCM standard is under consideration in another proceeding.

    Satellite Emergency Notification Devices (SENDs)

    14. Although there is no established definition for the term “SENDs,” it is often used to refer to small transmitters that provide a means for individuals in remote areas to alert others of an emergency situation and to aid SAR personnel to locate those in distress. These devices differ from PLBs in that they operate on satellite networks other than the 406 MHz COSPAS-SARSAT system. The service provided is typically a subscription service that sends data to a satellite, and is then used to create a Web-based report that enables the tracking of persons.

    15. RTCM, with participation from the mobile satellite industry, has developed minimum requirements for the functional and technical performance of SENDs to ensure that these devices will work with a high degree of reliability in emergency situations. The Commission sought comment on RTCM's proposal that the part 95 rules be amended to incorporate by reference its SEND standard, and to prohibit devices that do not meet that standard from being marketed as SENDs. The Commission noted, however, that such devices do not require authorization under part 95 because they already can operate pursuant to the part 25 mobile satellite service (MSS) rules, and tentatively concluded that incorporating what is effectively a voluntary standard is unnecessary and would not further the public interest.

    16. Commenters are split regarding whether we should incorporate by reference RTCM's SEND standard into our rules. Most argue that it should be incorporated because users rely on satellite emergency notification services in emergency situations and expect devices to perform in a manner similar to PLBs (which, as discussed above, are required to meet the relevant RTCM standard), but the part 25 MSS rules do not include any specific provisions to ensure that devices will perform with the degree of reliability specified in the RTCM standard. ACR Electronics Inc. (ACR), a manufacturer of survival products, argues further that compliance with the RTCM SEND standard should be mandatory for all satellite communications devices outside the 406 MHz band that provide emergency distress notification functions, except for devices that offer real-time two-way switched voice service. Iridium Satellite LLC (Iridium), an MSS provider, argues that incorporation by reference of the standard is unnecessary because voluntary compliance with the SEND standard by manufacturers and MSS providers is sufficient.

    17. We are adopting RTCM's proposal to the extent that we incorporate the RTCM SEND standard by reference under the part 25 MSS rules for devices that are marketed as SENDs. We address commenters' concerns about consumer expectations by amending part 25 to specify that the terms “SEND” and “Satellite Emergency Notification Device” may be used in marketing and sales only for devices that meet the requirements set forth in the RTCM SEND standard. We agree with Iridium that requiring all devices that are capable of transmitting an emergency distress alert to meet the RTCM SEND standard is overbroad.7

    7 Implementation of such a requirement could require a more precise definition of what devices are covered, which is beyond the scope of the record in this proceeding.

    Maritime Survivor Locating Devices (MSLDs)

    18. MSLDs are intended for use by persons at risk of falling into the water such as mariners and workers on marine installations or docks, or by divers returning to the surface out of sight of their dive boats. They can be worn on or as part of a garment or life jacket, and are intended to facilitate the rescue of personnel in the vicinity of their vessel or structure so that immediate assistance can be rendered without a time-consuming and expensive SAR operation. In light of this narrower focus, MSLDs do not operate on a frequency monitored by COSPAS-SARSAT, and do not transmit with as much power or for as long as EPIRBs or PLBs. Instead, MSLDs transmit on frequencies that are received on a device monitored by personnel at the MSLD-wearer's vessel or facility.

    19. RTCM has developed minimum requirements for the functional and technical performance of MSLDs. The Commission proposed to incorporate by reference RTCM's MSLD standard into the part 95 rules to allow certification and use of devices meeting the standard, and asked whether manufacturers should be required to coordinate their applications for equipment certification of MSLDs with the United States Coast Guard (Coast Guard). The Commission also sought comment on the appropriate timetable for phasing out manufacture, sale and use of devices intended to aid in the location of persons in the water that were approved by waiver but do not comply with RTCM's MSLD standard.

    20. Commenters agree that RTCM's MSLD standard should be incorporated by reference in our rules. We agree that allowing for certification and use of MSLDs will enhance safety for individuals on or near the water by providing for earlier alerting and rescues that are both more rapid and effective and less costly, and we therefore incorporate the standard into part 95 as proposed.8 We also agree with commenters who support coordination with the Coast Guard for equipment authorization to assure that MSLDs meet the RTCM MSLD standard, and will therefore also require such coordination. As suggested by RTCM, certification of MSLDs that include a function intended to send a distress message directly to the Coast Guard or any other SAR organization will not be permitted unless that function is endorsed by the Coast Guard in its pre-certification review. With respect to the appropriate timeline for phasing out devices that were approved by waiver but do not comply with the standard, we will prohibit the continued manufacture, importation, and sale of non-compliant devices as of one year after the effective date of the rules adopted herein, but will permit the continued use of those devices.

    8 After the Notice was released, RTCM revised the standard. The amended standard adds an option permitting “open loop” operation allowing alerting of all vessels in the vicinity with Digital Selective Calling (DSC) radios of the alert situation. DSC is a digital signaling system that automatically allows ship and shore stations to call one another directly, similar to the use of a telephone, and establish contact. RTCM requests that we incorporate its amended MSLD standard but we decline to authorize the “open loop” option without notice and comment. Instead, we incorporate by reference the 2012 version of RTCM's MSLD standard.

    Automatic Identification System Search and Rescue Transmitters (AIS-SARTs)

    21. Like EPIRBs, SARTs are carried on board ships and survival craft to alert others of a distress situation, and to assist SAR personnel in locating those in distress. Currently, the part 80 rules authorize only traditional SARTs, which act as active reflectors of 9.2-9.5 GHz (9 GHz) radar signals. Each time a 9 GHz SART detects a pulse from the radar of a searching vessel that is within approximately five nautical miles, the SART transmits a signal that is displayed on the screen of the radar that activated it.

    22. An AIS-SART, as part of the AIS maritime navigation safety communications system, is used to locate a survival craft or distressed vessel by transmitting a unique identification code and GPS coordinates to all AIS-enabled devices within VHF radio range. The International Maritime Organization (IMO) has amended the GMDSS regulations to permit AIS-SARTs as an alternative to 9 GHz SARTs. In addition, the International Electrotechnical Commission (IEC) approved performance and technical specifications for AIS-SARTs. In the Notice, the Commission proposed to incorporate by reference the IMO and IEC standards for AIS-SARTs into our rules, which would allow certification and use of AIS-SARTs meeting those standards, and to require manufacturers to coordinate AIS-SART equipment certification applications with the Coast Guard.

    23. We agree with the commenters that AIS-SARTs represent an important tool for improving maritime safety and have gained international acceptance, and therefore revise Part 80 to incorporate by reference the IMO and IEC standards for AIS-SARTs. We will require that AIS-SART equipment certification applications be coordinated with the Coast Guard, as is required for other AIS equipment. We agree with RTCM's suggestion to use the term “search and rescue locating devices” when referring to both traditional SARTs and AIS-SARTs, but we decline, as beyond the scope of this proceeding, its request that we amend the rules regarding the stowage of these devices on ships equipped with free-fall lifeboats.

    Ship Radar

    24. Section 80.273 of the Commission's Rules contains the technical requirements for radar equipment installed on ships, and incorporates by reference relevant international standards for such equipment, including IEC 62388 for compulsory vessels and IEC 62252 for voluntary vessels. As proposed in the Notice, we amend part 80 to remove the incorporation by reference of IEC 62252 because manufacturers have not designed or built radar sets to this standard, and IEC has withdrawn the standard. We understand that RTCM is in the process of drafting new ship radar standards for voluntary vessels and anticipates publishing these standards in the near future. Voluntary vessels are permitted to carry radar equipment intended for use solely on voluntary vessels, without reference to any particular standard, until appropriate standards are developed and adopted. As proposed, we also correct a cross-reference to clarify that radar installations on compulsory vessels must meet IEC 62388.9

    9 In addition, as suggested by commenters, we revise section 80.273(b) to agree with the latest IEC 62388 standard and require “effective diameter of not less than 320 millimeters (12.6 inches)” for the radar display, rather than 340 millimeters (13.4 inches).

    Portable Marine VHF Radios on Shore

    25. Section 80.115(a)(2) of the Commission's Rules prohibits the use on shore of a portable marine VHF radio associated with a vessel. The GMDSS Task Force proposed that the rule be amended to allow persons on shore within three miles of the water to use portable marine VHF radios to communicate with the vessel that is subject to the ship station authorization. The Commission, however, noted that limitations on the use of maritime frequencies are intended to minimize interference to maritime communications (particularly distress and safety messages), and tentatively concluded that permitting the use of portable marine VHF radio transmitters on shore would not further the public interest. We questioned the practical enforceability of a three-mile rule, and asked whether shore parties' communications needs could be met by commercial mobile radio service (CMRS) or PRS options. The Commission also asked commenters supporting the proposal to discuss what limitations would be appropriate to minimize the impact on maritime communications.

    26. The GMDSS Task Force acknowledges that CMRS options likely will be preferred in areas with reliable coverage, and asserts that this makes it unlikely that use of low-powered portable marine VHF radio radios on land will interfere with maritime communications. It also argues that permitting such use will further the public interest by encouraging more boaters to a carry a VHF radio, which has safety benefits not available from CMRS or PRS options because marine VHF channels can be used to contact the Coast Guard and other nearby vessels in a distress situation, for bridge-to-bridge communications, and to receive maritime safety information broadcasts.

    27. We agree with commenters that the public interest will be served by allowing the use of portable VHF radios ashore, so long as it is limited to enhancing the usefulness of marine VHF radios without negatively affecting maritime communications. Such limited onshore use will promote flexibility in the use of marine radio equipment in a manner that furthers maritime safety by encouraging more boaters to a carry a VHF radio. Specifically, as suggested by ACR, we will permit use of portable marine VHF radios only in areas adjacent to the water, such as docks and beaches. In addition, as suggested by RTCM, and consistent with our requirements for offshore use, onshore communications using such radios must relate to the operational and business needs of the associated vessel, and must be limited to the minimum practicable transmission time.10 We amend section 80.115 accordingly.11 We caution operators that the Commission's Enforcement Bureau will continue to investigate complaints against operators who improperly use marine VHF radios, particularly any violation that concerns unauthorized transmissions on 156.800 MHz (VHF Channel 16).

    10 We remind all operators that superfluous radiocommunication is considered an unauthorized transmission in the Maritime Services. See 47 CFR 80.89(a).

    11 We amend the rule to clarify that portable VHF DSC radios should operate on frequency 156.525 MHz (Channel 70), which is the DSC Distress, Safety and Calling channel but was not specifically listed in section 80.115.

    VHF Digital Small Message Services (VDSMS)

    28. VDSMS is intended to provide short-distance digital messaging ship-to-ship, shore-to-ship and ship-to-shore. The International Telecommunication Union (ITU) has recognized the future need for worldwide systems to exchange data and email on maritime VHF channels and the availability of new digital data systems that provide this service efficiently and without harmful interference. In the United States, however, maritime communications generally are limited to particular emission designators in order to avoid interference between users; a full range of data transmissions is permitted only on VHF Public Coast frequencies and one channel in Alaska.

    29. RTCM developed a technical standard for VDSMS that enables transmission of short digital messages without interfering with other communications on the same channel. The Commission proposed to amend part 80 to incorporate by reference the RTCM VDSMS standard in order to permit transmission of short data messages on VHF maritime private communications frequencies. It tentatively concluded that accommodating VDSMS in the Commission's rules would advance the Commission's goal of promoting flexibility and efficiency in the use of marine radio equipment in a manner that would further maritime safety.

    30. RTCM, the only commenter addressing this issue, agrees that part 80 should be revised to incorporate by reference its VDSMS standard. It argues that adopting a single VDSMS standard will avoid use of a variety of different and potentially incompatible data protocols, and ensure VDSMS communications are not disrupted. We agree, and amend part 80 to incorporate by reference the RTCM VDSMS standard. We note that VDSMS will not be permitted on or adjacent to marine safety and security channels and other channels excluded under Appendix 18 of the ITU Radio Regulations.12 Further, VDSMS operation on the non-excluded VHF frequencies is subject to existing eligibility requirements.

    12 We include port operations channels among the marine safety channels on which VDSMS will not be permitted. Port operations communications are “[c]ommunications in or near a port, in locks or in waterways between coast stations and ship stations or between ship stations, which relate to the operational handling, movement and safety of ships and in emergency to the safety of persons.”

    Prohibition of Applications To Assign or Transfer Control of Ship Licenses

    31. Under section 1.948 of the Commission's rules, ship station licenses may not be assigned or transferred. Instead of efficiently assigning or transferring the license to another entity, ship station licensees must submit the ship station license to the Commission for cancellation; and the entity acquiring the vessel must instead apply for new ship licenses in its own name. In the Notice, the Commission noted that most other types of wireless radio licenses may be assigned or transferred, and proposed to remove the prohibition on the assignment or transfer of ship station licenses. The Commission reasoned that “[t]he prohibition on assigning or transferring ship licenses . . . requires applicants and Commission licensing personnel to undertake a relatively cumbersome process when control of ship radio station assets are to change hands, and there appears to be little public interest benefit, if any, for continuing the prohibition.”

    32. We believe that it would serve the public interest to permit the assignment and transfer of control of ship station licenses. Permitting the assignment and transfer of control of ship station licenses would be more administratively efficient than maintaining the current prohibition on applications to assign or transfer such licenses, and would reduce transactional costs for ship station licensees.13 RTCM, the only commenter addressing this issue, agrees that it would be beneficial to permit the assignment and transfer of ship station licenses. We will therefore amend section 1.948(b)(5) to remove the prohibition of applications to assign or transfer control of ship station licenses. Ship station licensees and potential licensees are cautioned that failure to obtain Commission approval for an assignment or transfer of control of a ship station license may result in enforcement action being taken against the entities involved.

    13 In addition, we discern no basis to treat ship station licenses differently in this regard from the other types of wireless licenses for which assignment and transfer of control applications are accepted.

    Editorial Corrections

    33. As proposed, we correct certain part 80 rules to change erroneous references to Title II of the Communications Act to refer to Title III, restore subparagraphs that were inadvertently deleted, and correct typographical errors. No commenter addressed these corrections.

    Procedural Matters A. Paperwork Reduction Act Analysis

    34. This document contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

    35. In this present document, we have we establish requirements for the certification of MSLDs, and AIS-SARTs devices. The rule would require, inter alia, that applicants for certification submit specified information, including copies of test reports and test data, to the United States Coast Guard prior to filing their applications with the Commission, and that they include with their applications to the Commission copies of letters from the United States Coast Guard stating that the device in question satisfies all of the requirements of all the pertinent standard. We find that the certification requirements adopted herein would not impose an undue burden or excessive cost on such manufacturers, including those that have fewer than 25 employees.

    B. Report to Congress

    The Commission will send a copy of this R&O in a report to be sent to Congress and the General Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    C. Final Regulatory Flexibility Analysis

    36. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the rules adopted in this Report and Order.

    37. Summary. The rules adopted in the Report and Order are intended to update the rules and requirements for technologies used to locate and rescue distressed ships and individuals in distress at sea or on land to provide better and more accurate data to rescue personnel. The Commission amends its rules to (a) require emergency position indicating radio beacons (EPIRBs) to be capable of broadcasting position data when activated; (b) update the equipment standards for Personal Locator Beacons (PLBs); (c) provide that only devices that meet the RTCM standard for Satellite Emergency Notification Devices (SENDs) may be marketed for use in the United States as SENDs; (d) permit equipment certification and use of Maritime Survivor Locating Devices (MSLDs) that comply with RTCM standards; (e) provide for equipment certification and use of Automatic Identification System Search and Rescue Transmitters (AIS-SARTs) that comply with international standards; (f) clarify the rules regarding ship radar equipment; (g) permit the use of portable marine VHF radio transmitters by persons on shore that are on or adjacent to the dockside of the associated vessel; (h) permit VHF digital small message services (VDSMS) on certain maritime VHF channels; (i) allow assignment or transfer of control of ship station licenses; and (j) correct certain typographical errors.

    38. Description and Estimate of the Number of Small Entities to Which Rules Will Apply. The closest estimate of the number of small businesses that may potentially be affected by our rule changes is the SBA's “Wireless Telecommunications Carriers (except Satellite)” category. This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services. The appropriate size standard under SBA rules for the category Wireless Telecommunications Carriers (except satellite) is that a business is small if it has 1,500 or fewer employees. Census data for 2007 show that there were 1,383 firms that operated for the entire year. Of this total, 1,368 firms had employment of fewer than 1000 employees. Thus under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small.

    39. Marine Radio Services. Small businesses in the aviation and marine radio services use a marine very high frequency (VHF), medium frequency (MF), or high frequency (HF) radio, any type of emergency position indicating radio beacon (EPIRB) and/or radar, an aircraft radio, and/or any type of emergency locator transmitter (ELT). The Commission has not developed a definition of small entities specifically applicable to these small businesses. For purposes of this analysis, the Commission uses the SBA small business size standard for the category Wireless Telecommunications Carriers (except satellite),” which is 1,500 or fewer employees. Census data for 2007, which supersede data contained in the 2002 Census, show that there were 1,383 firms that operated that year. Of those 1,383, 1,368 had fewer than 100 employees, and 15 firms had more than 100 employees. Most applicants for recreational licenses are individuals. Approximately 581,000 ship station licensees and 131,000 aircraft station licensees operate domestically and are not subject to the radio carriage requirements of any statute or treaty. For purposes of our evaluations in this analysis, we estimate that there are up to approximately 712,000 licensees that are small businesses (or individuals) under the SBA standard. In addition, between December 3, 1998 and December 14, 1998, the Commission held an auction of 42 VHF Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and 161.775-162.0125 MHz (coast transmit) bands. For purposes of the auction, the Commission defined a “small” business as an entity that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $15 million dollars. In addition, a “very small” business is one that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $3 million dollars. There are approximately 10,672 licensees in the Marine Coast Service, and the Commission estimates that almost all of them qualify as “small” businesses under the above special small business size standards and may be affected by rules adopted pursuant to the Report and Order.

    40. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The U.S. Census defines this industry as comprising “establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by the establishments are transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. The SBA has established a size standard for this industry which classifies any businesses in this industry as small if it has 750 or fewer employees. Census data for 2007 indicate that 939 such businesses operated in that year. Of that number, 912 businesses operated with fewer than 500 employees. Based on this data, we conclude that a majority of businesses in this industry are small by the SBA standard.

    41. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities. In the Report and Order we adopt six rule amendments that may affect reporting, recordkeeping or other compliance requirements for small entities. First, we amend section 80.1061 of the rules to require that EPIRBs comply with the RTCM Standard 11000.3, and to mandate that vessels that are required to carry EPIRBs replace their existing radiobeacons with EPIRBs that meet the new standard within six years of the effective date of the rule amendment. Second, we amend section 95.1402 of the rules to require that PLBs comply with the RTCM Standard 11010.2. Third, we adopt section 25.301 of the rules to specify that the term SEND refers only to a device that meets the requirements set forth in the RTCM SEND Standard 12800.0 and make it unlawful to market for use in the United States a non-compliant device as a SEND. Fourth, we amend section 95.1043 of the rules to require that MSLDs comply with the RTCM Standard 11901.1. Fifth, we amend section 80.233 of the rules to require that AIS-SARTs comply with the IEC Standard 61097-14 Ed. 1.0 (2010-02) and IMO Resolution MSC.246(83). Sixth, we amend section 80.364 of the rules to require that VDSMS equipment comply with the RTCM Standard 12301.1 We conclude that none of these matters will have a direct, significant economic impact on a substantial number of small entities. The equipment standards are in use internationally, so it imposes no additional burden on manufacturers to meet those standards for equipment to be used in the United States. Moreover, most boat owners replace their EPIRBs at the battery replacement date, which is typically five years after the EPIRB is sold, so a six-year deadline for certain vessels will not have a significant impact.

    42. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

    43. Steps Taken To Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered. With respect to all of the rules adopted in the Report and Order that may affect reporting, recordkeeping and other compliance requirements for small entities, as identified in this FRFA we have considered how we might minimize the economic impact on small entities, and we have considered alternative measures that might minimize that impact. As a general matter, the alternatives considered, and in many cases adopted, include exempting small entities from the requirement; providing “grandfathering” protection from the requirement; providing a transition period to give either small entities or all affected entities additional time to come into compliance; and imposing a less burdensome requirement, either for small entities or for all affected entities. In addition, to the extent we establish here new standards for authorization of marine radio equipment, we have generally required compliance with performance standards, rather than prescribing a particular equipment design.

    Ordering Clauses

    44. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 303(r), and 332(a)(2) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 332(a)(2), that parts 1, 25, 80, and 95 of the Commission's rules ARE AMENDED as set forth in the attached Appendix B, and such rule amendments SHALL BE EFFECTIVE thirty (30) days after publication of the rules amendments in the Federal Register, except for 47 CFR 80.233, 80.1061, 95.1402, 95.1043, which contain new information collection requirements that require approval by the OMB under the PRA and which WILL BECOME EFFECTIVE after such approval, on the effective date specified in a document that the Commission publishes in the Federal Register announcing such approval and effective date.

    List of Subjects 47 CFR Part 1

    Communications equipment, Radio.

    47 CFR Parts 25, 80 and 95

    Communications equipment, Incorporation by reference, Radio.

    Federal Communications Commission. Gloria J. Miles, Federal Register Liaison Officer, Office of the Secretary. Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 25, 80 and 95, as follows:

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

    47 U.S.C. 151, 154(i), 155, 157, 225, 303(r), 309, 1403, 1404, 1451, and 1452.

    2. Section 1.948 is amended by revising paragraph (b)(5) to read as follows:
    § 1.948 Assignment of authorization or transfer of control, notification of consummation.

    (b) * * *

    (5) Licenses, permits, and authorizations for stations in the Amateur, Commercial Operator and Personal Radio Services (except 218-219 MHz Service) may not be assigned or transferred, unless otherwise stated.

    PART 25—SATELLITE COMMUNICATIONS 3. The authority citation for Part 25 continues to read as follows: Authority:

    Interprets or applies 47 U.S.C. 154, 301, 302, 303, 307, 309, 310, 319, 332, 605, and 721, unless otherwise noted.

    4. Subpart E, consisting of § 25.301, is added to read as follows: Subpart E—Miscellaneous
    § 25.301 Satellite Emergency Notification Devices (SENDs).

    No device described by the marketer or seller using the terms “SEND” or “Satellite Emergency Notification Device” may be marketed or sold in the United States unless it complies with the requirements of RTCM 12800.0. RTCM 12800.0, “Satellite Emergency Notification Devices (SENDs),” dated August 1, 2011 is incorporated by reference in accordance with 5 U.S.C. 552(a), and 1 CFR part 51. Copies of the document are available and may be obtained from the Radio Technical Commission for Maritime Services, 1611 N. Kent Street, Suite 605, Arlington, Virginia 22209. The document is available for inspection at Commission headquarters at 445 12th Street SW., Washington, DC 20554. Copies may also be inspected at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    PART 80—STATIONS IN THE MARITIME SERVICES 5. The authority citation for Part 80 continues to read as follows: Authority:

    Secs. 4, 303, 307(e), 309, and 332, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303, 307(e), 309, and 332, unless otherwise noted. Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 U.S.C. 151-155, 301-609; 3 UST 3450, 3 UST 4726, 12 UST 2377.

    6. Section 80.7 is amended by: a. In paragraph (d)(5), removing “IEC 1097-3:1994” and adding in its place “IEC 61097-3:1994”; in paragraph (d)(8), removing “IEC 1097-7:1996” and adding in its place “IEC 61097-7:1996”; in paragraph (d)(12), removing “IEC 1097-12:1996(E) and adding in its place “IEC 61097-12:1996(E). b. Removing paragraph (d)(17), redesignating paragraphs (d)(14) through (16) as (d)(15) through (17), and adding and reserving new paragraph (d)(14); and c. Revising paragraph (f)(3) and adding paragraph (f)(4).

    The additions and revisions read as follows:

    § 80.7 Incorporation by reference.

    (f) * * *

    (3) RTCM Standard 11020.1 (“RTCM 11020”), “RTCM Standard 11020.1, Ship Security Alert Systems (SSAS) Using the Cospas-Sarsat Satellite System,” October 9, 2009, IBR approved for § 80.277.

    (4) RTCM Standard 12301.1 (“RTCM 12301”), “VHF-FM Digital Small Message Services,” July 10, 2009, IBR approved for § 80.364(a).

    7. Section 80.7 is amended by: a. Adding paragraphs (b)(28); b. Redesignating paragraphs (d)(14) through (19) as (d)(15) through (20); c. Adding a new paragraph (d)(14); d. Revising paragraph (f)(2); and e. Removing paragraph (g).

    The additions and revisions read as follows:

    § 80.7 Incorporation by reference.

    (b) * * *

    (28) IMO Resolution MSC.246(83), (“IMO Resolution MSC.246(83)”) “Adoption of Performance Standards for Survival Craft AIS Search and Rescue Transmitters (AIS-SART) for Use in Search and Rescue Operations,” IBR approved for § 80.233(a).

    (d) * * *

    (14) IEC 61097-14 (“IEC 61097-14”), Edition 1.0, 2010-02, “Global maritime distress and safety system (GMDSS)—Part 14: AIS search and rescue transmitter (AIS-SART)—Operational and performance requirements, methods of testing and required test results,” IBR approved for § 80.233(a).

    (f) * * *

    (2) RTCM Standard 11000.3 (“RTCM 11000”), “406 MHz Satellite Emergency Position Radiobeacons (EPIRBs),” June 12, 2012, IBR approved for § 80.1061(a) and (c).

    8. Section 80.59 is amended by revising the note in paragraph (a)(1) to read as follows:
    § 80.59 Compulsory ship inspections.

    (a) * * *

    (1) * * *

    Note to paragraph (a)(1): Nothing in this section prohibits Commission inspectors from inspecting ships. The mandatory inspection of U.S. vessels must be conducted by an FCC-licensed technician holding an FCC General Radiotelephone Operator License, GMDSS Radio Maintainer's License, Second Class Radiotelegraph Operator's Certificate, First Class Radiotelegraph Operator's Certificate, or Radiotelegraph Operator License in accordance with the following table:

    9. Section 80.115 is amended by revising paragraphs (a)(1) through (4) to read as follows:
    § 80.115 Operational conditions for use of associated ship units.

    (a) * * *

    (1) It must only be operated on the safety and calling frequency 156.800 MHz or 156.525 MHz or on commercial or noncommercial VHF intership frequencies appropriate to the class of ship station with which it is associated.

    (2) Except for safety purposes, it must only be used to communicate with the ship station with which it is associated or with associated ship units of the same ship station. Such associated ship units may be used from shore only adjacent to the waterway (such as on a dock or beach) where the ship is located. Communications from shore must relate to the operational and business needs of the ship including the transmission of safety information, and must be limited to the minimum practicable transmission time.

    (3) It must be equipped to transmit on the frequency 156.800 MHz or 156.525 MHz and at least one appropriate intership frequency.

    (4) Calling must occur on the frequency 156.800 MHz or 156.525 MHz unless calling and working on an intership frequency has been prearranged.

    10. Section 80.157 is revised to read as follows:
    § 80.157 Radio officer defined.

    A radio officer means a person holding a First Class Radiotelegraph Operator's Certificate, Second Class Radiotelegraph Operator's Certificate, or Radiotelegraph Operator License issued by the Commission, who is employed to operate a ship radio station in compliance with Part II of Title III of the Communications Act. Such a person is also required to be licensed as a radio officer by the U.S. Coast Guard when employed to operate a ship radiotelegraph station.

    11. Section 80.159 is amended by revising paragraph (b) to read as follows:
    § 80.159 Operator requirements of Title III of the Communications Act and the Safety Convention.

    (b) Each cargo ship equipped with a radiotelegraph station in accordance with Part II of Title III of the Communications Act and which has a radiotelegraph auto alarm must carry a radio officer holding a First Class Radiotelegraph Operator's Certificate, Second Class Radiotelegraph Operator's Certificate, or Radiotelegraph Operator License who has had at least six months service as a radio officer on board U.S. ships. If the radiotelegraph station does not have an auto alarm, a second radio officer who holds a First Class Radiotelegraph Operator's Certificate, Second Class Radiotelegraph Operator's Certificate, or Radiotelegraph Operator License must be carried.

    12. Section 80.203 is amended by adding paragraphs (b)(3)(i) through (iv) to read as follows:
    § 80.203 Authorization of transmitters for licensing.

    (b) * * *

    (3) * * *

    (i) Internal adjustments of the transmitter;

    (ii) Use of controls normally inaccessible to the station operator;

    (iii) Use of external devices or equipment modules made available only to service and maintenance personnel through a service company; and

    (iv) Copying of a channel selection program directly from another transmitter (cloning) using devices and procedures made available only to service and maintenance personnel through a service company.

    13. Section 80.231 is amended by revising paragraph (c) introductory text and paragraph (e) to read as follows:
    § 80.231 Technical requirements for Class B Automatic Identification System equipment.

    (c) Prior to submitting a certification application for a Class B AIS device, the following information must be submitted in duplicate to [email protected] or the Commandant (CG-ENG-4), U.S. Coast Guard Stop 7509, 2703 Martin Luther King Jr. Ave. SE., Washington, DC 20593-7509:

    (e) A certification application for an AIS device must contain a copy of the U.S. Coast Guard letter stating that the device satisfies all of the requirements specified in IEC 62287-1, a copy of the technical test data, and the instruction manual(s).

    14. Section 80.233 is added to subpart E to read as follows:
    § 80.233 Technical requirements for Automatic Identification System Search and Rescue Transmitters (AIS-SART) equipment.

    (a) Automatic Identification System Search and Rescue Transmitter (AIS-SART) equipment must meet the technical requirements of IEC 61097-14 and IMO Resolution MSC.246(83) (incorporated by reference, see § 80.7(b)).

    (b) Prior to submitting a certification application for an AIS-SART device, the following information must be submitted in duplicate to the U.S. Coast Guard, 2703 Martin Luther King Jr. Ave. SE., Stop 7126, Washington, DC 20593-7126:

    (1) The name of the manufacturer or grantee and the model number of the AIS-SART device; and

    (2) Copies of the test report and test data obtained from the test facility showing that the device complies with the environmental and operational requirements identified in IEC 61097-14.

    (c) After reviewing the information described in paragraph (b) of this section, the U.S. Coast Guard will issue a letter stating whether the AIS-SART device satisfies all of the requirements specified in IEC 61097-14.

    (d) A certification application for an AIS-SART device must contain a copy of the U.S. Coast Guard letter stating that the device satisfies all of the requirements specified in IEC 61097-14, a copy of the technical test data, and the instruction manual(s).

    15. Section 80.273 is amended by removing paragraph (b), redesignating paragraphs (c) and (d) as paragraphs (b) and (c), and revising newly redesignated paragraph (b) to read as follows:
    § 80.273 Radar standards.

    (b) For any ship of 10,000 tons gross tonnage and upwards or that is otherwise required to be equipped with two radar systems, each of the two radar systems must be capable of operating independently and must comply with the specifications, standards and general requirements set forth on paragraph (a) of this section. One of the systems must provide a display with an effective diameter of not less than 320 millimeters (12.6 inches), (16-inch cathode ray tube). The other system must provide a display with an effective diameter of not less than 250 millimeters (9.8 inches), (12-inch cathode ray tube).

    16. Section 80.277 is amended by revising paragraph (a)(1) to read as follows:
    § 80.277 Ship Security Alert System (SSAS).

    (a) * * *

    (1) Equipment that complies with RTCM 11020 (incorporated by reference, § 80.7); or

    17. The first undesignated center heading under subpart H is revised to read as follows: Radiotelegraphy and Data 18. Section 80.351 is revised to read as follows:
    § 80.351 Scope.

    The following sections describe the carrier frequencies and general uses of radiotelegraphy and data transmission with respect to the following:

    (a) Distress, urgency, safety, call and reply.

    (b) Working.

    (c) Digital selective calling (DSC).

    (d) Narrow-band direct-printing (NB-DP).

    (e) Facsimile.

    (f) VHF-FM digital small message services (VDSMS).

    19. Section 80.364 is added under the undesignated center heading for Radiotelegraphy and Data to read as follows:
    § 80.364 Frequencies for VHF digital small message services (VDSMS).

    Frequencies in the 156-162 MHz band may be used for VHF digital small message services (VDSMS) complying with RTCM 12301 (incorporated by reference, see § 80.7), except as follows

    VHF-FM Channels Not Available for Digital Small Message Service Channel Frequency (MHz) 01A 156.050 63A 156.175 05A 156.250 65A 156.275 06 156.300 66A 156.325 67 156.375 70 156.525 12 156.600 13 156.650 73 156.675 14 156.700 74 156.725 15 156.750 75 156.775 16 156.800 76 156.825 17 156.850 77 156.875 20A 157.000 22A 157.100 AIS 1/2 161.975/162.025
    20. Section 80.1005 is revised to read as follows:
    § 80.1005 Inspection of station.

    The bridge-to-bridge radiotelephone station will be inspected on vessels subject to regular inspections pursuant to the requirements of Parts II and III of Title III of the Communications Act, the Safety Convention or the Great Lakes Agreement at the time of the regular inspection. If after such inspection, the Commission determines that the Bridge-to-Bridge Act, the rules of the Commission and the station license are met, an endorsement will be made on the appropriate document. The validity of the endorsement will run concurrently with the period of the regular inspection. Each vessel must carry a certificate with a valid endorsement while subject to the Bridge-to-Bridge Act. All other bridge-to-bridge stations will be inspected from time to time. An inspection of the bridge-to-bridge station on a Great Lakes Agreement vessel must normally be made at the same time as the Great Lakes Agreement inspection is conducted by a technician holding one of the following: A General Radiotelephone Operator License, a GMDSS Radio Maintainer's License, a Radiotelegraph Operator License, a Second Class Radiotelegraph Operator's Certificate, or a First Class Radiotelegraph Operator's Certificate. Additionally, the technician must not be the vessel's owner, operator, master, or an employee of any of them. Ships subject to the Bridge-to-Bridge Act may, in lieu of an endorsed certificate, certify compliance in the station log required by section 80.409(f).

    21. Section 80.1053 is revised to read as follows:
    § 80.1053 Prohibition on certification, manufacture, importation, sale or use of Class A, Class B, Class S, and INMARSAT-E EPIRBs.

    The manufacture, importation, sale or use of Class A, Class B, Class S, or INMARSAT-E EPIRBs is prohibited. New Class A, Class B, Class S, or INMARSAT-E EPIRBs will no longer be certified by the Commission.

    22. Section 80.1061 is amended by: a. Revising paragraph (a); b. Revising paragraph (c) introductory text and (c)(1); and c. Revising paragraphs (d) and (e).

    The additions and revisions read as follows:

    § 80.1061 Special requirements for 406.0-406.1 MHz EPIRB stations.

    (a) Notwithstanding the provisions in paragraph (b) of this section, 406.0-406.1 MHz EPIRBs must meet all the technical and performance standards contained in RTCM 11000 (incorporated by reference, see § 80.7), and must also comply with the standards specified in § 80.1101(c)(5). Beginning January 17, 2018, all new applications for certification of 406.0-406.1 MHz EPIRBs must demonstrate compliance with the requirements of RTCM 11000. 406.0-406.1 MHz EPIRBs that do not meet the requirements of RTCM 11000 shall not be manufactured, imported, or sold in the United States beginning January 17, 2020. Operation of 406.0-406.1 MHz EPIRBs that do not meet the requirements of RTCM 11000 shall be prohibited on vessels subject to 47 CFR subparts R, S, or W beginning January 17, 2023. Existing 406.0-406.1 MHz EPIRBs that do not meet the requirements of RTCM 11000 must be operated as certified.

