Federal Register Vol. 81, No.247,

Federal Register Volume 81, Issue 247 (December 23, 2016)

Page Range94211-94907
FR Document

81_FR_247
Current View
Page and SubjectPDF
81 FR 94213 - Steps for Increased Legal and Policy Transparency Concerning the United States Use of Military Force and Related National Security OperationsPDF
81 FR 94211 - Presidential Determination Pursuant to Section 570(a) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997PDF
81 FR 94415 - Government in the Sunshine Act Meeting NoticePDF
81 FR 94340 - Procurement List; Proposed Additions and DeletionsPDF
81 FR 94340 - Procurement List; Additions and DeletionsPDF
81 FR 94417 - Certain Foam Footwear; Commission Determination To Adopt a Report Issued by the Office of Unfair Import Investigations as Its Advisory OpinionPDF
81 FR 94370 - Draft Field-Based Methods for Developing Aquatic Life Criteria for Specific ConductivityPDF
81 FR 94312 - Adoption of RecommendationsPDF
81 FR 94371 - Environmental Impact Statements; Notice of AvailabilityPDF
81 FR 94483 - Submission for OMB Review; Comment RequestPDF
81 FR 94427 - Submission for OMB Review; Comment RequestPDF
81 FR 94476 - Norfolk Southern Railway Company-Discontinuance of Service Exemption-in Rockingham and Shenandoah Counties, VAPDF
81 FR 94339 - Nominations to the Marine Fisheries Advisory CommitteePDF
81 FR 94412 - Notice of Availability of the Environmental Assessment for Federal Coal Lease Application NDM-107039, McLean County, ND, Notice of Public Hearing and Request for Comment on Environmental Assessment, Maximum Economic Recovery, and Fair Market ValuePDF
81 FR 94274 - Civil Penalties; Inflation Adjustments for Civil Monetary PenaltiesPDF
81 FR 94409 - City of San Diego Vernal Pool Habitat Conservation Plan and Draft Environmental Impact Report/Statement; San Diego County, CaliforniaPDF
81 FR 94370 - Meetings of the Local Government Advisory Committee and the Small Communities Advisory Subcommittee (SCAS)PDF
81 FR 94262 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the North Penn Area 6 Superfund SitePDF
81 FR 94484 - Submission for OMB Review; Comment RequestPDF
81 FR 94379 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 94413 - Notice of Public Meeting for the Eastern Washington Resource Advisory CouncilPDF
81 FR 94411 - Announcement of Public Meetings via Teleconference: North American Wetlands Conservation CouncilPDF
81 FR 94378 - Medicare Program; Renewal of the Advisory Panel on Hospital Outpatient Payment and Solicitation of Nominations to the Advisory Panel on Hospital Outpatient PaymentPDF
81 FR 94480 - Twenty Fifth RTCA SC-222 AMS(R)S Systems New Air-Ground Data Link Technologies Related to SATCOMPDF
81 FR 94268 - Medicare Program; End-Stage Renal Disease Quality Incentive Program; Durable Medical Equipment, Prosthetics, Orthotics, and Supplies Competitive Bidding Program Bid Surety Bonds, State Licensure, and Appeals Process for Breach of Contract Actions; CorrectionPDF
81 FR 94295 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the North Penn Area 6 Superfund SitePDF
81 FR 94345 - Information Collection Requirement; Defense Federal Acquisition Regulation Supplement; Describing Agency NeedsPDF
81 FR 94381 - Announcement of an Award for a Single-Source Urgent and Compelling Grant Under the Unaccompanied Children's Services Program to BCFS Health and Human Services Emergency Management Division (BCFS EMD)PDF
81 FR 94217 - Importation of Lemons From Northwest ArgentinaPDF
81 FR 94342 - Proposed Information Collection; Comment RequestPDF
81 FR 94270 - Drug and Alcohol Testing: Determination of Minimum Random Testing Rates for 2017PDF
81 FR 94388 - Food and Drug Administration Modernization Act of 1997: Modifications to the List of Recognized Standards, Recognition List Number: 046PDF
81 FR 94251 - Medical Devices; Neurological Devices; Classification of the Neurovascular Mechanical Thrombectomy Device for Acute Ischemic Stroke TreatmentPDF
81 FR 94382 - Medical Device User Fee and Modernization Act; Notice to Public of Web Site Location of Fiscal Year 2017 Proposed Guidance DevelopmentPDF
81 FR 94419 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
81 FR 94215 - Freedom of Information Act RegulationPDF
81 FR 94357 - Proposed Subsequent ArrangementPDF
81 FR 94362 - Eagle Ford Midstream, LP; Notice of Staff Protest to Petition for Rate ApprovalPDF
81 FR 94360 - Florida Gas Transmission Company, LLC; Notice of Intent To Prepare an Environmental Assessment for the Proposed East-West Project and Request for Comments on Environmental IssuesPDF
81 FR 94253 - Contraband and Inmate Personal Property: Technical ChangePDF
81 FR 94356 - Revision of a Currently Approved Information Collection for the State Energy ProgramPDF
81 FR 94344 - Advisory Committee on Arlington National Cemetery Meeting NoticePDF
81 FR 94377 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 94347 - Charter Renewal of Department of Defense Federal Advisory CommitteePDF
81 FR 94276 - Risk-Based Capital and Other Regulatory Requirements for Activities of Financial Holding Companies Related to Physical Commodities and Risk-Based Capital Requirements for Merchant Banking Investments, Regulations Q and YPDF
81 FR 94346 - Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD); Notice of Federal Advisory Committee MeetingPDF
81 FR 94481 - Controlled Substances and Alcohol Testing Responsibilities of Commercial Driver Staffing Agencies and Motor Carriers That Use ThemPDF
81 FR 94347 - Privacy Act of 1974; System of RecordsPDF
81 FR 94343 - Notice of Intent To Grant an Exclusive Patent LicensePDF
81 FR 94349 - Public Scoping Meeting and Intent To Prepare an Environmental Impact Statement for Proposed Pascagoula River Drought Resiliency Project, George County and Jackson County, MississippiPDF
81 FR 94481 - Announcement of Household Goods Consumer Protection Working Group Members and First Public MeetingPDF
81 FR 94352 - Intent To Prepare a Draft Environmental Impact Statement for the Matagorda Ship Channel, TX, Feasibility StudyPDF
81 FR 94351 - Intent To Prepare an Integrated Feasibility Study/Environmental Impact Statement for the San Francisquito Creek Flood Risk Management Study, San Mateo and Santa Clara Counties, CAPDF
81 FR 94394 - Product-Specific Bioequivalence Recommendations; Draft and Revised Draft Guidances for Industry; AvailabilityPDF
81 FR 94343 - Advisory Committee on Arlington National Cemetery, Honor Subcommittee and the Remember and Explore Subcommittee Meeting NoticePDF
81 FR 94382 - Proposed Information Collection Activity; Comment RequestPDF
81 FR 94362 - City of Anaheim, California; Notice of FilingPDF
81 FR 94362 - City of Banning, California; Notice of FilingPDF
81 FR 94360 - City of Riverside, California; Notice of FilingPDF
81 FR 94364 - National Choice Energy LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 94364 - Beacon Solar 1, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 94358 - Wildwood Solar I, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 94363 - Combined Notice of Filings #2PDF
81 FR 94358 - Combined Notice of Filings #1PDF
81 FR 94358 - Combined Notice of Filings #2PDF
81 FR 94366 - Inquiry Regarding the Commission's Policy for Recovery of Income Tax CostsPDF
81 FR 94357 - Combined Notice of Filings #1PDF
81 FR 94254 - Iranian Transactions and Sanctions RegulationsPDF
81 FR 94384 - Agency Information Collection Activities; Proposed Collection; Comment Request; Application for Participation in the Food and Drug Administration Regulatory Science Student Internship ProgramPDF
81 FR 94386 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Unique Device Identification SystemPDF
81 FR 94413 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; Application for Designation as National Recreation Trail or National Water TrailPDF
81 FR 94476 - Actions Taken at December 8, 2016, MeetingPDF
81 FR 94484 - Agency Information Collection Activity Under OMB Review: (Agent Orange Registry Code Sheet; VA Form 10-9009)PDF
81 FR 94485 - Revision to a Previously Approved Information Collection (Veterans Benefits Administration (VBA) Voice of the Veteran (VOV) Customer Satisfaction Continuous Measurement Survey)PDF
81 FR 94353 - Privacy Act of 1974; System of RecordsPDF
81 FR 94321 - Agency Information Collection Activities; Request for Comments; Revision of the Confidentiality Pledge Under Title 13 United States Code, Section 9PDF
81 FR 94486 - Notice that Certain VA Homeless Providers Grants Will Be TerminatedPDF
81 FR 94487 - Funding Availability: Homeless Providers Grant and Per Diem ProgramPDF
81 FR 94484 - Pricing for the 2017 Lions Clubs International Centennial Silver DollarsPDF
81 FR 94398 - Towing Safety Advisory Committee; January 2017 TeleconferencePDF
81 FR 94475 - Culturally Significant Objects Imported for Exhibition Determinations: “The Mysterious Landscapes of Hercules Segers” ExhibitionPDF
81 FR 94426 - State, Local, Tribal, and Private Sector Policy Advisory Committee MeetingPDF
81 FR 94426 - Advisory Committee on the Presidential Library-Foundation Partnerships MeetingPDF
81 FR 94440 - Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.9, Orders and Modifiers, and Rule 11.13, Order Execution and Routing, To Enhance the Exchange's Midpoint Routing FunctionalityPDF
81 FR 94468 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt a Participant Fee Applicable to Options Members of Its Equity Options PlatformPDF
81 FR 94437 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change Amending Rule 971.1NY and To Make Permanent the Aspects of Customer Best Execution Auction That Are Subject to a PilotPDF
81 FR 94462 - Self-Regulatory Organizations; National Securities Clearing Corporation; Order Granting Approval of Proposed Rule Change To Accelerate Its Trade Guaranty, Add New Clearing Fund Components, Enhance Its Intraday Risk Management, Provide for Loss Allocation of “Off-the-Market Transactions,” and Make Other ChangesPDF