    (c) Prior to submitting a certification application for a 406.0-406.1 MHz radiobeacon, the radiobeacon must be certified by a test facility recognized by one of the COSPAS-SARSAT Partners that the equipment satisfies the design characteristics associated with the measurement methods incorporated in RTCM Standard 11000 (incorporated by reference, see § 80.7). Additionally, the radiobeacon must be subjected to the environmental and operational tests associated with the test procedures described in Appendix A of RTCM Standard 11000, by a test facility accepted by the U.S. Coast Guard for this purpose. Information regarding accepted test facilities may be obtained from Commandant (CG-ENG-4), U.S. Coast Guard Stop 7509, 2703 Martin Luther King Jr. Ave. SE., Washington, DC 20593-7126, http://cgmix.uscg.mil/EQLabs/EQLabsSearch.aspx.

    (1) After a 406.0-406.1 MHz EPIRB has been certified by the recognized test facilities the following information must be submitted in duplicate to [email protected] or the Commandant (CG-ENF-4), U.S. Coast Guard Stop 7509, 2703 Martin Luther King Jr. Ave. SE., Washington, DC 20593-7509:

    (i) The name of the manufacturer or grantee and model number of the EPIRB;

    (ii) Copies of the certificate and test data obtained from the test facility recognized by a COSPAS/SARSAT Partner showing that the radiobeacon complies with the COSPAS-SARSAT design characteristics associated with the measurement methods incorporated in RTCM 11000;

    (iii) Copies of the test report and test data obtained from the test facility recognized by the U.S. Coast Guard showing that the radiobeacon complies with the U.S. Coast Guard environmental and operational characteristics associated with the measurement methods described in Appendix A of the RTCM Recommended Standards; and

    (iv) Instruction manuals associated with the radiobeacon, description of the test characteristics of the readiobeacon including assembly drawings, electrical schematics, description of parts list, specifications of materials and the manufacturer's quality assurance program.

    (d) A certification application for a 406.0-406.1 MHz EPIRB must also contain a copy of the U.S. Coast Guard letter that states the radiobeacon satisfies all RTCM Recommended Standards, a copy of the technical test data, and the instruction manual(s).

    (e) An identification code, recognized by the National Oceanic and Atmospheric Administration (NOAA), the United States Program Manager for the 406.0-406.1 MHz COSPAS/SARSAT satellite system, must be programmed in each EPIRB unit to establish a unique identification for each EPIRB station. With each marketable EPIRB unit, the manufacturer or grantee must include a postage pre-paid registration card printed with the EPIRB identification code addressed to: NOAA/SARSAT Beacon Registration, NSOF, E/SPO53, 1315 East West Hwy, Silver Spring, MD 20910-9684. The registration card must request the owner's name, address, telephone number, type of ship, alternate emergency contact and other information as required by NOAA. The registration card must also contain information regarding the availability to register the EPIRB at NOAA's online web-based registration database at: http://www/beaconregistration.noaa.gov. In addition, the following statement must be included: “WARNING—failure to register this EPIRB with NOAA before installation could result in a monetary forfeiture being issued to the owner.”

    23. Section 80.1085 is amended by revising paragraph (a)(3) to read as follows:
    § 80.1085 Ship radio equipment—General.

    (a) * * *

    (3) A radar transponder capable of operating in the 9 GHz band or an AIS-SART, which must be stowed so that it is easily utilized (this device may be one of those required by § 80.1095(b) for a survival craft);

    24. Section 80.1095 is amended by revising paragraph (b) to read as follows:
    § 80.1095 Survival craft equipment.

    (b) At least one radar transponder or AIS-SART (collectively, “search and rescue locating devices”) must be carried on each side of every passenger ship and every cargo ship of 500 tons gross tonnage and upwards. At least one search and rescue locating device must be carried on every cargo ship of 300 tons gross tonnage and upwards but less than 500 tons gross tonnage. Such search and rescue locating devices must conform to performance standards as specified in § 80.233 for AIS-SARTs or § 80.1101 for radar transponders. The search and rescue locating devices must be stowed in such locations that they can be rapidly placed in any survival craft other than liferafts required on cargo ships in forward and aft areas (see Regulation III/26.1.4 of the SOLAS Convention). Alternatively, one search and rescue locating device must be stowed in each survival craft other than those required by Regulation III/26.1.4 of the SOLAS Convention. One of these search and rescue locating devices may be the search and rescue locating device required by § 80.1085(a)(3).

    PART 95—PERSONAL RADIO SERVICES 25. The authority citation for part 95 continues to read as follows: Authority:

    47 U.S.C. 154, 301, 302(a), 303, and 307(e).

    26. The heading of subpart K is revised to read as follows: Subpart K—Personal Locator Beacons (PLBs) and Maritime Survivor Locating Devices (MSLDs) 27. Section 95.1400 is revised to read as follows:
    § 95.1400 Basis and purpose.

    The rules in this subpart are intended to provide individuals in the water or in remote areas a means to alert others of an emergency situation and to aid search and rescue personnel in locating those in distress.

    28. Section 95.1401 is revised to read as follows:
    § 95.1401 Frequency.

    The frequency band 406.0-406.1 MHz is an emergency and distress frequency band available for use by Personal Locator Beacons (PLBs). Personal Locator Beacons that transmit on the frequency band 406.0-406.1 MHz must use G1D emission. Use of these frequencies must be limited to transmission of distress and safety of life communications.

    29. Section 95.1402 is amended by revising paragraphs (a) through (f) to read as follows:
    § 95.1402 Special requirements for 406 MHz PLBs.

    (a) All 406 MHz PLBs must meet all the technical and performance standards contained in RTCM 11010.2. RTMC 11010.2, “406 MHz Satellite Personal Locator Beacons (PLBs),” including Amendments 1 and 2, dated June 8, 2012 is incorporated by reference in accordance with 5 U.S.C. 552(a), and 1 CFR part 51. Copies of the document are available and may be obtained from the Radio Technical Commission for Maritime Services, 1611 N. Kent Street, Suite 605, Arlington, Virginia 22209. The document is available for inspection at Commission headquarters at 445 12th Street SW., Washington, DC 20554. Copies may also be inspected at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    (b) Beginning January 17, 2018, all new applications for certification of 406 MHz PLBs must demonstrate compliance with the requirements of RTCM 11010. 406 MHz PLBs that do not meet the requirements of RTCM 11010 shall not be manufactured, imported, or sold in the United States beginning January 17, 2020.

    (c) Before a 406 MHz PLB certification application is submitted to the Commission, the applicant must have obtained certification from a test facility recognized by one of the COSPAS/SARSAT Partners that the PLB satisfies the standards incorporated in RTCM 11010. Additionally, an independent test must certify that the PLB complies with the electrical and environmental standards associated with the RTCM Recommended Standards.

    (d) The procedures of Notification by the equipment manufacturer and Certification from the designated Telecommunications Certification Body are contained in subpart J of part 2 of this chapter.

    (e) An identification code, recognized by the National Oceanic and Atmospheric Administration (NOAA), the United States Program Manager for the 406 MHz COSPAS/SARSAT satellite system, must be programmed in each PLB unit to establish a unique identification for each PLB station. With each marketable PLB unit, the manufacturer or grantee must include a postage pre-paid registration card printed with the PLB identification code addressed to: NOAA/SARSAT Beacon Registration, NSOF, E/SPO53, 1315 East West Hwy, Silver Spring, MD 20910-9684. The registration card must request the owner's name, address, telephone number, alternate emergency contact and include the following statement: “WARNING” failure to register this PLB with NOAA could result in a monetary forfeiture order being issued to the owner.”

    (f) To enhance protection of life and property, it is mandatory that each 406 MHz PLB be registered with NOAA and that information be kept up-to-date. In addition to the identification plate or label requirements contained in §§ 2.925 and 2.926 of this chapter, each 406 MHz PLB must be provided on the outside with a clearly discernable permanent plate or label containing the following statement: “The owner of this 406 MHz PLB must register the NOAA identification code contained on this label with the National Oceanographic and Atmospheric Administration (NOAA) whose address is: NOAA/SARSAT Beacon Registration, NSOF, E/SPO53, 1315 East West Hwy, Silver Spring, MD 20910-9684.” Owners shall advise NOAA in writing upon change of PLB ownership, or any other change in registration information. NOAA will provide registrants with proof of registration and change of registration postcards. In the alternative to registration by postcard, users may register 406 MHz PLBs online at www.beaconregistration.noaa.gov.

    30. Section 95.1403 is added to subpart K to read as follows:
    § 95.1403 Special requirements for Maritime Survivor Locating Devices.

    (a) Maritime Survivor Locating Devices (MSLDs) are devices intended to aid in the location of persons in the water. Use on land is not authorized.

    (b) MSLDs must meet all the technical and performance standards contained in RTCM 11901.1. RTCM 11901.1, “Maritime Survivor Locating Devices (MSLD),” dated June 4, 2012 is incorporated by reference in accordance with 5 U.S.C. 552(a), and 1 CFR part 51. Copies of the document are available and may be obtained from the Radio Technical Commission for Maritime Services, 1611 N. Kent Street, Suite 605, Arlington, Virginia 22209. The document is available for inspection at Commission headquarters at 445 12th Street SW., Washington, DC 20554. Copies may also be inspected at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    (c) No device may be marketed or sold in the United States as a “MSLD” or “Maritime Survivor Locating Device” unless it complies with the requirements of RTCM 11901. Previously approved devices intended to aid in the location of persons in the water that do not meet the requirements of this section shall not be manufactured, imported, or sold in the United States January 17, 2018.

    (d) All MSLDs must:

    (1) Transmit on at least one of the following frequencies: 121.5 MHz, 156.525 MHz, 156.750 MHz, 156.800 MHz, 156.850 MHz, 161.975 MHz, 162.025 MHz; or

    (2) Include a function intended to send a distress message directly to the U.S. Coast Guard or any other search and rescue organization.

    (e) Before an MSLD certification application is submitted, the applicant must obtain a test report from a test laboratory which shows that the MSLD complies with the electrical and environmental standards associated with RTCM 11901. The test laboratory must be accredited to ISO/IEC 17025 with a scope covering the applicable requirements and test procedures.

    (1) After the MSLD has been certified by a test laboratory, the following information must be submitted in duplicate to the U.S. Coast Guard, 2703 Martin Luther King Jr. Ave. SE., Stop 7126, Washington, DC 20593-7126:

    (i) The name of the manufacturer or grantee and model number of the MSLD;

    (ii) Copies of the test report and test data showing that the MSLD complies with the electrical and environmental standards associated with RTCM 11901; and

    (iii) Instruction manuals associated with the MSLD, description of the test characteristics of the MSLD including assembly drawings, electrical schematics, description of parts list, specifications of materials and the manufacturer's quality assurance program.

    (2) After reviewing the information described in paragraph (e)(1) of this section, the U.S. Coast Guard will issue a letter stating whether the MSLD satisfies all RTCM Recommended Standards. In the case of an MSLD that includes a function intended to send a distress message directly to the U.S. Coast Guard or any other search and rescue organization, the letter will also state whether the U.S. Coast Guard endorses that function.

    (f) A certification application for an MSLD must contain a copy of the U.S. Coast Guard letter stating that the device satisfies all RTCM Recommended Standards, a copy of the technical test data, and the instruction manual(s).

    [FR Doc. 2016-29612 Filed 12-14-16; 8:45 am] BILLING CODE 6712-01-P
    SURFACE TRANSPORTATION BOARD 49 CFR Parts 1001 and 1002 [Docket No. EP 737] Revised Inspection of Records and Related Fees AGENCY:

    Surface Transportation Board.

    ACTION:

    Final rules.

    SUMMARY:

    The Surface Transportation Board (Board or STB) is revising its regulations governing “Inspection of Records” and “Fees” in accordance with changes to the Freedom of Information Act (FOIA) made by the FOIA Improvement Act of 2016 (FOIA Improvement Act). Pursuant to the FOIA Improvement Act, the Board is extending the deadline for administrative appeals, adding information on dispute resolution services, and amending the way fees are charged in certain circumstances.

    DATES:

    These rules are effective on January 14, 2017.

    ADDRESSES:

    Information or questions regarding these final rules should reference Docket No. EP 737 and be in writing addressed to: FOIA Officer, Office of the General Counsel, Surface Transportation Board, by mail at 395 E Street SW., Washington, DC 20423-0001, by facsimile at 202-245-0456, or by Email at [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Sarah Fancher at (202) 245-0355. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]

    SUPPLEMENTARY INFORMATION:

    The Board is revising its regulations at 49 CFR 1001.3 and 1002.1(g) in accordance with the FOIA Improvement Act, Public Law 114-185 (2016), which provides additional protections for parties requesting records held by the executive branch of the U.S. Government. Among the changes to FOIA, the FOIA Improvement Act requires agencies to allow requesters a minimum of 90 days to file an administrative appeal and that agencies allow for dispute resolution services at various times throughout the FOIA process. The FOIA Improvement Act also updates how fees are assessed in certain circumstances.

    In accordance with the FOIA Improvement Act, the Board is revising 1001.3 by: (1) Changing the appeal deadline from 30 days to 90 days; and (2) adding a provision (under a new subheading) informing parties that they may seek dispute resolution services from either the Board's FOIA Public Liaison or the Office of Government Information Services, National Archives and Records Administration. The Board is also revising 49 CFR 1002.1(g) by adding paragraphs (15), (16), (17), and (18) to include the new requirements mandated by the FOIA Improvement Act regarding fees. The final rules are set forth below.

    Under the Administrative Procedure Act (APA), the public generally may participate in the promulgation of rules through a notice and comment period. 5 U.S.C. 553(b) & (c). However, an agency may publish regulations in final form when the agency, for good cause, finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B).

    The Board has determined that these amendments to its regulations relate to agency management, practice, and procedure, and make technical changes only as directed by statute, are not a matter of agency discretion, and provide additional protections to the public. Therefore, the Board finds that notice and public comment on these amendments are unnecessary. See 5 U.S.C. 553(a)(2), 553(b)(A) & 553(b)(B).

    The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612, generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Because the Board has determined that notice and comment are not required under the APA for this rulemaking, the requirements of the RFA do not apply.

    List of Subjects 49 CFR Part 1001

    Freedom of information, Government employees, Inspection of records.

    49 CFR Part 1002

    Freedom of information, Fees for records.

    It is ordered:

    1. The final rules set forth below are adopted. Notice of the rules adopted here will be published in the Federal Register.

    2. The rules are effective on January 14, 2017.

    By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.

    Brendetta S. Jones, Clearance Clerk.

    For the reasons set forth in the preamble, the Surface Transportation Board amends part 1001 and part 1002 of title 49, chapter X, of the Code of Federal Regulations as follows:

    PART 1001—INSPECTION OF RECORDS 1. Revise the authority citation for part 1001 to read as follows: Authority:

    5 U.S.C. 552, 49 U.S.C. 1302, and 49 U.S.C. 1321.

    2. Revise § 1001.3 to read as follows:
    § 1001.3 Requests to inspect other records not considered public under 5 U.S.C. 552.

    (a) Request and determination. Requests to inspect records other than those now deemed to be of a public nature shall be in writing and addressed to the Freedom of Information Act Officer (FOIA Officer). The FOIA Officer shall determine within 20 days of receipt of a request (excepting Saturdays, Sundays, and legal public holidays) whether a requested record will be made available. If the FOIA Officer determines that a request cannot be honored, the FOIA Officer must inform the requesting party in writing of this decision and such letter shall contain a detailed explanation of why the requested material cannot be made available and explain the requesting party's right of appeal.

    (b) Appeal. If the FOIA Officer rules that such records cannot be made available because they are exempt under the provisions of 5 U.S.C. 552(b), an appeal from such ruling may be addressed to the Chairman. The Chairman's decision shall be administratively final and shall state the specific exemption(s) contained in 5 U.S.C. 552(b) relied upon for any denial. Such an appeal must be filed within 90 days of the date of the FOIA Officer's letter. The Chairman shall act in writing on such appeals within 20 days (excepting Saturdays, Sundays, and legal public holidays) of receipt of any appeal. In unusual circumstances, as set forth in 5 U.S.C. 552(a)(6)(B), the time limit may be extended, by written notice to the person making the particular request, setting forth the reasons for such extension, for no more than 10 working days. If the appeal is denied, the Chairman's order shall notify the requesting party of his or her right to judicial review. Charges shall be made as provided for in 49 CFR 1002.1.

    (c) Alternative dispute resolution services. Requesters may seek dispute resolution services from:

    (1) The Board's FOIA Public Liaison by Email at [email protected] or by mail, telephone, or facsimile as provided on the Board's Web site located at https://www.stb.gov/stb/foia.html; or

    (2) The Office of Government Information Services (OGIS) by mail to Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road—OGIS, College Park, Maryland, 20740-6001, by facsimile at (202) 741-5769, or by Email at [email protected]

    PART 1002—FEES 3. Revise the authority citation for part 1002 to read as follows: Authority:

    5 U.S.C. 552(a)(4)(A), (a)(6)(B), and 553; 31 U.S.C. 9701; and 49 U.S.C. 1321. Section 1002.1(g)(11) is also issued under 5 U.S.C. 5514 and 31 U.S.C. 3717.

    4. Amend § 1002.1 by adding paragraphs (g)(15), (16), (17) and (18) to read as follows:
    § 1002.1 Fees for records search, review, copying, certification, and related services.

    (g) * * *

    (15) No fees will be assessed if the FOIA Officer fails to comply with any time limit under the FOIA or these regulations, and has not timely notified the requester, in writing, that an unusual circumstance exists. If an unusual circumstance exists, and timely, written notice is given to the requester, the failure to meet the time limit may be excused an additional 10 working days before fees are automatically waived under this paragraph (g)(15).

    (16) If the FOIA Officer determines that unusual circumstances apply and more than 5,000 pages are necessary to respond to a request, fees may be charged if timely, written notice to the requester is provided and discussed with the requester via mail, Email, or telephone (or if at least three good-faith attempts are made to do so) regarding how the requester could effectively limit the scope of the request.

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

    (18) Fees may not be avoided by filing multiple requests at the same time. When the FOIA Officer reasonably believes that a requester, alone or with others, is breaking down one request into a series of requests to avoid fees, the requests will be combined, and the requester or requesters will be charged accordingly.

    [FR Doc. 2016-30183 Filed 12-14-16; 8:45 am] BILLING CODE 4915-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 141107936-5399-02] RIN 0648-XF081 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2016 Commercial Accountability Measure and Closure for South Atlantic Gray Triggerfish; July through December Season AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements accountability measures for commercial gray triggerfish in the exclusive economic zone (EEZ) of the South Atlantic. NMFS projects commercial landings for gray triggerfish will reach the commercial annual catch limit (ACL) (commercial quota) for the period July through December by December 16, 2016. Therefore, NMFS is closing the commercial sector for gray triggerfish in the South Atlantic EEZ on December 16, 2016. This closure is necessary to protect the gray triggerfish resource.

    DATES:

    This rule is effective 12:01 a.m., local time, December 16, 2016, until January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The snapper-grouper fishery of the South Atlantic includes gray triggerfish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

    The final rule implementing Amendment 29 to the FMP divided the commercial ACL (commercial quota) for gray triggerfish in the South Atlantic into two 6-month commercial fishing seasons and allocated 50 percent of the total commercial quota of 312,324 lb (141,668 kg), round weight, to each fishing season, January 1 through June 30, and July 1 through December 31 (80 FR 30947, June 1, 2015), as specified in 50 CFR 622.190(a)(8). As a result, the commercial quota is divided into two equal seasonal quotas of 156,162 lb (70,834 kg), round weight.

    The commercial sector for gray triggerfish closed on April 2, 2016, as landing reports indicated the January through June commercial quota would be met by that date. However, as of May 5, 2016, only 83 percent of the commercial quota was caught, and NMFS subsequently reopened the January through June commercial fishing season on June 13, 2016. The 2016 July through December quota includes 16,016 lb (7265 kg), round weight, that was not harvested during the January through June fishing season. As set forth in 50 CFR 622.190(a)(8)(iii), the unused portion of the January through June quota was added to the July through December quota, for a seasonal quota of 172,178 lb (78,099 kg), round weight.

    Under 50 CFR 622.193(q)(1)(i), NMFS is required to close the commercial sector for gray triggerfish when the commercial quota specified in § 622.190(a)(8)(i) or (ii) is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial quota for South Atlantic gray triggerfish will be reached by December 16, 2016. Accordingly, the commercial sector for South Atlantic gray triggerfish is closed effective 12:01 a.m., local time, December 16, 2016, until the start of the next commercial fishing season on January 1, 2017.

    The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having gray triggerfish onboard must have landed and bartered, traded, or sold such gray triggerfish prior to 12:01 a.m., local time, December 16, 2016. During the closure, the bag limit specified in 50 CFR 622.187(b)(8), and the possession limits specified in 50 CFR 622.187(c), apply to all harvest or possession of gray triggerfish in or from the South Atlantic EEZ. Also, during the closure, the sale or purchase of gray triggerfish taken from the South Atlantic EEZ is prohibited. The prohibition on the sale or purchase does not apply to gray triggerfish that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, December 16, 2016, and were held in cold storage by a dealer or processor.

    For a person onboard a vessel for which a Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery has been issued, the bag and possession limits and sale and purchase prohibitions applicable after the commercial quota closure for gray triggerfish apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.193(q)(1)(i).

    Classification

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

    This action is taken under 50 CFR 622.193(q)(1)(i) and is exempt from review under Executive Order 12866.

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

    This action responds to the best scientific information available. The NOAA Assistant Administrator for Fisheries (AA), finds that the need to immediately implement this action to close the commercial sector for gray triggerfish constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing Amendment 29, which established the split commercial seasons with split quota for gray triggerfish, and the accountability measures have already been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect gray triggerfish since the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and could potentially result in a harvest well in excess of the established commercial quota.

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: December 12, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-30137 Filed 12-12-16; 4:15 pm] BILLING CODE 3510-22-P
    81 241 Thursday, December 15, 2016 Proposed Rules LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201 and 202 [Docket No. 2016-8] Group Registration of Contributions to Periodicals AGENCY:

    U.S. Copyright Office, Library of Congress.

    ACTION:

    Extension of comment period.

    SUMMARY:

    The United States Copyright Office is extending the deadline for the submission of written comments in response to its December 1, 2016 Notice of Proposed Rulemaking regarding group registration of contributions to periodicals.

    DATES:

    Written comments are now due no later than 11:59 p.m. Eastern Time on January 30, 2017.

    ADDRESSES:

    The Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office Web site at http://copyright.gov/rulemaking/grcp/. If electronic submission of comments is not feasible, please contact the Office using the contact information below for special instructions.

    FOR FURTHER INFORMATION CONTACT:

    Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice. Each can be reached by telephone at 202-707-8040.

    SUPPLEMENTARY INFORMATION:

    The United States Copyright Office is proposing to amend the regulation governing the group registration option for contributions to periodicals to reflect certain upgrades that will soon be made to the electronic registration system. On December 1, 2016, the Office issued a Notice of Proposed Rulemaking seeking public input on that topic. See 81 FR 86634 (Dec. 1, 2016). To ensure that commenters have sufficient time to respond, the Office is extending the deadline for the submission of comments in response to the Notice to January 30, 2017, at 11:59 p.m. Eastern Time.

    Dated: December 9, 2016. Sarang V. Damle, General Counsel and Associate Register of Copyrights.
    [FR Doc. 2016-30077 Filed 12-14-16; 8:45 am] BILLING CODE 1410-30-P
    LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201, 202 [Docket No. 2016-10] Group Registration of Photographs AGENCY:

    U.S. Copyright Office, Library of Congress.

    ACTION:

    Extension of comment period.

    SUMMARY:

    The United States Copyright Office is extending the deadline for the submission of written comments in response to its December 1, 2016 Notice of Proposed Rulemaking regarding group registration of photographs.

    DATES:

    Written comments are now due no later than 11:59 p.m. Eastern Time on January 30, 2017.

    ADDRESSES:

    The Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office Web site at http://copyright.gov/rulemaking/supplementary-registration/. If electronic submission of comments is not feasible, please contact the Office using the contact information below for special instructions.

    FOR FURTHER INFORMATION CONTACT:

    Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice. Each can be reached by telephone at 202-707-8040.

    SUPPLEMENTARY INFORMATION:

    The United States Copyright Office is proposing to update its regulations governing group registration options for photographers to encourage broader participation in the registration system, increase the efficiency of the registration process, and create a more robust record of the claim. On December 1, 2016, the Office issued a Notice of Proposed Rulemaking seeking public input on this proposal. See 81 FR 86643 (Dec. 1, 2016). To ensure that commenters have sufficient time to respond, the Office is extending the deadline for the submission of comments in response to the Notice to January 30, 2017, at 11:59 p.m. Eastern Time.

    Dated: December 9, 2016. Sarang V. Damle, General Counsel and Associate Register of Copyrights.
    [FR Doc. 2016-30071 Filed 12-14-16; 8:45 am] BILLING CODE 1410-30-P
    LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201, 202 [Docket No. 2016-9] Supplementary Registration AGENCY:

    U.S. Copyright Office, Library of Congress.

    ACTION:

    Extension of comment period.

    SUMMARY:

    The United States Copyright Office is extending the deadline for the submission of written comments in response to its December 1, 2016 Notice of Proposed Rulemaking regarding supplementary registration.

    DATES:

    Written comments are now due no later than 11:59 p.m. Eastern Time on January 30, 2017.

    ADDRESSES:

    The Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office Web site at http://copyright.gov/rulemaking/supplementary-registration/. If electronic submission of comments is not feasible, please contact the Office using the contact information below for special instructions.

    FOR FURTHER INFORMATION CONTACT:

    Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice. Each can be reached by telephone at 202-707-8040.

    SUPPLEMENTARY INFORMATION:

    The United States Copyright Office is proposing to update the regulation governing supplementary registration to reflect certain technical upgrades that will soon be made to the electronic registration system. On December 1, 2016, the Office issued a Notice of Proposed Rulemaking seeking public input on that topic. See 81 FR 86656 (Dec. 1, 2016). To ensure that commenters have sufficient time to respond, the Office is extending the deadline for the submission of comments in response to the Notice to January 30, 2017, at 11:59 p.m. Eastern Time.

    Dated: December 9, 2016. Sarang V. Damle, General Counsel and Associate Register of Copyrights.
    [FR Doc. 2016-30076 Filed 12-14-16; 8:45 am] BILLING CODE 1410-30-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2016-0524; FRL-9956-68-Region 9] Partial Approval, Partial Disapproval of California Air Plan Revisions, Antelope Valley Air Quality Management District AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing a partial approval and partial disapproval of revisions to the Antelope Valley Air Quality Management District (AVAQMD or District) portion of the California State Implementation Plan (SIP). These revisions concern the District's demonstration regarding Reasonably Available Control Technology (RACT) requirements for the 1997 and 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS). We are proposing action on local SIP revisions under the Clean Air Act (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.

    DATES:

    Any comments must arrive by January 17, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2016-0524 at http://www.regulations.gov, or via email to Andrew Steckel, Rulemaking Office Chief at [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be removed or edited from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Stanley Tong, EPA Region IX, (415) 947-4122, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. The State's Submittal A. What documents did the State submit? B. Are there other versions of these documents? C. What is the purpose of the RACT SIP submissions? II. The EPA's Evaluation and Proposed Action A. How is the EPA evaluating the RACT SIP submissions? B. Do the RACT SIP submissions meet the evaluation criteria? C. What are the RACT deficiencies? D. EPA Recommendations To Further Improve the RACT SIPs E. Proposed Action and Public Comment III. Statutory and Executive Order Reviews I. The State's Submittal A. What documents did the State submit?

    Table 1 lists the documents addressed by this proposal with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).

    Table 1—Submitted Documents Local agency Document Adopted Submitted AVAQMD AVAQMD 8-Hour Reasonably Available Control Technology—State Implementation Plan Analysis (RACT SIP Analysis)—1997 8-hour Ozone NAAQS “2006 RACT SIP” 09/19/06 01/31/07 AVAQMD AVAQMD 8-Hour Reasonably Available Control Technology—State Implementation Plan Analysis (2015 RACT SIP Analysis)—2008 8-hour Ozone NAAQS “2015 RACT SIP” 07/21/15 10/23/15

    On July 31, 2007, the submittal for AVAQMD's 2006 RACT SIP Analysis for the 1997 8-hour ozone NAAQS was deemed by operation of law to meet the completeness criteria in Title 40 of the Code of Federal Regulations (CFR) part 51 Appendix V, which must be met before formal EPA review.

    On March 9, 2016, the submittal for AVAQMD's 2015 RACT SIP Analysis for the 2008 8-hour ozone NAAQS was found to meet the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

    B. Are there other versions of these documents?

    There are no previous versions of these documents in the AVAQMD portion of the California SIP for the 1997 or 2008 8-hour ozone standard.

    C. What is the purpose of the RACT SIP submissions?

    Volatile Organic Compounds (VOCs) and nitrogen oxides (NOX) help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC and NOX emissions. Sections 182(b)(2) and (f) require that SIPs for ozone nonattainment areas classified as moderate or above implement RACT for any source covered by a Control Techniques Guidelines (CTG) document and for any major source of VOCs or NOX. The AVAQMD is subject to this requirement as it is designated and classified as a severe-15 ozone nonattainment area for the 1997 8-hour ozone NAAQS.1 Therefore, the AVAQMD must, at a minimum, adopt RACT-level controls for all sources covered by a CTG document and for all major non-CTG sources of VOCs or NOX within the nonattainment area. Any stationary source that emits or has the potential to emit at least 100 tons per year of VOCs or NOX is a major stationary source in a moderate ozone nonattainment area (CAA section 182(b)(2), (f) and 302(j)), and any stationary source that emits or has the potential to emit at least 25 tons per year of VOCs or NOX is a major stationary source in a severe ozone nonattainment area (CAA sections 182(d) and (f)).

    1 40 CFR 81.305; 69 FR 23858 at 23884 (April 30, 2004) (final rule designating and classifying Antelope Valley as a Subpart 2/moderate nonattainment for the 1997 8-hour ozone NAAQS); 77 FR 26950 (May 8, 2012) (final rule reclassifying Antelope Valley as severe-15 nonattainment for the 1997 8-hour ozone NAAQS); and 77 FR 30088 at 30100 (May 21, 2012) (final rule designating and classifying Antelope Valley as severe-15 nonattainment for the 2008 8-hour ozone NAAQS). Antelope Valley AQMD is listed in the final rulemaking under “Los Angeles-San Bernardino Cos (W Mojave Desert), CA: Los Angeles County (part)”.

    Section IV.G. of the preamble to the EPA's final rule to implement the 1997 8-hour ozone NAAQS (70 FR 71612, November 29, 2005) discusses RACT requirements. It states in part that where a RACT SIP is required, states implementing the 8-hour standard generally must assure that RACT is met either through a certification that previously required RACT controls represent RACT for 8-hour implementation purposes or through a new RACT determination. Section III.D of the preamble to the EPA's final rule to implement the 2008 ozone NAAQS (80 FR 12264, March 6, 2015) discusses similar requirements for RACT. The submitted documents provide AVAQMD's analyses of its compliance with the CAA section 182 RACT requirements for the 1997 and 2008 8-hour ozone NAAQS. The EPA's technical support documents (TSD) have more information about the District's submissions and the EPA's evaluations thereof.

    II. The EPA's Evaluation and Proposed Action A. How is the EPA evaluating the RACT SIP submissions?

    SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193). Generally, SIP rules must require RACT for each category of sources covered by a CTG document as well as each major source of VOCs or NOX in ozone nonattainment areas classified as moderate or above (see CAA section 182(b)(2)). The AVAQMD regulates a severe ozone nonattainment area (see 40 CFR 81.305), so the District's rules must implement RACT.

    Guidance and policy documents that we use to evaluate enforceability, rule stringency requirements and CAA section 182 RACT requirements for the applicable criteria pollutants include the following:

    1. “Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard—Phase 2” (70 FR 71612; November 29, 2005).

    2. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

    3. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).

    4. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

    5. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NOX Supplement), 57 FR 55620, November 25, 1992.

    6. Memorandum from William T. Harnett to Regional Air Division Directors, (May 18, 2006), “RACT Qs & As—Reasonably Available Control Technology (RACT) Questions and Answers”.

    7. RACT SIPs, Letter dated March 9, 2006 from EPA Region IX (Andrew Steckel) to CARB (Kurt Karperos) describing Region IX's understanding of what constitutes a minimally acceptable RACT SIP.

    8. RACT SIPs, Letter dated April 4, 2006 from EPA Region IX (Andrew Steckel) to CARB (Kurt Karperos) listing EPA's current CTGs, ACTs, and other documents which may help to establish RACT.

    9. “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements” (80 FR 12264; March 6, 2015).

    With respect to major stationary sources, because the Antelope Valley ozone nonattainment area was classified as “moderate” nonattainment for the 1997 8-hour ozone NAAQS at the time that California submitted the 2006 RACT SIP to the EPA, the EPA evaluated this submission in accordance with the 100 ton per year (tpy) threshold for “major stationary sources” of VOC or NOX emissions in moderate ozone nonattainment areas. (see CAA sections 182(b)(2) and (f)).

    The AVAQMD's 2015 RACT SIP submittal contains the District's RACT evaluation for major stationary sources in accordance with the 25 tpy threshold for major stationary sources of VOC or NOX emissions in severe ozone nonattainment areas. (see CAA sections 182(d) and (f)). The EPA also evaluated AVAQMD's submittals for compliance with the additional RACT requirements that became applicable following the EPA's reclassification of the Antelope Valley ozone nonattainment area from “moderate” to “severe” nonattainment for the 1997 8-hour ozone NAAQS and classification as a severe ozone nonattainment area for the 2008 8-hour ozone NAAQS.

    B. Do the RACT SIP submissions meet the evaluation criteria?

    With respect to the 1997 8-hour ozone standard, AVAQMD's 2006 RACT SIP and its 2014 Supplemental Analysis 2 provide the District's conclusion that the applicable SIP generally satisfies CAA section 182 RACT requirements except for a limited number of rules that did not fully implement an applicable CTG or where rules covering major non-CTG sources must be updated to implement RACT. AVAQMD reviewed the list of CTGs and identified whether or not there was a stationary source located within its jurisdiction. For some categories, AVAQMD determined its rules met RACT, while in other cases it concluded that several rules must be updated to implement RACT.3 With respect to major non-CTG sources, the District identified all facilities that have submitted applications for a CAA title V Federal Operating Permit. Table 1 of the 2006 RACT SIP lists four major sources, two of which are landfills (Antelope Valley Public Landfill and Lancaster Landfill), which the District states are not a major source of ozone precursors. The District also states that VOC emissions from the remaining two title V facilities (Northrup-Grumman and Lockheed Martin) are largely regulated by Rule 1124 Aerospace Operations, which was recently amended and approved into the SIP.4 Our review of CARB's emissions inventory database for potential CTG sources did not uncover any CTG source categories or major sources missing from the District's analysis.

    2 AVAQMD separately provided a supplemental analysis titled, “8-Hour Ozone Reasonably Available Control Technology (RACT) State Implementation Plan (SIP) Analysis—Supplemental Analysis”, dated March 13, 2014, to address the EPA's September 11, 2006 comments on the 2006 RACT SIP [hereinafter “2014 Supplemental Analysis”].

    3 See AVAQMD 2014 Supplemental Analysis.

    4 Rule 1124, Aerospace Assembly and Component Manufacturing Operations, amended August 20, 2013, was approved into the SIP as meeting RACT in 80 FR 60040 (October 5, 2015).

    With respect to the 2008 8-hour ozone standard, AVAQMD's 2015 RACT SIP staff report states that “[t]he original 2006 RACT SIP Analysis (for the 1997 8-hour ozone standard), together with the supplemental March 13, 2014 RACT SIP Analysis and this document, [the 2015 RACT SIP Analysis] represent a current and complete RACT SIP Analysis document to satisfy the District's RACT obligation for the 1997 and 2008 8-hour ozone standards.” 5

    5 See AVAQMD 2015 RACT SIP, pg 1.

    For each CTG source category, AVAQMD's 2015 RACT SIP identifies if it has a stationary source subject to the CTG. AVAQMD states that for some CTG source categories its rules meet RACT, while in other cases, the rules need to be updated to implement RACT. With respect to major non-CTG sources, the District identified five facilities that submitted applications for title V Federal Operating Permits. Four of these facilities were previously identified in the District's 2006 RACT SIP. One new facility, Wm Bolthouse Farms, is a major source of NOX due to emissions from internal combustion engines used to support agricultural operations.

    We reviewed AVAQMD's 2006 RACT SIP, its 2014 Supplemental Analysis, and its 2015 RACT SIPs to determine if the District's rules implemented current RACT. We also reviewed CARB's emissions inventory database and did not uncover any additional major stationary sources that were missing in the District's analyses. The District's efforts to identify CTG sources and major sources appears to be thorough. Based on the EPA's review of the District's evaluations, we propose to conclude that with the exception of the following rules, all of the identified SIP rules implement RACT for the applicable CTG categories and for the major non-CTG stationary sources of VOC and NOX for the 1997 and 2008 8-hour ozone NAAQS. We will discuss the rules' deficiencies in the next section. The rules that are deficient are:

    1. Rule 462, Organic Liquid Loading (6/9/95).

    2. Rule 1110.2, Emissions from Stationary, Non-road & Portable Internal Combustion Engines (1/21/03).

    3. Rule 1151, Motor Vehicle and Mobile Equipment Coating Operations (6/19/12).

    4. Rule 1171, Solvent Cleaning Operations (11/17/98).

    Where there are no existing sources covered by a particular CTG document, states may, in lieu of adopting RACT requirements for those sources, adopt negative declarations certifying that there are no such sources in the relevant nonattainment area. Tables 2 of AVAQMD's 2006 and 2015 RACT SIPs lists the District's negative declarations where it had no sources subject to the applicable CTG for the 1997 and 2008 8-hour ozone standards respectively. The District based its conclusion on a review of permit files, emissions inventory data, and a search of the internet and yellow pages. We summarized the District's negative declarations in Table 2 below.

    Table 2—AVAQMD Negative Declarations for the 1997 and 2008 8-Hour Ozone NAAQS CTG source category Negative declaration CTG reference document 2006
  • RACT SIP *
  • 2015
  • RACT SIP
  • Coils EPA-450/2-77-008, Control of Volatile Organic Emissions from Existing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks X Flat Wood Paneling Coatings EPA-453/R-06-004, Control Techniques Guidelines for Flat Wood Paneling Coatings X Fiberglass Board Manufacturing Materials EPA 453/R-08-004, Control Techniques Guidelines for Fiberglass Boat Manufacturing Materials X Gasoline Bulk Plants EPA-450/2-77-035, Control of Volatile Organic Emissions from Bulk Gasoline Plants X X Gasoline Loading Terminals >76,000 L EPA-450/2-77-026, Control of Hydrocarbons from Tank Truck Gasoline Loading Terminals X Large Appliances, Surface Coatings EPA-450/2-77-034, Control of Volatile Organic Emissions from Existing Stationary Sources—Volume V: Surface Coating of Large Appliances X X Large Appliances, Surface Coatings EPA 453/R-07-004, Control Techniques Guidelines for Large Appliance Coatings X Dry Cleaning EPA-450/3-82-009, Control of Volatile Organic Compound Emissions from Large Petroleum Dry Cleaners X Magnet Wire Coating EPA-450/2-77-033, Control of Volatile Organic Emissions from Existing Stationary Sources, Volume IV: Surface Coating of Insulation of Magnet Wire X X Metal Furniture EPA 453/R-07-005, Control Techniques Guidelines for Metal Furniture Coatings X Natural Gas/Gasoline Processing Plants EPA-450/2-83-007, Control of Volatile Organic Compound Equipment Leaks from Natural Gas/Gasoline Processing Plants X X Petroleum Liquid Storage Tanks—Fixed Roof Tanks EPA-450/2-77-036, Control of Volatile Organic Emissions from Storage of Petroleum Liquids in Fixed-Roof Tanks X X Petroleum Liquid Storage Tanks—External Floating Roof Tanks EPA-450/2-78-047, Control of Volatile Organic Emissions from Petroleum Liquid Storage in External Floating Roof Tanks X X Pharmaceutical Products EPA-450/2-78-029, Control of Volatile Organic Emissions from Manufacture of Synthesized Pharmaceutical Products X X Refineries EPA-450/2-77-025, Control of Refinery Vacuum Producing Systems, Wastewater Separators, and Process Unit Turnarounds X X Refineries EPA-450/2-78-036, Control of Volatile Organic Compound Leaks from Petroleum Refinery Equipment X X Resin Manufacturing—High-Density Polyethylene, Polypropylene, and Polystyrene Resins EPA-450/3-83-008, Control of Volatile Organic Compound Emissions from Manufacture of High-Density Polyethylene, Polypropylene, and Polystyrene Resins X X Resin Manufacturing—Synthetic Organic Chemical Polymers and Resin Manufacturing EPA-450/3-83-006, Control of Volatile Organic Compound Leaks from Synthetic Organic Chemical Polymer and Resin Manufacturing Equipment X X Rubber Tire Manufacturing EPA-450/2-78-030, Control of Volatile Organic Emissions from Manufacture of Pneumatic Rubber Tires X X Ship Coatings 61 FR 44050 and EPA-453/R-94-032, Control Techniques Guidelines for Shipbuilding and Ship Repair Operations (Surface Coating) X X Synthetic Organic Chemical Manufacturing EPA-450/3-84-015, Control of Volatile Organic Compound Emissions from Air Oxidation Process in Synthetic Organic Chemical Manufacturing Industry (SOCMI) X X Synthetic Organic Chemical Manufacturing EPA-450/4-91-031, Control of Volatile Organic Compound Emissions from Reactor Process and Distillation Operations in SOCMI X X Wood Furniture Surface Coating EPA-453/R-96-007, Control of VOC Emissions from Wood Furniture Manufacturing Operations X X * These Negative Declarations were approved on July 1, 2011 (76 FR 38572).

    Our review of AVAQMD's negative declarations indicate some CTGs missing from the District's analysis. The District should adopt negative declarations for the following CTGs for the 1997 8-hour ozone standard if it concludes it has no sources covered by the CTGs:

    1. EPA-450/2-78-032, Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VII: Factory Surface Coating of Flat Wood Paneling.

    2. EPA-450/3-82-009, Control of Volatile Organic Compound Emissions from Large Petroleum Dry Cleaners.

    3. EPA-450/2-77-008, Control of Volatile Organic Emissions from Existing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks, can coating portion.

    The District should also adopt negative declarations for the following CTGs for the 2008 8-hour ozone standard if it concludes it has no sources covered by these documents:

    1. EPA-450/2-77-008, Can coating portion of Control of Volatile Organic Emissions from Existing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks

    2. EPA-450/2-77-026, Control of Hydrocarbons from Tank Truck Gasoline Loading Terminals.

    3. EPA-450/7-77-032, Control of Volatile Organic Emissions from Existing Stationary Sources—Volume III: Surface Coating of Metal Furniture.

    4. EPA-450/2-78-032, Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VII: Factory Surface Coating of Flat Wood Paneling.

    5. EPA-453/R-08-003, Drum coating portion of Control Techniques Guidelines for Miscellaneous Metal and Plastic Parts Coatings.

    6. EPA 453/R-08-003, Pleasure craft coating portion of Control Techniques Guidelines for Miscellaneous Metal and Plastic Parts Coatings.

    Our 2006 and 2015 RACT SIP TSDs provide a more detailed discussion of the EPA's rationale, including an overview of the District's analyses, which were made available for public comment during the District's rulemaking process.

    C. What are the RACT deficiencies?

    Rule 462, Organic Liquid Loading, (amended 6/9/95) defines “facility vapor leak” as “measured at a distance of 2 centimeters from the source according to EPA Method 21.” This should be corrected to remove the 2 centimeter criteria to be consistent with EPA Method 21.

    Rule 1110.2, Emissions from Stationary, Non-road & Portable Internal Combustion Engines, (amended 1/21/03) exempts engines “used directly and exclusively by the owner/operator for agricultural operations necessary for the growing of crops or raising of fowl or animals.” The District should update this rule to eliminate the exemption for agricultural engines or adopt a separate rule for agricultural engines.

    Rule 1151, Motor Vehicle and Mobile Equipment Coating Operations (amended 6/19/12) does not cover the coating of new heavier duty vehicles. The District's RACT SIP states it has a new heavier duty vehicle manufacturing facility whose permitted coating operation exceeds the applicability threshold for the 2008 CTG for Automobile and Light Duty Truck Assembly Coatings.

    Rule 1171, Solvent Cleaning Operations (amended 11/17/98) needs to incorporate work practices from the 2006 CTG for Industrial Cleaning Solvents.

    D. EPA Recommendations To Further Improve the RACT SIPs

    The 2015 TSD describes recommendations if additional emission reductions are needed for the next time the local agency modifies its rules. The 2006 and 2015 TSDs also recommend adopting additional negative declarations if the District concludes it has no sources covered by those CTG categories.

    E. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, and explained more fully in our TSDs, the EPA proposes to partially approve and partially disapprove the 2006 and 2015 RACT SIP submittals. We will accept comments from the public on this proposal until January 17, 2017.

    If finalized, this partial disapproval would trigger the 2-year clock for the federal implementation plan (FIP) requirement under section 110(c).

    In addition, final disapproval would trigger sanctions under CAA section 179 and 40 CFR 52.31 unless the EPA approves subsequent SIP revisions that correct the RACT SIP deficiencies within 18 months of the effective date of the final action.

    III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

    F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.

    H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

    The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

    List of Subjects in 40 CFR Part 52

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

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: December 2, 2016. Deborah Jordan, Acting Regional Administrator, Region IX.
    [FR Doc. 2016-30179 Filed 12-14-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2016-0552; FRL-9956-50-Region 1] Approval and Promulgation of Air Quality Implementation Plans; Maine, New Hampshire, Rhode Island and Vermont; Interstate Transport of Fine Particle and Ozone Air Pollution AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    EPA is proposing to approve State Implementation Plan (SIP) submissions from the Maine Department of Environmental Protection (ME DEP), the New Hampshire Department of Environmental Services (NH DES), the Rhode Island Department of Environmental Management (RI DEM) and the Vermont Department of Environmental Conservation (VT DEC). These SIP submissions address provisions of the Clean Air Act that require each state to submit a SIP to address emissions that may adversely affect another state's air quality through interstate transport. The EPA is proposing that all four States have adequate provisions to prohibit in-state emissions activities from significantly contributing to nonattainment, or interfering with the maintenance, of the 1997 ozone National Ambient Air Quality Standards (NAAQS) in other states, and that Rhode Island and Vermont have adequate provisions to prohibit in-state emissions activities from significantly contributing to nonattainment, or interfering with maintenance, of the 1997 fine particulate matter (PM2.5) and 2006 PM2.5 NAAQS in other states. The intended effect of this action is to propose approval of the SIP revisions submitted by Maine, New Hampshire, Rhode Island, and Vermont. This action is being taken under the Clean Air Act.

    DATES:

    Comments must be received on or before January 17, 2017.

    ADDRESSES:

    Submit your comments, identified by docket identification number EPA-R01-OAR-2016-0552, at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the “For Further Information Contact” section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Publicly available docket materials are available either electronically in www.regulations.gov or at the U.S. Environmental Protection Agency, Region 1, Air Programs Branch, 5 Post Office Square, Boston, Massachusetts. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

    FOR FURTHER INFORMATION CONTACT:

    Richard P. Burkhart, Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05-02), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts, 02109-3912; (617) 918-1664; [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

    Organization of this document. The following outline is provided to aid in locating information in this preamble.

    I. What should I consider as I prepare my comments for EPA? II. Rulemaking Information III. Proposed Action IV. Statutory and Executive Order Reviews I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:

    1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date, and page number).

    2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

    3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

    4. Describe any assumptions and provide any technical information and/or data that you used.

    5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

    6. Provide specific examples to illustrate your concerns, and suggest alternatives.

    7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

    8. Make sure to submit your comments by the comment period deadline identified.

    II. Rulemaking Information

    EPA is proposing to approve SIP submissions from the ME DEP, the NH DES, the RI DEM and the VT DEC. The SIPs were submitted on the following dates: April 24, 2008 (ME); March 11, 2008 (NH); April 30, 2008 and November 6, 2009 (RI); and April 15, 2009 and May 21, 2010 (VT). These SIP submissions address the requirements of Clean Air Act (CAA) section 110(a)(2)(D)(i)(I) for the 1997 ozone and 1997 PM2.5 and 2006 PM2.5 NAAQS.1 EPA previously approved SIP submissions from New Hampshire and Maine as meeting the requirements of CAA section 110(a)(2)(D)(i)(I) for the 1997 PM2.5 and 2006 PM2.5 NAAQS (see 77 FR 63228).

    1 To the extent that these SIP submittals address other infrastructure elements, such as CAA section 110(a)(2)(D)(i)(II), those requirements are not being addressed in today's action. In today's rulemaking, EPA is proposing action only with respect to CAA section 110(a)(2)(D)(i)(I).

    On July 18, 1997, EPA established a new 8-hour NAAQS for ozone of 0.08 parts per million (ppm) (62 FR 38856). On March 12, 2008, EPA published a revision to the 8-hour ozone standard, lowering the level from 0.08 ppm to 0.075 ppm. In addition, on July 18, 1997, EPA also revised the NAAQS for particulate matter to add new annual and 24-hour standards for fine particles, using PM2.5 as the indicator (62 FR 38652). These revisions established an annual standard of 15 μg/m3 and a 24-hour standard of 65 μg/m3. During 2006, EPA revised the air quality standards for PM2.5. The 2006 standards decreased the level of the 24-hour fine particle standard from 65 μg/m3 to 35 μg/m3, and retained the annual fine particle standard at 15 μg/m3.2

    2 In addition, EPA subsequently revised the annual fine particle NAAQS to a level of 12 μg/m3 (78 FR 3086; January 15, 2013) and the ozone NAAQS to a level of 0.070 ppm (80 FR 65292; October 26, 2015). These NAAQS updates are not, however, relevant to today's action.

    The CAA requires states to submit, within three years after promulgation of a new or revised standard, SIPs meeting the applicable “infrastructure” elements of sections 110(a)(1) and (2). One of these applicable infrastructure elements, CAA section 110(a)(2)(D)(i), requires SIPs to contain “good neighbor” provisions to prohibit certain adverse air quality effects on neighboring states due to interstate transport of pollution. There are four sub-elements, or “prongs,” within CAA section 110(a)(2)(D)(i). This action addresses the first two sub-elements of the good neighbor provisions, at CAA section 110(a)(2)(D)(i)(I), often referred to as “prong one” and “prong two.” These sub-elements require that each SIP for a new or revised standard contain adequate provisions to prohibit any source or other type of emissions activity within the state from emitting air pollutants that will “contribute significantly to nonattainment” (prong 1) or “interfere with maintenance” (prong 2) of the applicable air quality standard in any other state.

    We note that the EPA has addressed the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the eastern portion of the United States in several past regulatory actions.3 We most recently promulgated the Cross-State Air Pollution Rule (CSAPR), which addressed CAA section 110(a)(2)(D)(i)(I) in the eastern portion of the United States.4 CSAPR addressed multiple national ambient air quality standards, but did not address the 2008 8-hour ozone standard.5 On December 3, 2015, the EPA proposed an update to CSAPR to address the 2008 ozone standard, referred to as the CSAPR Update.6 On October 26, 2016, the final CSAPR Update was published (see 81 FR 74504).

    3 NOX SIP Call, 63 FR 57371 (October 27, 1998); Clean Air Interstate Rule (CAIR), 70 FR 25172 (May 12, 2005); Cross-State Air Pollution Rule (CSAPR), 76 FR 48208 (August 8, 2011).

    4 76 FR 48208.

    5 CSAPR addressed the 1997 8-hour ozone, and the 1997 and 2006 fine particulate matter NAAQS.

    6 Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS, 80 FR 75706 (December 3, 2015).

    In addition, EPA issued guidance on August 15, 2006, relating to SIP submissions to meet the requirements of section 110(a)(2)(D)(i).7 This guidance indicated that states excluded from the Clean Air Interstate Rule (CAIR) “should be able to make a relatively simple SIP submission verifying that the State does not significantly contribute to nonattainment or interfere with maintenance of the [1997] 8-hour ozone or PM2.5 standards in another state.” EPA promulgated CAIR in 2005 (see 70 FR 25172, May 12, 2005). The CAIR modeling showed that none of the four states that are the subject of this proposed action (Maine, New Hampshire, Rhode Island, and Vermont) were linked to identified downwind nonattainment receptors, for either the 1997 PM2.5 and 2006 PM2.5 or the 1997 ozone NAAQS, and therefore were not considered to significantly contribute to nonattainment or interfere with maintenance of the standards in those downwind areas. In accordance with the above guidance, each of the four states' SIP submissions use the CAIR modeling results as the basis for showing that their State does not contribute significantly to downwind nonattainment, or interfere with maintenance, of the 1997 ozone or the 1997 PM2.5 and 2006 PM2.5 NAAQS.

    7 “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards,” Memorandum from William T. Harnett, EPA OAQPS, to EPA Regional Air Division Directors, August 15, 2006.

    CAIR was subject to litigation and ultimately remanded to the EPA by the D.C. Circuit.8 Among other things, the court held that EPA had failed to give “independent significance” to the interfere with maintenance prong of CAA section 110(a)(2)(D)(i)(I) by separately identifying downwind areas that might be projected to attain the NAAQS, but that might struggle to maintain the standard due to emissions from upwind states.9 The court concluded that “EPA must redo its analysis from the ground up.” 10

    8North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), amended on rehearing, 550 F.3d 1176 (2008).

    9 531 F.3d at 910-11.

    10Id. at 929.

    CAIR was subsequently replaced by CSAPR. Although the states do not cite CSAPR or the CSAPR Update in their SIP submissions (as these SIP submissions pre-date CSAPR), the CSAPR modeling is helpful to EPA in our review in that it bolsters the case these four states have given EPA in their SIP submissions showing that they do not cause or contribute significantly to downwind nonattainment or maintenance for either the 1997 ozone or 1997 PM2.5 and 2006 PM2.5 NAAQS.

    In the CSAPR rulemaking, the EPA used detailed air quality analyses to first identify downwind nonattainment and maintenance receptors, and to then determine whether an eastern state's contribution to downwind air quality problems was at or above specific thresholds. If a state's contribution did not exceed the specified air quality screening threshold, the state was not considered “linked” to identified downwind nonattainment and maintenance receptors and was therefore not considered to significantly contribute to nonattainment, or interfere with maintenance, of the standard in those downwind areas. If a state exceeded that threshold, the state's emissions were further evaluated, taking into account both air quality and cost considerations, to determine what, if any, emissions reductions might be necessary.

    In CSAPR, the EPA proposed an air quality screening threshold of one percent of the applicable NAAQS and requested comment on whether one percent was appropriate.11 The EPA evaluated the comments received and ultimately determined that one percent was an appropriately low threshold because there were important, even if relatively small, contributions to identified nonattainment and maintenance receptors from multiple upwind states. In response to commenters who advocated a higher or lower threshold than one percent, the EPA compiled the contribution modeling results for CSAPR to analyze the impact of different possible thresholds for the eastern United States. The EPA's analysis showed that the one-percent threshold captures a high percentage of the total pollution transport affecting downwind states, while the use of higher thresholds would exclude increasingly larger percentages of total transport. For example, at a five percent threshold, the majority of interstate pollution transport affecting downwind receptors would be excluded.12 In addition, the EPA determined that it was important to use a relatively lower one-percent threshold because there are adverse health impacts associated with ambient ozone even at low levels.13 The EPA also determined that a lower threshold such as 0.5 percent would result in relatively modest increases in the overall percentages of fine particulate matter and ozone pollution transport captured relative to the amounts captured at the one-percent level. The EPA determined that a “0.5 percent threshold could lead to emission reduction responsibilities in additional states that individually have a very small impact on those receptors — an indicator that emission controls in those states are likely to have a smaller air quality impact at the downwind receptor. We are not convinced that selecting a threshold below one percent is necessary or desirable.”14

    11 CSAPR proposal, 75 FR 45210, 45237 (August 2, 2010).

    12See also Air Quality Modeling Final Rule Technical Support Document, Appendix F, Analysis of Contribution Thresholds, Docket ID # EPA-HQ-OAR-2009-0491.

    13 CSAPR, 76 FR 48208, 48236-37 (August 8, 2011).

    14 Id.

    In the final CSAPR, the EPA determined that one percent was a reasonable choice considering the combined downwind impact of multiple upwind states in the eastern United States, the health effects of low levels of fine particulate matter and ozone pollution, and the EPA's previous use of a one-percent threshold in CAIR. The EPA used a single “bright line” air quality threshold equal to one percent of the 1997 8-hour ozone standard, or 0.08 ppm.15 The projected contribution from each state was averaged over multiple days with projected high modeled ozone, and then compared to the one-percent threshold. We concluded that this approach for setting and applying the air quality threshold for ozone was appropriate because it provided a robust metric, was consistent with the approach for fine particulate matter used in CSAPR, and because it took into account, and would be applicable to, any future ozone standards below 0.08 ppm.16

    15 Id.

    16 Id.

    For purposes of the 1997 ozone NAAQS, each of the four states included in this proposed action (Maine, New Hampshire, Rhode Island, and Vermont) have contributions below this significance threshold finalized in CSAPR. Specifically, the CSAPR modeling indicates that Maine's ozone contribution to any projected downwind nonattainment site is 0.00 ppb (parts per billion) and Maine's largest contribution to any projected downwind maintenance-only site is 0.08 ppb. The CSAPR modeling indicates that New Hampshire's largest ozone contribution to any projected downwind nonattainment site is 0.02 ppb and New Hampshire's largest ozone contribution to any projected downwind maintenance-only site is 0.07 ppb. The CSAPR modeling indicates that Rhode Island's largest ozone contribution to any projected downwind nonattainment site is 0.02 ppb and Rhode Island's largest contribution to any projected downwind maintenance-only site is 0.08 ppb. The CSAPR modeling indicates that Vermont's largest ozone contribution to any projected downwind nonattainment site is 0.01 ppb and Vermont's largest contribution to any projected downwind maintenance-only site is 0.05 ppb. These ozone contribution values are all well below the one percent screening threshold of 0.85 ppb and, therefore, there are no identified linkages between these four states and downwind projected nonattainment and maintenance sites.

    For the 1997 PM2.5 and 2006 annual PM2.5 NAAQS, the CSAPR modeling indicates that Rhode Island's contribution to any projected downwind nonattainment site is 0.00 micrograms per cubic meter (ug/m3) and Rhode Island's contribution to any projected downwind maintenance-only site is 0.00 ug/m3. For the 1997 PM2.5 and 2006 24-hour PM2.5 NAAQS, the CSAPR modeling indicates that Rhode Island's largest contribution to any projected downwind nonattainment site is 0.02 ug/m3 and Rhode Island's largest contribution to any projected downwind maintenance-only site is 0.06 ug/m3. For the 1997 PM2.5 and 2006 annual PM2.5 NAAQS, the CSAPR modeling indicates that Vermont's contribution to any projected downwind nonattainment site is 0.00 ug/m3 and Vermont's contribution to any projected downwind maintenance-only site is 0.00 ug/m3. For the 1997 PM2.5 and 2006 24-hour PM2.5 NAAQS, the CSAPR modeling indicates that Vermont's largest contribution to any projected downwind nonattainment site is 0.03 ug/m3 and Vermont's largest contribution to any projected downwind maintenance-only site is 0.05 ug/m3. These PM2.5 contribution values are all well below the one percent screening thresholds of 0.15 ug/m3 (annual) and 0.35 ug/m3 (24-hour)17 and, therefore, there are no identified linkages between Rhode Island and Vermont and downwind projected nonattainment and maintenance sites for the 1997 PM2.5 and 2006 PM2.5 standards.18

    17 Note this is the screening threshold for the more stringent 2006 24-hour PM2.5 NAAQS.

    18 As noted above, EPA previously approved SIP submissions from New Hampshire and Maine as meeting the requirements of CAA section 110(a)(2)(D)(i)(I) for the 1997 PM2.5 and 2006 PM2.5 NAAQS (see 77 FR 63228).

    In summary, in CSAPR, the EPA used an air quality analysis to determine whether an eastern state's contribution to downwind air quality problems was at or above specific thresholds. If a state's contribution did not exceed the specified air quality screening threshold, the state was not considered “linked” to identified downwind nonattainment and maintenance receptors and was therefore, not considered to significantly contribute to nonattainment, or interfere with maintenance, of the standards in those downwind areas.19 The CSAPR modeling showed that none of the four states that are the subject of this proposed action (Maine, New Hampshire, Rhode Island, and Vermont) were linked to identified downwind nonattainment and maintenance receptors with respect to the 1997 ozone and 1997 and 2006 PM2.5 NAAQS.20 Therefore, in the CSAPR rulemaking, the EPA found that these states do not significantly contribute to nonattainment or interfere with maintenance of the standards in those downwind areas. The findings made in the CSAPR rulemaking support the conclusions by each these four states that they do not significantly contribute to nonattainment, or interfere with maintenance, in downwind states for either the 1997 ozone NAAQS or the 1997 PM2.5 and 2006 PM2.5 NAAQS.

    19 76 FR at 48236 (“States whose contributions are below the thresholds are not included in the Transport Rule for the NAAQS. In other words, we are finding that states whose contributions are below these thresholds do not significantly contribute to nonattainment or interfere with maintenance of the relevant NAAQS.”).

    20See Table V.D-1, 76 FR at 48240 (contributions to downwind receptors with respect to the 1997 annual PM2.5 NAAQS); Table V.D-4, 76 FR 48241-242 (contributions to downwind receptors with respect to the 2006 24-hour PM2.5 NAAQS); and Table V.D-7, 76 FR at 48244-245 (contributions to downwind receptors with respect to the 1997 ozone NAAQS).

    Based on the findings made in the CSAPR rulemaking, and the information and analysis provided in all four states' SIP submissions, we are proposing to approve the interstate transport SIPs submitted by Rhode Island on April 30, 2008 and Vermont on April 15, 2009 as meeting the CAA section 110(a)(2)(D)(i)(I) requirements for the 1997 ozone and the 1997 PM2.5 NAAQS. We are also proposing to approve Maine's April 24, 2008 and New Hampshire's March 11, 2008 SIP submittals as meeting the CAA section 110(a)(2)(D)(i)(I) requirements for the 1997 ozone NAAQS. Finally, we are proposing to approve Rhode Island's November 6, 2009 and Vermont's May 21, 2010 SIP submittals as meeting the CAA section 110(a)(2)(D)(i)(I) requirements for the 2006 PM2.5 NAAQS. The EPA's findings confirm the results of the states' analyses: Maine, New Hampshire, Rhode Island, and Vermont do not significantly contribute to nonattainment, or interfere with maintenance, of the 1997 ozone NAAQS and Rhode Island and Vermont do not significantly contribute to nonattainment, or interfere with maintenance, of the 1997 PM2.5 and 2006 PM2.5 NAAQS in any other state. EPA has determined that the SIPs contain adequate provisions to satisfy CAA section 110(a)(2)(D)(i)(I) requirements as to the 1997 ozone NAAQS and the 1997 PM2.5 NAAQS, for Maine, New Hampshire, Rhode Island, and Vermont, and the 2006 PM2.5 NAAQS, for Rhode Island and Vermont.

    III. Proposed Action

    EPA is proposing to approve the SIP revisions submitted by the states on the following dates as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS: April 24, 2008 (Maine); March 11, 2008 (New Hampshire); April 30, 2008 (Rhode Island); and April 15, 2009 (Vermont). In addition, EPA is proposing to approve the SIP revisions submitted by the states on the following dates as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 1997 PM2.5 NAAQS: April 30, 2008 (Rhode Island); and April 15, 2009 (Vermont). Also, EPA is proposing to approve the SIP revisions submitted by Rhode Island on November 6, 2009 and Vermont on May 21, 2010 as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS. EPA has reviewed these SIP revisions and has found that they satisfy the relevant CAA requirements discussed above. EPA is soliciting public comments on the proposed approval of the SIP revisions, and will consider those comments before taking final action. However, the EPA is not reopening public comment on the analysis and policy decisions finalized in the CSAPR rulemaking, including the air quality modeling and the application of the 1 percent threshold to identify those states whose contribution to identified downwind nonattainment and maintenance receptors are insignificant.

    IV. 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, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed 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 proposed 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).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: December 1, 2016. H. Curtis Spalding, Regional Administrator, EPA New England.
    [FR Doc. 2016-30052 Filed 12-14-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2016--0110; FXES11130900000 178 FF09E42000] RIN 1018-BB79 Endangered and Threatened Wildlife and Plants; Removing the Black-Capped Vireo From the Federal List of Endangered and Threatened Wildlife AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule and 12-month petition finding; request for comments.

    SUMMARY:

    Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), propose to remove the black-capped vireo (Vireo atricapilla) from the Federal List of Endangered and Threatened Wildlife (List) due to recovery (“delist”). This determination is based on a thorough review of the best available scientific and commercial information, which indicates that the threats to this species have been eliminated or reduced to the point that the species has recovered and no longer meets the definition of endangered or threatened under the Act. This document also serves as the 12-month finding on a petition to reclassify this species from endangered to threatened on the List.

    DATES:

    We will accept comments received or postmarked on or before February 13, 2017. Please note that if you are using the Federal eRulemaking Portal (see ADDRESSES), the deadline for submitting an electronic comment is 11:59 p.m. Eastern Time on this date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by January 30, 2017.

    ADDRESSES:

    Written comments: You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2016-0110, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2016-0110, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information).

    Copies of Documents: This proposed rule and supporting documents are available on http://www.regulations.gov. In addition, the supporting file for this proposed rule will be available for public inspection, by appointment, during normal business hours, at the Arlington Ecological Services Field Office, 2005 NE Green Oaks Blvd., Arlington, TX 76006; telephone 817-277-1100.

    FOR FURTHER INFORMATION CONTACT:

    Debra Bills, Field Supervisor, U.S. Fish and Wildlife Service, Arlington Ecological Services Field Office, 2005 NE Green Oaks Blvd., Suite 140, Arlington, TX 76006; telephone 817-277-1100; or facsimile 817-277-1129. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Information Requested Public Comments

    We want any final rule resulting from this proposal to be as accurate and effective as possible. Therefore, we invite tribal and governmental agencies, the scientific community, industry, and other interested parties to submit comments or recommendations concerning any aspect of this proposed rule. Comments should be as specific as possible.

    To issue a final rule to implement this proposed action, we will take into consideration all comments and any additional information we receive. Such communications may lead to a final rule that differs from this proposal. All comments, including commenters' names and addresses, if provided to us, will become part of the supporting record.

    We are specifically requesting comments on:

    (1) New information on the historical and current status, range, distribution, and population size of the black-capped vireo, including the locations of any additional populations.

    (2) New information on the known and potential threats to the black-capped vireo.

    (3) New information regarding the life history, ecology, and habitat use of the black-capped vireo.

    Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.) directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

    You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES. Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES. We will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in DATES.

    We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

    Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Public Hearing

    Section 4(b)(5)(E) of the Act provides for one or more public hearings on this proposed rule, if requested. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by the date shown in DATES. We will schedule public hearings on this proposal, if any are requested, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before the first hearing.

    Peer Review

    In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” which was published on July 1, 1994 (59 FR 34270), we solicited the expert opinion of at least three appropriate independent specialists regarding scientific data and interpretations contained in the Species Status Assessment Report (SSA report) (Service 2016; available at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0110) supporting this proposed rule. The purpose of such review is to ensure that our decisions are based on scientifically sound data, assumptions, and analysis. The peer reviewers had no significant objection to the analysis provided in the SSA report. In general, the peer-review comments were largely minor (editorial) or easily addressed. Substantive comments were specifically addressed, and did not involve changes to the viability analysis of the SSA report.

    Background

    Section 4(b)(3)(B) of the Act requires that, for any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants that contains substantial scientific or commercial information that reclassifying a species may be warranted, we make a finding within 12 months of the date of receipt of the petition (“12-month Finding). In this finding, we determine whether the petitioned action is: (1) Not warranted, (2) warranted, or (3) warranted, but immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants. We must publish these 12-month findings in the Federal Register.

    This document represents:

    • Our 12-month warranted finding on a July 16, 2012, petition to reclassify the black-capped vireo from endangered to threatened (“downlist”);

    • Our determination that the black-capped vireo no longer meets the definition of endangered or threatened under the Act; and

    • Our proposed rule to remove the black-capped vireo from the Federal List of Endangered and Threatened Wildlife (“delist”) due to recovery.

    Previous Federal Action

    The black-capped vireo was determined to be a candidate for listing under the Act on December 30, 1982 (47 FR 58454). On October 6, 1987, the species was listed as endangered, due to various threats including nest parasitism by brown-headed cowbirds and loss of habitat from urbanization, grazing, removal of vegetation for range improvement, and succession (52 FR 37420). Succession is a natural process of change in vegetation over time and black capped vireo habitat is lost when there are fewer wildfires maintaining the vegetation in an early successional stage. Critical habitat was not designated because there was no demonstrable benefit from the potential designation of critical habitat to the vireo and such designation was not considered prudent because additional harassment potentially affecting reproductive success could occur if critical habitat was designated (52 FR 37420). In addition, the habitat of the black-capped vireo occurs in scattered, small patches and occupied habitat would vary over time due to succession of vegetation, and would therefore be difficult to delineate and provide no benefit to recovery (52 FR 37420). A status review (“5-year review”) under section 4(c)(2)(A) of the Act was completed for the species on July 26, 2007. The 5-year review recommended that the species be reclassified (“downlisted”) from endangered to threatened given the increased numbers of known individuals and populations, the reduction in the magnitude of the threats since the time of listing, and the effects of conservation measures on the major threats to the species (USFWS 2007). On July 16, 2012, we received a petition dated July 11, 2012, from The Pacific Legal Foundation, Jim Chilton, the New Mexico Cattle Growers' Association, New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau requesting that the black-capped vireo be reclassified as threatened based on the analysis and recommendation contained in the 5-year review. The Service published a 90-day finding on September 9, 2013 (78 FR 55046) stating that the petition contained substantial scientific or commercial information indicating that the petitioned action may be warranted. On November 20, 2015, the Service received a complaint (New Mexico Cattle Growers' Association et al. v. United States Department of the Interior et al., No. 1:15-cv-01065-PJK-LF (D. N.M.)) for declaratory judgment and injunctive relief from the New Mexico Cattle Growers' Association, Jim Chilton, New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau to, among other things, compel the Service to make a 12-month finding on the species.