81 FR 94460 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the NYSE Arca Equities Schedule of Fees and Charges for Exchange ServicesPDF
81 FR 94454 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.8, Order Types, and Rule 11.11, Routing to Away Trading Centers, To Enhance the Exchange's Midpoint Routing FunctionalityPDF
81 FR 94442 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Market Data Section of Its Fee Schedule To Adopt Fees for EDGX Summary Depth and Amend Fees for EDGX DepthPDF
81 FR 94473 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending NYSE Arca Rule 3.2 and NYSE Arca Equities Rules 1.1, 3.2, 10.3, 10.8, 10.13, and 14PDF
81 FR 94458 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; C2 Options Exchange, Incorporated; Order Approving a Proposed Rule Change in Connection With a Proposed Corporate Transaction Involving CBOE Holdings, Inc. and Bats Global Markets, Inc.PDF
81 FR 94434 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Debit/Credit Price Reasonability Check for Complex OrdersPDF
81 FR 94469 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Debit/Credit Price Reasonability Checks for Complex OrdersPDF
81 FR 94457 - Delaware Management Business Trust, et al.; Notice of ApplicationPDF
81 FR 94448 - Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of No Objection to Advance Notice Filing To Accelerate Its Trade Guaranty, Add New Clearing Fund Components, Enhance Its Intraday Risk Management, Provide for Loss Allocation of “Off-the-Market Transactions,” and Make Other ChangesPDF
81 FR 94416 - Certain Carbon and Alloy Steel Products; Commission Determination To Review an Initial Determination Granting Respondents' Motion To Terminate Complainant's Antitrust Claim; Request for Written Submissions and Setting of Date for Possible Oral ArgumentPDF
81 FR 94365 - Greybull Valley Irrigation District; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To IntervenePDF
81 FR 94420 - Agency Information Collection Activities; Proposed eCollection eComments Requested; New Collection: State and Local Justice Agencies Serving Tribal Lands (SLJASTL): Census of Prosecutor Offices Serving Tribal Lands (CSLPOSTL)PDF
81 FR 94419 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Reinstatement to a Previously Approved Collection: State and Local Justice Agencies Serving Tribal Lands (SLJASTL): Census of State and Local Law Enforcement Agencies Serving Tribal Lands (CSLLEASTL)PDF
81 FR 94415 - Final Environmental Impact Statement for the Cook Inlet Outer Continental Shelf Oil and Gas Lease Sale 244; MMAA104000PDF
81 FR 94422 - Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: 2017 Adverse Effect Wage RatesPDF
81 FR 94427 - Agency Information Collection Activities: Comment RequestPDF
81 FR 94477 - Determination of Trade Surplus in Certain Sugar and Syrup Goods and Sugar-Containing Products of Chile, Morocco, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, Peru, Colombia, and PanamaPDF
81 FR 94414 - States' Decisions on Participating in Accounting and Auditing Relief for Federal Oil and Gas Marginal PropertiesPDF
81 FR 94421 - Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: Adverse Effect Wage Rate for Range Occupations in 2017PDF
81 FR 94422 - Agency Information Collection Activities; Comment Request; Workforce Innovation Fund Grants Reporting and Recordkeeping RequirementsPDF
81 FR 94275 - Guidance for Implementation of 10 CFR 50.59, `Changes, Tests, and Experiments’PDF
81 FR 94400 - 30-Day Notice of Proposed Information Collection: Floodplain Management and Protection of WetlandsPDF
81 FR 94401 - 30-Day Notice of Proposed Information Collection: Youth Homelessness Demonstration Program (YHDP)PDF
81 FR 94408 - 30-Day Notice of Proposed Information Collection: Section 202 Housing for the Elderly and Section 811 Housing for the DisabledPDF
81 FR 94457 - Submission for OMB Review; Comment RequestPDF
81 FR 94475 - Submission for OMB Review; Comment RequestPDF
81 FR 94404 - 30-Day Notice of Proposed Information Collection: Assessing Public Housing Authorities (PHAs) Compliance With Insurance Requirements Under the Consolidated Annual Contributions Contract and RegulationsPDF
81 FR 94402 - Privacy Act of 1974; Notice of a Computer Matching Program Between the Department of Housing and Urban Development (HUD) and the Department of TreasuryPDF
81 FR 94406 - 30-Day Notice of Proposed Information Collection: Recordkeeping for HUD's Continuum of Care ProgramPDF
81 FR 94399 - 30-Day Notice of Proposed Information Collection: FHA-Application for Insurance of Advance of Mortgage ProceedsPDF
81 FR 94399 - 30-Day Notice of Proposed Information Collection: 24 CFR Part 58, Environmental Review Procedures for Entities Assuming HUD Environmental ResponsibilitiesPDF
81 FR 94277 - Transponder Requirement for Gliders; WithdrawalPDF
81 FR 94429 - Information Collection: NRC Form 314, Certificate of Disposition of MaterialsPDF
81 FR 94430 - Design of Structures, Components, Equipment, and Systems, and Reactor Coolant System and Connected Systems GuidancePDF
81 FR 94425 - National Environmental Policy Act: Kennedy Space Center-Center Master PlanPDF
81 FR 94396 - Meeting of the Presidential Advisory Council on Combating Antibiotic-Resistant BacteriaPDF
81 FR 94418 - Meeting of the Advisory Committee; MeetingPDF
81 FR 94483 - Proposed Collection; Comment Request for Form 706PDF
81 FR 94424 - Reissuance of OMB Circular No. A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication Under the Privacy Act”PDF
81 FR 94374 - Information Collections Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 94371 - Entercom License, LLC, Applications for Renewal of License for Station KDND(FM), Sacramento, CaliforniaPDF
81 FR 94321 - Submission for OMB Review; Comment RequestPDF
81 FR 94431 - Spent Fuel Heat Generation in an Independent Spent Fuel Storage InstallationPDF
81 FR 94433 - Restart of a Nuclear Power Plant Shut Down by a Seismic EventPDF
81 FR 94380 - Privacy Act of 1974; Computer Matching AgreementPDF
81 FR 94397 - National Institute on Deafness and Other Communication Disorders; Notice of Closed MeetingsPDF
81 FR 94397 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of MeetingPDF
81 FR 94396 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 94425 - Notice of Intent To Grant Exclusive Term LicensePDF
81 FR 94231 - Removal of Regulations Relating to Special Registration Process for Certain NonimmigrantsPDF
81 FR 94251 - Consolidated Audit TrailPDF
81 FR 94281 - Air Plan Approval; WV; Infrastructure Requirements for the 2012 Fine Particulate StandardPDF
81 FR 94259 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Control of Volatile Organic Compounds Emissions From Fiberglass Boat Manufacturing MaterialsPDF
81 FR 94283 - Air Plan Approval; Air Plan Approval and Air Quality Designation; GA; Redesignation of the Atlanta, Georgia 2008 8-Hour Ozone Nonattainment Area to AttainmentPDF
81 FR 94324 - Endangered and Threatened Species; Take of Anadromous FishPDF
81 FR 94246 - Credit for Lower Tier Small Business SubcontractingPDF
81 FR 94310 - New England Fishery Management Council; Public MeetingPDF
81 FR 94339 - North Pacific Fishery Management Council; Public MeetingPDF
81 FR 94296 - Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of the Oregon Silverspot Butterfly in Northwestern OregonPDF
81 FR 94271 - Monetary Threshold for Reporting Rail Equipment Accidents/Incidents for Calendar Year 2017PDF
81 FR 94230 - Availability of Information to the PublicPDF
81 FR 94326 - Takes of Marine Mammals Incidental to Specified Activities; St. George Reef Lighthouse Restoration, Maintenance, and Tour Operations at Northwest Seal Rock, Del Norte County, CaliforniaPDF
81 FR 94267 - Significant New Use Rules on Certain Chemical Substances; Technical CorrectionPDF
81 FR 94296 - Petition for Reconsideration of Action in Rulemaking ProceedingPDF
81 FR 94240 - Availability of Information Under the Freedom of Information ActPDF
81 FR 94238 - Technical Amendments and CorrectionsPDF
81 FR 94405 - Federal Property Suitable as Facilities To Assist the HomelessPDF
81 FR 94234 - Energy Conservation Standards for Commercial Water Heating Equipment: Availability of Updated Analysis ResultsPDF
81 FR 94905 - Semiannual Regulatory AgendaPDF
81 FR 94897 - Regulatory Flexibility AgendaPDF
81 FR 94893 - Unified Agenda of Federal Regulatory and Deregulatory ActionsPDF
81 FR 94889 - Semiannual Regulatory Flexibility AgendaPDF
81 FR 94853 - Unified Agenda of Federal Regulatory and Deregulatory Actions-Fall 2016PDF
81 FR 94849 - Semiannual Regulatory AgendaPDF
81 FR 94843 - Semiannual Regulatory AgendaPDF
81 FR 94839 - Regulatory Flexibility AgendaPDF
81 FR 94829 - Semiannual Regulatory AgendaPDF
81 FR 94823 - Semiannual Regulatory AgendaPDF
81 FR 94821 - Regulatory AgendaPDF
81 FR 94817 - Unified Agenda of Federal Regulatory and Deregulatory ActionsPDF
81 FR 94809 - Fall 2016 Regulatory AgendaPDF
81 FR 94807 - Unified Agenda of Federal Regulatory and Deregulatory ActionsPDF
81 FR 94805 - Semiannual Agenda and Fiscal Year 2016 Regulatory PlanPDF
81 FR 94783 - Department Regulatory Agenda; Semiannual SummaryPDF
81 FR 94777 - Semiannual Agenda of RegulationsPDF
81 FR 94775 - Regulatory AgendaPDF
81 FR 94769 - Semiannual Regulatory AgendaPDF
81 FR 94765 - Semiannual Regulatory AgendaPDF
81 FR 94755 - Unified Agenda of Federal Regulatory and Deregulatory ActionsPDF
81 FR 94741 - Regulatory AgendaPDF
81 FR 94735 - Semiannual Regulatory AgendaPDF
81 FR 94733 - Unified Agenda of Federal Regulatory and Deregulatory ActionsPDF
81 FR 94729 - Improving Government Regulations; Unified Agenda of Federal Regulatory and Deregulatory ActionsPDF
81 FR 94713 - Fall 2016 Semiannual Agenda of RegulationsPDF
81 FR 94703 - Semiannual Regulatory Agenda, Fall 2016PDF
81 FR 94495 - Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions-Fall 2016PDF