    Species Information

    A thorough review of the taxonomy, life history, ecology, and overall viability of the black-capped vireo is presented in the SSA report for the black-capped vireo (Service 2016; available at http://www.regulations.gov and posted at https://www.fws.gov/southwest/es/ArlingtonTexas/). The SSA report documents the results of the comprehensive biological status review for the black-capped vireo and provides an account of the species' overall viability through forecasting of the species' condition in the future (Service 2016, entire). In the SSA report, we summarize the relevant biological data and a description of past, present, and likely future stressors to the species, and conduct an analysis of the viability of the species. The SSA report provides the scientific basis that informs our regulatory determination regarding whether this species should be listed as an endangered or a threatened species under the Act. This determination involves the application of standards within the Act, its implementing regulations, and Service policies (see Finding and Proposed Determination, below). The SSA report contains the analysis on which this finding is based, and the following discussion is a summary of the results and conclusions from the SSA report. We solicited peer review of the draft SSA report from three objective and independent scientific experts. We received responses from all three of the reviewers, and we modified the SSA report as appropriate.

    Species Description and Needs

    The black-capped vireo is a migratory songbird that breeds and nests in south central Oklahoma, Texas, and the northern states of Mexico (Coahuila, Nuevo León, Tamaulipas), and winters along Mexico's western coastal states. In general, black-capped vireo breeding habitat is categorized as shrublands and open woodlands.

    The resource needs of the black-capped vireo are described not only for individuals and populations, but also for the species rangewide in the SSA report. Life-history needs are generally categorized as breeding, feeding and sheltering; for migratory species this may also include habitat for migration and wintering. Individual black-capped vireos need a suitable breeding habitat patch of at least 1.5 hectares (ha) (3.7 acres (ac)) of shrublands with between 35 and 55 percent shrub cover that consists largely of deciduous shrubs, often oaks in mesic areas, and with a low proportion of junipers. Within breeding habitat patches, shrubs mottes (groups of shrubs) with deciduous foliage from ground level to 3 meters (0 to 9.8 feet) in height are needed for nest concealment and foraging.

    Populations of black-capped vireos are described based on the number of adult males the breeding habitat can support. Those sites (defined as geographical areas with suitable breeding habitat) capable of supporting at least 30 adult males are considered “manageable populations.” Those sites with suitable breeding habitat capable of supporting 100 or more adult males are considered “likely resilient populations,” that have the ability to withstand disturbances of varying magnitude and duration. Brown-headed cowbird (Molothrus ater) parasitism rates below 40 percent (Tazik and Cornelius 1993, p. 46; Wilsey et al. 2014, p. 568) are necessary to sustain and expand vireo populations.

    Information on use of habitat during migration is sparse. In general, black-capped vireos require airspace for movement and woody vegetation for stopovers extending from the northernmost portion of the breeding grounds to the extent of the known wintering grounds.

    The winter range of the black-capped vireo occurs entirely on the slopes of Mexico's Pacific coast. Arid and semi-arid scrub and secondary growth habitat, generally 0.6 to 3.0 m (2 to 10 ft) in height, is needed for feeding and sheltering.

    Across its range, the black-capped vireo needs suitable breeding habitat to support manageable and likely resilient populations that are geographically distributed to allow gene flow and dispersal; low brown-headed cowbird parasitism rates to allow sufficient productivity; sufficient airspace and stopover sites (=areas) for migration; and wintering areas of arid and semi-arid scrub and secondary growth habitat along the Pacific slopes of western Mexico. During the breeding season, habitat requirements appear to be more specialized than during wintering and migration. Given the potential for black-capped vireos to use a wide range of habitat types during migration and wintering, much of the subsequent analysis is focused on breeding habitat.

    Species Current Conditions

    There are no available rangewide population estimates of breeding black-capped vireos. However, reported occurrences (sightings) of black-capped vireos are available for comparing abundance and distribution across timeframes (but see section 4.1, “Assumptions,” in the SSA report; Service 2016 regarding inherent differences in survey effort and the differences between reported occurrences and population estimates). At the time of listing in 1987, there were approximately 350 reported black-capped vireo occurrences. From 2009 to 2014 there were 5,244 adult males reported, a 17.5 percent increase from data used for the last review period (2000 to 2005).

    At the time of listing in 1987, approximately 350 individual birds were known from 4 Oklahoma counties, 21 Texas counties and 1 Mexican state. The consistency of survey effort has varied throughout the years; however, it represents the best information available to evaluate abundance and distribution rangewide. The known breeding distribution now occurs in 5 Oklahoma counties, 40 Texas counties, and 3 states in Mexico.

    Information from 2009 to 2014 indicates there are 14 known populations with 100 males or more (defined as a likely resilient population) throughout the breeding range, 9 of which occur on managed lands (under Federal, State, or municipal ownership, or under conservation easement) in the United States. An additional 20 manageable populations (30 or more adult males, but fewer than 100), 10 of which occur on managed lands, are distributed throughout the range in the United States.

    Information gathered from annual black-capped vireo monitoring at four publically-managed areas containing the largest known black-capped vireo populations represents some of the best data available on the species' population trends. These four regularly surveyed areas (Fort Hood Military Installation, Fort Sill Military Installation, Kerr Wildlife Management Area, and Wichita Mountains Wildlife Refuge) show stable or increasing population estimates since 2005. Data reported from 2000 to 2005 indicate these populations represented 64 percent of the known population. From 2009 to 2014 these four major populations accounted for 40 percent of the known rangewide breeding population, which occurs on approximately 27,930 ha (69,000 ac) of habitat. The difference in percentage suggests the black-capped vireo's distribution is more diverse and occurs more on private lands than known from the previous timeframe (2000-2005), indicating that additional unknown populations likely exist on private lands throughout the breeding range. The largest increase in known abundance is an additional large population documented in Val Verde County, Texas. Together, these five large populations were estimated to consist of 14,418 adult males in 2013-14.

    The levels of gene flow between extant populations indicate adequate genetic diversity (Vazquez-Miranda et al. 2015, p. 9; Zink et al. 2010, entire) despite some variation in studies with respect to genetic diversity, gene flow, and population structuring (e.g., Barr et al. 2008; Zink et al. 2010; Athrey et al. 2012).

    Little is known about the habits of black-capped vireos during migration; however, most evidence suggests that there is a southerly, central Mexican migratory route following the Sierra Madre Oriental (Marshall et al. 1985, p. 4; Farquhar and Gonzalez 2005, entire).

    Birds banded on the breeding grounds that return in following years suggest adequate availability of resources during wintering and migration. Survival rates (estimated from return rates) for black-capped vireos at Fort Hood are comparable to the rates of other passerines (Ricklefs 1973; Martin 1995; Kostecke and Cimprich 2008, p. 254).

    Information on migration and wintering of black-capped vireos in Mexico is limited to a few studies that document the extent of the wintering range and estimate habitat areas. Winter habitat utilized is more general and diverse than that of the breeding grounds. While specific requirements of winter habitat are unknown, tropical dry forests (areas where arid and semi-arid winter habitats occur) exist in areas normally inaccessible to development. Habitat modelling has suggested wintering areas in Mexico occur across 103,000 to 141,000 square kilometers (km2) (39,769 to 54,440 square miles (mi2)) and extend further than previous records have identified, including the states of Guerrero and Chiapas (Vega Rivera et al. 2010, p. 101; Powell 2013, pp. 34-38). Of this area, approximately 7.1 percent (1,000,000 ha (2,471,053 ac)) occurs on natural protected areas (National parks, reserves, etc.) (Vega Rivera et al. 2010, pp. 98-102). Additionally, there are approximately 1,492,400 ha (3,687,801 ac) of lands designated as “important bird areas” in the estimated winter range that receive varying levels of protection (Vega Rivera et al. 2011, p. 103).

    The U.S. portion of the black-capped vireo's range is comprised of a diversity of landownerships, from private lands to several forms of public ownership. Various conservation actions and programs have been developed and implemented in an effort to recover the species. These conservation actions implemented on publically-managed and private lands throughout the species' current range have reversed black-capped vireo declines within several populations. Ongoing active management on publically-managed lands and those under conservation easements has resulted in 40 managed populations in Oklahoma and Texas, varying in size from a single adult male to an estimated 7,478 adult males. Of these, 9 are considered likely resilient populations and another 10 are considered manageable populations. Although information on breeding vireos in Mexico is limited, the vireo is afforded protected status (SEMARNAT 2015, p. 79), known threats appear to be of less magnitude than those in the United States, and densities of known populations have been documented up to six times as high as populations in the United States (Farquhar and Gonzalez 2005, p. 25; Wilkins et al. 2006, p. 28).

    The contribution of prescribed fire and wildfire to the development of suitable breeding habitats in Oklahoma and the eastern portion of the species' Texas range is well documented (USFWS 1991, p. 22; Campbell 1995, p. 29; Grzybowski 1995, p. 5), although in the western portion of the species' breeding range in Texas and in Mexico, fire is not as essential in maintaining habitat suitability. The use of prescribed fire as a habitat management tool is increasing or remains constant across most of the United States (Melvin 2015, p. 10). More than 3,156 ha (7,800 ac) in Oklahoma and more than 48,562 ha (120,000 ac) in Texas have been burned annually (2004-2014) with prescribed fire, and much additional acreage is burned by unplanned wildfire (Oklahoma's annual average is approximately 63,940 ha (158,000 ac); Texas' annual average is approximately 322,939 ha (798,000 ac)) (NIFC 2014). Although the majority of these burns were on Federal lands outside of the black-capped vireo's range, there has been an overall increase in the use of prescribed fire as a cost effective tool for range and wildlife management.

    Reduction of brood parasitism by brown-headed cowbirds through management programs increases black-capped vireo breeding success (Eckrich et al. 1999, pp. 153-154; Kostecke et al. 2005, p. 57; Wilkins et al. 2006, p. 84; Campomizzi et al. 2013, pp. 714-715). Brown-headed cowbird parasitism rates below 40 percent are vital to sustaining and expanding black-capped vireo populations. The continuation of brown-headed cowbird trapping on Federal and private properties and expansion of this practice to other properties would help reduce parasitism rates and improve black-capped vireo breeding success. In an effort to manage the brown-headed cowbird populations in Texas, the Texas Parks and Wildlife Department has implemented a cowbird trapping program, which provided participating landowners a training and certification process.

    Section 10 of the Act provides a regulatory mechanism to permit the incidental take of federally-listed fish and wildlife species by private interests and non-Federal government agencies during otherwise lawful activities. Take, as defined by the Act, means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Incidental take is defined by the Act as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Section 10(a)(2)(A) of the Act requires an applicant for an incidental take permit to submit a “conservation plan” that specifies, among other things, the impacts that are likely to result from the taking and the measures the permit applicant will undertake to minimize and mitigate such impacts. Conservation plans under the Act have come to be known as “habitat conservation plans” (HCPs). There have been eight approved HCPs addressing the “incidental take” of black-capped vireos for project-related impacts during the 29 years the species has been listed, all of which are in Texas. In total, approximately 7,843.2 ha (19,381 ac) of black-capped vireo habitat may be impacted, either directly or indirectly, resulting from activities authorized through HCPs. To mitigate black-capped vireo habitat loss, the permittees must preserve and provide funding for approximately 8,239.4 ha (20,360 ac) of habitat restoration and management for off-site black-capped vireo habitats as conservation actions under these HCPs.

    Recovery Planning and Recovery Criteria

    Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Recovery plans identify site-specific management actions that will achieve recovery of the species and objective, measurable criteria that set a trigger for review of the species' status. Methods for monitoring recovery progress may also be included in recovery plans.

    Recovery plans are not regulatory documents; instead they are intended to establish goals for long-term conservation of listed species and define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

    The black-capped vireo recovery plan was approved by the Service on September 30, 1991 (USFWS 1991). The prospect of complete recovery of the species was indeterminable at that time, and therefore, an interim objective of reclassification from endangered to threatened status was used to develop recovery criteria (USFWS 1991, p. 36). The recovery plan includes the following reclassification criteria:

    (1) All existing populations are protected and maintained.

    (2) At least one viable breeding population exists in each of the following six locations: Oklahoma, Mexico, and four of six Texas regions.

    (3) Sufficient and sustainable area and habitat on the winter range exist to support the breeding populations outlined in (1) and (2).

    (4) All of the above have been maintained for at least 5 consecutive years and available data indicate that they will continue to be maintained.

    When the recovery plan was approved in 1991, a viable population was estimated, using population viability analysis, to be at least 500 pairs of breeding black-capped vireos. The recovery plan was intended to protect and enhance the populations known at that time, while evaluating the possibility of recovery and developing the necessary delisting criteria if recovery is found to be feasible. The rangewide population was unknown, but the Oklahoma population was thought to be fewer than 300 individual birds. During the 2007 5-year review of the status of the species, it was determined that the 1991 recovery plan was outdated and did not reflect the best available information on the biology of the species and its needs (USFWS 2007, p. 5). Therefore, rather than use the existing outdated recovery criteria, the Service assessed the species' viability, as summarized in the SSA report (Service 2016; available at http://www.regulations.gov, Docket No. FWS-R2-ES-2016-0110) to inform the process of making the determination that the black-capped vireo has recovered.

    Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. A species may be reclassified or delisted on the same basis. Consideration of these factors was incorporated in the SSA report (Service 2016; available at http://www.regulations.gov, Docket No. FWS-R2-ES-2016-0110) as “causes and effects,” and projected in future scenarios to evaluate viability of the black-capped vireo. The effects of conservation measures currently in place were also assessed as part of the current condition of the species in the SSA report and those effects were projected in future scenarios.

    Causes and Effects

    When the black-capped vireo was listed in 1987, the known threats influencing its status were the loss of suitable breeding habitat (Factor A) and parasitism by brown-headed cowbirds (Factor E). These continue to be the primary factors affecting the species' viability. The loss of breeding habitat in the United States has been linked to changes in vegetation due to fire suppression (vegetational succession), grazing and browsing from livestock and native and nonnative ungulates, and the conversion of breeding habitat to other land uses. In addition, we considered the effects of climate change on available breeding and wintering habitat and other potential habitat impacts in the winter range in order to assess the status of the species throughout its range.

    Habitat Loss (Factor A)

    Black-capped vireo breeding habitat most likely occurs on lands categorized in agricultural census data by landowners as “rangeland.” Therefore, trends in lands categorized as rangeland is a useful indirect measure for estimating the effects of land use changes on the black-capped vireo. There has been a general increasing trend since 1987 for occurrence of rangeland within the black-capped vireo's U.S. breeding range, based on available Agricultural Census data. That is, there has been an increase in the amount of lands reported as rangeland. Since 2002, Oklahoma has reported a 36 percent increase and Texas has reported a 4.4 percent increase in rangeland (USDA 2002a, 2002b, 2012a, and 2012b).

    The prevalence of goats in Texas was specifically considered a threat to the black-capped vireo in 1987. Goat browsing can eliminate shrub foliage necessary for black-capped vireo nest concealment. Since that time, sheep and goats within the U.S. range of the vireo have dramatically decreased, largely attributed to the repeal of the National Wool Act of 1954 (7 U.S.C. 1781 et seq.; repealed by Pub. L. 103-130 (dated November 1, 1993), with an effective date of December 31, 1995, under section 3(a) of Pub. L. 103-130). From 1987 to 2012, reported numbers of goats decreased by 46.8 percent in counties where black-capped vireos are known to occur (USDC 1987a, 1987b; USDA 2012a, 2012b).

    Cattle, white-tailed deer, and nonnative ungulates are also known to impact black-capped vireo habitat by browsing and eliminating shrub foliage necessary for nest concealment; however, this impact is to a lesser extent than the impacts of goats (Graber 1961, p. 316; Shaw et al. 1989, p. 29; Guilfoyle 2002, p. 8; Wilkins et al. 2006, pp. 52-54). Cattle numbers reported by county have also decreased across the black-capped vireo's range from 1987 to 2012 by 37.2 percent (USDC 1987a, 1987b; USDA 2012a, 2012b). While livestock numbers have decreased, rangeland acres have increased. Wilcox et al. (2012) attribute this apparent discrepancy to reductions in stocking density. This overall decline in livestock density has been driven by changing land ownership and the increasing importance of wildlife conservation (Wilcox et al. 2012). White-tailed deer densities in the species' range in Texas have increased by 18.3 percent from 2005 to 2014 (TPWD 2015, p. 27), leading to increased deer browsing, but this increase is considerably less than the decreases in goats and cattle. In Mexico, a primary economic activity is livestock ranching within the breeding range (Morrison et al. 2014, p. 37), although trend data are not available. In some areas of Mexico, livestock appears to be at low densities (small scale) (Morrison et al. 2014, p. 37) and may be separated from breeding vireos by elevation and, therefore, may not be in direct contact with habitat (Farquhar and Gonzalez 2005, p. 30).

    Vegetational succession, or the change in species composition over time, continues to affect the black-capped vireo habitat in the eastern portion of the range in Texas and in Oklahoma. Habitat that is considered to be early successional in the eastern portion of the range is created naturally or artificially by disturbance, usually by fire. In the absence of wildfire or prescribed fire, early successional habitats in the eastern portion of the range grow into wooded habitat that provides unsuitable structure for vireo nesting. In the western portion of the range in Texas and Mexico, suitable black-capped vireo habitat does not typically grow into wooded habitat, and succession management is less important (Hayden et al. 2001, p. 32; Farquhar and Gonzalez 2005, p. 32; McFarland et al. 2012, p. 5).

    Overall, the reduction in numbers of goats and cattle compensates for any increase in deer browsing and contributes to a net increase in available breeding habitat. Likewise, the increasing amounts of rangelands also contribute to increased available breeding habitat. In the eastern portion of the range, breeding habitat is considered early successional habitat and associated with disturbance such as fire. Because land managers in the eastern portion of the range are increasingly using fire as a management tool, available breeding habitat has likely increased in this portion of the range. In the western portion of the range, such disturbance is not necessary to maintain suitable habitat and much of the area is currently considered suitable breeding habitat.

    Winter Range (Factor A)

    Black-capped vireos are more general in habitat selection for wintering, and can use scrub, disturbed habitats, secondary growth habitats, and tropical dry forests as well as shrubs. Although threats to the species on its wintering grounds were not identified at the time of listing or during the 2007 5-year review, they were considered as part of the species status assessment process to determine whether winter habitat availability could be a limiting factor. Dry forests in Mexico are a conservation concern (Miles et al. 2006, p. 502) and have historically been modified for agricultural and other purposes (Powell 2013, p. 100). The majority of impacts to tropical dry forests (greater than 55 percent) occurred prior to the listing of the black-capped vireo (Powell 2013, pp. 101-102). Habitat loss still occurs (Powell 2013, pp. 101-102), but the extent of habitat specifically important to wintering vireos is unknown, but likely diverse, considering the variety of habitats used. Habitat models have suggested the winter range may be as large as 141,000 km2 (54,440 mi2) in size (Vega Rivera et al. 2010, p. 101). The remaining habitat may be inaccessible to most anthropogenic impacts, and thus removed from many potential stressors, because it occurs on canyons and slopes.

    Brood Parasitism (Factor E)

    Brown-headed cowbirds are brood parasites; females remove an egg from a host species nest, lay their own egg to be raised by the adult hosts, and the result usually causes the death of the remaining host nestlings (Rothstein 2004, p. 375). Brood parasitism by brown-headed cowbirds has been documented to affect more than 90 percent of black-capped vireo nests in some Texas study areas (Grzybowski 1991, p. 4). Control of cowbirds through trapping has been shown to significantly reduce parasitism and increase population productivity of vireos (Eckrich et al. 1999, pp. 153-154; Kostecke et al. 2005, p. 28). An evaluation of Breeding Bird Survey data shows brown-headed cowbird detections have been decreasing in Texas and Oklahoma since 1967, specifically in ecoregions where black-capped vireos are known to occur (Sauer et al. 2014, entire).

    Furthermore, available data suggests geographic differences in the impact cowbirds have on breeding vireos. Cowbird abundance and parasitism appears to be less prevalent on the western portion of the black-capped vireo's range and in Mexico (Bryan and Stuart 1990, p. 5; Farquhar and Maresh 1996, p. 2; Farquhar and Gonzalez 2005, p. 30; Smith et al. 2012, p. 281; Morrison et al. 2014, p. 18).

    Although cowbird abundance appears to be declining and the effects of parasitism are reduced in portions of the vireo's range, cowbird control continues to be necessary to maintain the current number of black-capped vireo populations and individuals in the eastern portion of the range in Texas and in Oklahoma.

    Climate Change (Factor E)

    The effects of climate change are a concern in ecosystems that are sensitive to warming temperatures and decreased precipitation, such as arid and semi-arid habitats where the black-capped vireo resides. In Texas, climate change models generally predict a three to four degree Fahrenheit (1.6 to 2.2 °C) increase in temperature between 2010 and 2050 (Nielsen-Gammon 2011, p. 2.23; Banner et al. 2010, p. 8, Alder and Hostetler 2013, entire). Predictions on precipitation trends over Texas are not as clear (Nielsen-Gammon 2011, p. 2.28), but the models tend to suggest that Texas weather will become drier (Banner et al. 2010, p. 8, Alder and Hostetler 2013, entire).

    Although the impact from the effects of climate change on shrubland habitat required by the black-capped vireo for breeding is uncertain, shrub encroachment into grasslands in North America, primarily due to fire suppression and livestock grazing, is well documented (Van Auken 2000, entire; Briggs et al. 2005, entire; Knapp et al. 2007, p. 616). Projected warming temperatures and dry conditions will likely influence future shrubland dominance (Van Auken 2000, p. 206). Evidence suggests that within the far west portion of the black-capped vireo's range, the effects of climate change and fire suppression would result in a shrubland-dominated landscape (White et al. 2011, p. 541). In this scenario, the availability of shrub habitat would be the least affected, and potentially more prevalent on the landscape which may increase the available amount of suitable breeding habitat.

    Species Future Conditions and Viability

    We evaluated overall viability of the black-capped vireo in the SSA report (Service 2016; available at http://www.regulations.gov, Docket No. FWS-R2-ES-2016-0110) in the context of resiliency, redundancy, and representation. Species viability, or the ability to survive long term, is related to the species' ability to withstand catastrophic population and species-level events (redundancy), the ability to adapt to changing environmental conditions (representation), and the ability to withstand disturbances of varying magnitude and duration (resiliency). The viability of a species is also dependent on the likelihood of new stressors or continued threats now and in the future that act to reduce a species' redundancy, representation, and resiliency.

    In the SSA report, we forecast the persistence of known populations of black-capped vireos over the next 50 years. We chose 50 years to reflect specific climate change models that are relevant to the black-capped vireo and its habitat. The 50 year timeframe also reflects our ability to project land management decisions. We developed multiple future conditions scenarios for the known manageable and likely resilient populations based on both continued management (i.e., continuing the current conditions of habitat and cowbird management) and decreased management (Factor D). For the decreased management scenarios, populations on private lands were considered to have no management in the future, while habitat and cowbird management on publically-managed lands was projected to diminish in scale or frequency that would not continue to provide for the needs of the species. The decreased management scenario projected the future conditions of the species without the continued protections of the Act. All of the scenarios are considered to be within the realm of reasonable possibility. Even in the worst case scenario, at least 27 of the 34 known manageable and likely resilient populations, have a moderate to high (i.e. greater than 50 percent) likelihood of persisting over the next 50 years, indicating adequate redundancy across the species' range. Likewise, those populations projected in the worst case scenario are distributed throughout the range as multiple populations within each of the different areas of representation indicating adequate redundancy within each of the representative areas (as described below).

    We evaluated several studies with respect to representation in the black-capped vireo, mostly involving genetic diversity. Although there is discrepancy between studies, there is evidence that adequate gene flow for healthy genetic diversity exists across known breeding populations. Additionally, there is a diversity of habitat types utilized within both the breeding and wintering ranges. For these reasons, the black-capped vireo appears to have adequate representation both genetically and ecologically to allow for adaptability to environmental changes.

    Resiliency, in terms of habitat capable of supporting greater than 100 adult males, for the eastern portion of the black-capped vireo's breeding range is dependent on vegetation and cowbird management. In the western portion of the range, populations are more resilient, because management is not required to maintain suitable breeding habitat and threats related to cowbirds are less severe. Since 2005, resiliency has increased in regularly monitored populations and under future scenarios the number of likely resilient populations either increases or remains close to current levels (Service 2016), therefore, we expect that trend in increasing resiliency to continue into the future.

    Currently, we consider the black-capped vireo to be a conservation-reliant species meaning it is likely that conservation actions, in the form of habitat and cowbird management, are needed for persistence of breeding populations in a portion of its range. This is because many populations require management activities, especially in the eastern portion of the breeding range, to persist. In considering its management needs, the forecast of future conditions includes scenarios based on the needs of the species, stressors, identification of additional populations, and restoration efforts. Our forecasts that produce stable or increasing resiliency and redundancy reflect the differences in the current conditions of the species compared to the status assessment that was conducted 30 years ago, which led to the species' listing in 1987.

    We consider active management of threats, where necessary, to be essential to the persistence of the species, as evidenced by the historical increases in the known population and distribution. Prescribed fire as a management tool is a cost effective way to restore prairies and shrublands, reduce impacts of invasive juniper, and often used to benefit game species (e.g., deer, wild turkey). Such management actions may directly and indirectly benefit black-capped vireos when they occur within the breeding range. The Service believes our Federal and State conservation partners, who are largely responsible for the recovery of the species, will continue to manage black-capped vireo populations on publically-managed lands and promote management actions across the breeding range of the species, particularly given these compatible goals. In particular, the Integrated Natural Resource Management Plans for Fort Hood and Fort Sill will continue management actions that directly benefit black-capped vireos. Likewise, prescribed fire is being used as a management tool for a variety of species at most publically-managed areas within the current breeding range of the black-capped vireo, and those management actions will continue regardless of the listing status of black-capped vireos. Black-capped vireo populations existing on properties under management through public ownership (Federal, state, municipal) or easement are generally projected to persist under short and long term conditions. Even under diminished management specific to black-capped vireos, many of these locations are better suited to provide resources for the black-capped vireo, often due to the conservation mission of the property (e.g., state parks).

    Finding and Proposed Determination

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the black-capped vireo. Our analysis indicates the known threats at the time of listing, habitat loss (Factor A) through land use changes, livestock grazing, and vegetation succession, and brown-headed cowbird parasitism (Factor E), are reduced or adequately managed. Regardless of the listing status of the black-capped vireo, we expect prescribed fire and other management actions to continue in the eastern portion of the range because they represent actions that are necessary for landscape and rangeland management and are aligned with the conservation mission of many landowners where large populations of black-capped vireos currently exist (Factor D). Additionally, no new threats have been identified (Factors B and C). We find that the species has recovered so that it no longer meets the definition of endangered or threatened under the Act.

    Since the black-capped vireo was listed, its known abundance and distribution have increased. Currently, we know of 20 manageable and 14 likely resilient populations (as those terms are defined in the SSA report) across the species' breeding range. We assessed the likelihood of persistence of these populations over the next 50 years. In the worst case scenario, the black-capped vireo would be expected to diminish, but still remain above the level reported from 2000 to 2005. The black-capped vireo appears to have adequate redundancy, representation, and resiliency to persist over the next 50 years.

    The primary threats to the species continue to be habitat loss through land use conversion and vegetational succession, and brown-headed cowbird parasitism, although most threats have decreased in magnitude or are adequately managed, particularly through the use of prescribed fire for various habitat restoration purposes not directly related to black-capped vireo management. Nevertheless, under current management, these threats are mitigated such that vireo numbers are robust and increasing. The wintering area for the black-capped vireo occurs entirely in Mexico, but many of the existing habitat areas are buffered from degradation due to limited accessibility and rugged terrain, so we do not anticipate significant reductions in habitat quality or quantity even without specific management assurances.

    Based on the analysis in the SSA report (Service 2016; available at http://www.regulations.gov, Docket No. FWS-R2-ES-2016-0110), and summarized above, the black-capped vireo does not currently meet the Act's definition of endangered in that it is not in danger of extinction throughout all of its range. In addition, the black-capped vireo is not a threatened species because it is not likely to become endangered in the foreseeable future throughout all of its range.

    Significant Portion of the Range Analysis

    Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. Having determined that the black-capped vireo is not endangered or threatened throughout all of its range, we next consider whether there are any significant portions of its range in which the black-capped vireo is in danger of extinction or likely to become so. We published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578; July 1, 2014). The final policy states that: (1) If a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's' contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout a significant portion of its range, and the population in that significant portion is a valid distinct population segment (DPS), we will list the DPS rather than the entire taxonomic species or subspecies.

    The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become endangered in the foreseeable future, throughout all of its range, we list the species as an endangered species or threatened species, and no SPR analysis will be required. If the species is neither in danger of extinction, nor likely to become so throughout all of its range, as we have found here, we next determine whether the species is in danger of extinction or likely to become so throughout a significant portion of its range. If it is, we will continue to list the species as an endangered species or threatened species, respectively; if it is not, we conclude that listing the species is no longer warranted.

    When we conduct an SPR analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose in analyzing portions of the range that have no reasonable potential to be significant or in analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether substantial information indicates that: (1) The portions may be “significant”; and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance question first or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is “significant.” In practice, a key part of the determination that a species is in danger of extinction in a significant portion of its range is whether the threats are geographically concentrated in some way. If the threats to the species are affecting it uniformly throughout its range, no portion is likely to have a greater risk of extinction, and thus would not warrant further consideration. Moreover, if any concentration of threats apply only to portions of the range that clearly do not meet the biologically based definition of “significant” (i.e., the loss of that portion clearly would not be expected to increase the vulnerability to extinction of the entire species), those portions would not warrant further consideration.

    We identified portions of the black-capped vireo's range that may be significant, and examined whether any threats are geographically concentrated in some way that would indicate that those portions of the range may be in danger of extinction, or likely to become so in the foreseeable future. Within the breeding range, distinctions can be made between Mexico, Texas, and Oklahoma, based on vegetation types and, in Mexico, based on observed higher densities of birds. Additionally, a distinction could be made between the eastern and western portion of the breeding range, based on the importance of the threats of cowbird parasitism and vegetational succession (both more impactful in the eastern range). As noted above, observed trends in these threats have been reduced or are adequately managed. While these geographic distinctions may be significant, information and analysis indicates that the species is unlikely to be in danger of extinction or to become so in the foreseeable future in these portions, given that the increases in reported rangeland statistics, decreases in cattle and goats, and ongoing management of cowbirds have occurred across the range, including within the eastern portion of the range. Therefore, these portions do not warrant further consideration to determine whether they are a significant portion of its range.

    We also evaluated representation across the black-capped vireo's range to determine if certain areas were in danger of extinction, or likely to become so, due to isolation from the larger range. Several studies have addressed genetic diversity of the black-capped vireo, particularly due to its fairly restricted breeding range both historically and currently, and due to the ephemeral nature of its habitat in portions of its range and its patchy distribution in the breeding range. Evidence exists that population differentiation has occurred over the black-capped vireo's breeding range due to limited gene flow between breeding populations (Barr et al. 2008, entire). However, other studies have shown no differentiation of populations and that adequate gene flow exists (Vazquez-Miranda et al. 2015, p. 9; Zink et al. 2010, entire). Adult black-capped vireos show strong site fidelity to territories between breeding seasons, especially in larger populations (USFWS 1991, p. 19). Gene flow between populations is largely dependent on the proximity of populations, in order to facilitate dispersal of breeding birds. Dispersal distances for adults is generally 0.14 to 0.41 kilometers (km) (0.09 to 0.25 miles (mi)) (DeBoer and Kolozar 2001, entire); however, long dispersal distances have been recorded up to 12.8 km (8 mi) (USFWS 1991, p. 19). Natal dispersal, the movement from hatch site to breeding site, is known to be much greater, generally from 21 to 30 km (13 to 19 mi) (Grzybowski 1995, p. 18; Cimprich et al. 2009, p. 46). The longest dispersal distance of a banded nestling re-sighted as a breeding adult was 78 km (48.5 mi) (Cimprich et al. 2009, entire). The known populations of black-capped vireos are geographically spread widely across the species' historical range and habitat types, ensuring that the global population is not singular and isolated. Additionally, the known distribution demonstrates robust representation when considering genetic heterozygosity and lack of genetic structuring across these populations.

    Our analysis indicates that there is no significant geographic portion of the range that is in danger of extinction or likely to become so in the foreseeable future. Therefore, based on the best scientific and commercial data available, no portion warrants further consideration to determine whether the species may be endangered or threatened in a significant portion of its range.

    Conclusion

    We have determined that none of the existing or potential stressors cause the black-capped vireo to be in danger of extinction throughout all or a significant portion of its range, nor is the species likely to become endangered within the foreseeable future throughout all or a significant portion of its range. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; or (3) the original scientific data used at the time the species was classified were in error. On the basis of our evaluation, we conclude that, due to recovery, the black-capped vireo is not an endangered or threatened species. We therefore propose to remove the black-capped vireo from the Federal List of Endangered and Threatened Wildlife at 50 CFR 17.11(h).

    Effects of the Rule

    This proposal, if made final, would revise 50 CFR 17.11(h) to remove the black-capped vireo from the Federal List of Endangered and Threatened Wildlife. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to this species. Federal agencies would no longer be required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect the black-capped vireo. There is no critical habitat designated for this species; therefore, this proposed rule would not affect 50 CFR 17.95.

    Removal of the black-capped vireo from the List of Endangered and Threatened Wildlife would not affect the protection given to all migratory bird species under the Migratory Bird Treaty Act (MBTA) of 1918 (16 U.S.C. 703-712). The take of all migratory birds, including the black-capped vireo, is governed by the MBTA. The MBTA makes it unlawful, at any time and by any means or in any manner, to pursue, hunt, take, capture, attempt to take or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or eggs of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof (16 U.S.C. 703(a)). The MBTA regulates the taking of migratory birds for educational, scientific, and recreational purposes. Section 704 of the MBTA states that the Secretary of the Interior (Secretary) is authorized and directed to determine when, and to what extent, if at all, and by what means, the take of migratory birds should be allowed, and to adopt suitable regulations permitting and governing the take. In adopting regulations, the Secretary is to consider such factors as distribution and abundance to ensure that any take is compatible with the protection of the species. Modification to black-capped vireo habitat would constitute a violation of the MBTA only to the extent it directly takes or kills a black-capped vireo (such as removing a nest with chicks present).

    Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been recovered and delisted. The purpose of this requirement is to develop a program that detects the failure of any delisted species to sustain itself without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.

    We will coordinate with other Federal agencies, State resource agencies, interested scientific organizations, and others as appropriate to develop and implement an effective post-delisting monitoring (PDM) plan for the black-capped vireo. We plan to publish a notice of availability of a draft PDM plan by June 30, 2017 and include the final PDM plan should this proposed delisting be finalized. The PDM plan will build upon current research and effective management practices that have improved the status of the species since listing. Ensuring continued implementation of proven management strategies, such as prescribed fire and cowbird control, that have been developed to sustain extant populations will be a fundamental goal for the PDM plan. The PDM plan will identify measurable management thresholds and responses for detecting and reacting to significant changes in the black-capped vireo's populations, distribution, and persistence. If declines are detected equaling or exceeding these thresholds, the Service, in combination with other PDM participants, will investigate causes of these declines, including considerations of habitat changes, substantial human persecution, stochastic events, or any other significant evidence. The investigation will be to determine if the black-capped vireo warrants expanded monitoring, additional research, additional habitat protection, or resumption of Federal protection under the Act.

    Required Determinations Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (1) Be logically organized;

    (2) Use the active voice to address readers directly;

    (3) Use clear language rather than jargon;

    (4) Be divided into short sections and sentences; and

    (5) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    National Environmental Policy Act

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection with regulations pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    References Cited

    A complete list of all references cited in this proposed rule is available at http://www.regulations.gov at Docket No. FWS-R2-ES-2016-0110, or upon request from the Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this proposed rule are staff members of the Service's Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    List of Subjects in 50 CFR Part 17

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

    Proposed Regulation Promulgation

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

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

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

    § 17.11 [Amended]
    2. Amend § 17.11(h) by removing the entry for “Vireo, black-capped” under “BIRDS” from the List of Endangered and Threatened Wildlife. Dated: November 30, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-29547 Filed 12-14-16; 8:45 a.m.] BILLING CODE 4333-15-P
    81 241 Thursday, December 15, 2016 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request December 9, 2016.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by January 17, 2017 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street, NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Rural Housing Service

    Title: 7 CFR part 1924-A, Planning and Performing Construction and Other Development.

    OMB Control Number: 0575-0042.

    Summary of Collection: The Rural Housing Service (RHS) is the credit agency for rural housing and community development within the Rural Development mission area of the United States Department of Agriculture. RHS offers a supervised credit program to build modest housing and essential community facilities in rural areas. Section 501, section 506 and section 509 of Title V of the Housing Act of 1949, as amended, authorizes the Secretary of Agriculture to extend financial assistance to construct, improve, alter, repair, replace, or rehabilitate dwellings, farm buildings and/or related facilities to provide decent, safe sanitary living conditions and adequate farm building and other structures in rural areas.

    Need and use of the Information: RHS provides several forms to assist in the collection and submission of information. The information will be used to determine whether a loan/grant can be approved; to ensure that RHS has adequate security for the loans financed; to monitor compliance with the terms and conditions of the agency loan/grant and to monitor the prudent use of Federal funds. If the information is not collected and submitted, RHS would have no control over the type and quality of construction and development work planned and performed with Federal funds.

    Description of Respondents: Individuals or households; Business or other for-profit; Not-for-profit institutions; Farms; State, Local and Tribal Government.

    Number of Respondents: 14,448.

    Frequency of Responses: Recordkeeping; Report: On occasion.

    Total Burden Hours: 60,476.

    Rural Housing Service

    Title: Real Estate Title Clearance and Loan Closing—7 CFR 1927-B.

    OMB Control Number: 0575-0147.

    Summary of Collection: Rural Housing Service is a credit agency for the Department of Agriculture. The Agency offers a supervised credit program to build family farms, modest housing, sanitary water and sewer systems, essential community facilities, businesses and industries in rural areas. Section 306 of the Consolidated Farm and Rural Development Act (CONTACT), 7 U.S.C. 1926.a (as amended), authorizes RUS to make loans to public agencies, American Indian tribes, and non-profit corporations. The loans fund the development of drinking water, wastewater, and solid waste disposal facilities in rural areas with populations of up to 10,000 residents. Section 501 of Title V of the Housing Act of 1949, as amended, provides authorization to extend financial assistance to construct, improve, alter, repair, replace or rehabilitate dwellings and to provide decent, safe and sanitary living conditions in rural areas. The Secretary of Agriculture is authorized to prescribe regulations to ensure that these loans, made with federal funds, are legally secured.

    Need and use of the Information: The approved attorney/title company (closing agent) and the field office staff collect the required information. Forms and or guidelines are provided to assist in the collection, certification and submission of this information. Most of the forms collect information that is standard in the industry. If the information is collected less frequently, the agency would not obtain the proper security position on the properties being taken as security and would have no evidence that the closing agents and agency meet the requirements of this regulations.

    Description of Respondents: Individuals or households; Business or other for-profit, Not-for-profit institutions; Farms.

    Number of Respondents: 13,500.

    Frequency of Responses: Reporting: On occasion.

    Total Burden Hours: 3,925.

    Charlene Parker, Departmental Information Collection Clearance Officer.
    [FR Doc. 2016-30060 Filed 12-14-16; 8:45 am] BILLING CODE 3410-XV-P
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2016-0041] General Conference Committee of the National Poultry Improvement Plan; Intent To Reestablish AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Notice of intent.

    SUMMARY:

    We are giving notice that the Secretary of Agriculture intends to reestablish the General Conference Committee of the National Poultry Improvement Plan (Committee) for a 2-year period. The Secretary of Agriculture has determined that the Committee is necessary and in the public interest.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Denise L. Brinson, Senior Coordinator, National Poultry Improvement Plan, VS, APHIS, USDA, 1506 Klondike Road, Suite 101, Conyers, GA 30094; (770) 922-3496.

    SUPPLEMENTARY INFORMATION:

    The purpose of the General Conference Committee of the National Poultry Improvement Plan (Committee) is to maintain and ensure industry involvement in Federal administration of matters pertaining to poultry health.

    The Committee Chairperson and the Vice Chairperson shall be elected by the Committee from among its members. There are seven members on the Committee. The poultry industry elects the members of the Committee. The members represent six geographic areas with one member-at-large.

    Done in Washington, DC, this 9th day of December 2016. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2016-30124 Filed 12-14-16; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Forest Service Eastern Washington Cascades Provincial Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Eastern Washington Cascades Provincial Advisory Committee (PAC) will meet in Wenatchee, Washington. The committee is authorized pursuant to the implementation of E-19 of the Record of Decision and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to provide advice and make recommendations to promote a better integration of forest management activities between Federal and non-Federal entities to ensure that such activities are complementary. PAC information can be found at the following Web site: http://www.fs.usda.gov/main/okawen/workingtogether/advisorycommittees.

    DATES:

    The meeting will be held on Wednesday, January 25, 2017, from 9:00 a.m. to 3:00 p.m.

    All PAC meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held at the Okanogan-Wenatchee National Forest (NF) Headquarters Office, 215 Melody Lane, Wenatchee, Washington.

    Written comments may be submitted as described under SUPPLEMENTARY INFORMATION. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Okanogan-Wenatchee NF Headquarters Office. Please call ahead at 509-664-9292 to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Robin DeMario, PAC Coordinator by phone at 509-664-9292, or by email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to update members on the:

    1. Sustainable recreation strategy and how it ties in to district recreation planning and the Travel Management Plan;

    2. Forest Plan Revision Science Synthesis;

    3. Strategic prioritization of landscape restoration work on the forest; and

    4. Collaborative Forest Landscape Restoration.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by January 16, 2017, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Robin DeMario, PAC Coordinator, 215 Melody Lane, Wenatchee, Washington 98801; or by email to [email protected], or via facsimile to 509-664-9286.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation. For access to the facility or proceedings, please contact the person listed in the section titled FOR FURTHER INFORMATION CONTACT. All reasonable accommodation requests are managed on a case by case basis.

    Dated: December 6, 2016. Michael R. Williams, Forest Supervisor, Okanogan-Wenatchee National Forest.
    [FR Doc. 2016-30118 Filed 12-14-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice and opportunity for public comment.

    Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

    List of Petitions Received by EDA for Certification Eligibility To Apply for Trade Adjustment Assistance [11/22/2016 through 12/5/2016 (Amended)] Firm name Firm address Date accepted for investigation Product(s) Allegheny-York Co. 3995 North George Street, Manchester, PA 117345 11/22/2016 The firm manufactures hydraulic and pneumatic sealing components. Byers' Choice, Ltd. 4355 County Line Road, Chalfont, PA 18914 11/30/2016 The firm manufactures ornamental figurines, known as “The Carolers.” Pyott-Boone Electronics, Inc. 1459 Wittens Mill Road, North Tazewell, VA 24630 11/30/2016 The firm manufactures amplifiers, passive units and gas monitors. Valtech Corporation 2113 Sanatoga Station Road, Pottstown, PA 19464 12/1/2016 The firm manufactures thermoset plastic materials with unique properties that are used in the production of semiconductor or solar wafers. Supreme Manufacturing Company d/b/a C&L Supreme 1755 East Birchwood Avenue, Des Plaines, IL 60018 12/5/2016 The firm manufactures rollers, brackets, housing and other miscellaneous metal components for data processing machines.

    Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.

    Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

    Miriam Kearse, Lead Program Analyst.
    [FR Doc. 2016-30162 Filed 12-14-16; 8:45 am] BILLING CODE 3510-WH-P
    DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice and opportunity for public comment.

    Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

    List of Petitions Received by EDA for Certification Eligibility To Apply for Trade Adjustment Assistance [12/6/2016 through 12/9/2016] Firm name Firm address Date accepted for investigation Product(s) Dakota Bodies, LLC 201 20th Avenue, Southeast Watertown, SD 57201 12/8/2016 The firm manufactures custom truck bodies and accessories. SmartLam, LLC 335 Spokane Avenue, Whitefish, MT 59937 12/9/2016 The firm manufactures industrial grade laminated wood panels and related products.

    Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.

    Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

    Miriam Kearse, Lead Program Analyst.
    [FR Doc. 2016-30094 Filed 12-14-16; 8:45 am] BILLING CODE 3510-WH-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-840] Certain Frozen Warmwater Shrimp From India: Notice of Final Results of Antidumping Duty Changed Circumstances Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On October 31, 2016, the Department of Commerce (the Department) initiated, and published the preliminary results of, the changed circumstances review of the antidumping duty order on certain frozen warmwater shrimp (shrimp) from India. In that notice, we preliminarily determined that Avanti Frozen Foods Private Limited (Avanti Frozen) is the successor-in-interest to Avanti Feeds Limited (Avanti Feeds) for purposes of determining antidumping duty cash deposits and liabilities. No interested party submitted comments on our preliminary results. Therefore, for these final results, the Department continues to find that Avanti Frozen is the successor-in-interest to Avanti Feeds.

    DATES:

    Effective December 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    E. Whitley Herndon, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-6274.

    SUPPLEMENTARY INFORMATION:

    Background

    On September 7, 2016, Avanti Frozen requested that the Department conduct an expedited changed circumstances review, pursuant to section 751(b) of the Tariff Act of 1930 (the Act), 19 CFR 351.216(b), and 19 CFR 351.221(c)(3), to confirm that Avanti Frozen is the successor-in-interest to Avanti Feeds for purposes of determining antidumping duty cash deposits and liabilities. In its submission, Avanti Frozen explained that Avanti Feeds underwent a business reorganization and transferred its shrimp business to its subsidiary company, Avanti Frozen.1

    1See Letter from Avanti Frozen entitled “Frozen Warmwater Shrimp form India: Request to Initiate a Successor-in-Interest Changed Circumstances Review,” dated September 7, 2016, at 2.

    On October 31, 2016, the Department initiated this changed circumstances review and published the notice of preliminary results, determining that Avanti Frozen is the successor-in-interest to Avanti Feeds.2 In the Initiation and Preliminary Results, we provided all interested parties with an opportunity to comment and request a public hearing regarding our preliminary finding that Avanti Frozen is the successor-in-interest to Avanti Feeds. We received no comments from interested parties

    2See Certain Frozen Warmwater Shrimp from India: Initiation and Preliminary Results of Antidumping Duty Changed Circumstances Review, 81 FR 75376 (October 31, 2016) (Initiation and Preliminary Results).

    Scope of the Order

    The merchandise subject to the order is certain frozen warmwater shrimp.3 The product is currently classified under the following Harmonized Tariff Schedule of the United States (HTSUS) item numbers: 0306.17.00.03, 0306.17.00.06, 0306.17.00.09, 0306.17.00.12, 0306.17.00.15, 0306.17.00.18, 0306.17.00.21, 0306.17.00.24, 0306.17.00.27, 0306.17.00.40, 1605.21.10.30, and 1605.29.10.10. Although the HTSUS numbers are provided for convenience and customs purposes, the written product description remains dispositive.

    3 For a complete description of the Scope of the Order, see Certain Frozen Warmwater Shrimp From India: Final Results of Antidumping Duty Administrative Review; Final Determination of No Shipments; 2014-2015, 81 FR 62867 (September 13, 2016) (10th AR), and accompanying Issues and Decision Memorandum at “Scope.”

    Final Results of Changed Circumstances Review

    For the reasons stated in the Initiation and Preliminary Results, and because we received no comments from interested parties to the contrary, the Department continues to find that Avanti Frozen is the successor-in-interest to Avanti Feeds. As a result of this determination, we find that Avanti Frozen should receive the cash deposit rate previously assigned to Avanti Feeds in the most recently-completed review of the antidumping duty order on shrimp from India.4 Consequently, the Department will instruct U.S. Customs and Border Protection to suspend liquidation of all shipments of subject merchandise produced or exported by Avanti Frozen and entered, or withdrawn from warehouse, for consumption on or after the publication date of this notice in the Federal Register at 2.20 percent, which is the current antidumping duty cash-deposit rate for Avanti Feeds.5 This cash deposit requirement shall remain in effect until further notice.

    4See, e.g., Final Results of Antidumping Duty Changed Circumstances Review: Certain Circular Welded Non-Alloy Steel Pipe and Tube from Mexico, 74 FR 41681, 41682 (August 18, 2009).

    5 Avanti Feeds was assigned a 2.20 percent dumping margin in the 2014-2015 administrative review of the AD order on shrimp from India. See 10th AR.

    We are issuing this determination and publishing these final results and notice in accordance with sections 751(b)(1) and 777(i)(1) and (2) of the Act, as amended, and 19 CFR 351.216 and 351.221(c)(3).

    Dated: December 8, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-30147 Filed 12-14-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-489-806] Pasta From Turkey: Final Results of Countervailing Duty Administrative Review; 2014 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On August 10, 2016, the Department of Commerce (the Department) published the preliminary results of the administrative review of the countervailing duty order on pasta from Turkey. The period of review (POR) is January 1, 2014, through December 31, 2014. The review covers one producer/exporter of subject merchandise: Bessan Makarna Gida San. Ve Tic. A.Ş. (Bessan). We invited parties to comment on the Preliminary Results. We received no comments. Accordingly, for the final results, we continue to find that Bessan received countervailable subsidies during the POR.

    DATES:

    Effective December 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Aimee Phelan or Mark Kennedy, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0697 or (202) 482-7883, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    On August 10, 2016, the Department published the Preliminary Results of the administrative review.1 The Department gave interested parties an opportunity to comment on the Preliminary Results. We received no comments. The Department has conducted this review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).

    1See Pasta from Turkey: Preliminary Results of Countervailing Duty Administrative Review; 2014, 81 FR 52825 (August 10, 2016) (Preliminary Results) and accompanying Preliminary Decision Memorandum, unchanged in these final results.

    Scope of the Order

    The scope of the order consists of certain non-egg dry pasta in packages of five pounds (or 2.27 kilograms) or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastases, vitamins, coloring and flavorings, and up to two percent egg white. The pasta covered by the order is typically sold in the retail market, in fiberboard or cardboard cartons or polyethylene or polyethylene bags, of varying dimensions.

    Excluded from the scope of the order are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non-egg dry pasta containing up to two percent egg white.

    The merchandise under review is currently classifiable under subheading 1902.19.20 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of the order is dispositive.

    Final Results of Review

    Because the Department received no comments with respect to the Preliminary Results, we made no changes to the Preliminary Results. As a result of this review, we determine that countervailable subsidies were provided to the respondent for the period January 1, 2014, through December 31, 2014, at the following rate:

    Producer and/or exporter Subsidy rate
  • (percent)
  • Bessan Makarna Gida San. Ve Tic. A.Ş. Co. 2.21
    Assessment Rates

    In accordance with 19 CFR 351.212(b)(2), the Department intends to issue assessment instructions to U.S. Customs and Boarder Protection (CBP) 15 days after the date of publication of these final results to liquidate shipments of subject merchandise produced by Bessan entered, or withdrawn from warehouse, for consumption on or after January 1, 2014 through December 31, 2014 at the percent rate, as listed above.

    Cash Deposit Instructions

    The Department also intends to instruct CBP to collect cash deposits of estimated CVDs in the amount shown above for shipments of subject merchandise by Bessan entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company. These cash deposit requirements, when imposed, shall remain in effect until further notice.

    Administrative Protective Orders

    This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

    We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: December 8, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-30151 Filed 12-14-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-033] Large Residential Washers From the People's Republic of China: Final Determination of Sales at Less Than Fair Value and Final Negative Determination of Critical Circumstances AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) determines that imports of large residential washers (LRWs) from the People's Republic of China (PRC) are being, or likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is April 1, 2015, through September 30, 2015. The final weighted-average dumping margins for this investigation are listed in the “Final Determination Margins” section of this notice.

    DATES:

    Effective December 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Brian Smith or Rebecca Trainor, AD/CVD Operations, Office VIII, respectively, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1766 or (202) 482-4007.

    SUPPLEMENTARY INFORMATION: Background

    The Department published the Preliminary Determination in the LTFV investigation of large residential washers from the PRC on July 26, 2016.1

    1See Large Residential Washers from the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value, Preliminary Affirmative Determination of Critical Circumstances, in Part, and Postponement of Final Determination, 81 FR 48741 (July 26, 2016) (Preliminary Determination) and accompanying Preliminary Decision Memorandum.

    A summary of the events that occurred since the Department published the Preliminary Determination, as well as a full discussion of the issues raised by parties for this final determination, may be found in the Issues and Decision Memorandum.2 The Issues and Decision Memorandum is a public document, and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov, and is available to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed Issues and Decision Memorandum and the electronic version are identical in content.

    2See Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, “Antidumping Duty Investigation of Large Residential Washers from the People's Republic of China: Issues and Decision Memorandum for the Final Determination of Sales at Less-Than-Fair-Value” (Issues and Decision Memorandum), dated concurrently with this determination and hereby adopted by this notice.

    Period of Investigation

    The POI is April 1, 2015, through September 30, 2015.

    Scope of the Investigation

    The products covered by this investigation are LRWs. These products are properly classified under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 8450.20.0040 and 8450.20.0080. Covered merchandise may also enter under the following HTSUS subheadings: 8450.11.0040, 8450.11.0080, 8450.90.2000, and 8450.90.6000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive. For a complete description of the scope of this investigation, see the “Scope of the Investigation,” in Appendix I of this notice.

    Scope Comments

    Since the Preliminary Determination, the Department has requested and received comments on the scope of this investigation from the parties in this investigation. See Issues and Decision Memorandum for further details. The scope in Appendix I reflects the final scope language.

    Analysis of Comments Received

    All issues raised in the case and rebuttal briefs that were submitted by parties in this investigation are addressed in the Issues and Decision Memorandum. A list of these issues is attached to this notice as Appendix II.

    Verification

    As provided in section 782(i) of the Tariff Act of 1930, as amended (the Act), in August and September 2016, we verified the sales and factors of production information submitted by the two mandatory respondents in this case: Nanjing LG-Panda Appliances Co., Ltd. (LG) and Suzhou Samsung Electronics Co., Ltd./Suzhou Samsung Electronics Co. Ltd—Export (collectively, Samsung). We used standard verification procedures, including an examination of relevant accounting and production records, and original source documents provided by both respondents.3

    3See Memorandum to the File from Brian Smith and Brandon Custard, Senior International Trade Compliance Specialists, “Verification of the Questionnaire Responses of Nanjing LG-Panda Appliances Co., Ltd. in the Antidumping Investigation of Large Residential Washers from the People's Republic of China (PRC),” dated October 5, 2016; Memorandum to the File from David Goldberger and Kate Johnson, Senior International Trade Compliance Specialists, “Verification of the CEP Sales Response of Nanjing LG-Panda Appliances Co., Ltd. and LG Electronics USA, Inc.,” dated October 6, 2016; Memorandum to the File from Brian Smith and Brandon Custard, Senior International Trade Compliance Specialists, “Verification of the Questionnaire Responses of Suzhou Samsung Electronics Co., Ltd. (SSEC) and Suzhou Samsung Electronics Co., Ltd.—Export (SSEC) (collectively Samsung) in the Antidumping Investigation of Large Residential Washers (LRWs) from the People's Republic of China (PRC),” dated October 7, 2016; and Memorandum to the File from Kate Johnson and David Goldberger, Senior International Trade Compliance Specialists, “Verification of the CEP Sales Response of Suzhou Samsung Electronics Co., Ltd., Suzhou Samsung Electronics Co., Ltd.—Export, and Samsung Electronics America, Inc.,” dated October 14, 2016.

    Changes to the Dumping Margin Calculations Since the Preliminary Determination

    Based on the Department's analysis of the comments received and findings at verification, we made certain changes to our dumping margin calculations. For a discussion of these changes, see the Issues and Decision Memorandum.

    Combination Rates

    In the Initiation Notice, 4 the Department stated that it would calculate combination rates for the respondents that are eligible for a separate rate in this investigation.5

    4See Large Residential Washers from the People's Republic of China: Initiation of Less-Than-Fair-Value Investigation, 81 FR 1398 (January 12, 2016) (Initiation Notice).

    5See Enforcement and Compliance's Policy Bulletin No. 05.1, regarding, “Separate-Rates Practice and Application of Combination Rates in Antidumping Investigations involving Non-Market Economy Countries,” dated April 5, 2005 (Policy Bulletin 05.1), available on the Department's Web site at http://enforcement.trade.gov/policy/bull05-1.pdf.

    Final Determination Dumping Margins

    The Department determines, as provided in section 735 of the Act, that the following weighted-average dumping margins exist for the period April 1, 2015, through September 30, 2015:

    Exporter Producer Weighted-average margin
  • (%)
  • Nanjing LG-Panda Appliances Co., Ltd Nanjing LG-Panda Appliances Co., Ltd 32.12 Suzhou Samsung Electronics Co., Ltd./Suzhou Samsung Electronics Co. Ltd—Export Suzhou Samsung Electronics Co., Ltd./Suzhou Samsung Electronics Co. Ltd—Export 52.51 PRC-Wide Entity 44.28
    PRC-Wide Rate

    In calculating rates for non-individually investigated respondents in the context of non-market economy cases, the Department looks to section 735(c)(5)(A)-(B) of the Act, which provides instructions for calculating the all-others rate in an investigation.6 Section 735(c)(5)(A) of the Act provides that the estimated all-others rate shall be equivalent to the weighted average of the estimated weighted-average dumping margins calculated for exporters and producers individually investigated, excluding any margins that are zero, de minimis, or based entirely on facts available. Section 735(c)(5)(B) of the Act provides that where all individually investigated exporters or producers receive rates that are zero, de minimis, or based entirely on facts available, the Department may use “any reasonable method” to establish the all-others rate for those companies not individually investigated.

    6See Xanthan Gum from the People's Republic of China: Final Determination of Sales at Less Than Fair Value, 78 FR 33351 (June 4, 2013), and accompanying Issues and Decision Memorandum at page 4-5.

    In this investigation, the Department examined all known exporters/producers of the subject merchandise. In addition, no other PRC exporters of the subject merchandise during the POI established entitlement to a separate rate.7 Thus, no non-individually-examined separate rates are being assigned in this investigation. Furthermore, there currently exist no respondents that have failed to cooperate in this investigation, and there are no zero or de minimis margins. Therefore, consistent with the Preliminary Determination, we have based the PRC-wide rate on a weighted-average of the calculated rates determined for the mandatory respondents,8 consistent with section 735(c)(5)(A) of the Act.9

    7See Preliminary Determination, 81 FR at 48742.

    8 With two respondents, we normally calculate (A) a weighted-average of the dumping margins calculated for the mandatory respondents; (B) a simple average of the dumping margins calculated for the mandatory respondents; and (C) a weighted-average of the dumping margins calculated for the mandatory respondents using each company's publicly-ranged values for the merchandise under consideration. We then compare (B) and (C) to (A) and select the rate closest to (A) as the most appropriate rate for all other companies. See Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, Final Results of Changed-Circumstances Review, and Revocation of an Order in Part, 75 FR 53661, 53663 (September 1, 2010). Since the Preliminary Determination, we requested and received complete publicly-ranged quantities from both respondents to properly conduct this comparison. See Samsung's August 11, 2016 Sections A and D Supplemental Questionnaire Response at Exhibit SAD-1, and LG's July 29, 2016, Section A Supplemental Questionnaire Response. For the final determination, we are using a weighted-average of the dumping margins calculated using the publicly-ranged quantities for the mandatory respondents as the PRC-wide rate. See also, Memorandum to the File, “Large Residential Washers from the People's Republic of China: Calculation of the Final Margin for the PRC-Wide Entity” dated December 8, 2016.

    9See Welded Stainless Pressure Pipe from the Socialist Republic of Vietnam: Final Determination of Sales at Less Than Fair Value, 79 FR 31092-93 (May 30, 2014); and Notice of Final Determination of Sales at Less Than Fair Value: Certain Small Diameter Carbon and Alloy Seamless Standard, Line and Pressure Pipe from Romania, 65 FR 39125, 39127 (June 23, 2000).

    Critical Circumstances

    In the Preliminary Determination, 10 we found that critical circumstances did not exist for entries of subject merchandise from LG, but did exist for entries of subject merchandise from Samsung and the PRC-wide entity. Based on an analysis of updated shipment data provided by LG and Samsung (i.e., including July 2016 data), as is our practice, we continue to find that critical circumstances do not exist with respect to LG, and for this final determination, we also find that critical circumstances do not exist with respect to Samsung and the PRC-wide entity. For further discussion, see the Issues and Decision Memorandum.11

    10See Preliminary Determination, 81 FR at 48742.

    11See also Memorandum to the File from Brian C. Smith, “Final Critical Circumstances Analysis,” dated December 8, 2016.

    Continuation of Suspension of Liquidation

    As noted above, the Department has found that critical circumstances do not longer exist with respect to imports of the subject merchandise from Samsung or the PRC-wide entity. Accordingly, for Samsung and the PRC-wide entity, in accordance with section 735(c)(3) of the Act, we will instruct Customs and Border Protection (CBP) to discontinue the suspension of liquidation, and to liquidate, without regard to antidumping duties, subject merchandise exported by Samsung and the PRC-wide entity and entered, or withdrawn from warehouse, on or after April 27, 2016, and before July 26, 2016.

    In accordance with section 735(c)(1)(B) of the Act, we will instruct CBP to continue to suspend liquidation of all imports of the merchandise subject to the investigation from the respondents and the PRC-wide entity, that were entered or withdrawn from warehouse, for consumption on or after July 26, 2016, the date of publication of the Preliminary Determination in the Federal Register, and require a cash deposit as noted below.

    The Department will instruct CBP to require a cash deposit equal to the amount by which the normal value exceeds U.S. price as follows: (1) For the exporter/producer combinations listed in the table above, the cash deposit rate is the weighted-average dumping margin listed for that combination in the table; (2) for all combinations of PRC exporters/producers of merchandise under consideration not listed in the table above, the cash deposit rate is the weighted average dumping margin listed for the PRC-wide entity in the table above; and (3) for all non-PRC exporters of merchandise under consideration not listed in the table above, the cash deposit rate is the cash deposit rate applicable to the PRC exporter/producer combination that supplied that non-PRC exporter. The suspension of liquidation instructions will remain in effect until further notice.

    Disclosure

    We intend to disclose to parties in this proceeding the calculations performed for this final determination within five days of the date of public announcement of our final determination, in accordance with 19 CFR 351.224(b).

    International Trade Commission (ITC) Notification

    In accordance with section 735(d) of the Act, we will notify the ITC of our final affirmative determination of sales at LTFV. Because the final determination in this proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of subject merchandise from the PRC no later than 45 days after our final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated and all securities posted will be refunded or canceled. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess, upon further instruction by the Department, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.

    Notification Regarding Administrative Protective Orders

    This notice will serve as a reminder to the parties subject to administrative protective order (APO) of their responsibility concerning the disposition of propriety information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

    We are issuing and publishing this determination in accordance with sections 735(d) and 777(i)(1) of the Act and 19 CFR 351.210(c).

    Dated: December 8, 2016. Paul Piquado Assistant Secretary for Enforcement and Compliance. Appendix I: Scope of the Investigation

    The products covered by this investigation are all large residential washers and certain parts thereof from the People's Republic of China.

    For purposes of this investigation, the term “large residential washers” denotes all automatic clothes washing machines, regardless of the orientation of the rotational axis, with a cabinet width (measured from its widest point) of at least 24.5 inches (62.23 cm) and no more than 32.0 inches (81.28 cm), except as noted below.

    Also covered are certain parts used in large residential washers, namely: (1) All cabinets, or portions thereof, designed for use in large residential washers; (2) all assembled tubs 12 designed for use in large residential washers which incorporate, at a minimum: (a) A tub; and (b) a seal; (3) all assembled baskets 13 designed for use in large residential washers which incorporate, at a minimum: (a) A side wrapper; 14 (b) a base; and (c) a drive hub; 15 and (4) any combination of the foregoing parts or subassemblies.

    12 A “tub” is the part of the washer designed to hold water.

    13 A “basket” (sometimes referred to as a “drum”) is the part of the washer designed to hold clothing or other fabrics.

    14 A “side wrapper” is the cylindrical part of the basket that actually holds the clothing or other fabrics.

    15 A “drive hub” is the hub at the center of the base that bears the load from the motor.

    Excluded from the scope are stacked washer-dryers and commercial washers. The term “stacked washer-dryers” denotes distinct washing and drying machines that are built on a unitary frame and share a common console that controls both the washer and the dryer. The term “commercial washer” denotes an automatic clothes washing machine designed for the “pay per use” segment meeting either of the following two definitions:

    (1)(a) It contains payment system electronics; 16 (b) it is configured with an externally mounted steel frame at least six inches high that is designed to house a coin/token operated payment system (whether or not the actual coin/token operated payment system is installed at the time of importation); (c) it contains a push button user interface with a maximum of six manually selectable wash cycle settings, with no ability of the end user to otherwise modify water temperature, water level, or spin speed for a selected wash cycle setting; and (d) the console containing the user interface is made of steel and is assembled with security fasteners; 17 or

    16 “Payment system electronics” denotes a circuit board designed to receive signals from a payment acceptance device and to display payment amount, selected settings, and cycle status. Such electronics also capture cycles and payment history and provide for transmission to a reader.

    17 A “security fastener” is a screw with a non-standard head that requires a non-standard driver. Examples include those with a pin in the center of the head as a “center pin reject” feature to prevent standard Allen wrenches or Torx drivers from working.

    (2)(a) it contains payment system electronics; (b) the payment system electronics are enabled (whether or not the payment acceptance device has been installed at the time of importation) such that, in normal operation,18 the unit cannot begin a wash cycle without first receiving a signal from a bona fide payment acceptance device such as an electronic credit card reader; (c) it contains a push button user interface with a maximum of six manually selectable wash cycle settings, with no ability of the end user to otherwise modify water temperature, water level, or spin speed for a selected wash cycle setting; and (d) the console containing the user interface is made of steel and is assembled with security fasteners.

    18 “Normal operation” refers to the operating mode(s) available to end users (i.e., not a mode designed for testing or repair by a technician).

    Also excluded from the scope are automatic clothes washing machines that meet all of the following conditions: (1) Have a vertical rotational axis; (2) are top loading; 19 (3) have a drive train consisting, inter alia, of (a) a permanent split capacitor (PSC) motor,20 (b) a belt drive,21 and (c) a flat wrap spring clutch.22

    19 “Top loading” means that access to the basket is from the top of the washer.

    20 A “PSC motor” is an asynchronous, alternating current (AC), single phase induction motor that employs split phase capacitor technology.

    21 A “belt drive” refers to a drive system that includes a belt and pulleys.

    22 A “flat wrap spring clutch” is a flat metal spring that, when engaged, links abutted cylindrical pieces on the input shaft with the end of the concentric output shaft that connects to the drive hub.

    Also excluded from the scope are automatic clothes washing machines that meet all of the following conditions: (1) Have a horizontal rotational axis; (2) are front loading; 23 and (3) have a drive train consisting, inter alia, of (a) a controlled induction motor (CIM),24 and (b) a belt drive.

    23 “Front loading” means that access to the basket is from the front of the washer.

    24 A “controlled induction motor” is an asynchronous, alternating current (AC), polyphase induction motor.

    Also excluded from the scope are automatic clothes washing machines that meet all of the following conditions: (1) Have a horizontal rotational axis; (2) are front loading; and (3) have cabinet width (measured from its widest point) of more than 28.5 inches (72.39 cm).

    The products subject to this investigation are currently classifiable under subheadings 8450.20.0040 and 8450.20.0080 of the Harmonized Tariff Schedule of the United States (HTSUS). Products subject to this investigation may also enter under HTSUS subheadings 8450.11.0040, 8450.11.0080, 8450.90.2000, and 8450.90.6000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this investigation is dispositive.

    Appendix II: List of Topics in the Issues and Decision Memorandum I. Summary II. Background III. Scope Comments IV. Scope of the Investigation V. Margin Calculations VI. Discussion of the Issues: General Comment 1: Critical Circumstances Comment 2: Differential Pricing and Use of Average-to-Average Comparisons Comment 3: Differential Pricing and Use of “Zeroing” Comment 4: Scope—Subassemblies and Cabinet Portions Comment 5: Scope—Pedestal Washers Comment 6: Use of Acquisition Costs for Surrogate Value Selection Comment 7: Use of Subheading 8450.90 to Value Certain Parts Comment 8: Surrogate Financial Ratios Comment 9: Factors of Production Underreporting Samsung Comment 10: Seven Assembled Parts Containing Multiple Materials Comment 11: Other Washer Parts Comment 12: Assembly S. Panel Control Comment 13: Weight Balancer (also known as Concrete Counterweight) Comment 14: Drain Pump Assembly Comment 15: Thermistors and Thermistor Assemblies, Pressure Sensors, and MEMS Sensors Comment 16: Motor Drain Clutch Comment 17: Assembly Hinge Comment 18: Assembly Hose Circulation Comment 19: Flange Shaft Spider Comment 20: Inlay Panel Comment 21: Tapping Screws Comment 22: Warranty Expenses Comment 23: Corrections from Verification Comment 24: Programming Clerical Error in the Preliminary Determination LG Comment 25: Motor and Pump Assembly Comment 26: Water Level Controller Assembly Comment 27: Temperature Sensor Comment 28: Printed Circuit Boards (PCBs) Comment 29: Top Load Aluminum Inner Tub Base Comment 30: Hose Assembly Comment 31: Electrical Connector Comment 32: Rubber Gasket Comment 33: Washer Door Hinge Assembly Comment 34: Shaft Housing Assembly Comment 35: Microswitches Comment 36: Brackets Comment 37: Concrete Counterweights Comment 38: By-Product Scrap Comment 39: Steel Wire Clamps Comment 40: Tapping Screw Comment 41: Washer Mixed Trim Piece, Washer Trim Piece, and Trim Piece Comment 42: Leaf Spring and Leaf Hinge Spring Comment 43: Metal Nameplate Comment 44: Carbon Film Resistor Comment 45: Check Valve Comment 46: Thinner Comment 47: Owner's Manual Package Comment 48: Cold Rolled Steel (51mm x 1mm) Comment 49: Galvanized Steel Coil (Greater Than 600mm) Comment 50: Steel Cold-Rolled Carbon Sheet Hot Dipped Galvanized (540mm x 0.4mm x 380.7 and 526mm x 0.4mm x 575) Comment 51: Steel Cold-Rolled Stainless Sheet Uncoated (645mm x 0.6mm x 645; 685mm x 0.6mm x 685; 720mm x 1mm x 720; and 700mm x 0.5mm x 700) Comment 52: Stainless Steel Coil (365mm x 0.5mm) Comment 53: U.S. Indirect Selling Expense Ratio Expense Calculation Comment 54: Commissions on Rebates Comment 55: Warranty Expenses Comment 56: Corrections from Verification Comment 57: Programming Clerical Errors in the Preliminary Determination VII. Recommendation
    [FR Doc. 2016-30150 Filed 12-14-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-427-828] Certain Carbon and Alloy Steel Cut-to-Length Plate From France: Correction to the Amended Preliminary Determination of Sales at Less Than Fair Value AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    FOR FURTHER INFORMATION CONTACT:

    Brandon Custard or Terre Keaton Stefanova, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1823 or (202) 482-1280, respectively.