Issue

81 247 Friday, December 23, 2016 Contents Administrative Administrative Conference of the United States NOTICES Adoption of Recommendations, 94312-94321 2016-31047 Agriculture Agriculture Department See

Animal and Plant Health Inspection Service

See

Inspector General Office, Agriculture Department

PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94704-94712 2016-29853 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 94321 2016-30897
AIRFORCE Air Force Department NOTICES Exclusive Patent Licenses: The University of North Carolina at Charlotte, 94343 2016-30989 Animal Animal and Plant Health Inspection Service RULES Imports: Lemons from Northwest Argentina, 94217-94230 2016-31013 Architectural Architectural and Transportation Barriers Compliance Board PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94808 2016-29912 Army Army Department NOTICES Meetings: Advisory Committee on Arlington National Cemetery, 94344-94345 2016-30996 Advisory Committee on Arlington National Cemetery, Honor Subcommittee and the Remember and Explore Subcommittee, 94343-94344 2016-30983 Consumer Financial Protection Bureau of Consumer Financial Protection PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94844-94847 2016-29921 Census Bureau Census Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Confidentiality Pledge; Revisions, 94321-94324 2016-30959 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: End-Stage Renal Disease Quality Incentive Program; Durable Medical Equipment, Prosthetics, Orthotics, and Supplies Competitive Bidding Program Bid Surety Bonds, State Licensure, and Appeals Process for Breach of Contract Actions; Correction, 94268-94270 2016-31019 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 94379-94380 2016-31029 Requests for Nominations: Advisory Panel on Hospital Outpatient Payment; Charter Renewal, 94378-94379 2016-31022 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: CCDF Grantee Consumer Education Database Linkages with Childcare.gov, 94382 2016-30982 Privacy Act; Computer Matching Agreement, 94380-94381 2016-30894 Single-Source Grants: Unaccompanied Children's Services Program to BCFS Health and Human Services Emergency Management Division, 94381-94382 2016-31014 Coast Guard Coast Guard NOTICES Meetings: Towing Safety Advisory Committee; January 2017 Teleconference, 94398-94399 2016-30952 Commerce Commerce Department See

Census Bureau

See

National Oceanic and Atmospheric Administration

PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94714-94727 2016-29856
Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 94340-94342 2016-31053 2016-31054 Commodity Futures Commodity Futures Trading Commission PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94840-94841 2016-29920 Comptroller Comptroller of the Currency RULES Availability of Information under the Freedom of Information Act, 94240-94246 2016-30725 Consumer Product Consumer Product Safety Commission PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94850-94852 2016-29922 Corporation Corporation for National and Community Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 94342-94343 2016-31012 Defense Acquisition Defense Acquisition Regulations System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Defense Federal Acquisition Regulation Supplement; Describing Agency Needs, 94345-94346 2016-31015 Defense Department Defense Department See

Air Force Department

See

Army Department

See

Defense Acquisition Regulations System

See

Engineers Corps

PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94730-94731, 94830-94838 2016-29858 2016-29919 NOTICES Charter Renewals: Department of Defense Medicare-Eligible Retiree Health Care Board of Actuaries, 94347 2016-30994 Meetings: Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, 94346-94347 2016-30992 Privacy Act; Systems of Records, 94347-94349 2016-30990
Education Department Education Department PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94734 2016-29859 NOTICES Privacy Act; Systems of Records, 94353-94356 2016-30960 Employment and Training Employment and Training Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Workforce Innovation Fund Grants Reporting and Recordkeeping Requirements, 94422-94424 2016-30922 Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: 2017 Adverse Effect Wage Rates, 94422 2016-30928 Adverse Effect Wage Rate for Range Occupations in 2017, 94421-94422 2016-30923 Energy Department Energy Department See

Federal Energy Regulatory Commission

RULES Energy Conservation Standards for Commercial Water Heating Equipment: Availability of Updated Analysis Results, 94234-94238 2016-30300 PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94736-94740 2016-29860 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: State Energy Program, 94356-94357 2016-30997 Proposed Subsequent Arrangements, 94357 2016-31002
Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Matagorda Ship Channel, TX, Feasibility Study, 94352-94353 2016-30986 Proposed Pascagoula River Drought Resiliency Project, George County and Jackson County, MS, 94349-94351 2016-30988 San Francisquito Creek Flood Risk Management Study, San Mateo and Santa Clara Counties, CA, 94351-94352 2016-30985 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Maryland; Control of Volatile Organic Compounds Emissions from Fiberglass Boat Manufacturing Materials, 94259-94262 2016-30880 National Priorities List: National Oil and Hazardous Substances Pollution Contingency Plan; Partial Deletion of the North Penn Area 6 Superfund Site, 94262-94266 2016-31032 Significant New Use: Significant New Use Rules on Certain Chemical Substances; Technical Correction, 94267 2016-30769 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Georgia; Redesignation of the Atlanta, Georgia 2008 8-Hour Ozone Nonattainment Area to Attainment, 94283-94295 2016-30879 West Virginia; Infrastructure Requirements for the 2012 Fine Particulate Standard, 94281-94283 2016-30882 National Priorities List: National Oil and Hazardous Substances Pollution Contingency Plan; Partial Deletion of the North Penn Area 6 Superfund Site, 94295-94296 2016-31016 Regulatory Agenda: Semiannual Regulatory Agenda, 94810-94816 2016-29915 NOTICES Draft Field-Based Methods: Developing Aquatic Life Criteria for Specific Conductivity, 94370-94371 2016-31049 Environmental Impact Statements; Availability, etc.: Weekly Receipts, 94371 2016-31046 Meetings: Local Government Advisory Committee and Small Communities Advisory Subcommittee, 94370 2016-31036 Federal Aviation Federal Aviation Administration PROPOSED RULES Transponder Requirement for Gliders; Withdrawal, 94277-94281 2016-30910 NOTICES Meetings: Twenty Fifth RTCA SC-222 AMS(R)S Systems New Air-Ground Data Link Technologies related to SATCOM, 94480-94481 2016-31020 Federal Communications Federal Communications Commission PROPOSED RULES Petitions for Reconsideration of Action in Rulemaking Proceeding, 94296 2016-30763 Regulatory Agenda: Semiannual Regulatory Agenda, 94854-94888 2016-29927 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 94374-94377 2016-30899 License Renewal Applications: Entercom License, LLC, Station KDND(FM), Sacramento, CA, 94371-94374 2016-30898 Federal Election Federal Election Commission RULES Technical Amendments and Corrections, 94238-94240 2016-30699 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 94357-94359, 94363-94364 2016-30969 2016-30973 2016-30974 2016-30975 Environmental Assessments; Availability, etc.: Florida Gas Transmission Company, LLC; East-West Project, 94360-94362 2016-31000 Filings: Anaheim, CA, 94362 2016-30981 Banning, CA, 94362 2016-30980 Riverside, CA, 94360 2016-30979 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Beacon Solar 1, LLC, 94364 2016-30977 National Choice Energy LLC, 94364-94365 2016-30978 Wildwood Solar I, LLC, 94358 2016-30976 Inquiry Regarding the Commission's Policy for Recovery of Income Tax Costs, 94366-94370 2016-30970 Qualifying Conduit Hydropower Facilities: Greybull Valley Irrigation District, 94365-94366 2016-30933 Staff Protests to Petitions for Rate Approvals: Eagle Ford Midstream, LP, 94362-94363 2016-31001 Federal Motor Federal Motor Carrier Safety Administration NOTICES Controlled Substances and Alcohol Testing Responsibilities of Commercial Driver Staffing Agencies and Motor Carriers that Use Them, 94481-94482 2016-30991 Meetings: Household Goods Consumer Protection Working Group, 94481 2016-30987 Federal Railroad Federal Railroad Administration RULES Drug and Alcohol Testing: Determination of Minimum Random Testing Rates for 2017, 94270 2016-31009 Monetary Threshold for Reporting Rail Equipment Accidents/Incidents for Calendar Year 2017, 94271-94274 2016-30812 Federal Reserve Federal Reserve System PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94890-94891 2016-29929 Risk-based Capital and Other Regulatory Requirements for Activities of Financial Holding Companies Related to Physical Commodities and Risk-based Capital Requirements for Merchant Banking Investments, 94276-94277 2016-30993 NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 94377 2016-30995 Fish Fish and Wildlife Service RULES Civil Penalties: Inflation Adjustments for Civil Monetary Penalties, 94274 2016-31038 PROPOSED RULES Endangered and Threatened Wildlife and Plants: Establishment of a Nonessential Experimental Population of the Oregon Silverspot Butterfly in Northwestern Oregon, 94296-94310 2016-30817 NOTICES Environmental Impact Statements; Availability, etc.: City of San Diego Vernal Pool Habitat Conservation Plan; San Diego County, CA, 94409-94411 2016-31037 Meetings: North American Wetlands Conservation Council; Teleconference, 94411 2016-31026 Food and Drug Food and Drug Administration RULES Medical Devices: Neurological Devices; Classification of the Neurovascular Mechanical Thrombectomy Device for Acute Ischemic Stroke Treatment, 94251-94253 2016-31007 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Participation in the Food and Drug Administration Regulatory Science Student Internship Program, 94384-94386 2016-30967 Unique Device Identification System, 94386-94388 2016-30966 Food and Drug Administration Modernization Act: Modifications to the List of Recognized Standards, Recognition List Number—046, 94388-94394 2016-31008 Guidance for Industry: Product-Specific Bioequivalence Recommendations, 94394-94396 2016-30984 Medical Devices: User Fee and Modernization Act; Web Site Location of Fiscal Year 2017 Proposed Guidance Development, 94382-94384 2016-31006 Foreign Assets Foreign Assets Control Office RULES Iranian Transactions and Sanctions Regulations, 94254-94259 2016-30968 General Services General Services Administration PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94818-94819, 94830-94838 2016-29916 2016-29919 Government Ethics Government Ethics Office RULES Freedom of Information Act Regulation, 94215-94217 2016-31004 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

National Institutes of Health

PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94742-94754 2016-29863 NOTICES Meetings: Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria, 94396 2016-30904
Homeland Homeland Security Department See