    SUPPLEMENTARY INFORMATION:

    On December 2, 2016, the Department of Commerce (the Department) published in the Federal Register the amended preliminary determination in the less than fair value investigation for certain carbon and alloy steel cut-to-length plate from France.1

    1See Certain Carbon and Alloy Steel Cut-to-Length Plate From France: Amended Preliminary Determination of Sales at Less Than Fair Value, 81 FR 87019 (December 2, 2016) (Amended Preliminary Determination).

    The Department is issuing this notice to correct two inadvertent errors in the Amended Preliminary Determination. First, the Department listed the case number as A-427-428. The correct case number is A-427-828. Second, the Department stated an incorrect all-others rate of 6.33 percent.2 The correct all-others rate is 6.34 percent, as stated in the calculation memorandum accompanying the Amended Preliminary Determination. 3 Therefore, the Department is hereby correcting the Amended Preliminary Determination.

    2Id.

    3See Memorandum to the file from Terre Keaton Stefanova entitled, “Amended Preliminary Determination Margin Calculation for Dillinger France S.A. for the Antidumping Duty Investigation of Certain Carbon and Alloy Steel Cut-To-Length Plate from France,” dated November 29, 2016, at 4.

    This correction to the amended preliminary determination of sales at less than fair value is issued and published in accordance with sections 733(f) and 777(i)(1) of the Tariff Act of 1930, as amended.

    Dated: December 9, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-30148 Filed 12-14-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE231 Endangered and Threatened Species; Recovery Plan for Oregon Coast Coho Salmon ESU AGENCY:

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

    ACTION:

    Notice of availability.

    SUMMARY:

    The National Marine Fisheries Service (NMFS) announces the adoption of a Final Endangered Species Act (ESA) recovery plan (Plan) for the Oregon Coast Coho Salmon (Oncorhynchus kisutch) evolutionarily significant unit (ESU) which is listed as threatened under the ESA. The geographic area covered by the Plan is the Pacific Ocean and freshwater habitat (rivers, streams and lakes) from the Necanicum River near Seaside, Oregon, on the northern end to the Sixes River near Port Orford, Oregon on the south. The objective of the Plan is to provide a guidance framework for restoring the threatened Oregon Coast Coho Salmon ESU to the point where it no longer needs the protections of the ESA. As required under the ESA, the Plan contains objective, measurable delisting criteria, site-specific management actions necessary to achieve the Plan's goals, and estimates of the time and costs required to implement recovery actions. The Plan is now available.

    ADDRESSES:

    Electronic copies of the Plan and the Response to Comments are available online at: www.westcoast.fisheries.noaa.gov/protected_species/salmon_steelhead/recovery_planning_and_implementation/oregon_coast/oregon_coast_recovery_plan.html. A CD ROM of the Plan can be obtained by emailing a request to Nancy Johnson with the subject line “CD ROM Request for Oregon Coast Coho Salmon Recovery Plan”, by phone at (503) 230-5442, by email at [email protected], or by writing to NMFS Oregon Washington Coastal Office, 1201 NE Lloyd Blvd., Suite 1100, Portland, Oregon 97232 ATTN: Recovery Coordinator.

    FOR FURTHER INFORMATION CONTACT:

    Robert Walton, NMFS Oregon Coast Coho Salmon Recovery Coordinator, at (503) 231-2285, or [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    We are responsible for developing and implementing recovery plans for Pacific salmon and steelhead listed under the ESA of 1973, as amended (16 U.S.C. 1531 et seq.). Recovery means that the listed species and their ecosystems are sufficiently restored, and their future secured, to the point that the protections of the ESA are no longer necessary. See 50 CFR 424.11(d)(2). Section 4(f) (1) of the ESA requires that recovery plans include, to the maximum extent practicable: (1) Objective, measurable criteria which, when met, would result in a determination that the species is no longer threatened or endangered; (2) site-specific management actions necessary to achieve the plan's goals; and (3) estimates of the time required and costs to implement recovery actions. The ESA requires the development of recovery plans for each listed species unless such a plan would not promote its recovery.

    We believe it is essential to have local support of recovery plans by those whose activities directly affect the listed species and whose continued commitment and leadership will be needed to implement the necessary recovery actions. We therefore support and participate in locally led, collaborative efforts to develop recovery plans that involve state, tribal, and Federal entities, local communities, and other stakeholders.

    Section 4(f) of the ESA, as amended in 1988, requires that public notice and an opportunity for public review and comment be provided prior to final approval of a recovery plan. We published a Notice of Availability of the Draft Plan in Federal Register on October 13, 2015. (80 FR 61379). In response to requests, we extended the public comment period until December 31, 2015 to provide additional opportunity for public comment. We received extensive comments on the Proposed Plan, summarized the comments and revised the Proposed Plan based on the comments received, and this final version now constitutes the Recovery Plan for the Oregon Coast coho salmon ESU. In brief, we revised several important sections (including the delisting criteria and implementation chapters), clarified a number of issues, and added information provided by commenters, including a number of new initiatives by the state of Oregon. We have determined that this ESA Recovery Plan for Oregon Coast Coho Salmon meets the statutory requirements for a recovery plan.

    The Final Plan

    For the purpose of recovery planning for the ESA-listed species of Pacific salmon and steelhead in Idaho, Oregon and Washington, NMFS designated five geographically based “recovery domains.” The Oregon Coast Coho Salmon ESU spawning range is in the Oregon Coast domain. For each domain, NMFS appointed a team of scientists, nominated for their geographic and species expertise, to provide a solid scientific foundation for recovery plans. The Oregon and Northern California Coasts Technical Recovery Team (TRT) included scientists from NMFS, other Federal agencies, the state of Oregon, and the private sector.

    A primary task for the Oregon and Northern California Coasts Technical Recovery Team was to recommend criteria for determining when the ESU should be considered viable (i.e., when they are have a low risk of extinction over a 100-year period) and when the ESU would have a risk of extinction consistent with no longer needing the protections of the ESA. All Technical Recovery Teams used the same biological principles for developing their recommendations; these principles are described in the NOAA technical memorandum Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units (McElhany et al., 2000). Viable salmonid populations (VSP) are defined in terms of four parameters: abundance, productivity or growth rate, spatial structure, and diversity.

    For this Plan, we collaborated with state, tribal and Federal scientists and resource managers and stakeholders to provide technical information that NMFS used to write the Plan which is built upon state and locally-led recovery efforts.

    Contents of Plan

    Our goal is to restore the threatened Oregon Coast Coho Salmon ESU to the point where it is again a viable, self-sustaining member of its ecosystem and no longer needs the protections of the ESA. The Plan contains biological background and contextual information that includes description of the ESU, the planning area, and the context of the plan's development. It presents relevant information on ESU structure, biological status and proposed biological viability criteria and threats criteria for delisting.

    The Plan also describes specific information on the following: Current status of Oregon Coast Coho Salmon; limiting factors and threats for the full life cycle that contributed to the species decline; recovery strategies and actions addressing these limiting factors and threats; key information needs, and a proposed research, monitoring, and evaluation program for adaptive management. For recovery strategies and actions, Chapter 6 in the Plan includes proposed actions at the ESU and strata levels. Population level information will be posted on the recovery plan Web site (see below). The Plan also describes implementation, prioritization of actions, and adaptive management at the population, strata, and ESU scales. The Plan also summarizes time and costs (Chapter 7) required to implement recovery actions. In addition to the information in the Plan, readers are referred to the recovery plan Web site for more information on all these topics: http://www.westcoast.fisheries.noaa.gov/protected_species/salmon_steelhead/recovery_planning_and_implementation/.

    How NMFS and Others Expect To Use the Plan

    We will commit to implement the actions in the Plan for which we have authority and funding; encourage other Federal and state agencies and tribal governments to implement recovery actions for which they have responsibility, authority and funding; and work cooperatively with the public and local stakeholders on implementation of other actions. We expect the Plan to guide us and other Federal agencies in evaluating Federal actions under ESA section 7, as well as in implementing other provisions of the ESA and other statutes. For example, the Plan provides greater biological context for evaluating the effects that a proposed action may have on a species by providing delisting criteria, information on priority areas for addressing specific limiting factors, and information on how future populations within the ESU can tolerate varying levels of risk.

    When we are considering a species for delisting, the agency will examine whether the section 4(a)(1) listing factors have been addressed. To assist in this examination, we will use the delisting criteria described in Chapter 4 of the Plan, which includes both biological criteria and criteria addressing each of the ESA section 4(a)(1) listing factors, as well as any other relevant data and policy considerations.

    We will also work with the partners described in the Plan to develop implementation schedules that provide greater specificity for recovery actions to be implemented over three-to five-year periods. This will also help promote implementation of recovery actions and subsequent implementation schedules, and will track and report on implementation progress.

    Conclusion

    Section 4(f)(1)(B) of the ESA requires that recovery plans incorporate, to the maximum extent practicable, (1) objective, measurable criteria which, when met, would result in a determination that the species is no longer threatened or endangered; (2) site-specific management actions necessary to achieve the plan's goals; and (3) estimates of the time required and costs to implement recovery actions. We conclude that the Plan meets the requirements of ESA section 4(f) and adopt it as the ESA Recovery Plan for Oregon Coast Coho Salmon.

    Literature Cited McElhany, P., M.H. Ruckelshaus, M.J. Ford, T.C. Wainwright, and E.P. Bjorkstedt. 2000.

    Viable salmon populations and the recovery of evolutionarily significant units. U.S.

    Dept. of Commerce, NOAA Tech. Memo., NMFS NWFSC 42, 156 p.

    Authority:

    16 U.S.C. 1531 et seq.

    Dated: December 12, 2016. Donna Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-30126 Filed 12-14-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF063 Marine Mammals; File No. 20455 AGENCY:

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

    ACTION:

    Notice; receipt of application.

    SUMMARY:

    Notice is hereby given that Randall Wells, Ph.D., Chicago Zoological Society's Sarasota Dolphin Research Program, c/o Mote Marine Laboratory, 1600 Ken Thompson Parkway, Sarasota, FL 34236 has applied in due form for a permit to conduct research on bottlenose dolphins (Tursiops truncatus) and Atlantic spotted dolphins (Stenella frontalis) for scientific research.

    DATES:

    Written, telefaxed, or email comments must be received on or before January 17, 2017.

    ADDRESSES:

    The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page, https://apps.nmfs.noaa.gov, and then selecting File No. 20455 from the list of available applications.

    These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.

    Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to [email protected] Please include the File No. in the subject line of the email comment.

    Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.

    FOR FURTHER INFORMATION CONTACT:

    Shasta McClenahan or Amy Hapeman, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.) and the regulations governing the taking and importing of marine mammals (50 CFR part 216).

    The applicant requests a five-year permit to take bottlenose and spotted dolphins for scientific research to continue a long-term program to evaluate the health, environmental contamination, reproduction, population structure and dynamics, acoustics, trophic patterns, life history, social structure, and anthropogenic effects on dolphins off the west coast of Florida including bays, estuaries, and offshore waters. Up to 3,000 bottlenose and 1,000 spotted dolphins would be approached annually during vessel surveys for photography, photo-identification, video recording, behavioral observation, acoustic playbacks, and passive acoustic recording, with concurrent deployment of an unmanned aircraft system for photogrammetry. Up to 250 bottlenose and 100 spotted dolphins of the above animals may also be biopsy sampled during vessel surveys annually. Up to 50 bottlenose and 25 spotted dolphins annually of the above animals may be captured for health assessments which would include biological sampling, auditory brainstem response tests, metabolic rate studies, ultrasound, x-rays, marking, tagging, tracking, and release. Calves less than 8 months of age and females with these calves would not be captured or remotely biopsy sampled. Up to 25 adults or juveniles of each species annually would be remotely satellite tagged to test the feasibility of a new experimental dorsal fin attachment method. Two unintentional mortalities of each species could occur due to capture over the life of the permit. The following species could be incidentally harassed during surveys: Green sea turtle (Chelonia mydas), hawksbill sea turtle (Eretmochelys imbricata), Kemp's ridley sea turtle (Lepidochelys kempii), loggerhead sea turtle (Caretta caretta), olive ridley sea turtle (L. olivacea), leatherback sea turtle (Dermochelys coriacea), smalltooth sawfish (Pristis pectinata), and gulf sturgeon (Acipenser oxyrinchus desotoi).

    In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

    Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of the application to the Marine Mammal Commission and its Committee of Scientific Advisors.

    Dated: December 9, 2016. Julia Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-30083 Filed 12-14-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE783 Draft 2016 Marine Mammal Stock Assessment Reports; Correction AGENCY:

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

    ACTION:

    Notice; correction.

    SUMMARY:

    We, NMFS, published a notice of the availability of the draft 2016 Alaska, Atlantic, and Pacific regional marine mammal stock assessment reports (SARs) in the Federal Register on October 11, 2016. Subsequent to soliciting public comment on the draft 2016 SARs, we became aware that due to technical errors in converting between electronic formats, the draft Atlantic SARs contained incorrect information in some instances. We have corrected these errors and through this notice we announce the availability of revised draft Atlantic 2016 SARs for public comment through the end of the original 90-day comment period.

    DATES:

    Comments must be received by January 9, 2017. If members of the public need additional time to review the draft Atlantic 2016 SARs, please contact Shannon Bettridge, Office of Protected Resources, 301-427-8402, [email protected]

    ADDRESSES:

    The 2016 draft SARs are available in electronic form via the Internet at http://www.nmfs.noaa.gov/pr/sars/draft.htm.

    You may submit comments, identified by NOAA-NMFS-2016-0101, by any of the following methods:

    Federal e-Rulemaking Portal: Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0101, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Send comments or requests for copies of reports to: Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3226, Attn: Stock Assessments.

    Instructions: NMFS may not consider comments if they are sent by any other method, to any other address or individual, or received after the end of the comment period. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    FOR FURTHER INFORMATION CONTACT:

    Shannon Bettridge, Office of Protected Resources, 301-427-8402, [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    Section 117 of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) requires NMFS and the U.S. Fish and Wildlife Service (FWS) to prepare stock assessments for each stock of marine mammals occurring in waters under the jurisdiction of the United States, including the Exclusive Economic Zone. These reports must contain information regarding the distribution and abundance of the stock, population growth rates and trends, estimates of annual human-caused mortality and serious injury (M/SI) from all sources, descriptions of the fisheries with which the stock interacts, and the status of the stock.

    The MMPA requires NMFS and FWS to review the SARs at least annually for strategic stocks and stocks for which significant new information is available, and at least once every three years for non-strategic stocks. The term “strategic stock” means a marine mammal stock: (A) for which the level of direct human-caused mortality exceeds the potential biological removal level; (B) which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act (ESA) within the foreseeable future; or (C) which is listed as a threatened species or endangered species under the ESA. NMFS and the FWS are required to revise a SAR if the status of the stock has changed or can be more accurately determined. We published a notice of the availability of the draft 2016 Alaska, Atlantic, and Pacific regional marine mammal SARs in the Federal Register on October 11, 2016 (81 FR 70097).

    Subsequent to soliciting public comment on the draft 2016 SARs, we were made aware that the draft Atlantic 2016 SARs contained some technical errors. A problem with our electronic file formatting conversion introducted some erroneous numbers into the document. For example, in some of the tables contained in the reports (e.g., bycatch table in Atlantic white-sided dolphin), the “years” column and/or the “mean combined annual mortality” column had incorrect values. In one case, the PBR for a stock was correct in the summary table, but incorrect in the text of the individual report. Most of the errors that we discovered in the reports involved incorrect text strike-throughs, where only a portion of a number was struck out, rather than the entire value.

    We immediately corrected the errors and posted a revised version of the draft Atlantic 2016 SARs on the NMFS Web site on December 1, 2016. With this Federal Register notice, we are notifying the public and soliciting comments on the revised version by January 9, 2017. If members of the public need additional time to review the draft Atlantic 2016 SARs, please contact Shannon Bettridge (see FOR FURTHER INFORMATION CONTACT).

    Dated: December 12, 2016. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-30171 Filed 12-14-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF076 Endangered and Threatened Species; Take of Anadromous Fish AGENCY:

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

    ACTION:

    Notice; availability of evaluation of tribal resource management plan and request for comment.

    SUMMARY:

    Notice is hereby given that the Confederated Colville Tribes have submitted a Tribal Resource Management Plan (Tribal Plan) to NMFS pursuant to the limitation on take prohibitions for actions conducted under Tribal Plans promulgated under the Endangered Species Act (ESA). The Tribal Plan specifies artificial propagation, harvest, and research and monitoring activities in the Okanogan River basin and portions of the upper Columbia River. This document serves to notify the public of the availability for comment of the proposed evaluation of the Secretary of Commerce (Secretary) as to whether implementation of the Tribal Plan will appreciably reduce the likelihood of survival and recovery of ESA-listed Upper Columbia River Spring Chinook salmon and steelhead.

    This notice further advises the public of the availability for review of a draft Environmental Assessment of the effects of the NMFS determination on the subject Tribal Plan.

    DATES:

    Comments must be received at the appropriate address or fax number (see ADDRESSES) no later than 5:00 p.m. Pacific time on December 30, 2016.

    ADDRESSES:

    Written comments on the proposed evaluation and pending determination should be addressed to the NMFS Sustainable Fisheries Division, 1201 NE Lloyd Blvd., Portland, OR 97232. Comments may be submitted by email. The mailbox address for providing email comments is: [email protected] Include in the subject line of the email comment the following identifier: Comments on Colville Okanogan Tribal Plan. The documents are available online at www.westcoast.fisheries.noaa.gov. Comments received will also be available for public inspection, by appointment, during normal business hours by calling (503) 230-5418.

    FOR FURTHER INFORMATION CONTACT:

    Natasha Meyers-Cherry at (503) 231-2178 or by email at [email protected]

    SUPPLEMENTARY INFORMATION: ESA-Listed Species Covered in This Notice

    Chinook salmon (Oncorhynchus tshawytscha): Endangered (but functionally extirpated in the analysis area), naturally produced Upper Columbia River spring-run.

    Steelhead (O. mykiss): Threatened, naturally produced and artificially propagated Upper Columbia River.

    Background

    The Confederated Colville Tribes have submitted to NMFS a Tribal Plan for hatchery, fishery harvest, predator control, kelt reconditioning, and monitoring and evaluation activities in the Okanogan River basin, in the upper Columbia River basin in Washington State. The Tribal Plan was submitted February 4, 2014, pursuant to the Tribal ESA 4(d) Rule.

    The Tribal Plan describes actions involving fisheries, hatchery, predator control, and kelt reconditioning activities (with associated monitoring and evaluation) in the Okanogan Basin and Columbia River mainstem. The Tribal Plan is intended to contribute to the recovery of the steelhead population in the Okanogan Basin, and to responsibly enhance fishing opportunity on non-listed Chinook salmon.

    As required by the ESA 4(d) rule for Tribal Plans (65 FR 42481; July 10, 2000), the Secretary is seeking public comment on her pending determination as to whether the Tribal Plan Chinook salmon would appreciably reduce the likelihood of survival and recovery of the Upper Columbia River Steelhead Evolutionary Significant Unit.

    Authority

    Under section 4 of the ESA, the Secretary is required to adopt such regulations as she deems necessary and advisable for the conservation of the species listed as threatened.

    The ESA Tribal 4(d) Rule (65 FR 42481; July 10, 2000) states that the ESA section 9 take prohibitions will not apply to Tribal Plans that will not appreciably reduce the likelihood of survival and recovery for the listed species.

    Dated: December 12, 2016. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-30181 Filed 12-14-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Notice of Availability of Draft Scientific Assessment for Public Comment AGENCY:

    The National Oceanic and Atmospheric Administration (NOAA) on Behalf of the United States Global Change Research Program (USGCRP)

    ACTION:

    Notice of availability of draft scientific assessment for public comment.

    SUMMARY:

    The National Oceanic and Atmospheric Administration (NOAA) is publishing this notice on behalf of the United States Global Change Research Program (USGCRP) to announce the availability of a draft assessment, the Climate Science Special Report, for a 45-day public review, collected comments will be carefully reviewed by the relevant chapter author teams. Following revision and further review, a revised draft will undergo final Federal interagency clearance.

    Context: The U.S. Global Change Research Program (USGCRP) is mandated under the Global Change Research Act (GCRA) of 1990 to conduct a quadrennial National Climate Assessment (NCA). Under its current decadal strategic plan (http://go.usa.gov/3qGU4), USGCRP is building sustained assessment capacity. The sustained assessment supports the Nation's ability to understand, anticipate, and respond to risks and potential impacts brought about by global environmental change. As part of the ongoing NCA process, a Climate Science Special Report is being developed to inform the assessment. The last NCA from 2014 (NCA3: http://nca2014.globalchange.gov) and the process to develop it provided a foundation for subsequent activities and reports. This special report provides an update to the physical climate science presented in the 2014 National Climate Assessment (NCA). Specifically, the special report updates Chapter 2 and Appendices 3 and 4 of the 2014 NCA (http://www.globalchange.gov/nca3-downloads-materials). The report provides updated climate science findings and projections, and is an important input to the authors of the next quadrennial NCA, expected in 2018.

    DATES:

    Comments on this draft scientific assessment must be received by 11:59 p.m. ET on 28 January 2017.

    ADDRESSES:

    The draft USGCRP Climate Science Special Report can be accessed via the USGCRP Open Notices page (http://www.globalchange.gov/notices) or directly at the USGCRP Review and Comment System (https://review.globalchange.gov/). Registration details can be found on the review site home page, and review instructions on a dedicated special report page where comments from the public will be accepted electronically. Comments may be submitted only via this online mechanism.

    All comments received through this process will be considered by the relevant chapter authors without knowledge of the commenters' identities. When the final assessment is issued, the comments and the commenters' names, along with the authors' responses, will become part of the public record and made available on http://www.globalchange.gov. Information submitted by a commenter as part of the registration process (such as an email address) will not be disclosed publicly.

    Instructions: Response to this notice is voluntary. Responses to this notice may be used by the government for program planning on a non-attribution basis. NOAA therefore requests that no business proprietary information or copyrighted information be submitted in response to this notice. Please note that the U.S. Government will not pay for response preparation, or for the use of any information contained in the response.

    FOR FURTHER INFORMATION CONTACT:

    USGCRP Contact: David Dokken; telephone 202-419-3473; or email: [email protected]

    NOAA Contact: David Fahey; telephone 303-497-5277; or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Climate Science Special Report is a product of the USGCRP, organized and led by an interagency team. The draft assessment was written by Federal and non-Federal authors identified via an Open Call for nominations (https://www.federalregister.gov/documents/2016/03/31/2016-07208/united-states-global-change-research-program). An interagency Federal steering committee selected authors based on their demonstrated subject matter expertise, relevant publications, and knowledge of specific topics designated in an outline included in the special report prospectus (https://downloads.globalchange.gov/cssr/USGCRP_CSSR-Prospectus_FINAL.pdf). The draft assessment responds to the 1990 Congressional mandate to periodically produce National Climate Assessments and to assist the nation in understanding, assessing, predicting, and responding to human-induced and natural processes of global change. The report adheres to the Information Quality Act requirements (http://www.cio.noaa.gov/services_programs/info_quality.html) for quality, transparency, and accessibility as appropriate for a Highly Influential Scientific Assessment (HISA).

    Dated: Tuesday, December 6, 2016. Dan Barrie, Program Manager, Assessments Program, NOAA Climate Program Office. Dated: December 9, 2016. Jason Donaldson, Chief Financial Officer, Office of Oceanic and Atmospheric Research, National Oceanic and Atmospheric Administration.
    [FR Doc. 2016-30102 Filed 12-14-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF75 Endangered and Threatened Species; Take of Anadromous Fish AGENCY:

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

    ACTION:

    Notice; availability of evaluation of joint state/tribal hatchery plans and request for comment.

    SUMMARY:

    Notice is hereby given that the Washington Department of Fish and Wildlife and the Tulalip Tribes have submitted six Hatchery and Genetic Management Plans, to be considered jointly, to NMFS pursuant to the limitation on take prohibitions for actions conducted under Limit 6 of the 4(d) Rule for salmon and steelhead promulgated under the Endangered Species Act (ESA). The plans specify the propagation of three species of salmon in the Snohomish River basin of Washington State. This document serves to notify the public of the availability for comment of the proposed evaluation of the Secretary of Commerce (Secretary) as to whether implementation of the joint plans will appreciably reduce the likelihood of survival and recovery of ESA-listed Puget Sound Chinook salmon and Puget Sound steelhead.

    This notice further advises the public of the availability for review of a draft Environmental Assessment of the effects of the NMFS determination on the subject joint plans.

    DATES:

    Comments must be received at the appropriate address or fax number (see ADDRESSES) no later than 5:00 p.m. Pacific time on January 17, 2017.

    ADDRESSES:

    Written comments on the proposed evaluation and pending determination should be addressed to the Tim Tynan, NMFS Sustainable Fisheries Division, 510 Desmond Drive, Suite 103, Lacey, WA 98503. Comments may be submitted by email. The mailbox address for providing email comments is: [email protected] Include in the subject line of the email comment the following identifier: Comments on Snohomish River hatchery programs. The documents are available on the Internet at www.westcoast.fisheries.noaa.gov. Comments received will also be available for public inspection, by appointment, during normal business hours by calling (360) 753-9579.

    FOR FURTHER INFORMATION CONTACT:

    Tim Tynan at (360) 753-9579 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    ESA-Listed Species Covered in This Notice

    Chinook salmon (Oncorhynchus tshawytscha): threatened, naturally produced and artificially propagated Puget Sound.

    Steelhead (O. mykiss): threatened, naturally produced and artificially propagated Puget Sound.

    Background

    The Washington Department of Fish and Wildlife and the Tulalip Tribes have submitted to NMFS plans for six jointly operated hatchery programs in the Snohomish River region. The plans were submitted from December 2012 to September 2016, pursuant to limit 6 of the 4(d) Rule for ESA-listed salmon and steelhead. The hatchery programs release ESA-listed Chinook salmon and non-listed coho and fall chum salmon into the Snohomish River basin and nearby.

    As required by the ESA 4(d) Rule (65 FR 42422; July 10, 2000, as updated in 70 FR 37160; June 28, 2005), the Secretary is seeking public comment on her pending determination as to whether the joint plans for hatchery programs in the Snohomish River basin would appreciably reduce the likelihood of survival and recovery of the ESA-listed Puget Sound salmon and steelhead.

    Authority

    Under section 4 of the ESA, the Secretary of Commerce is required to adopt such regulations as she deems necessary and advisable for the conservation of species listed as threatened. The ESA salmon and steelhead 4(d) Rule (65 FR 42422; July 10, 2000, as updated in 70 FR 37160; June 28, 2005) specifies categories of activities that contribute to the conservation of listed salmonids and sets out the criteria for such activities. Limit 6 of the updated 4(d) Rule (50 CFR 223.203(b)(6)) further provides that the prohibitions of paragraph (a) of the updated 4(d) Rule (50 CFR 223.203(a)) do not apply to activities associated with a joint state/tribal artificial propagation plan provided that the joint plan has been determined by NMFS to be in accordance with the salmon and steelhead 4(d) Rule (65 FR 42422; July 10, 2000, as updated in 70 FR 37160; June 28, 2005).

    Dated: December 12, 2016. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-30180 Filed 12-14-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE939 Endangered and Threatened Species; Recovery Plans AGENCY:

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

    ACTION:

    Notice of availability; extension of public comment period.

    SUMMARY:

    We, NMFS, announce the extension of the comment period for the Proposed Endangered Species Act (ESA) Recovery Plan for Snake River Spring/Summer Chinook Salmon and Snake River Steelhead (Proposed Plan) published on October 27, 2016. The Proposed Plan addresses the Snake River Spring/Summer Chinook Salmon (Onchorhynchus tshawytscha) evolutionarily significant unit (ESU), which is listed as threatened under the ESA, and the Snake River Steelhead (Onchorhynchus mykiss) distinct population segment (DPS), which is listed as threatened under the ESA. The geographic area covered by the Proposed Plan is the lower mainstem Snake River and its tributaries, as well as the mainstem Columbia River below its confluence with the Snake River. As required under the ESA, the Proposed Plan contains objective, measurable delisting criteria, site-specific management actions necessary to achieve the Proposed Plan's goals, and estimates of the time and cost required to implement recovery actions. We are soliciting review and comment from the public and all interested parties on the Proposed Plan. The close of the comment period is being extended—from December 27, 2016, to February 9, 2017—to provide additional opportunity for public comment.

    DATES:

    The deadline for receipt of comments on the Proposed Plan published on October 27, 2016 (81 FR 74770), is extended to close of business on February 9, 2017.

    ADDRESSES:

    You may submit comments on the Proposed Plan by the following methods:

    Electronic Submissions: Submit all electronic public comments via: [email protected] Please include “Comments on Snake River Spring/Summer Chinook and Steelhead Recovery Plan” in the subject line of the email.

    Facsimile: (503) 230-5441.

    Mail: Rosemary Furfey, National Marine Fisheries Service, 1201 NE. Lloyd Boulevard, Suite 1100, Portland, OR 97232.

    Instructions: Comments must be submitted by one of the above methods to ensure that they are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the comment period, may not be considered. Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only. All comments received are part of the public record and NMFS will generally post for public viewing on www.regulations.gov without change. All personal identifying information (e.g. name, address, etc), confidential business information, or otherwise sensitive information submitted voluntarily by the sender is publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    Electronic copies of the Proposed Plan are available at: http://www.westcoast.fisheries.noaa.gov/protected_species/salmon_steelhead/recovery_planning_and_implementation/snake_river/snake_river_sp-su_chinook_steelhead.html.

    Persons wishing to obtain an electronic copy on CD ROM of the Proposed Plan may do so by calling Bonnie Hossack at (503) 736-4741, or by emailing a request to mail to: [email protected] with the subject line “CD ROM Request for Snake River Spring/Summer Chinook Salmon and Snake River Steelhead Recovery Plan.”

    FOR FURTHER INFORMATION CONTACT:

    Rosemary Furfey, NMFS Snake River Spring/Summer Chinook Salmon and Steelhead Recovery Coordinator, at (503) 231-2149, or mail to: [email protected]

    SUPPLEMENTARY INFORMATION:

    Extension of Comment Period

    On October 27, 2016 (81 FR 74770), we (NMFS) published in the Federal Register a request for public comment on the Proposed Endangered Species Act Recovery Plan for Snake River Spring/Summer Chinook Salmon and Snake River Steelhead. The public comment period for this action is set to end on December 27, 2016. The comment period is being extended through February 9, 2017, to provide additional opportunity for public comment.

    Background

    We are responsible for developing and implementing recovery plans for Pacific salmon and steelhead listed under the ESA of 1973, as amended (16 U.S.C. 1531 et seq.). The ESA requires the development of recovery plans for each listed species unless such a plan would not promote its recovery.

    We believe it is essential to have local support of recovery plans by those whose activities directly affect the listed species and whose continued commitment and leadership will be needed to implement the necessary recovery actions. We, therefore, support and participate in collaborative efforts to develop recovery plans that involve state, tribal, and federal entities, local communities, and other stakeholders. For this Proposed Plan for threatened Snake River Spring/Summer Chinook Salmon and Snake River Steelhead, we worked collaboratively with state, tribal, and Federal partners to produce a recovery plan that satisfies the ESA requirements. We have determined that this Proposed ESA Recovery Plan for Snake River Spring/Summer Chinook Salmon and Snake River Steelhead meets the statutory requirements for a recovery plan and are proposing to adopt it as the ESA recovery plan for these threatened species. Section 4(f) of the ESA, as amended in 1988, requires that public notice and an opportunity for public review and comment be provided prior to final approval of a recovery plan. This notice solicits comments on this Proposed Plan.

    Development of the Proposed Plan

    For the purpose of recovery planning for the ESA-listed species of Pacific salmon and steelhead in Idaho, Oregon, and Washington, NMFS designated five geographically based “recovery domains.” The Snake River Spring/Summer Chinook Salmon ESU and Snake River Steelhead DPS spawning and rearing range is in the Snake River recovery domain of the Interior Columbia area. For each domain, NMFS appointed a team of scientists, nominated for their geographic and species expertise, to provide a solid scientific foundation for recovery plans. The technical recovery team responsible for Snake River Spring/Summer Chinook Salmon and Snake River Steelhead, the Interior Columbia Technical Recovery Team, included biologists from NMFS, other Federal agencies, states, tribes, and academic institutions.

    A primary task for the Interior Columbia Technical Recovery Team was to recommend criteria for determining when each component population within an ESU or DPS should be considered viable (i.e., when they have a low risk of extinction over a 100-year period) and when ESUs or DPSs have a risk of extinction consistent with no longer needing the protections of the ESA. All Technical Recovery Teams used the same biological principles for developing their recommendations; these principles are described in the NOAA technical memorandum Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units (McElhany et al., 2000). Viable salmonid populations (VSP) are defined in terms of four parameters: Abundance, productivity or growth rate, spatial structure, and diversity.

    We also collaborated with state, tribal, and Federal biologists and resource managers to provide technical information used to write the Proposed Plan which is built upon locally-led recovery efforts. In addition, NMFS established a multi-state (Idaho, Oregon, and Washington), tribal, and Federal partners' regional forum called the Snake River Coordination Group that addresses the four ESA-listed Snake River salmon and steelhead species, including the two species addressed in the Proposed Plan. They met twice a year to be briefed and provide technical and policy information to NMFS. We presented regular updates on the status of this Proposed Plan to the Snake River Coordination Group and posted draft chapters on NMFS' West Coast Region Snake River recovery planning Web page. We also made full drafts of the Proposed Plan available for review to the state, tribal, and federal entities with which we collaborated to develop the plan.

    For the purpose of recovery planning in the Snake River recovery domain, NMFS divided the domain into three different “management units” based on jurisdictional boundaries, as well as areas where local planning efforts were underway. The three Snake River domain management units include: The Northeast Oregon unit, Southeast Washington unit, and the Idaho unit. A recovery plan addressing tributary conditions for both species was developed for each management unit. All three management unit plans were developed in coordination with respective state, federal, and local agencies, tribes, and others. This Proposed Plan synthesizes relevant information from the three management unit plans at the species level and includes them as appendices: Appendix A is the Northeast Oregon Management Unit Plan, Appendix B is the Southeast Washington Management Unit Plan, and Appendix C is the Idaho Management Unit Plan.