Coast Guard

RULES Removal of Regulations Relating to Special Registration Process for Certain Nonimmigrants, 94231-94234 2016-30885 PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94756-94763 2016-29864
Housing Housing and Urban Development Department PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94766-94767 2016-29865 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Assessing Public Housing Authorities Compliance with Insurance Requirements under the Consolidated Annual Contributions Contract and Regulations, 94404 2016-30915 Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities, 94399-94400 2016-30911 FHA-Application for Insurance of Advance of Mortgage Proceeds, 94399 2016-30912 Floodplain Management and Protection of Wetlands, 94400-94401 2016-30920 Recordkeeping for Continuum of Care Program, 94406-94408 2016-30913 Section 202 Housing for the Elderly and Section 811 Housing for the Disabled, 94408-94409 2016-30918 Youth Homelessness Demonstration Program, 94401-94402 2016-30919 Federal Properties Suitable as Facilities to Assist the Homeless, 94405-94406 2016-30620 Privacy Act; Computer Matching Program, 94402-94404 2016-30914 Information Information Security Oversight Office NOTICES Meetings: State, Local, Tribal, and Private Sector Policy Advisory Committee, 94426 2016-30949 Inspector General Agriculture Inspector General Office, Agriculture Department RULES Availability of Information to the Public, 94230-94231 2016-30803 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

See

Ocean Energy Management Bureau

See

Office of Natural Resources Revenue

PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94770-94773 2016-29868
Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 94483 2016-30902 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Carbon and Alloy Steel Products, 94416-94417 2016-30934 Certain Foam Footwear, 94417-94418 2016-31051 Meetings; Sunshine Act, 94415-94416 2016-31126 Joint Joint Board for Enrollment of Actuaries NOTICES Meetings: Advisory Committee, 94418 2016-30903 Justice Department Justice Department See

Prisons Bureau

PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94776 2016-29869 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: State and Local Justice Agencies Serving Tribal Lands: Census of Prosecutor Offices Serving Tribal Lands, 94420-94421 2016-30932 State and Local Justice Agencies Serving Tribal Lands: Census of State and Local Law Enforcement Agencies Serving Tribal Lands, 94419 2016-30931 Consent Decrees: CERCLA, 94419-94420 2016-31005
Labor Department Labor Department See

Employment and Training Administration

PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94778-94782 2016-29870
Land Land Management Bureau NOTICES Environmental Assessments; Availability, etc.: Federal Coal Lease Application NDM-107039, McLean County, ND; Public Hearing, 94412-94413 2016-31039 Meetings: Eastern Washington Resource Advisory Council, 94413 2016-31027 Management Management and Budget Office NOTICES Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act, 94424-94425 2016-30901 NASA National Aeronautics and Space Administration PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94822, 94830-94838 2016-29917 2016-29919 NOTICES Environmental Impact Statements; Availability, etc.: National Environmental Policy Act: Kennedy Space Center—Center Master Plan, 94425-94426 2016-30907 Exclusive Term Licenses: SageGuard Solutions, LLC, Westlake, OH; Exclusive Patent License, 94425 2016-30889 National Archives National Archives and Records Administration See

Information Security Oversight Office

NOTICES Meetings: Advisory Committee on the Presidential Library-Foundation Partnerships, 94426-94427 2016-30948
National Credit National Credit Union Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 94427 2016-31042 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 94396-94397 2016-30890 National Arthritis and Musculoskeletal and Skin Diseases Advisory Council, 94397 2016-30891 National Institute on Deafness and Other Communication Disorders, 94397 2016-30892 National Oceanic National Oceanic and Atmospheric Administration PROPOSED RULES Atlantic Herring Fishery Management Plan: New England Fishery Management Council Meeting, 94310-94311 2016-30821 NOTICES Endangered and Threatened Species: Take of Anadromous Fish, 94324-94326 2016-30877 Meetings: North Pacific Fishery Management Council, 94339-94340 2016-30819 Requests for Nominations: Marine Fisheries Advisory Committee, 94339 2016-31040 Takes of Marine Mammals Incidental to Specified Activities: St. George Reef Lighthouse Restoration, Maintenance, and Tour Operations at Northwest Seal Rock, Del Norte County, CA, 94326-94339 2016-30785 National Park National Park Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Designation as National Recreation Trail or National Water Trail, 94413-94414 2016-30965 National Science National Science Foundation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 94427-94429 2016-30927 Nuclear Regulatory Nuclear Regulatory Commission PROPOSED RULES Draft Regulatory Guides: Changes, Tests, and Experiments, 94275-94276 2016-30921 Regulatory Agenda: Semiannual Regulatory Agenda, 94894-94896 2016-29930 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certificate of Disposition of Materials, 94429-94430 2016-30909 Guidance: Restart of a Nuclear Power Plant Shut Down by a Seismic Event, 94433-94434 2016-30895 Spent Fuel Heat Generation in an Independent Spent Fuel Storage Installation, 94431-94433 2016-30896 Standard Review Plans: Design of Structures, Components, Equipment, and Systems, and Reactor Coolant System and Connected Systems, 94430-94431 2016-30908 Ocean Energy Management Ocean Energy Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Cook Inlet Outer Continental Shelf Oil and Gas Lease Sale 244, 94415 2016-30930 Natural Resources Office of Natural Resources Revenue NOTICES States' Decisions on Participating in Accounting and Auditing Relief for Federal Oil and Gas Marginal Properties, 94414-94415 2016-30925 Presidential Documents Presidential Documents ADMINISTRATIVE ORDERS Defense and National Security: U.S. Military Force and National Security Operations; Increased Legal and Policy Transparency Efforts (Memorandum of December 5, 2016), 94213-94214 2016-31213 Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997; Determination (Presidential Determination No. 2017-04 of December 2, 2016), 94211 2016-31189 Prisons Prisons Bureau RULES Contraband and Inmate Personal Property; Technical Amendments, 94253-94254 2016-30998 Regulatory Regulatory Information Service Center PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda; Regulatory Plan, 94496-94701 2016-29848 Securities Securities and Exchange Commission RULES Consolidated Audit Trail, 94251 2016-30883 PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94898-94903 2016-29931 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 94457, 94475 2016-30916 2016-30917 Applications: Delaware Management Business Trust, et al., 94457-94458 2016-30936 Self-Regulatory Organizations; Proposed Rule Changes: Bats BYX Exchange, Inc., 94440-94442 2016-30947 Bats BZX Exchange, Inc., 94468-94469 2016-30946 Bats EDGA Exchange, Inc., 94454-94457 2016-30942 Bats EDGX Exchange, Inc., 94442-94448 2016-30941 C2 Options Exchange, Inc., 94434-94437 2016-30938 Chicago Board Options Exchange, Inc., 94469-94473 2016-30937 Chicago Board Options Exchange, Inc.; C2 Options Exchange, Inc., 94458-94460 2016-30939 National Securities Clearing Corp., 94448-94454, 94462-94467 2016-30935 2016-30944 NYSE Arca, Inc., 94460-94462, 94473-94475 2016-30940 2016-30943 NYSE MKT LLC, 94437-94440 2016-30945 Small Business Small Business Administration RULES Credit for Lower Tier Small Business Subcontracting, 94246-94251 2016-30874 PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94824-94828 2016-29918 State Department State Department NOTICES Culturally Significant Objects Imported for Exhibition: The Mysterious Landscapes of Hercules Segers Exhibition, 94475-94476 2016-30950 Surface Transportation Surface Transportation Board PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94906-94907 2016-29935 NOTICES Discontinuance of Service Exemptions: Norfolk Southern Railway Co. in Rockingham and Shenandoah Counties, VA, 94476 2016-31041 Susquehanna Susquehanna River Basin Commission NOTICES Meetings: Actions Taken, 94476-94477 2016-30963 Trade Representative Trade Representative, Office of United States NOTICES Determination of Trade Surplus: Certain Sugar and Syrup Goods and Sugar-Containing Products of Chile, Morocco, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, Peru, Colombia, and Panama, 94477-94480 2016-30926 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94784-94803 2016-29872
Treasury Treasury Department See

Comptroller of the Currency

See

Foreign Assets Control Office

See

Internal Revenue Service

See

United States Mint

PROPOSED RULES Regulatory Agenda: Semiannual Regulatory Agenda, 94806 2016-29911 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 94483-94484 2016-31030 2016-31033 2016-31043
U.S. Mint United States Mint NOTICES Pricing for the 2017 Lions Clubs International Centennial Silver Dollars, 94484 2016-30956 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Agent Orange Registry Code Sheet, 94484-94485 2016-30962 Veterans Benefits Administration Voice of the Veteran Customer Satisfaction Continuous Measurement Survey, 94485-94486 2016-30961 Funding Availability: Homeless Providers Grant and Per Diem Program, 94487-94494 2016-30957 Homeless Providers Grant and Per Diem Program; Terminations, 94486-94487 2016-30958 Separate Parts In This Issue Part II Regulatory Information Service Center, 94496-94701 2016-29848 Part III Agriculture Department, 94704-94712 2016-29853 Part IV Commerce Department, 94714-94727 2016-29856 Part V Defense Department, 94730-94731 2016-29858 Part VI Education Department, 94734 2016-29859 Part VII Energy Department, 94736-94740 2016-29860 Part VIII Health and Human Services Department, 94742-94754 2016-29863 Part IX Homeland Security Department, 94756-94763 2016-29864 Part X Housing and Urban Development Department, 94766-94767 2016-29865 Part XI Interior Department, 94770-94773 2016-29868 Part XII Justice Department, 94776 2016-29869 Part XIII Labor Department, 94778-94782 2016-29870 Part XIV Transportation Department, 94784-94803 2016-29872 Part XV Treasury Department, 94806 2016-29911 Part XVI Architectural and Transportation Barriers Compliance Board, 94808 2016-29912 Part XVII Environmental Protection Agency, 94810-94816 2016-29915 Part XVIII General Services Administration, 94818-94819 2016-29916 Part XIX National Aeronautics and Space Administration, 94822 2016-29917 Part XX Small Business Administration, 94824-94828 2016-29918 Part XXI Defense Department, 94830-94838 2016-29919 Part XXII Commodity Futures Trading Commission, 94840-94841 2016-29920 Part XXIII Bureau of Consumer Financial Protection, 94844-94847 2016-29921 Part XXIV Consumer Product Safety Commission, 94850-94852 2016-29922 Part XXV Federal Communications Commission, 94854-94888 2016-29927 Part XXVI Federal Reserve System, 94890-94891 2016-29929 Part XXVII Nuclear Regulatory Commission, 94894-94896 2016-29930 Part XXVIII Securities and Exchange Commission, 94898-94903 2016-29931 Part XXIX Surface Transportation Board, 94906-94907 2016-29935 Reader Aids

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

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

81 247 Friday, December 23, 2016 Rules and Regulations OFFICE OF GOVERNMENT ETHICS 5 CFR Part 2604 RIN 3209-AA39 Freedom of Information Act Regulation AGENCY:

Office of Government Ethics (OGE).

ACTION:

Interim final rule.

SUMMARY:

The U.S. Office of Government Ethics (OGE) is updating its Freedom of Information Act (FOIA) regulation to implement changes in accordance with the FOIA Improvement Act of 2016.

DATES:

This interim final rule is effective December 23, 2016. Written comments are invited and must be received on or before January 23, 2017.

ADDRESSES:

You may submit written comments to OGE on the interim final rule by any of the following methods:

Email: [email protected] Include the appropriate Regulation Identifier Number in the subject line of the message.

Fax: (202) 482-9237.

Mail/Hand Delivery/Courier: U.S. Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917, Attention: Jennifer Matis, Assistant Counsel.

Instructions: All submissions must include OGE's agency name and the appropriate Regulation Identifier Number (RIN) 3209-AA39 for this proposed rulemaking. OGE will post all comments on its Web site (www.oge.gov). All comments received will be posted without change; OGE generally does not edit a commenter's personal identifying information from submissions. You should submit only information that you wish to make available publicly.

FOR FURTHER INFORMATION CONTACT:

Jennifer Matis, Assistant Counsel, Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917; Telephone: 202-482-9216; TTY: 800-877-8339; FAX: 202-482-9237.

SUPPLEMENTARY INFORMATION: I. Substantive Discussion

On June 30, 2016, the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 (the Act) was enacted. The Act specifically requires all agencies to review and update their Freedom of Information Act (FOIA) regulations in accordance with its provisions. OGE is making changes to its regulations accordingly, including correcting citations, highlighting the electronic availability of records, implementing the “rule of three” for frequently requested records, notifying requesters of their right to seek assistance from the FOIA Public Liaison and the Office of Government Information Services, changing the time limit for appeals, implementing the foreseeable harm standard, describing limitations on assessing search fees if the response time is delayed, and adding new annual reporting requirements.

II. Matters of Regulatory Procedure Administrative Procedure Act

Pursuant to 5 U.S.C. 553(b), I find that good cause exists for waiving the general notice of proposed rulemaking and public comment procedures as to these technical amendments. The notice and comment procedures are being waived because these amendments, which concern matters of agency organization, procedure and practice, are being adopted in accordance with mandates required by the FOIA Improvement Act of 2016, which requires that agencies amend their FOIA regulations not later than 180 days after the date of enactment. It is also in the public interest in order to provide notice to requestors of the additional time to file appeals.

Regulatory Flexibility Act

As the Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this interim final rule would not have a significant economic impact on a substantial number of small entities because it primarily affects individuals requesting records under the FOIA.

Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this regulation does not contain information collection requirements that require approval of the Office of Management and Budget.

Unfunded Mandates Reform Act

For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 5, subchapter II), this rule would not significantly or uniquely affect small governments and will not result in increased expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year.

Executive Order 13563 and Executive Order 12866

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select the regulatory approaches that maximize net benefits (including 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. In promulgating this rulemaking, OGE has adhered to the regulatory philosophy and the applicable principles of regulation set forth in Executive Orders 12866 and 13563. The rule has not been reviewed by the Office of Management and Budget because it is not a significant regulatory action for the purposes of Executive Order 12866.

Executive Order 12988

As Director of the Office of Government Ethics, I have reviewed this rule in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.

List of Subjects in 5 CFR Part 2604

Administrative practice and procedure, Archives and records, Confidential business information, Freedom of information, Reporting and recordkeeping requirements.

Approved: December 20, 2016. Walter M. Shaub, Jr., Director, Office of Government Ethics.

For the reasons set out above, OGE amends 5 CFR part 2604 as follows:

PART 2604—FREEDOM OF INFORMATION ACT RULES AND SCHEDULE OF FEES FOR THE PRODUCTION OF PUBLIC FINANCIAL DISCLOSURE REPORTS 1. The authority citation for part 2604 continues to read as follows: Authority:

5 U.S.C. 552; 5 U.S.C. App. 101-505; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235; E.O. 13392, 70 FR 75373, 3 CFR, 2005 Comp., p. 216.

2. Amend § 2604.103 by revising the definition of “Chief FOIA Officer” to read as follows:
§ 2604.103 Definitions.

Chief FOIA Officer means the OGE official designated in 5 U.S.C. 552(j)(1) to provide oversight of all of OGE's FOIA program operations.

3. Amend § 2604.201 by revising paragraphs (b) introductory text and (b)(4), removing paragraph (c), and redesignating paragraph (d) as paragraph (c) to read as follows:
§ 2604.201 Public reading room facility and Web site.

(b) Records available. The OGE Web site contains OGE records which are required by 5 U.S.C. 552(a)(2) to be made available for public inspection in an electronic format, including:

(4) Copies of records created by OGE that have been released to any person under subpart C of this part and that, because of the nature of their subject matter, OGE determines have become or are likely to become the subject of subsequent requests for substantially the same records or that have been requested three or more times; and

4. Amend § 2604.202 by revising paragraph (a) to read as follows:
§ 2604.202 Index identifying information for the public.

(a) OGE will maintain and make available for public inspection in an electronic format a current index of the materials available on its Web site that are required to be indexed under 5 U.S.C. 552(a)(2).

5. Amend § 2604.303 by revising paragraphs (a) and (b)(4), and adding paragraph (b)(5) to read as follows:
§ 2604.303 Form and content of responses.

(a) Form of notice granting a request. After the FOIA Officer has made a determination to grant a request in whole or in part, the requester will be notified in writing. The notice will describe the manner in which the record will be disclosed, whether by providing a copy of the record with the response or at a later date, or by making a copy of the record available to the requester for inspection at a reasonable time and place. The procedure for such an inspection may not unreasonably disrupt OGE operations. The response letter will inform the requester of the right of the requester to seek assistance from the FOIA Public Liaison. The response letter will also inform the requester in the response of any fees to be charged in accordance with the provisions of subpart E of this part.

(b) * * *

(4) A statement that the denial may be appealed under § 2604.304, and a description of the requirements of that section; and

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

6. Amend § 2604.304 by revising paragraph (b) to read as follows:
§ 2604.304 Appeal of denials.

(b) Letter of appeal. The appeal must be in writing and must be sent within 90 calendar days of receipt of the denial letter. An appeal should include a copy of the initial request, a copy of the letter denying the request in whole or in part, and a statement of the circumstances, reasons or arguments advanced in support of disclosure of the record.

7. Amend § 2604.305 by revising paragraph (c) to read as follows:
§ 2604.305 Time limits.

(c) Extension of time limits. When additional time is required for one of the reasons stated in paragraph (d) of this section, OGE will, within the statutory 20-working day period, issue written notice to the requester setting forth the reasons for the extension and the date on which a determination is expected to be made. If more than 10 additional working days are needed, the requester will be notified and provided an opportunity to limit the scope of the request or to arrange for an alternative time frame for processing the request or a modified request. To aid the requester, OGE will make available its FOIA Public Liaison to assist in the resolution of any disputes. Additionally, OGE will notify the requester of the right of the requester to seek dispute resolution services from OGIS.

8. Amend § 2604.401 by revising paragraph (a) to read as follows:
§ 2604.401 Application of exemptions.

(a) Foreseeable harm standard. A requested record will not be withheld from inspection or copying unless it comes within one of the classes of records exempted by 5 U.S.C. 552 and OGE reasonably foresees that disclosure would harm an interest protected by an exemption described in 5 U.S.C. 552(b) or is prohibited by law. Nothing in this paragraph requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under 5 U.S.C. 552(b)(3).

9. Amend § 2604.503 by revising paragraph (d) to read as follows:
§ 2604.503 Limitations on charging fees.

(d) If OGE does not comply with one of the time limits under § 2604.305, it will not assess search fees (or in the case of a requester described under § 2604.502(c), duplication fees), except as provided in paragraphs (d)(1) through (d)(3) of this section.

(1) If OGE has determined that unusual circumstances apply, as defined in 5 U.S.C. 552(a)(6)(B), and OGE provided timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B), a failure to comply with the time limit is excused for an additional 10 days.

(2) If OGE has determined that unusual circumstances apply, as defined in 5 U.S.C. 552(a)(6)(B), and more than 5,000 pages are necessary to respond to the request, OGE may charge search fees (or in the case of requesters described under § 2604.502(c), duplication fees) if OGE has provided timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B) and OGE has discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5. U.S.C. 552(a)(6)(B)(ii).

(3) If a court has determined that exceptional circumstances exist, as defined in 5 U.S.C. 552(a)(6)(B), a failure to comply with the time limits shall be excused for the length of time provided by the court order.

10. Revise § 2604.601 to read as follows:
§ 2604.601 Electronic posting and submission of annual OGE FOIA report.

On or before February 1 of each year, OGE will submit to the Office of Information Policy at the United States Department of Justice and to the Director of OGIS an Annual FOIA Report. The report will include the information required by 5 U.S.C. 552(e). OGE will electronically post on its Web site the report and the raw statistical data used in each report, in accordance with 5 U.S.C. 552(e)(3).

[FR Doc. 2016-31004 Filed 12-22-16; 8:45 am] BILLING CODE 6345-03-P
DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 319 [Docket No. APHIS-2014-0092] RIN 0579-AE17 Importation of Lemons From Northwest Argentina AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule.