    In addition to the Proposed Plan, we developed and incorporated the Module for the Ocean Environment (Fresh et al., 2014) as Appendix D to address Snake River Spring/Summer Chinook Salmon and Snake River Steelhead recovery needs in the Columbia River estuary, plume, and Pacific Ocean. To address recovery needs related to the Lower Columbia River mainstem and estuary, we incorporated the Columbia River Estuary ESA Recovery Plan Module for Salmon and Steelhead (NMFS 2011a) as Appendix E. To address recovery needs for fishery harvest management in the mainstem Snake and Columbia Rivers, Columbia River estuary, and ocean, we developed and incorporated the Snake River Harvest Module (NMFS 2014a) as Appendix F. To address recovery needs related to the Columbia River Hydropower System, we developed and incorporated the Supplemental Recovery Plan Module for Snake River Salmon and Steelhead Mainstem Columbia River Hydropower Projects (NMFS 2014b) as Appendix G of this Proposed Plan.

    The Proposed Recovery Plan

    The Proposed Plan contains biological background and contextual information that includes descriptions of the ESU and DPS, the planning area, and the context of the plan's development. It presents relevant information on ESU and DPS structure, guidelines for assessing salmonid population and ESU and DPS status, and a brief summary of Interior Columbia Technical Recovery Team products on population structure and species status. It also presents NMFS' proposed biological viability criteria and threats criteria for delisting.

    The Proposed Plan also describes specific information on the following: current status of Snake River Spring/Summer Chinook Salmon and Snake River Steelhead (Chapter 4); limiting factors and threats throughout the life cycle that have contributed to each species' decline (Chapter 5); recovery strategies and actions addressing these limiting factors and threats (Chapter 6); and a proposed research, monitoring, and evaluation program for adaptive management (Chapter 7). For recovery actions, the Proposed Plan incorporates the site-specific actions in each management unit plan, together with the associated location, life stage affected and potential implementing entity. The Proposed Plan also summarizes time and costs (Chapter 8) required to implement recovery actions. In some cases, costs of implementing actions could not be determined at this time and NMFS is interested in additional information regarding scale, scope, and costs of these actions. We are also particularly interested in comments on establishing appropriate forums (Chapter 9) to coordinate implementation of the Proposed Plan. We are also interested in information to address critical uncertainties identified in the Proposed Plan, particularly regarding causes of mortality of juvenile fish as they move from natal tributaries into the Salmon and Snake Rivers during migration to the Pacific Ocean.

    Public Comments Solicited

    We are soliciting written comments on the Proposed Plan. All substantive comments received by the date specified above will be considered and incorporated, as appropriate, prior to our decision whether to approve the plan. While we invite comments on all aspects of the Proposed Plan, we are particularly interested in comments on addressing critical uncertainties in our knowledge about the early juvenile life stage survival from natal tributaries downstream into the Salmon and Snake Rivers, comments on the cost of recovery actions for which we have not yet determined implementation costs, and comments on establishing an appropriate implementation forum for the plan. After considering the public comments, we will issue a news release announcing the adoption and availability of the final plan. We will post on the NMFS West Coast Region Web site (www.wcr.noaa.gov) a summary of, and responses to, the comments received, along with electronic copies of the final plan and its appendices.

    Authority:

    16 U.S.C. 1531 et seq.

    Dated: December 12, 2016. Donna Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-30163 Filed 12-14-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF077 Endangered and Threatened Species; Take of Anadromous Fish AGENCY:

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

    ACTION:

    Notice of intent to prepare an environmental impact statement; request for comments.

    SUMMARY:

    Pursuant to the National Environmental Policy Act (NEPA), this notice announces that NMFS intends to obtain information necessary to prepare an Environmental Impact Statement (EIS) for salmon and steelhead hatchery programs currently operating in the Upper Willamette River Basin of Oregon. NMFS is also requesting public review and comment on four Hatchery and Genetic Management Plans (HGMPs) submitted by the U.S. Army Corps of Engineers (USACE) for evaluation and determination under Limit 5 of the Endangered Species Act (ESA) 4(d) rule for threatened salmon and steelhead. The HGMPs specify the propagation of hatchery spring Chinook salmon released in the North Santiam, South Santiam, McKenzie, Middle Fork Willamette, Coast Fork Willamette, and Molalla Rivers.

    NMFS provides this notice to: (1) Advise other agencies and the public of its plans to analyze effects related to the action, and (2) obtain suggestions and information that may be useful to the scope of issues and alternatives to include in the EIS. This notice further serves to notify the public of the availability of the four HGMPs for comment prior to a decision by NMFS on whether to approve the proposed hatchery programs.

    DATES:

    Written or electronic scoping comments must be received at the appropriate address or email mailbox (see ADDRESSES) no later than 5 p.m. Pacific Time January 30, 2017.

    ADDRESSES:

    Submit your comments by either of the following methods:

    • Email to the following address: [email protected] with the following identifier in the subject line: Comments on Intent to Prepare the Willamette Hatchery EIS.

    • Mail or hand-deliver to NMFS Sustainable Fisheries Division, 2900 NW. Stewart Parkway, Roseburg, OR 97471.

    • Fax to (541) 957-3386.

    Instructions: NMFS may not consider comments if they are sent by any other method, to any other address or individual, or received after the comment period ends. All comments received are part of the public record and NMFS will generally post for public viewing on www.regulations.gov without change. All personal identifying information (for example, name, address, etc.) voluntarily submitted by the commenter will be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    Additional information to assist with consideration of the notice of intent, as well as the HGMPs themselves, is available on the Internet at www.westcoast.fisheries.noaa.gov.

    FOR FURTHER INFORMATION CONTACT:

    Lance Kruzic, NMFS, by phone at (541) 957-3381, or email to [email protected]

    SUPPLEMENTARY INFORMATION:

    ESA-listed Species Covered in This Notice

    Chinook salmon (O. tshawytscha): threatened, naturally-produced and specified artificially-produced stocks in the Upper Willamette ESU.

    Winter steelhead (O. mykiss): threatened, naturally-produced in the Upper Willamette distinct population segment.

    Background

    The USACE has submitted four HGMPs for spring Chinook salmon hatchery programs in the Upper Willamette River to NMFS, pursuant to Limit 5 of the 4(d) rule for salmon and steelhead promulgated under the ESA (65 FR 42422; July 10, 2000). Before a decision is made by NMFS on these HGMPs, NEPA requires Federal agencies to conduct environmental analyses of proposed actions to fully consider their effects on the human environment. NMFS's action of evaluating USACE's HGMPs under Limit 5 of the 4(d) Rule is a major Federal action subject to environmental review under NEPA. Therefore, NMFS is seeking public input on the scope of the required NEPA analysis, including the range of reasonable alternatives, recommendations for relevant analysis methods, and information associated with impacts of the alternatives to the resources listed below or other relevant resources.

    The hatchery programs considered in the analysis are those rearing and releasing North Santiam, South Santiam, McKenzie, and Middle Fork Willamette hatchery spring Chinook salmon. The EIS will also consider the potential effects of the current summer steelhead program. Hatchery fish are released into the following waterbodies: North Santiam River, South Santiam River, McKenzie River, Middle Fork Willamette River, Molalla River, and Coast Fork Willamette River. A list of all of the hatchery programs, including links to the HGMPs undergoing public comment, is available online (see ADDRESSES).

    NMFS will perform an environmental review of the hatchery salmon and steelhead programs and prepare an EIS that will evaluate potentially significant direct, indirect, and cumulative impacts on the following resources identified to have a potential for effect from the proposed action:

    • Water quantity and water quality

    • Fish and wildlife species and their habitats

    • Socioeconomics

    • Environmental Justice

    • Cumulative impacts

    NMFS will rigorously explore and objectively evaluate a full range of reasonable alternatives in the EIS, including the proposed action (implementation of USACE's HGMPs) and a no-action alternative. Additional alternatives could include a reduction in artificial production and/or elimination of the hatchery programs.

    For all potentially significant impacts, the EIS will identify measures to avoid, minimize, and mitigate the impacts, where feasible, to a level below significance.

    Request for Comments

    NMFS provides this notice to: (1) advise other agencies and the public of its plans to analyze effects related to the action, and (2) obtain suggestions and information that may be useful to the scope of issues and the full range of alternatives to include in the EIS.

    NMFS invites comment from all interested parties to ensure that the full range of issues related to hatchery salmon and steelhead are identified. Comments should be as specific as possible, with recommendations to address identified issues.

    Written comments concerning the proposed action and the environmental review should be directed to NMFS as described above (see ADDRESSES). All comments and materials received, including names and addresses, will become part of the administrative record and may be released to the public.

    Authority

    The environmental review of the hatchery salmon and steelhead programs will be conducted in accordance with requirements of the NEPA of 1969 as amended (42 U.S.C. 4321 et seq.), NEPA Regulations (40 CFR parts 1500-1508), other appropriate Federal laws and regulations, and policies and procedures of NMFS for compliance with those regulations. This notice is being furnished in accordance with 40 CFR 1501.7 to obtain suggestions and information from other agencies and the public on the scope of issues and alternatives to be addressed in the EIS.

    Under section 4 of the ESA, the Secretary of Commerce is required to adopt such regulations as he deems necessary and advisable for the conservation of species listed as threatened. The ESA salmon and steelhead 4(d) rule (65 FR 42422; July 10, 2000, as updated in 70 FR 37160; June 28, 2005) specifies categories of activities that contribute to the conservation of listed salmonids and sets out the criteria for such activities. Limit 5 of the updated 4(d) rule (50 CFR 223.203(b)(5)) further provides that the prohibitions of paragraph (a) of the updated 4(d) rule (50 CFR 223.203(a)) do not apply to activities associated with artificial propagation programs provided that an HGMP has been approved by NMFS to be in accordance with the salmon and steelhead 4(d) rule (65 FR 42422; July 10, 2000, as updated in 70 FR 37160; June 28, 2005).

    Dated: December 12, 2016. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-30182 Filed 12-14-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF083 Gulf of Mexico Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Gulf of Mexico Fishery Management Council will hold a two-day meeting of its Joint Ad Hoc Reef Fish Headboat and Ad Hoc Red Snapper Charter For-Hire Advisory Panels.

    DATES:

    The meeting will convene on Monday, January 9, 2017, from 9 a.m. to 5 p.m. and Tuesday, January 10, 2017, from 9 a.m. to 5 p.m. EDT.

    ADDRESSES:

    The meeting will take place at the Hyatt Centric French Quarter Hotel, located at 800 Iberville Street, New Orleans, LA 70112; telephone: (504) 586-0800.

    Council address: Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: (813) 348-1630.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Assane Diagne, Economist, Gulf of Mexico Fishery Management Council; [email protected], telephone: (813) 348-1630.

    SUPPLEMENTARY INFORMATION: Monday, January 9, 2017, 9 a.m. to 5 p.m. and Tuesday, January 10, 2017, 9 a.m. to 5 p.m., EDT I. Adoption of Agenda II. Overview of the For-Hire Sector III. Summary of Current Reef Fish Amendments 41 and 42 IV. Decisions on For-Hire Management Programs a. Type of Management Approaches Considered b. Timing and Number of For-Hire Management Programs c. Prioritization of Reef Fish Species to Included d. Apportionment of For-Hire Quotas between Programs (if necessary) e. Adjustments to Individual Allocations f. Participation in Management Programs g. Management Program Design Elements (if warranted) V. Overall Recommendations to the Council and Wrap-Up —Meeting Adjourns—

    You may register for Joint Ad Hoc Reef Fish Headboat and Ad Hoc Red Snapper Charter For-Hire Advisory Panel meeting on January 9-10, 2017 at: https://attendee.gotowebinar.com/register/4361231942417618435.

    The Agenda is subject to change, and the latest version along with other meeting materials will be posted on the Council's file server. To access the file server, the URL is https://public.gulfcouncil.org:5001/webman/index.cgi, or go to the Council's Web site and click on the FTP link in the lower left of the Council Web site (http://www.gulfcouncil.org). The username and password are both “gulfguest”. Click on the “Library Folder”, then scroll down to “AP meeting-2017-01”.

    The meeting will be webcast over the internet. A link to the webcast will be available on the Council's Web site, http://www.gulfcouncil.org.

    Although other non-emergency issues not on the agenda may come before the Advisory Panel for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Advisory Panel will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Gulf Council Office (see ADDRESSES), at least 5 working days prior to the meeting.

    Dated: December 9, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-30088 Filed 12-14-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF DEFENSE Office of the Secretary Defense Acquisition University Board of Visitors; Notice of Federal Advisory Committee Meeting AGENCY:

    Defense Acquisition University, DoD.

    ACTION:

    Meeting notice.

    SUMMARY:

    The Department of Defense is publishing this notice to announce a Federal Advisory Committee meeting of the Defense Acquisition University Board of Visitors. This meeting will be open to the public.

    DATES:

    Wednesday, February 1, 2017, from 9:00 a.m. to 4:00 p.m.

    ADDRESSES:

    DAU South Huntsville Campus, 7115 Old Madison Pike, Executive Classroom #1, Huntsville, Alabama 35806.

    FOR FURTHER INFORMATION CONTACT:

    Caren Hergenroeder, Protocol Director, DAU. Phone: 703-805-5134. Fax: 703-805-5940. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.

    Purpose of the Meeting: The purpose of this meeting is to report back to the Board of Visitors on continuing items of interest.

    Agenda 9:00 a.m. Welcome and Announcements 9:05 a.m. DAU South Overview 9:20 a.m. Dialogue with Guests Representatives 12:00 p.m. Lunch 1:00 p.m. DAU Update 2:30 p.m. Transition Planning 3:30 p.m. Summary Discussion 4:00 p.m. Adjourn

    Public's Accessibility to the Meeting: Pursuant to 5 U.S.C. 552b and 41 CFR 102-3.140 through 102-3.165, and the availability of space, this meeting is open to the public. However, because of space limitations, allocation of seating will be made on a first-come, first served basis. Persons desiring to attend the meeting should call Ms. Caren Hergenroeder at 703-805-5134.

    Written Statements: Pursuant to 41 CFR 102-3.140, and section 10(a)(3) of the Federal Advisory Committee Act of 1972, the public or interested organizations may submit written statements to the Defense Acquisition University Board of Visitors about its mission and functions. Written statements may be submitted at any time or in response to the stated agenda of a planned meeting of the Defense Acquisition University Board of Visitors.

    All written statements shall be submitted to the Designated Federal Officer for the Defense Acquisition University Board of Visitors, and this individual will ensure that the written statements are provided to the membership for their consideration.

    Statements being submitted in response to the agenda mentioned in this notice must be received by the Designated Federal Officer at least five calendar days prior to the meeting which is the subject of this notice. Written statements received after this date may not be provided to or considered by the Defense Acquisition University Board of Visitors until its next meeting.

    Committee's Designated Federal Officer or Point of Contact: Ms. Christen Goulding, 703-805-5412, [email protected]

    Dated: December 12, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-30167 Filed 12-14-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Transmittal No. 16-31] 36(b)(1) Arms Sales Notification AGENCY:

    Defense Security Cooperation Agency, Department of Defense.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.

    FOR FURTHER INFORMATION CONTACT:

    Pam Young, DSCA/SA&E-RAN, (703) 697-9107.

    The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 16-31 with attached Policy Justification and Sensitivity of Technology.

    Dated: December 12, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. BILLING CODE 5001-06-P EN15DE16.001 BILLING CODE 5001-06-C Transmittal No. 16-31 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(l) of the Arms Export Control Act, as amended

    (i) Prospective Purchaser: The Kingdom of Saudi Arabia

    (ii) Total Estimated Value:

    Major Defense Equipment* $2.60 billion Other $ .91 billion Total $3.51 billion

    (iii) Description and Quantity or Quantities of Articles or Services under consideration for Purchase:

    Major Defense Equipment (MDE): Forty-eight (48) CH-47F Chinook Cargo Helicopters One hundred twelve (112) T55-GA-714A Engines (ninety-six (96) installed, sixteen (16) spares) One hundred sixteen (116) Embedded Global Positioning System (GPS) Inertial Navigation Systems (EGI) (ninety-six (96) installed, twenty (20) spares) Fifty-eight (58) AN/AAR-57 Common Missile Warning Systems (CMWS) (forty- eight (48) installed, ten (10) spares) Forty-eight (48) M240H 7.62mm Machine Guns with spare parts

    Non-MDE: This request also includes the following Non-MDE: M134D Mini-Guns or equivalent type guns with support equipment and training; Aircraft Survivability Equipment (AN/APR-39A(V) l/4, AN/AVR-2B, AN/ARC-231, AN/ARC-201D, AN/APX-123A, ARN-147 VOR/ILS, ARN-153 TACAN, APN-209, IDM-401 Improved Data Modem, and AN/ARC-220); Infrared Signature Suppression System (IRSS); Fast Rope Insertion Extraction System (FRIES); Extended Range Fuel System (ERPS); Ballistic Armor Protection System; facilities; air worthiness support; spares and repair parts; communications equipment; personnel training and training equipment; site surveys; tool and test equipment; Ground Support Equipment (GSE); repair and return; publications and technical documentation; Quality Assurance Team (QAT); U.S. Government and contractor engineering, technical and logistics support services; and other related elements of logistics and program support.

    (iv) Military Department: Army (SR-B-ZAG)

    (v) Sales Commission, Fee, etc., Paid, Offered, or Agreed to be Paid: None

    (vi) Sensitivity of Technology Contained in the Defense Article or Defense Services Proposed to be Sold: See Annex attached.

    (vii) Prior Related Case, if any: None

    (viii) Date Report Delivered to Congress: December 7, 2016

    *as defined in Section 47(6) of the Arms Export Control Act.

    POLICY JUSTIFICATION Kingdom of Saudi Arabia—CH-47F Chinook Cargo Helicopters:

    The Kingdom of Saudi Arabia has requested a possible sale of:

    Major Defense Equipment (MDE): Forty-eight (48) CH-47F Chinook Cargo Helicopters One hundred twelve (112) T55-GA-714A Engines (ninety-six (96) installed, sixteen (16) spares) One hundred sixteen (116) Embedded Global Positioning System (GPS) Inertial Navigation Systems (EGI) (ninety-six (96) installed, twenty (20) spares) Fifty-eight (58) AN/AAR-57 Common Missile Warning Systems (CMWS) (forty-eight (48) installed, ten (10) spares) Forty-eight (48) M240H 7.62mm Machine Guns with spare parts

    Non-MDE: This request also includes the following Non-MDE: M134D Mini-Guns or equivalent type guns with support equipment and training; Aircraft Survivability Equipment (AN/APR-39A(V) l/4, AN/AVR-2B, AN/ARC-231, AN/ARC-201D, AN/APX-123A, ARN-147 VOR/ILS, ARN-153 TACAN, APN-209, IDM-401 Improved Data Modem, and AN/ARC-220); Infrared Signature Suppression System (IRSS); Fast Rope Insertion Extraction System (FRIES); Extended Range Fuel System (ERPS); Ballistic Armor Protection System; facilities; air worthiness support; spares and repair parts; communications equipment; personnel training and training equipment; site surveys; tool and test equipment; Ground Support Equipment (GSE); repair and return; publications and technical documentation; Quality Assurance Team (QAT); U.S. Government and contractor engineering, technical and logistics support services; and other related elements of logistics and program support. The total overall estimated value is $3.51 billion.

    This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a strategic partner which has been and continues to be a leading contributor of political stability and economic progress in the Middle East. This sale will increase the Royal Saudi Land Forces Aviation Command's (RSLFAC) interoperability with U.S. forces and convey U.S. commitment to Saudi Arabia's security and armed forces modernization.

    The proposed sale of this equipment and support will not alter the basic military balance in the region.

    The proposed sale of the CH-47F aircraft will improve Saudi Arabia's heavy lift capability. Saudi Arabia will use this enhanced capability to strengthen its homeland defense and deter regional threats. Saudi Arabia will have no difficulty absorbing these aircraft into its armed forces.

    The prime contractors will be The Boeing Military Aircraft Company, Ridley Park, Pennsylvania, and Honeywell Aerospace Company, Phoenix, Arizona. There are no known offset agreements in connection with this potential sale.

    Implementation of this sale will require up to sixty (60) U.S. Government and contractor representatives to travel to Saudi Arabia for up to sixty (60) months for equipment de-processing, fielding, system checkout, training, and technical logistics support.

    There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.

    Transmittal No. 16-31 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(l) of the Arms Export Control Act Annex Item No. vii

    (vii) Sensitivity of Technology:

    1. The CH-47F Chinook Cargo Helicopter is a medium-lift helicopter equipped with the Common Avionics Architecture System (CAAS) cockpit, which provides aircraft system, flight, mission, and communication management systems, five multifunction displays, two general purpose processor units, two control display units and two data concentrator units. The navigation system will have two Embedded Global Positioning System/Inertial Navigation System (GPS/INS), two Digital Advanced Flight Control Systems (DAFCS), one ARN-149 Automatic Direction Finder, one ARN-147 Very High Frequency Omnidirectional Range/Instrument Landing System (VOR/ILS) marker beacon system, one ARN-153 Tactical Airborne Navigation (TACAN) system, two air data computers, and one Radar Altimeter system. The aircraft survivability equipment includes the AN/APR-39A(V) l/4 Radar Signal Detecting Set, and the AN/AAR-57 Common Missile Warning System.

    The Embedded Global Positioning System/Inertial Navigation System (GPS/INS) is SECRET. The AN/AAR-57 Common Missile Warning System (CMWS) is CONFIDENTIAL. Releasable technical manuals for operation and maintenance are SECRET. The AN/APR-39A(V) l/4 Series Radar Detecting Set (RDS) is SECRET. The AN/AVR-2B, Laser Warning Set is CONFIDENTIAL. Releasable technical manuals for operation and maintenance are SECRET. The AN/ARC-23l (V)(C) is UNCLASSIFIED. The AN/ARC-201D Single Channel Ground and Airborne Radio System (SINCGARS), performance capabilities, Electronic Countermeasures/Electronic Counter Counter-Measures (ECM/ECCM) specifications and Engineering Change Orders (ECOs) are SECRET. The AN/APX-123A, Identification Friend or Foe (IFF) Transponder is UNCLASSIFIED. The AN/ARN-147, Very High Frequency Omni Ranging/Instrument Landing System (VOR/ILS) receiver is UNCLASSIFIED. The AN/ARC-220 is UNCLASSIFIED. The KN-77 is UNCLASSIFIED. The AN/PYQ-10 (C) Simple Key Loader (SKL) is UNCLASSIFIED. The TSEC KY-58 voice secure equipment is CONFIDENTIAL if software fill is installed. The TSEC KY-100 voice secure equipment is used with the FM Command Radio to provide secure two-way communication. It is Communications Security (COMSEC) Equipment and is classified SECRET if software fill is installed. The AN/AVS-6/7(V)l is UNCLASSIFIED.

    2. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures or equivalent systems which might reduce weapon system effectiveness.

    3. determination has been made that Saudi Arabia can provide the same degree of protection for the sensitive technology being released as the U.S. Government. This sale is necessary in furtherance of the U.S. foreign policy and national security objectives outlined in the Policy Justification.

    4. All defense articles and services listed in this transmittal have been authorized for release and export to the Kingdom of Saudi Arabia.

    [FR Doc. 2016-30164 Filed 12-14-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Transmittal No. 16-61] 36(b)(1) Arms Sales Notification AGENCY:

    Defense Security Cooperation Agency, Department of Defense.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.

    FOR FURTHER INFORMATION CONTACT:

    Pam Young, DSCA/SA&E-RAN, (703) 697-9107.

    The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 16-61 with attached Policy Justification.

    Dated: December 12, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. EN15DE16.000 Transmittal No. 16-61 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Arms Export Control Act, as amended

    (i) Prospective Purchaser: Government of Qatar

    (ii) Total Estimated Value:

    Major Defense Equipment (MDE) * $51 million Other $30 million Total $81 million

    (iii) Description and Quantity or Quantities of Articles or Services under Consideration for Purchase:

    Major Defense Equipment (MDE): Four (4) F117-PW-100 C-17 Engines (spares) Non-MDE includes: Quick Engine Change (QEC) Kits, Engine Transport Trailers, Engine Platforms, Engine Trailers, and other various support.

    (iv) Military Department: Air Force (LAC)

    (v) Prior Related Cases, if any: QA-D-QAB

    (vi) Sales Commission, Fee, etc., Paid, Offered, or Agreed to be Paid: None

    (vii) Sensitivity of Technology Contained in the Defense Article or Defense Services Proposed to be Sold: None

    (viii) Date Report Delivered to Congress: December 7, 2016

    * As defined in Section 47(6) of the Arms Export Control Act.

    POLICY JUSTIFICATION Qatar—Spare C-17 Engines and Equipment

    The Government of Qatar has requested a possible sale of the following in support of its eight (8) C-17 Globemaster III aircraft procured under a Direct Commercial Sale (DCS): four (4) spare F117-PW-100 engines, Quick Engine Change (QEC) Kits, Engine Transport Trailers, Engine Platforms, Engine Trailers, and other various support. The estimated total program cost is $81 million.

    The proposed sale would contribute to the foreign policy and national security of the U.S. by helping to improve the security of an important regional ally. Qatar is a vital partner for political stability and economic progress in the Middle East. The C-17 provides a heavy airlift capability and complements the normal, day-to-day operations of Qatar's C-130J fleet. Qatar will have no difficulty absorbing this equipment into its armed forces.

    The proposed sale would enhance Qatar's ability to operate and maintain its C-17s, supporting its capability to provide humanitarian aid in the Middle East and Africa region and support its troops in coalition operations.

    The proposed sale of this equipment and support will not alter the basic military balance in the region.

    The prime contractor will be the Boeing Corporation of Chicago, Illinois. The U.S. Government is not aware of any known offsets associated with this sale. Any offset agreement will be defined in negotiations between the purchaser and the contractor.

    Implementation of this proposed sale will not alter current assignment of additional U.S. Government or contractor representatives to Qatar. The number of U.S. Government and contractor representatives required in Qatar to support the program will be determined in joint negotiations as the program proceeds through the development, production and equipment installation phases.

    There is no adverse impact on U.S. defense readiness as a result of this proposed sale. All defense articles and services listed in this transmittal are authorized for release and export to the Government of Qatar.

    [FR Doc. 2016-30143 Filed 12-14-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Transmittal No. 16-62] 36(b)(1) Arms Sales Notification AGENCY:

    Defense Security Cooperation Agency, Department of Defense.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.

    FOR FURTHER INFORMATION CONTACT:

    Pam Young, DSCA/SA&E-RAN, (703) 697-9107.

    The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 16-62 with attached Policy Justification and Sensitivity of Technology.

    Dated: December 12, 2016. Aaron Siegel, Alternate OSD <E T="04">Federal Register</E> Liaison Officer, Department of Defense. BILLING CODE 5001-06-P EN15DE16.002 BILLING CODE 5001-06-C Transmittal No. 16-62 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Arms Export Control Act, as amended

    (i) Prospective Purchaser: Government of Qatar

    (ii) Total Estimated Value:

    Major Defense Equipment (MDE)* $ 0 million Other $700 million Total $700 million

    (iii) Description and Quantity or Quantities of Articles or Services under Consideration for Purchase:

    Major Defense Equipment (MDE): None

    Non-MDE includes: Follow-on support for eight (8) C-17 aircraft, to include contract labor for sustainment engineering, on-site COMSEC support, Quality Assurance, support equipment repair, supply chain management, spares replenishment, maintenance, back shop support, and centralized maintenance support/associated services. Required upgrades will include fixed installation satellite antenna, Mode 5+ installation and sustainment, Automatic Dependent Surveillance-Broadcast Out, and two special operations loading ramps.

    (iv) Military Department: Air Force (QAI)

    (v) Prior Related Cases, if any: QA-D-QAB

    (vi) Sales Commission, Fee, etc., Paid, Offered, or Agreed to be Paid: None

    (vii) Sensitivity of Technology Contained in the Defense Article or Defense Services Proposed to be Sold: See Attached Annex

    (viii) Date Report Delivered to Congress: December 7, 2016

    * As defined in Section 47(6) of the Arms Export Control Act.

    POLICY JUSTIFICATION Qatar—Continuation of Logistics Support Services and Equipment

    The Government of Qatar has requested a possible sale of continued logistics support for eight (8) C-17 aircraft which will include contract labor for sustainment engineering, on-site COMSEC support, Quality Assurance, support equipment repair, supply chain management, spares replenishment, maintenance, back shop support, and centralized maintenance support/associated services. Required upgrades will include fixed installation satellite antenna, Mode 5+ installation and sustainment, Automatic Dependent Surveillance-Broadcast Out, and two special operations loading ramps. The estimated total cost is $700 million.

    The proposed sale contributes to the foreign policy and national security of the U.S. by helping to improve the security of an important regional ally. Qatar is a vital partner for political stability and economic progress in the Middle East. The C-17 provides a heavy airlift capability and complements the normal, day-to-day operations of the Government of Qatar's C-130J fleet. Qatar will have no difficulty absorbing this equipment into its armed forces.

    The proposed sale will enhance Qatar's ability to operate and maintain its C-17s, supporting its capability to provide humanitarian aid in the Middle East and Africa region and support its troops in coalition operations. Qatar's current contract supporting its C-17 fleet will expire in September of 2017.

    The proposed sale of this equipment and support will not alter the basic military balance in the region.

    The prime contractor will be the Boeing Corporation of Chicago, Illinois. The U.S. Government is not aware of any known offsets associated with this sale. Any offset agreement will be defined in negotiations between the purchaser and the contractor.

    Implementation of this sale will require the assignment of approximately five additional U.S. Government and approximately 50 contractor representatives to Qatar.

    There will be no adverse impact on U.S. defense readiness, as a result of this proposed sale.

    Transmittal No. 16-62 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) Of the Arms Export Control Act Annex A Item No. vii

    (vii) Sensitivity of Technology:

    1. This sale will involve the release of sensitive technology to Qatar in the performance of services to sustain eight (8) Qatar C-17 aircraft. While much of the below equipment supporting the C-17 is not new to the country, there will be replenishment spares of the below sensitive technologies purchased to support the fleet.

    2. The Force 524D is a 24-channel SAASM based Global Positioning System (GPS) receiver, with precise positioning service (PPS) capability built upon Trimble's next generation OPS technology. The Force 524D retains backward compatibility with the proven Force 5GS, while adding new functionality to interface with digital antenna electronics, to significantly improve anti-jam (AJ) performance. The host platform can select the radio frequency (RF) or digital antenna electronics (DAE) interface. In the digital mode, the Force 524D is capable of controlling up to 16 independent beams. The hardware and software associated with the 524D receiver card is UNCLASSIFIED.

    3. The C-17 aircraft will be equipped with the GAS-1, which is comprised of the Controlled Reception Pattern Antennas (CRPA), with the associated wiring harness and the Antenna Electronics (AE)-1, to provide AJ capability. The hardware is UNCLASSIFIED.

    4. The KIV-77 is the crypto applique for Mode V Identification Friend of Foe (IFF). The hardware is UNCLASSIFIED and COMSEC controlled.

    5. Software, hardware, and other data/information, which is classified or sensitive, is reviewed prior to release to protect system vulnerabilities, design data, and performance parameters. Some end-item hardware, software, and other data identified above are classified at the CONFIDENTIAL and SECRET level. Potential compromise of these systems is controlled through management of the basic software programs, of highly sensitive systems and software-controlled weapon systems, on a case-by-case basis.

    6. Qatar is both willing and able to protect United States classified military information. Qatari physical and document security standards are equivalent to U.S. standards. Qatar has demonstrated its willingness and capability to protect sensitive military technology and information released to its military in the past.

    7. If a technologically advanced adversary were to obtain knowledge of the specific hardware or software source code in this proposed sale, the information could be used to develop countermeasures, which might reduce weapon system effectiveness or be used in the development of systems with similar or advanced capabilities. The benefits to be derived from this sale in the furtherance of the U.S. foreign policy and national security objectives, as outlined in the Policy Justification, outweigh the potential damage that could result if the sensitive technology, where revealed to unauthorized persons.

    8. All defense articles and services listed in this transmittal are authorized for release and export to the Government of Qatar.

    [FR Doc. 2016-30159 Filed 12-14-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2016-ICCD-0140] Agency Information Collection Activities; Comment Request; Teacher Verification Form for Title II Scholarship Recipients AGENCY:

    Department of Education (ED), Office of Postsecondary Education (OPE).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before February 13, 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-0140. 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 Karen Wilson, 202-453-6186.

    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: Teacher Verification Form for Title II Scholarship Recipients.

    OMB Control Number: 1840-0753.

    Type of Review: A revision of an existing information collection.

    Respondents/Affected Public: Individuals or Households.

    Total Estimated Number of Annual Responses: 1,000.

    Total Estimated Number of Annual Burden Hours: 1,000.

    Abstract: In order to implement the requirements of the statute, confidential information on scholarship recipients will be collected. Specifically, the institution of higher education (IHE) will report to ED the name, address, social security number, and date of birth for each recipient at the time a scholarship award is made. These data will be used to track students after the completion of their studies (or withdrawal from the program) to ascertain whether they are fulfilling the teaching requirement of their award.

    Any data that is required and maintained by ED itself will be maintained in accordance with the Privacy Act of 1974, as amended. To assure that sensitive data about scholarship recipients are not compromised, all data—whether submitted electronically or as hard copy—will be maintained in a secure location. Access to these data will be limited only to staff who are directly responsible for working with the Teacher Quality Enhancement (TQE) Program and this information is only available onsite at the TQE office via desktop computer.

    As noted in the Privacy Act of 1974 (5 U.S.C. 552a), the authority for collecting the requested information from and about TQE scholarship recipients is Title II, Section 204(e) of the Higher Education Act of 1965, as amended, and 31 U.S.C. Chapter 37. IHE students are advised that participation in the Teacher Quality Enhancement Grants scholarship program is voluntary and that giving the Department their Social Security Numbers (SSNs) is voluntary, but they must provide the requested information, including their SSNs, to participate. The information will be used to ensure that recipients of scholarships provided with funds under Title II of the Higher Education Act subsequently: (1) Complete a teacher education program and teach in a high-need school of a high-need local educational agency for a period of time equivalent to the period for which the recipient received scholarship assistance; or (2) repay the amount of the scholarship. The information in students' records may be disclosed to third parties as authorized under routine uses in the appropriate systems of records, either on a case-by-case basis, or, if the Department has complied with the computer matching requirements of the Privacy Act, under a computer matching agreement.

    Dated: December 12, 2016. Kate Mullan, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2016-30097 Filed 12-14-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION Applications for New Awards; Education Innovation and Research Program—Expansion Grants AGENCY:

    Office of Innovation and Improvement, Department of Education.

    ACTION:

    Notice.

    Overview Information

    Education Innovation and Research Program—Expansion Grants.

    Notice inviting applications for new awards for fiscal year (FY) 2017.

    Catalog of Federal Domestic Assistance (CFDA) Number: 84.411A (Expansion Grants).

    Dates:

    Applications Available: December 19, 2016.

    Deadline for Notice of Intent to Apply: February 13, 2017.

    Deadline for Transmittal of Applications: April 13, 2017.

    Deadline for Intergovernmental Review: June 13, 2017.