SUMMARY:

We are amending the fruits and vegetables regulations to allow the importation of lemons from northwest Argentina into the continental United States. As a condition of entry, lemons from northwest Argentina would have to be produced in accordance with a systems approach that includes requirements for importation in commercial consignments; registration and monitoring of places of production and packinghouses; pest-free places of production; grove sanitation, monitoring, and pest control practices; treatment with a surface disinfectant; lot identification; and inspection for quarantine pests by the Argentine national plant protection organization. Additionally, lemons from northwest Argentina will have to be harvested green and within a certain time period, or treated for Mediterranean fruit fly in accordance with an approved treatment schedule. Lemons from northwest Argentina will also be required to be accompanied by a phytosanitary certificate with an additional declaration stating that the lemons have been inspected and found to be free of quarantine pests and were produced in accordance with the requirements. This action allows for the importation of lemons from northwest Argentina into the United States while continuing to provide protection against the introduction of quarantine pests.

DATES:

Effective January 23, 2017.

FOR FURTHER INFORMATION CONTACT:

Mr. Juan A. (Tony) Román, Senior Regulatory Policy Specialist, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; (301) 851-2242.

SUPPLEMENTARY INFORMATION:

Background

The regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-75, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests within the United States.

On May 10, 2016, we published in the Federal Register (81 FR 28758, Docket No. APHIS-2014-0092) a proposal 1 to amend the regulations to allow the importation of commercial consignments of fresh lemons from northwest Argentina into the continental United States, subject to a systems approach.

1 To view the proposed rule and the comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0092.

We solicited comments concerning our proposal for 60 days ending July 11, 2016. We extended the deadline for comments until August 10, 2016, in a document published in the Federal Register on July 11, 2016 (81 FR 44801, Docket No. APHIS-2014-0092). We received 414 comments by that date. They were from domestic and foreign citrus producers, State and national organizations representing citrus producers, State departments of agriculture, an organization of State plant pest regulatory agencies, Argentina's national plant protection organization, the Argentine embassy, lemon importers and wholesalers, longshoremen, U.S. ports of entry, Senators, Representatives, an Argentine organization devoted to citrus research, and private citizens. Forty-seven commenters supported the rule as proposed. Seventy-six commenters generally opposed the proposed rule but did not address any specific provisions. The remaining commenters raised a number of issues and concerns about the proposed rule. These comments are discussed below by topic.

One commenter stated that the proposed rule failed to comply with the requirements of the National Environmental Policy Act (NEPA). Specifically, the commenter stated that the proposed rule is a major Federal action that significantly affects the human environment, as set forth in 40 CFR 1508.18 and 1508.27, respectively, and that the Animal and Plant Health Inspection Service (APHIS) should have prepared an environmental impact statement or environmental assessment (EA). The commenter further stated that none of the APHIS categorical exclusions set forth in 7 CFR 1b.3 apply, therefore at a minimum, APHIS is obligated to prepare an EA.

APHIS notes that the APHIS NEPA implementing regulations in 7 CFR part 372 specify that additional routine measures used by APHIS are categorically exempt from NEPA, in addition to those measures set forth in 7 CFR 1b.3. The measures in this rule that will occur within the United States fall within the scope of these additional routine measures. Accordingly, a categorical exclusion was prepared.

We do not agree that the rule meets Council on Environmental Quality requirements for a “significant” Federal action, and thus, by definition, cannot be a “major” Federal action (a type of significant action). The rule is not contextually significant from a policy standpoint because it does not substantially alter existing policy regarding market access requests, and has severity/intensity only if one concedes that the mitigations specified in the rule are ineffective in precluding the introduction of quarantine pests. We consider them effective, for reasons discussed below.

One commenter stated that APHIS must take all available measures to preclude introduction of invasive species into the United States.

APHIS agrees. Under the Plant Protection Act (7 U.S.C. 7701 et seq.), we are responsible for regulating exports, imports, and interstate commerce in agricultural products and other commodities that pose a risk of harboring plant pests or noxious weeds in ways that are based on sound science and that will reduce the risk of dissemination of plant pests or noxious weeds. For this reason we prepared a pest risk assessment (PRA) and assigned mitigations with a proven track record in the risk management document (RMD).

One commenter noted that APHIS has also recently published proposed rules to allow for the importation of citrus from South Africa (79 FR 51273, Docket No. APHIS-2014-0015) and Chile (81 FR 19063, Docket No. APHIS-2015-0051). The commenter stated that because both of those proposals deal with a disease or pest of concern which is also of concern in the Argentine proposal, APHIS should not finalize this rulemaking until we have responded to the comments on the other proposed rules.

We disagree with the commenter that the other rules must be finalized before we can proceed with this rule. APHIS considers each of its rulemakings as a distinct regulatory action. This is consistent both with the language of the Administrative Procedure Act (5 U.S.C. 551-559) and with case history regarding its implementation.

Site Visits

Many commenters stated that APHIS should conduct an additional site visit before the rule is implemented. Many of those commenters also stated that representatives of State governments and subject matter experts should be involved in the site visit.

APHIS conducted an additional site visit to review the details of the draft operational workplan in September of 2016. In addition to APHIS personnel, a representative from the California Department of Food and Agriculture and a former plant pathologist from the United States Department of Agriculture, Agricultural Research Service (ARS) participated in the site visit as observers. The site visit revealed nothing that would require a revision of the PRA.

Some commenters stated that the site visit should include a holistic review of Argentina's production system. Other commenters stated that Argentina's traceability system provides holistic records of their production system.

APHIS conducted a thorough review of Argentina's traceability system. We looked at the requirements for growers signing up, initial site visits of production sites, ongoing oversight during the growing season, field and packinghouse inspection, approval for movement and the final inspection for phytosanitary certificates. We also reviewed the computer system they use, how users are added, who controls movement and harvest approvals, and who issues phytosanitary certificates. Based on that review, we consider Argentina's traceability system to be robust, and we will use it for traceback as necessary. However, as specified in the proposed rule, we also consider it necessary to be able to identify lots of lemons through the export process, from the place of production to arrival at the port of entry. This establishes traceability beyond the scope of the Argentine domestic traceability system.

One commenter stated that Argentina's traceability system will not be able to trace detections of quarantine pests in U.S. orchards or urban areas back to places of production.

APHIS is confident that if the mitigations in the rule are adhered to, quarantine pests will not be introduced into United States orchards or urban areas.

One commenter stated that Argentina's traceability system has limited utility for citrus black spot (CBS), given its prolonged latency period.

As we explained in the PRA, fruit is not a pathway for CBS.

One commenter stated that the site visit should specifically focus on the infrastructure of the national plant protection organization (NPPO) of Argentina. Another commenter stated that the site visit should specifically focus on NPPO oversight of places of production.

The NPPO of Argentina is the Servicio Nacional de Sanidad y Calidad Agroalimentaria (SENASA). During the September 2016 site visit, we looked at SENASA's infrastructure and asked questions to address their capacity to provide oversight. We remain confident that SENASA will be able to adhere to the requirements of the systems approach.

Some commenters stated that the site visit should specifically focus on identifying pest populations in or near production sites.

During the site visit, we asked questions about pest populations, and we looked ourselves at fruit fly traps and at the citrus for signs of pests. We did not discover anything that requires revisions to the PRA.

One commenter stated that the site visit should specifically focus on organic production sites.

APHIS did specifically ask about organic production. Argentina may in the future ship organic fruit, but currently they do not. Current packinghouse practices include chemical treatments that are not organic, so any fruit that arrived from an organic production site would lose its organic status during packinghouse processing.

We will ask SENASA about organic production in northwest Argentina, as well as pest control guidelines they have developed for organic producers. We note that there are provisions in the systems approach that preclude the commingling of organic lemons and lemons for export to the United States later in the production chain.

One commenter stated that the site visit should be conducted during the summer months in Argentina.

The 2015 site visit occurred in June, during harvest season in Argentina. For this reason, APHIS considered a second site visit during the September/October timeframe to be sufficient.

One commenter stated that two additional site visits are needed. Specifically, the commenter stated that after the September site visit, a second fact-finding trip should be made to review the harvesting and packing operations in Argentina. The commenter stated that a trip at that time is needed since so many steps in the systems approach take place during the harvesting and packing operations.

APHIS disagrees. As we explained above, the 2015 site visit occurred in June, which is during the harvest season in Argentina. For this reason, we do not consider two additional site visits to be necessary.

Two commenters stated that industry stakeholders should be allowed to consult with trip members on their findings.

APHIS prepared a site visit report outlining the findings of the visit. The site visit report is available on the APHIS Web site at https://www.aphis.usda.gov/aphis/ourfocus/planthealth/import-information/proposal-import-lemons-argentina.

Many commenters expressed concern that the findings of the 2007 site visit are outdated.

The trip in 2007 was conducted by APHIS risk assessors to evaluate pest complexes in Argentina in order to prepare the PRA. Information from this trip served as a baseline primarily for the pest list in the PRA. The PRA, as other commenters noted, has been continually updated since this trip through means that APHIS routinely uses to update PRAs, such as literature review and ongoing consultation with the NPPO of Argentina. More specifically, the PRA was updated in 2014 after publication of new research results on seed transmission of citrus variegated chlorosis (CVC) in citrus. The PRA was also updated in 2014 in response to a new finding of citrus greening, also known as Huanglongbing (HLB), in Argentina. The PRA was reviewed by APHIS personnel at the same time to address comments from Argentina regarding the pest list. Furthermore, APHIS conducted a site visit just last year, in June of 2015, and the information gathered during that visit was used to update the PRA before the proposed rule was published.

Two commenters stated that the 2015 site visit was not a technical review of Argentina's program.

The commenters are mistaken. The 2015 site visit was a technical review of Argentina's program.

Three commenters stated that APHIS did not provide enough information to the public regarding the 2015 site visit to evaluate its adequacy. Two commenters stated that APHIS' slow response to a Freedom of Information Act (FOIA) request for documents regarding the 2015 site visit is an indication of the inadequacy of the trip.

APHIS has received the FOIA request and is in the process of responding to it. The time taken to respond to the FOIA request is consistent with normal timeframes for such requests and not a reflection of the adequacy of the trip.

One commenter stated that APHIS' willingness to conduct another site visit is an indication of the inadequacy of the 2015 site visit.

Usually, APHIS conducts one site visit as close to the implementation of a new systems approach as possible in order to aid in development of the operational workplan. It was therefore entirely in keeping with APHIS policy to conduct the September 2016 site visit prior to implementing this final rule, and is not indicative of flaws in the 2015 visit.

The 2015 site visit team included several APHIS risk managers who have extensive experience in evaluating foreign production systems to determine the ability of those systems to meet requisite mitigation measures.

Pest Risk Assessment

One commenter stated that updated information appears to have been incorporated into the PRA in a piecemeal fashion, without checking whether any conclusions or assumptions were affected.

APHIS notes that we have updated the PRA several times. Appendix 1 of the PRA summarizes updates to the draft PRA in response to public and peer review comments; Appendix 2 summarizes updates to the PRA made between 2008 and 2015 in response to new scientific information. Any time we incorporated new material into the PRA we reviewed the PRA to check the conclusions.

One commenter stated that information provided by SENASA is unreliable.

We disagree with the commenter. We have conducted two site visits during which we have verified the information provided by SENASA. They have also answered all the questions we have asked and provided all information we have requested.

Two commenters stated that stakeholder comments on the PRA appear to have been ignored.

APHIS posts PRAs and other documents for stakeholder review. As noted on the Web site on which the documents are posted, while stakeholder comments may result in changes to the PRA, as well as the RMD and the rule, it is not APHIS policy to compile or post responses to the comments received. This is because these documents are also made available for review and comment along with the rules and notices that propose to grant market access. Any comments that we receive on the documents during that comment period are addressed in a final regulatory action.

APHIS reviewed all of the comments that we received on the PRA and RMD. Certain comments, such as statements agreeing that Brevipalpus chilensis should be listed as a pest of lemons that is known to exist in Argentina, or that green lemons should not be required to be treated for Mediterranean fruit fly (Medfly), required no changes to the PRA or RMD because the commenters' requests were already reflected in the PRA or RMD. Other comments, such as a request to indicate whether the mites B. californicus, B. obovatus, and B. phoenicis (Brevipalpus spp.) were surface feeders, were incorporated into the PRA and RMD.

Other suggested revisions, such as revising the RMD to prohibit the importation of lemons with leaves attached, would have made the rule more stringent that our domestic requirements for the interstate movement of citrus fruit from areas quarantined for pests and diseases of citrus, and were not incorporated for that reason. Similarly, other revisions would have made the PRA or RMD inconsistent with how other APHIS documents discuss the same pest of concern or mitigation structure.

Finally, certain comments, such as that the NPPO of Argentina could not be trusted to abide by the systems approach, were reiterated during the comment period and dismissed for reasons discussed below under the heading “Risk Management Document.”

One commenter stated that a footnote in the Executive Summary to the PRA seems to define the term “commercially produced,” but in fact only describes conditions of the fruit after harvest and processing. The commenter stated that the term “commercially produced” should be limited to conditions at places of production.

The term “commercially produced” is equivalent to “commercial consignments.” It includes all aspects of the production system: The manner in which the fruit was grown and harvested, the quality of the fruit, the manner in which it is packaged, the quantities packaged, and the requisite accompanying documentation.

One commenter stated that the PRA and proposed rule did not identify pests of concern for Argentine lemons.

The pest list in the PRA identifies pests of lemons that are known to exist in Argentina.

One commenter stated that four pathogens—Elsinoë australis, Phyllosticta citricarpa, Xanthomonas citri subsp. citri (Xcc), and citrus leprosis virus—can all infect fruit and stay viable while on the fruit, even though capacity for transmission from infected fruit may be low. The commenter stated that the answer to the question “Can it follow the pathway?” for all four pathogens should be changed to “yes.”

APHIS notes that, while these could follow the pathway, the capacity for introduction or transmission of disease is so epidemiologically insignificant that further analysis was not warranted.

One commenter stated that citrus leprosis virus should have been selected for further analysis in the PRA as it is a quarantine pest likely to follow the pathway.

Citrus leprosis virus is not systemic and cannot be transmitted apart from viruliferous Brevipalpus spp. mites. It can follow the pathway only if it is vectored by the mites. For this reason we do not consider the virus to be a quarantine pest likely to follow the pathway.

One commenter stated that the citation in the PRA to the APHIS domestic fruit fly quarantine and regulations, which address Medfly was outdated and have been replaced with 7 CFR 301.32. The commenter noted that in the current regulations, only yellow lemons are regulated articles for Medfly.

The commenter is correct; the citations were outdated. However, this does not affect the conclusions of the PRA that green lemons are a poor host for Medfly.

Several commenters stated that the pest risk associated with importation of lemons is too high, and that the domestic citrus industry would suffer as a result of pest introductions.

If the mitigations in the rule are adhered to, this pest risk will be mitigated. Furthermore, some of these commenters appear to have overestimated the likelihood of introduction associated with certain of the pests. For example, Cryptoblabes gnidiella and Gymnandrosoma aurantianum have never been intercepted in commercial shipments of citrus from South America. Both are associated with poorly managed or non-commercial citrus, like backyard fruit.

One commenter stated that B. chilensis should have been rated as high risk in the PRA.

APHIS notes that B. chilensis was in fact rated as high risk in the PRA.

One commenter stated that Brevipalpus spp. mites should all have been rated “High Risk.” The commenter cited a scientific article on Brevipalpus mites and the diseases they transmit 2 in support of this statement.

2 Childers, C.C. and J.C.V. Rodrigues. 2011. An overview of Brevipalpus mites (Acari: Tenuipalpidae) and the plant viruses they transmit. Zoosymposia 6:180-192.

In that article, Childers and Rodrigues state that the only confirmed vector of citrus leprosis in the Western Hemisphere is B. phoenicis. The other mites are suspected to be vectors, but are not known vectors. Given that we consider B. californicus, B. obovatus, and B. phoenicis to be quarantine pests only insofar as they may vector citrus leprosis virus, and there is some uncertainty regarding the ability of B. californicus and B. obovatus to vector this disease, we consider a medium risk rating to be appropriate. It is also consistent with how we have rated these pests in other PRAs.

More importantly, a high risk rating would not have changed our mitigations for the pests. Under APHIS policy, both medium risk and high-risk pests are subject to pest-specific mitigations beyond port of entry inspection, and the mitigations we prescribed to address Brevipalpus spp. are based on the possibility that they may vector citrus leprosis virus, rather than the risk rating ascribed to the pests.

One commenter stated that the overall risk rating should have been higher.

As we explained above, a higher overall risk rating would not have changed the mitigation structure.

One commenter asked why, if “not be detected at the port of entry” did not impact risk ratings, port of entry inspection is a component of the systems approach.

“Not be detected at the port of entry” was removed as a criterion in the PRA because APHIS does not have enough information about relative likelihood of detection at the port of entry to be able to weight this criterion relative to other elements. As a result, this criterion could not substantially impact the risk ratings.

This does not imply that port of entry inspections are an ineffective component of a systems approach. Port of entry inspections by U.S. Customs and Border Protection (CBP) are, in fact, capable of detecting quarantine pests and are a significant mitigation against pests entering the United States. For example, in December 2015, CBP detections of Medfly larvae on Spanish tomatoes and Moroccan citrus led us to suspend market access for those commodities, pending investigations.

One commenter asked why, if fruit is not an “epidemiologically significant” pathway for E. australis, P. citricarpa, and Xcc, the PRA says “additional specified risk management options may be required.”

While we do not consider fruit to be an epidemiologically significant pathway for these pests, the pests are subject to domestic quarantines within the United States. For the sake of consistency with domestic regulations regarding the interstate movement of fruit from areas quarantined for CBS, sweet orange scab, and Xcc, we would require fruit to be washed, brushed, waxed, and surface disinfected. It is worth noting that such washing, brushing, waxing, and disinfecting are standard packinghouse procedures both domestically and internationally.

Likelihood and Consequences of Establishment

Several commenters stated that citrus-producing areas are particularly at risk for establishment of quarantine pests that could follow the pathway.

Incorporating information regarding likelihood of establishment would not have affected the pest risk ratings or the risk mitigation structure. As we explained above, both medium and high-risk pests are subject to pest-specific mitigations beyond standard port-of-entry inspection.

One commenter stated that the PRA does not acknowledge that backyard citrus in California is in proximity to ports of entry. Other commenters stated that the PRA does not recognize that most quarantine pest introductions first occur in urban areas, and are undetected. Three commenters stated that urban areas in Texas and California abut production areas and expressed concern that pests could become established in urban areas with backyard citrus and then spread into production areas.

As we noted above, incorporating this information into the PRA would not have affected either the pest risk ratings or the risk mitigation structure.

One commenter stated that Climate-Host interaction for Brevipalpus spp. should have been rated “high.” The commenter cited a 2012 reference in the Ninth Report of the International Committee of Taxonomy of Viruses 3 that said that citrus leprosis virus was transmitted to several other experimental hosts from other genera including Phaseolus vulgaris in support of this statement.

3 “Virus taxonomy: classification and nomenclature of viruses: Ninth Report of the International Committee on Taxonomy of Viruses.” (2012) Ed: King, A.M.Q., Adams, M.J., Carstens, E.B. and Lefkowitz, E.J. San Diego: Elsevier Academic Press.

There is no mention in the report of whether the conditions under which transmission to P. vulgaris occurred could be reduplicated outside of laboratory conditions. The sentence the commenter is referring to is immediately preceded by a sentence referring to mechanically administering inoculum to induce symptoms in articles previously considered non-hosts. This, coupled with the use of “experimental” to describe inoculation of P. vulgaris, suggests the study was not intended to reduplicate actual “field” conditions.

In the PRA, we identified the dispersal potential of B. chilensis as “medium” and of Brevipalpus spp. as “high.” One commenter stated that the dispersal potential for both B. chilensis and Brevipalpus spp. should be high.

The commenter is correct that the dispersal potential for both B. chilensis and Brevipalpus spp. should be the same; however, we disagree that the rating for both should be high. Based on the work of Childers and Rodrigues, the dispersal potential for both should be medium. Both B. chilensis and Brevipalpus spp. are very unlikely to move from one orchard tree to another. They both tend to aggregate, they move downwind slowly, and they do not balloon—that is, they do not produce streamers of silk and travel with wind currents for longer distances.

One commenter stated that the environmental impact potential for Brevipalpus spp. is low, but the introduction of this pest infected with citrus leprosis virus would stimulate the use of chemical control. The commenter stated that the risk rating should therefore be changed to medium. The same commenter also stated that consequences of introduction for Brevipalpus spp. should have been considered high.