    Full Text of Announcement I. Funding Opportunity Description

    Purpose of Program: The Education Innovation and Research (EIR) Program, established under section 4611 of the Elementary and Secondary Education Act (ESEA), as amended by Every Student Succeeds Act (ESSA), provides funding to create, develop, implement, replicate, or take to scale entrepreneurial, evidence-based, field-initiated innovations to improve student achievement (as defined in this notice) and attainment for high-need students (as defined in this notice); and rigorously evaluate such innovations. The EIR program is designed to generate and validate solutions to persistent educational challenges and to support the expansion of effective solutions to serve substantially larger numbers of students.

    The central design element of the EIR program is its multi-tier structure that links the amount of funding that an applicant may receive to the quality of the evidence supporting the efficacy of the proposed project, with the expectation that projects that build this evidence will advance through EIR's grant tiers. Applicants proposing innovative practices (as defined in this notice) that are supported by limited evidence can receive relatively small grants to support the development, iteration and initial evaluation of the practices; applicants proposing practices supported by evidence from rigorous evaluations, such as large randomized controlled trials (as defined in this notice), can receive larger grant awards to support expansion across the country. This structure provides incentives for applicants to: (1) Explore new ways of addressing persistent challenges that other educators can build on and learn from; (2) build evidence of effectiveness of their practices; and (3) replicate and scale successful practices in new schools, districts, and states while addressing the barriers to scale, such as cost structures and implementation fidelity.

    All EIR projects are expected to generate information regarding their effectiveness in order to inform EIR grantees' efforts to learn about and improve upon their efforts, and to help similar, non-EIR efforts across the country benefit from EIR grantees' knowledge. By requiring that all grantees conduct independent evaluations of their EIR projects, EIR ensures that its funded projects make a significant contribution to improving the quality and quantity of information available to practitioners and policymakers about which practices improve student achievement, for which types of students, and in what contexts.

    The Department of Education (Department) awards three types of grants under this program: “Early-phase” grants, “Mid-phase” grants, and “Expansion” grants. These grants differ in terms of the level of prior evidence of effectiveness required for consideration for funding, the expectations regarding the kind of evidence and information funded projects should produce, the level of scale that funded projects should reach, and, consequently, the amount of funding available to support each type of project.

    Expansion grants provide funding for grantees to scale projects that are supported by strong evidence (as defined in this notice) for at least one population and setting and thus are ready to be implemented at the national level (as defined in this notice). This notice invites applications for Expansion grants only. The notices inviting applications for Early-phase and Mid-phase grants are published elsewhere in this issue of the Federal Register.

    Background: EIR builds on seven years of investments—over $1.4 billion, matched by over $200 million in private sector resources—from the Department's Investing in Innovation (i3). i3 has generated new information regarding effective educational practices and increased evaluators' capacity to conduct rigorous evaluations of student learning outcomes that provide actionable information for educators. EIR is designed expand on the successes of i3 to offer new opportunities for States, districts, schools, and educators to develop innovations and scale effective practices that address their most pressing challenges.

    EIR Expansion grants are expected to scale practices that have prior evidence of effectiveness, in order to improve outcomes for high-need students. They should also be expected to generate important information about educational practices (e.g., in what contexts does the practice work best? Where does it not work as well? What components of the practice are most critical to its success?). Expansion grants are uniquely positioned to help answer critical questions about the process of scaling a practice across geographies (e.g., how does or should the cost structure of a practice change as it scales? What are ways to facilitate implementation fidelity without making scaling too onerous?). Given that Expansion grants (as with all EIR grants) focus on improving outcomes for high-need students, they are a critical resource for practitioners and policymakers in addressing educational disparities across the nation. Identifying and describing the core elements of the EIR-supported practices is a basic expectation for all Expansion grantees, in order to support adoption or replication by other entities. Evaluations of Expansion grants must be conducted in a variety of contexts and for a variety of students in order to determine the context(s) and population(s) for which the EIR-supported practice is most effective and how to effectively adapt the practice for these contexts and populations. An Expansion grantee's EIR-supported evaluation must examine the cost effectiveness of its practices and identify potential obstacles and success factors to scaling that would be relevant to other organizations. We expect that Expansion grantees will work toward sustaining their projects and continuing to scale successful practices after the EIR grant period ends; EIR grantees can use their evaluations to assess how their EIR-funded practices could be successfully reproduced and sustained.

    The FY 2017 EIR Expansion competition includes two absolute priorities that all applicants must address. Applicants must propose practices with strong evidence of prior effectiveness that are designed to improve student achievement and attainment in areas of critical national need and, in doing so, to serve high-need students. Given the recent increase in rigorous education research that is relevant to education practitioners,1 and ESSA's focus on building and utilizing evidence-based practices, the Department includes these broad priorities to ensure that EIR takes to scale interventions supported by rigorous evidence, and that these interventions target the most pressing challenges and the students most at risk.

    1 Kantrowitz, Barbara, (2014). “Scientists Bring New Rigor to Education Research.” Scientific American, July 15, 2014, www.scientificamerican.com/article/scientists-bring-new-rigor-to-education-research/.

    Priorities: This competition includes two absolute priorities. Absolute Priority 1 is from the Department's notice of final supplemental priorities and definitions for discretionary grant programs, published in the Federal Register on December 10, 2014 (79 FR 73425) (Supplemental Priorities). We are establishing Absolute Priority 2 in accordance with section 437(d)(1) of the General Education Provisions Act (GEPA), 20 U.S.C. 1232(d)(1). These absolute priorities will apply to the FY 2017 EIR Expansion competition and any subsequent year in which we make awards from the list of unfunded applicants from this competition.

    Absolute Priorities: These priorities are absolute priorities. Under 34 CFR 75.105(c)(3) we consider only applications that meet both of these priorities.

    These priorities are:

    Absolute Priority 1—Supporting High-Need Students.

    Under this priority, we provide funding to projects that are designed to improve academic outcomes for high-need students.

    Absolute Priority 2—Evidence-Driven Practices

    Under the priority, we provide funding to projects that meet the evidence standard established in Section III.3. for this competition and are designed to improve student achievement and attainment in areas of critical national need.

    Definitions

    The definitions of “national level,” and “nonprofit,” are from 34 CFR 77.1. The definitions for “high-need students” and “regular high school diploma” are from the Supplemental Priorities. The definitions of “local educational agency” and “state educational agency” are from Section 8101 of the ESEA, as reauthorized by ESSA. We are establishing the definitions for “experimental study” “high-minority school,” “independent evaluation,” “large sample,” “logic model,” “meets What Works Clearinghouse Evidence Standards without reservations,” “meets What Works Clearinghouse Standards with reservations,” “multi-site sample,” “practice,” “randomized controlled trial,” “regression discontinuity design study,” “relevant finding,” “relevant outcome,” “rural local educational agencies,” “single-case design study,” “strong evidence,” and “student achievement” for the FY 2017 grant competition only, in accordance with section 437(d)(1) of GEPA, 20 U.S.C. 1232(d)(1).

    Experimental study means a study, such as a randomized controlled trial (RCT) (as defined in this notice), that is designed to compare outcomes between two groups of individuals that are otherwise equivalent except for their assignment to either a treatment group receiving a practice or a control group that does not. In some circumstances, a finding from a regression discontinuity design study (RDD) (as defined in this notice) or findings from a collection of single-case design studies (SCDs) (as defined in this notice) may be considered equivalent to a finding from an RCT. RCTs and RDDs, and collections of SCDs, depending on design and implementation, can Meet What Works Clearinghouse Evidence Standards without reservations (as defined in this notice).

    High-minority school means a school as that term is defined by a local educational agency (LEA) (as defined in this notice), which must define the term in a manner consistent with its State's Teacher Equity Plan, as required by section 1111(g)(1)(B) of the Elementary and Secondary Education Act (ESEA), as amended by Every Student Succeeds Act (ESSA). The applicant must provide the definition(s) of high-minority schools used in its application.

    High-need students means students who are at risk for educational failure or otherwise in need of special assistance and support, such as students who are living in poverty, who attend high-minority schools (as defined in this notice), who are far below grade level, who have left school before receiving a regular high school diploma (as defined in this notice), who are at risk of not graduating with a diploma on time, who are homeless, who are in foster care, who have been incarcerated, who have disabilities, or who are English learners.

    Independent evaluation means that the evaluation is designed and carried out independent of, but in coordination with, any employees of the entities who develop a practice and are implementing it.

    Large sample means an analytic sample of 350 or more students (or other single analysis units), or 50 or more groups (such as classrooms or schools) that each contain, on average, 10 or more students (or other single analysis units, regardless of whether these single analysis units are disaggregated in the analysis of outcomes for the groups). Multiple studies can cumulatively be used to meet the multi-site sample (as defined in this notice) and large sample requirements of strong evidence, as long as each study meets the other requirements of the particular level of evidence (i.e., strong evidence).

    Local educational agency means:

    (a) A public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or of or for a combination of school districts or counties that is recognized in a State as an administrative agency for its public elementary schools or secondary schools.

    (b) Administrative Control and Direction. The term includes any other public institution or agency having administrative control and direction of a public elementary school or secondary school.

    (c) Bureau of Indian Education Schools. The term includes an elementary school or secondary school funded by the Bureau of Indian Education but only to the extent that including the school makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the local educational agency receiving assistance under this Act with the smallest student population, except that the school shall not be subject to the jurisdiction of any State educational agency (as defined in this notice) other than the Bureau of Indian Education.

    (d) Educational Service Agencies. The term includes educational service agencies and consortia of those agencies.

    (e) State Educational Agency. The term includes the State educational agency in a State in which the State educational agency is the sole educational agency for all public schools.

    Logic model (also known as a theory of action) means a reasonable conceptual framework that identifies key components of the proposed project (i.e., the active “ingredients” that are hypothesized to be critical to achieving the relevant outcomes (as defined in this notice)) and describes the theoretical and operational relationships among the key components and outcomes.

    Meets What Works Clearinghouse Evidence Standards without reservations is the highest possible rating for a study finding reviewed by the What Works Clearinghouse (WWC). Studies receiving this rating provide the highest degree of confidence that an estimated effect was caused by the practice studied. Experimental studies (as defined in this notice) may receive this highest rating. These standards are described in the WWC Procedures and Standards Handbooks, Version 3.0, which can be accessed at http://ies.ed.gov/ncee/wwc/Handbooks.

    Meets What Works Clearinghouse Evidence Standards with reservations is the second-highest rating for a study finding reviewed by the What Works Clearinghouse (WWC). Studies receiving this rating provide a reasonable degree of confidence that an estimated effect was caused by the practice studied. Both experimental studies (as defined in this notice) (such as randomized controlled trials with high rates of sample attrition) and quasi-experimental design studies (as defined in this notice) may receive this rating if they establish the equivalence of the treatment and comparison groups in key baseline characteristics. These standards are described in the WWC Procedures and Standards Handbooks, Version 3.0, which can be accessed at http://ies.ed.gov/ncee/wwc/Handbooks.

    Multi-site sample means more than one site, where site can be defined as an LEA, locality, or State. A sample could be multi-site if it includes campuses in two or more localities (e.g., cities or counties), even if the campuses all belong to the same LEA or the same postsecondary school system. Multiple studies can cumulatively be used to meet the multi-site sample and the large sample (as defined in this notice) requirements of strong evidence, as long as each study meets the other requirements for strong evidence.

    National level describes the level of scope or effectiveness of a process, product, strategy, or practice that is able to be effective in a wide variety of communities, including rural and urban areas, as well as with different groups (e.g., economically disadvantaged, racial and ethnic groups, migrant populations, individuals with disabilities, English learners, and individuals of each gender).

    Nonprofit, as applied to an agency, organization, or institution, means that it is owned and operated by one or more corporations or associations whose net earnings do not benefit, and cannot lawfully benefit, any private shareholder or entity.

    Practice means an activity, strategy, or intervention included in a project. Evidence may pertain to an individual practice, or to a combination of practices (e.g., training teachers on instructional practices for English learners and follow-on coaching for these teachers).

    Randomized controlled trial (RCT) means a study that employs random assignment of, for example, students, teachers, classrooms, or schools to receive the practice being evaluated (the treatment group) or not to receive the practice (the control group). The estimated effectiveness of the practice is the difference between the average outcomes for the treatment group and for the control group. These studies, depending on design and implementation, can Meet What Works Clearinghouse Evidence Standards without reservations.

    Regression discontinuity design study (RDD) means a study that assigns the practice being evaluated using a measured variable (e.g., assigning students reading below a cutoff score to tutoring or developmental education classes) and controls for that variable in the analysis of outcomes. The effectiveness of the practice is estimated for individuals who barely qualify to receive that component. These studies, depending on design and implementation, can Meet What Works Clearinghouse Evidence Standards without reservations.

    Regular high school diploma means the standard high school diploma that is awarded to students in the State and that is fully aligned with the State's academic content standards or a higher diploma and does not include a General Education Development (GED) credential, certificate of attendance, or any alternative award.

    Relevant finding means a finding from a study regarding the relationship between (a) an activity, strategy, or intervention included as a practice of the logic model (as defined in this notice) for the proposed project, and (b) a student outcome or other relevant outcome included in the logic model for the proposed project.

    Relevant outcome means the student outcome(s) (or the ultimate outcome if not related to students) the proposed practice is designed to improve; consistent with the specific goals of a program.

    Rural local educational agencies means local educational agencies with an urban-centric district locale code of 32, 33, 41, 42, or 43, which can be found at the following link: https://nces.ed.gov/ccd/ccdLocaleCodeDistrict.asp.

    Single-case design study (SCD) means a study that use observations of a single case (e.g., a student eligible for a behavioral intervention) over time in the absence and presence of a controlled treatment manipulation to determine whether the outcome is systematically related to the treatment. According to the What Works Clearinghouse Single Case Design Pilot Standards, a collection of these studies, depending on design and implementation (e.g., including a sufficient number of cases and of data points per condition), can Meet What Works Clearinghouse Evidence Standards without reservations.

    State educational agency means the agency primarily responsible for the State supervision of public elementary schools and secondary schools.

    Strong evidence means the following conditions are met: (a) There is at least one experimental study (e.g., a randomized controlled trial) of the effectiveness of the practice that has a relevant finding (as defined in this notice) that Meets What Works Clearinghouse Evidence Standards without reservations (as defined in this notice) (e.g., a randomized controlled trial with low rates of sample attrition overall and between the treatment and control groups); (b) the relevant finding in the study described in paragraph (a) is of a statistically significant and positive (i.e., favorable) effect on a student outcome or other relevant outcome, with no statistically significant and overriding negative (i.e., unfavorable) evidence on that practice from other findings on the intervention reviewed by and reported on the What Works Clearinghouse that Meet What Works Clearinghouse Evidence Standards with or without reservations; (c) the relevant finding in the study described in paragraph (a) is based on a sample that overlaps with the populations (e.g., the types of student served) and settings proposed to receive the practice (e.g., an after-school program both studied in, and proposed for, urban high schools); and (d) the relevant finding in the study described in paragraph (a) is based on a large sample and a multi-site sample.

    Student achievement means—

    For grades and subjects in which assessments are required under section 1111(b)(2) of Elementary and Secondary Education Act (ESEA), as amended by Every Student Succeeds Act (ESSA): (1) A student's score on such assessments; and, as appropriate (2) other measures of student learning, such as those described in the subsequent paragraph, provided that they are rigorous and comparable across schools with a local educational agency (LEA).

    For grades and subjects in which assessments are not required under section 1111(b)(2) of ESEA, as amended by ESSA: (1) Alternative measures of student learning and performance, such as student results on pre-tests, end-of-course tests, and objective performance-based assessments; (2) students learning objectives; (3) student performance on English language proficiency assessments; and (4) other measures of student achievement that are rigorous and comparable across schools within an LEA.

    Waiver of Proposed Rulemaking: Under the Administrative Procedure Act (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed priorities, definitions, and other requirements. Section 437(d)(1) of GEPA, however, allows the Secretary to exempt from rulemaking requirements, regulations governing the first grant competition under a new or substantially revised program authority. This is the first grant competition for the EIR program under 20 U.S.C. 1138-1138d and therefore qualifies for this exemption. In order to ensure timely grant awards, the Secretary has decided to forego public comment on the priorities, definitions, and requirements under section 437(d)(1) of GEPA. These priorities, definitions, and requirements will apply to the FY 2017 grant competition only.

    Program Authority: Section 4611 of the ESEA, as amended by P.L. 114-95 ESSA.

    Applicable Regulations: (a) The Education Department General Administrative Regulations (EDGAR) in 34 CFR parts 75, 77, 79, 81, 82, 84, 86, 97, 98, and 99. (b) The OMB 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 Supplemental Priorities.

    Note:

    The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.

    Note:

    The regulations in 34 CFR part 86 apply to institutions of higher education only.

    II. Award Information

    Type of Award: Cooperative agreements.

    Estimated Available Funds: The Administration has requested $180,000,000 for new awards for this program for FY 2017, of which approximately $141,000,000 would be used, in total, for new awards under the Early-phase, Mid-phase, and Expansion competitions. 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 subsequent years from the list of unfunded applications from this competition.

    Estimated Range of Awards:

    Early-phase grants: $700,000-$800,000 per year.

    Mid-phase grants: $1,400,000-$1,600,000 per year.

    Expansion grants: $2,750,000-$3,000,000 per year.

    Estimated Average Size of Awards:

    Early-phase grants: $3,750,000 for the entirety of the project period.

    Mid-phase grants: $7,750,000 for the entirety of the project period.

    Expansion grants: $14,500,000 for the entirety of the project period.

    Estimated Number of Awards:

    Early-phase grants: 24-38 awards.

    Mid-phase grants: 15-20 awards.

    Expansion grants: 3-5 awards.

    Maximum Awards:

    Early-phase grants: $4,000,000 for the entirety of the project period.

    Mid-phase grants: $8,000,000 for the entirety of the project period.

    Expansion grants: $15,000,000 for the entirety of the project period.

    Project Period: Up to 60 months.

    Under section 4611(c) of the ESEA, as amended by ESSA, the Department must use at least 25 percent of EIR funds for a fiscal year to make awards to applicants serving rural areas, contingent on receipt of a sufficient number of applications of sufficient quality. For purposes of this competition, we will consider an applicant as rural if the applicant meets the qualifications for rural applicants as described in the eligible applicants section and the applicant certifies that it meets those qualifications through the application.

    In implementing this statutory provision, the Department may fund high-quality applications from rural applicants out of rank order in one or more of the EIR competitions.

    Note:

    The Department is not bound by any estimates in this notice.

    III. Eligibility Information

    1. Eligible Applicants:

    (a) An LEA;

    (b) A State educational agency;

    (c) The Bureau of Indian Education;

    (d) A consortium of State educational agencies or LEAs;

    (e) A nonprofit (as defined in this notice) organization; and

    (f) A State educational agency, an LEA, a consortium described in (d), or the Bureau of Indian Education, in partnership with—

    (1) A nonprofit organization;

    (2) A business;

    (3) An educational service agency; or

    (4) An institution of higher education.

    To qualify as a rural applicant under the EIR program, an applicant must meet both of the following requirements:

    (a) The applicant is—

    (1) An LEA with an urban-centric district locale code of 32, 33, 41, 42, or 43, as determined by the Secretary;

    (2) A consortium of such LEAs;

    (3) An educational service agency or a nonprofit organization in partnership with such an LEA; or

    (4) A grantee described in clause (1) or (2) in partnership with a State educational agency; and

    (b) A majority of the schools to be served by the program are designated with a locale code of 32, 33, 41, 42, or 43, or a combination of such codes, as determined by the Secretary.

    More information on rural applicant eligibility is in the application package.

    2. a. Cost Sharing or Matching: Under section 4611 of the ESEA, as amended by ESSA, each grant recipient must provide, from Federal, State, local, or private sources, an amount equal to 10 percent of funds provided under the grant, which may be provided in cash or through in-kind contributions, to carry out activities supported by the grant. Grantees must include a budget showing their matching contributions on an annual basis relative to the annual budget amount of EIR grant funds and must provide evidence that they have secured their matching contributions for the first year of the grant in their grant applications. Section 4611 of the ESEA, as amended by ESSA also authorizes the Secretary to waive this matching requirement on a case-by-case basis, upon a showing of exceptional circumstances, such as:

    (a) The difficulty of raising matching funds for a program to serve a rural area;

    (b) The difficulty of raising matching funds in areas with a concentration of LEAs or schools with a high percentage of students aged 5 through 17—

    (1) Who are in poverty, as counted in the most recent census data approved by the Secretary;

    (2) Who are eligible for a free or reduced price lunch under the Richard B. Russell National School Lunch Act (42 U.S.C. 1751 et seq.);

    (3) Whose families receive assistance under the State program funded under part A of title IV of the Social Security Act (42 U.S.C. 601 et seq.); or

    (4) Who are eligible to receive medical assistance under the Medicaid program; and

    (c) The difficulty of raising funds on tribal land.

    Applicants that wish to apply for a waiver must include a request in their application that describes why the matching requirement would cause serious hardship or an inability to carry out project activities. Further information about applying for waivers can be found in the application package. However, given the importance of matching funds to the long-term success of the project, the Secretary expects eligible entities to identify appropriate matching funds.

    3. Other: The Secretary establishes the following requirements for the EIR program.

    Innovations that Serve Kindergarten-through-Grade-12 (K-12) Students: All grantees must implement practices that serve students who are in grades K-12 at some point during the funding period. To meet this requirement, projects that serve early learners (i.e., infants, toddlers, or preschoolers) must provide services or supports that extend into kindergarten or later years, and projects that serve postsecondary students must provide services or supports during the secondary grades or earlier.

    Evidence Standards: To be eligible for an award, an application for an Expansion grant must be supported by strong evidence (as defined in this notice) for at least one population and setting.

    Note:

    An applicant must identify up to four study citations to be reviewed against WWC Evidence Standards for the purposes of meeting the EIR evidence standard requirement. An applicant should clearly identify these citations in the Evidence form. The Department will not review a study citation that an applicant fails to clearly identify for review. In addition to including up to four study citations, applicants must include a description of: (1) The positive student outcomes they intend to replicate under their Expansion grant and how the positive student outcomes correspond with the high-need students to be served under the Expansion grant; (2) the practice(s) the applicant plans to implement; and (3) the intended student outcomes that the practices(s) attempts to impact in the form.

    An applicant must ensure that all evidence is available to the Department from publicly available sources and provide links or other guidance indicating where it is available. If the Department determines that an applicant has provided insufficient information, the applicant will not have an opportunity to provide additional information at a later time. However, if the WWC determines that a study does not provide enough information on key aspects of the study design, such as sample attrition or equivalence of intervention and comparison groups, the WWC will submit a query to the study author(s) to gather information for use in determining a study rating. Authors are asked to respond to queries within 10 business days. Should the author query remain incomplete within 14 days of the initial contact to the study author(s), the study will be deemed ineligible under the grant competition. After the grant competition closes, the WWC will continue to include responses to author queries and will make updates to study reviews as necessary. However, the competition can only take into account information that is available at the time the competition is open.

    Note:

    The evidence standards apply to the prior research that supports the effectiveness of the proposed project. The EIR program does not restrict the source of prior research providing evidence for the proposed project. As such, an applicant could cite prior research in the Evidence form for studies that were conducted by another entity (i.e., an entity that is not the applicant) so long as the prior research studies cited in the application are relevant to the effectiveness of the proposed project.

    Funding Categories: An applicant will be considered for an award only for the type of EIR grant (i.e., Early-phase, Mid-Phase, and Expansion grant) for which it applies. An applicant may not submit an application for the same proposed project under more than one type of grant.

    Note:

    Each application will be reviewed under the competition it was submitted under in the Grants.gov system, and only applications that are successfully submitted by the established deadline will be peer reviewed. Applicants should be careful that they download the intended EIR application package and that they submit their applications under the intended EIR competition.

    Limit on Grant Awards: No grantee may receive in a single year new EIR grant awards that total an amount greater than the sum of the maximum amount of funds for an Expansion grant and the maximum amount of funds for an Early-phase grant for that year. For example, in a year when the maximum award value for an Expansion grant is $15 million and the maximum award value for an Early-phase grant is $4 million, no grantee may receive in a single year new grants totaling more than $19 million.

    Partnerships: An applicant must demonstrate sufficient partnerships with schools/LEA(s) by identifying in the application implementation schools/LEA(s) for years 1 and 2 of the grant project.

    Evaluation: The grantee must conduct an independent evaluation (as defined in this notice) of its project. This evaluation must estimate the impact of the EIR-supported practice (as implemented at the proposed level of scale) on a relevant outcome. An Expansion grantee's evaluation must examine the cost effectiveness of its practices and identify potential obstacles and success factors to scaling such practices, including those that would be relevant to other organizations.

    In addition, the grantee and its independent evaluator must agree to cooperate with any technical assistance provided by the Department or its contractor and comply with the requirements of any evaluation of the program conducted by the Department. This includes providing to the Department or its contractor, an updated comprehensive evaluation plan in a format and using such tools as the Department may require, as outlined in the Cooperative Agreement. Expansion grantees' evaluations plans must include a description of how they intend to assess the scaling strategy in addition to measuring impact of the practice. Grantees must update this evaluation plan at least annually to reflect any changes to the evaluation. All of these updates must be consistent with the scope and objectives of the approved application.

    Public Availability of Data and Results: Applications under Expansion grants must include a Data Management Plan (DMP); the DMP should be no more than five pages in Appendix C that describes the applicant's plans for making the final research data from the proposed project accessible to others. Resources that may be of interest to researchers in developing a data management plan can be found at http://ies.ed.gov/funding/researchaccess.asp. DMPs are expected to differ depending on the nature of the project and the data collected. By addressing the items identified below, your DMP describes how you will share data under the DMP you are required to include in your application. The DMP should include the following:

    (a) Type of data to be shared;

    (b) Procedures for managing and for maintaining the confidentiality of personally identifiable information;

    (c) Roles and responsibilities of project or institutional staff in the management and retention of research data, including a discussion of any changes to the roles and responsibilities that will occur should the Project Director/Principal Investigator and/or co-Project Directors/co-Principal Investigators leave the project or their institution;

    (d) Expected schedule for data access, including how long the data will remain accessible (at least 10 years unless a shorter period of time is required to comply with applicable Federal or State laws or agreements promulgated to ensure compliance with such laws in which the destruction of records or personal information is required within a shorter period of time) and acknowledgement that the timeframe of data accessibility will be reviewed at the annual progress reviews and revised as necessary;

    (e) Format of the final dataset;

    (f) Dataset documentation to be provided;

    (g) Method of data access (e.g., provided by the Project Director/Principal Investigator, through a data archive) and how those interested in using the data can locate and access them;

    (h) Whether or not a data agreement that specifies conditions under which the data will be shared will be required; and

    (i) Any circumstances that prevent all or some of the data from being made accessible. This includes data that may fall under multiple statutes and, hence, must meet the confidentiality requirements for each applicable statute (e.g., data covered by Common Rule for Protection of Human Subjects, Family Educational Rights and Privacy Act (FERPA), and Health Insurance Portability and Accountability Act (HIPAA)).

    The costs of the DMP can be covered by the grant and should be included in the budget and explained in the budget narrative. The peer-review process will not include the DMP in the scoring of the application. The EIR team will be responsible for reviewing the completeness of the proposed DMP and will work with EIR grantees to finalize the DMP once the grant is awarded.

    Recipients of awards are expected to publish or otherwise make publicly available the results of the work supported through EIR, including the evaluation report. EIR grantees must submit final studies resulting from research supported in whole or in part by EIR to the Educational Resources Information Center (ERIC), http://eric.ed.gov.

    Scaling: Expansion grants must scale the project to a national level and include new contexts and populations for implementation. Scaling targets should be established for the number of students to be served for the total project period as well as the target number of students to be served each year of the project. Expansion grants must also include their scaling strategy as a component of the evaluation plan for the grant. Given that all EIR grantees are required to report on the performance measure regarding the target number of students served by the grant, applicants should propose scaling targets that represent reasonable costs per student for the grant.

    Management Plan: An EIR grantee must provide an updated comprehensive management plan for the approved project in a format and using such tools as the Department may require, as outlined in the Cooperative Agreement. This management plan must include detailed information about implementation of the first year of the grant, including key milestones, staffing details, and other information that the Department may require. It must also include a complete list of performance metrics, including baseline measures and annual targets. The grantee must update this management plan at least annually to reflect implementation of subsequent years of the project.

    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: http://innovation.ed.gov/what-we-do/innovation/education-innovation-and-research-eir/. 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 program or competition as follows: CFDA number 84.411A.

    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.a. 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. Notice of Intent to Apply: February 13, 2017.

    We will be able to develop a more efficient process for reviewing grant applications if we know the approximate number of applicants that intend to apply for funding under this competition. Therefore, the Secretary strongly encourages each potential applicant to notify us of the applicant's intent to submit an application by completing a Web-based form. When completing this form, applicants will provide (1) the applicant organization's name and address and (2) the absolute priority the applicant intends to address. Applicants may access this form online at https://www.surveymonkey.com/r/GRZ5RDW. Applicants that do not complete this form may still submit an application. Pre-Application: The EIR program intends to hold Webinars and/or meetings designed to provide technical assistance to interested applicants for all three types of grants. Detailed information regarding these Webinars and/or meetings will be provided on the EIR Web site at http://innovation.ed.gov/what-we-do/innovation/education-innovation-and-research-eir/.

    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. Applicants should limit the application narrative for an Expansion grant application 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, references, and captions.

    • Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).

    • Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.

    The page limit does 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 one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative.

    b. Submission of Proprietary Information: Given the types of projects that may be proposed in applications for the Expansion competition, your application may include business information that you consider proprietary. In 34 CFR 5.11 we define “business information” and describe the process we use in determining whether any of that information is proprietary and, thus, protected from disclosure under Exemption 4 of the Freedom of Information Act (5 U.S.C. 552, as amended).

    We plan on posting the project narrative section of funded EIR applications on the Department's Web site. Accordingly, you may wish to request confidentiality of business information. Identifying proprietary information in the submitted application will help facilitate this public disclosure process.

    Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).

    3. Submission Dates and Times:

    Applications Available: December 19, 2016.

    Deadline for Notice of Intent to Apply: February 13, 2017.

    Pre-Application Webinars and/or Meetings: The EIR program intends to hold Webinars and/or meetings designed to provide technical assistance to interested applicants for all three types of grants. Detailed information regarding these Webinars and/or meetings will be provided on the EIR Web site at http://innovation.ed.gov/what-we-do/innovation/education-innovation-and-research-eir/.

    Deadline for Transmittal of Applications: April 13, 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: June 13, 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 program 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 EIR Program, CFDA number 84.411A, 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 EIR Expansion 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 84.411, not 84.411A).

    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 Portable Document Format (PDF). Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only 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.

    • 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: Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W312, Washington, DC 20202-5900. FAX: (202) 401-4123.

    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 84.411A), 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 84.411A),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 the Expansion competition are from 34 CFR 75.210.

    The points assigned to each criterion are indicated in the parentheses next to the criterion. An applicant may earn up to a total of 100 points based on the selection criteria for the application.

    A. Significance (Up to 10 Points)

    In determining the significance of the project, the Secretary considers the following factors:

    (1) The magnitude or severity of the problem to be addressed by the proposed project.

    (2) The national significance of the proposed project.

    (3) The extent to which the proposed project represents an exceptional approach to the priority or priorities established for the competition.

    B. Strategy to Scale (Up to 35 Points)

    In determining the applicant's capacity to scale the proposed project, the Secretary considers the following factors:

    (1) The extent to which the applicant demonstrates there is unmet demand for the process, product, strategy, or practice that will enable the applicant to reach the level of scale that is proposed in the application.

    (2) The extent to which the applicant identifies a specific strategy or strategies that address a particular barrier or barriers that prevented the applicant, in the past, from reaching the level of scale that is proposed in the application.

    (3) The extent to which the results of the proposed project are to be disseminated in ways that will enable others to use the information or strategies.

    C. Quality of the Project Design and Management Plan (Up to 35 Points)

    In determining the quality of the proposed project design, the Secretary considers the following factors:

    (1) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.

    (2) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.

    (3) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project.

    (4) The extent to which the applicant demonstrates that it has the resources to operate the project beyond the length of the grant, including a multi-year financial and operating model and accompanying plan; the demonstrated commitment of any partners; evidence of broad support from stakeholders (e.g., State educational agencies, teachers' unions) critical to the project's long-term success; or more than one of these types of evidence.

    D. Quality of the Project Evaluation (Up to 20 Points)

    In determining the quality of the project evaluation to be conducted, the Secretary considers the following factors:

    (1) The extent to which the methods of evaluation will, if well implemented, produce evidence about the project's effectiveness that would meet the What Works Clearinghouse Evidence Standards without reservations.

    (2) The extent to which the evaluation will provide guidance about effective strategies suitable for replication or testing in other settings.

    (3) The extent to which the methods of evaluation will provide valid and reliable performance data on relevant outcomes.

    (4) The extent to which the evaluation plan clearly articulates the key components, mediators, and outcomes of the grant-supported intervention, as well as a measurable threshold for acceptable implementation.

    Note:

    Applicants may wish to review the following technical assistance resources on evaluation: (1) WWC Procedures and Standards Handbook: http://ies.ed.gov/ncee/wwc/references/idocviewer/doc.aspx?docid=19&tocid=1; and (2) “Technical Assistance Materials for Conducting Rigorous Impact Evaluations” to the list of evaluation resources: http://ies.ed.gov/ncee/projects/evaluationTA.asp; and (3) IES/NCEE Technical Methods papers: http://ies.ed.gov/ncee/tech_methods/. In addition, applicants may view two optional Webinar recordings that were hosted by the Institute of Education Sciences. One Webinar focused on more rigorous evaluation designs, discussing strategies for designing and executing studies that meet WWC evidence standards without reservations. This Webinar is available at: http://ies.ed.gov/ncee/wwc/Multimedia.aspx?sid=18.

    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 compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.

    Before making awards, we will screen applications submitted in accordance with the requirements in this notice to determine whether applications have met eligibility and other requirements. This screening process may occur at various stages of the process; applicants that are determined to be ineligible will not receive a grant, regardless of peer reviewer scores or comments.

    Peer reviewers will read, prepare a written evaluation of, and score the assigned applications, using the selection criteria provided in this notice. For Expansion grant applications we intend to conduct a single-tier review.

    In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

    3. Risk Assessment and Special Conditions: Consistent with 2 CFR 200.205, before awarding grants under this competition the Department conducts a review of the risks posed by applicants. Under 2 CFR 3474.10, the Secretary may impose special conditions and, in appropriate circumstances, high-risk conditions on a grant if the applicant or grantee is not financially stable; has a history of unsatisfactory performance; has a financial or other management system that does not meet the standards in 2 CFR part 200, subpart D; has not fulfilled the conditions of a prior grant; or is otherwise not responsible.

    4. Integrity and Performance System: If you are selected under this competition to receive an award that over the course of the project period may exceed the simplified acquisition threshold (currently $150,000), under 2 CFR 200.205(a)(2) we must make a judgment about your integrity, business ethics, and record of performance under Federal awards—that is, the risk posed by you as an applicant—before we make an award. In doing so, we must consider any information about you that is in the integrity and performance system (currently referred to as the Federal Awardee Performance and Integrity Information System (FAPIIS)), accessible through SAM. You may review and comment on any information about yourself that a Federal agency previously entered and that is currently in FAPIIS.

    Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to F