We consider the ratings given to Brevipalpus spp. to be accurate. Under standard commercial packinghouse procedures, the mites would be washed or brushed off, even in the absence of required mitigations. Furthermore, citrus leprosis virus is not a systemic infection, and mites do not feed on harvested fruit unless doing so is absolutely necessary for survival.

Accordingly, for a non-viruliferous Brevipalpus mite in the United States to become a vector of citrus leprosis virus, the infected portions of the fruit would have to have abnormally high levels of inoculum, the mite would have to be on infested fruit, and the mite would have to specifically consume the infected portions of the fruit, climb up a tree, and infect the tree.

Since citrus leprosis virus inoculum is not shed to offspring, this would also have to occur during the infected mite's lifetime. We consider the probability of this occurring to be extremely remote.

One commenter stated that the likelihood of introduction for Medfly should have considered lemons a conditional host, rather than a conditional non-host.

The designation of lemons as a conditional non-host of Medfly was based on research published by ARS scientists 4 that examined the host status of immature lemons.

4 Spitler, G.H., J.W. Amstrong, and H.M. Couey. 1984. Mediterranean fruit fly (Diptera: Tephritidae) host status of commercial lemon. Journal of Economic Entomology 77(6):1441-1444.

One commenter stated that the PRA did not consider introduction via smuggling or diversion. The commenter expressed concern that the fruit could be carried to a home while vectoring a pest or disease.

The PRA addressed the plant pest risk associated with the importation of commercially produced and commercially packed fresh lemon fruit from northwest Argentina into the United States. Fruit that is not commercially grown or packed are outside the scope of the risk assessment.

Risk Management Document

One commenter stated that the RMD requirements are inadequate to eliminate the risk of introduction of the quarantine pests identified in the PRA, but did not provide the basis for their concern.

Some commenters stated that the RMD and rule contain safeguards to address plant pest risk, and one commenter stated that similar systems approaches for citrus from other countries have proven effective. One commenter, however, stated that there are no similar systems approaches because no other growing area harbors this combination of pests and diseases of citrus, but is still asking to market fresh fruit.

APHIS notes that the PRA for citrus from Uruguay had a very similar quarantine pest list—they did not have B. chilensis or Brevipalpus spp., but had all other quarantine pests identified in the Argentine citrus PRA. Accordingly, many provisions of the Argentine lemons systems approach were modeled on the Uruguay citrus systems approach, which has been in place for 31/2 years now without incident. Furthermore, the Brevipalpus-specific provisions are not new, and have been tested for several different commodities in other countries.

Five commenters expressed concern that Argentina cannot be trusted to abide by mitigations in the RMD and rule. Some of these commenters cited incidents that they believed showed Argentina handling sanitary or phytosanitary issues in deceptive ways. One commenter stated that, as a result of the history of SENASA, APHIS needs to exercise continual monitoring and oversight over the program.

Argentina is a World Trade Organization member country and signatory on the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS agreement). As such, it has agreed to respect the phytosanitary measures the United States imposes on the importation of plants and plant products from Argentina when the United States demonstrates the need to impose these measures in order to protect plant health within the United States. The PRA that accompanied the proposed rule provided evidence of such a need. Argentina has demonstrated the ability to comply with U.S. regulations with respect to other export programs.

We disagree with several of the examples cited as recent prevarication by SENASA. APHIS became aware of the presence of A. fraterculus in blueberries in Argentina because of a scientific paper published by Argentina. The disagreement between APHIS and SENASA regarding the presence of B. chilensis in Argentina was based on differing opinions regarding whether the pest detected had been identified properly. As such, it indicated a difference of scientific opinion, rather than an act of deception.

That said, the 2015 site visit specifically evaluated SENASA's oversight of the Argentine production system for lemons to determine whether the provisions of the systems approach could be implemented and maintained.

Finally, as provided in paragraph (a) of the proposed rule, APHIS would be directly involved in monitoring and auditing implementation of the systems approach in Argentina. A determination that the systems approach had not been fully implemented or maintained would result in remedial actions, including possible suspension of the export program for Argentine lemons.

One commenter expressed concern that the United States Department of Agriculture (USDA) cannot be trusted to abide by mitigations in the RMD and rule. The commenter referred to a scandal at Hunts Point Terminal Produce Market in the Bronx, NY, as an example of USDA personnel accepting bribes and kickbacks. The commenter stated that even if such events are not commonplace, they still must be factored into the risk assessment.

The bribery and kickback scheme referenced by the commenter was revealed in 1999 after a 3-year investigation by the USDA Inspector General and involved Agriculture Marketing Service personnel, who have no role in the implementation of this rule.

One commenter asked why, if the mitigations in the RMD are effective, the PRA discusses likelihood and consequences of introduction.

The PRA follows our guidelines for PRAs. As such, it discusses the likelihood and consequences of quarantine pests that could follow the pathway on lemons from northwest Argentina to the United States, in the absence of any mitigations. This assessment is a necessary aspect of our evaluation of the risk rating for the pests.

The RMD lists the mitigations that will be applied to prevent pests from following the pathway and being introduced.

Three commenters stated that European Union (EU) detections of CBS on fruit from Argentina indicate the inability of Argentina to follow a systems approach.

We disagree with the EU regarding the transmissibility of CBS via commercially produced fruit. The point of these statements in the PRA and RMD was to point out that Argentina has been able to implement and abide by a systems approach for lemons that rests on SENASA having the wherewithal to meet phytosanitary requirements. We note that the RMD stated that Argentina proposed the EU systems approach to us in its entirety as a mitigation structure, and that we rejected adopting it outright. Furthermore, the systems approach for Argentine citrus to the EU is the same systems approach applicable to U.S. citrus to the EU, indicating they consider us equivalent in terms of ability to adhere to phytosanitary requirements.

It is also worth noting that the EU audit 5 attributed the detections to a lack of traceability of individual lots of fruit to the production units in places of production, to some packinghouses commingling lemons destined for export with other fruit, and to some producers not applying pest controls for CBS. These mitigations, which were added to the EU directive following the detections, are all aspects of our systems approach. Our systems approach is, in short, more stringent than the EU directive was prior to the CBS detections.

5 The audit is available online at ec.europa.eu/food/audits-analysis/act_getPDF.cfm?PDF_ID=12522.

One commenter stated that there is no evidence the EU systems approach for lemons from Argentina is equivalent to the systems approach proposed by APHIS.

The two systems approaches are not equivalent, and we did not suggest they were. Rather, we made reference to the EU systems approach to illustrate that Argentina has the capacity to adhere to a stringent systems approach, so that it is plausible that they could adhere to our systems approach as well. We state in the RMD that Argentina proposed that we simply adopt the EU systems approach, and we rejected that proposal.

One commenter stated that, because of proximity of ports of entry to urban areas, and urban areas to citrus production in the United States, any lapses from systems approach will have dire consequences.

The commenter seems to be assuming that, if infested or infected fruit is shipped to the United States, it will not be detected at a port of entry inspection, and will necessarily result in the introduction of quarantine pests into the United States. This assumption is, in essence, that port of entry inspections are ineffective at detecting plant pests. We disagree with this assumption; port of entry inspections are an effective mitigation and have precluded two potential introductions of Medfly in the last year alone.

One commenter stated that there is no definition or list of criteria for pests of “quarantine significance” in either the PRA or RMD. The commenter asked what the criteria are for determining what pests are of quarantine significance.

The PRA, RMD, and rule use the terms “quarantine significance” and “quarantine pest” interchangeably. In § 319.56-2 of the regulations, we define a quarantine pest as “[a] pest of potential economic significance to the area endangered by it and not yet present there, or present but not widely distributed there and being officially controlled.”

One commenter noted that the RMD says 9 pests of quarantine significance were identified, but the PRA lists 10. The commenter asked for an explanation of this apparent discrepancy.

The PRA acknowledges that CBS could follow the pathway, and is a quarantine pest, but then cites the 2010 PRA, which determined that, even in the absence of packinghouse procedures, fruit is an “epidemiologically insignificant” pathway for CBS, and the conditions that would allow for transmission from fruit are nearly impossible to occur, even in the absence of standard packinghouse procedures. The RMD looked at commercially produced fruit, that is, fruit subject to packinghouse procedures and standard industry practices. This led us to drop CBS from the list of quarantine pests.

One commenter noted that in section 1 of the RMD, guidelines for growers participating in the program are mentioned as needing to be followed. The commenter asked what these guidelines are.

In the RMD, we explain that these are pest control guidelines that a place of production may need to meet in order to qualify for registration with SENASA.

One commenter asked if the operational workplan will contain only SENASA's requirements.

Generally, the operational workplan pertains to APHIS, the NPPO of the exporting region, and growers, packinghouses, and persons commercially involved in chain of production. It contains details that are necessary for day-to-day operations needed to carry out provisions of the rule and RMD. This one will be no different.

One commenter asked what SENASA's requirements are under the operational workplan.

SENASA's requirements include everything specified within the RMD: Registration; regular inspections; pest control guidelines; and inspections to determine that treatment guidelines are being adhered to.

Additionally, Argentina has place of production requirements apart from APHIS' requirements that pertain to all citrus groves in the country. These include sanitary guidelines that are developed in consultation with Argentine subject matter experts and address regulated nonquarantine pest populations that could affect marketability of the citrus.

One commenter noted that the RMD specifies that SENASA must ensure that growers are following the “export protocols.” The commenter asked what those protocols are, and stated that they should be made available for public review and comment.

The protocols are conditions for export established by APHIS in the operational workplan. The RMD and the regulatory requirements derived from it include a general description of all the phytosanitary measures necessary to mitigate pest risk. The operational workplan specifies details that are necessary for day-to-day operations needed to carry out provisions of the rule and RMD. Operational workplans are available to the public upon request only after a rule has been finalized and the operational workplan has been signed by APHIS and the NPPO of the exporting country. With respect to consulting with stakeholders, APHIS typically conducts outreach and consultation during the risk assessment and management phases.

One commenter stated that section 16 of the RMD should specify that fruit fly detections must fall below a threshold before a registered place of production can resume shipping.

Immature lemons are a poor host of Medfly. Because of this, prevalence levels at a place of production are not germane to whether Medfly are more likely to follow the pathway on immature Argentine lemons, and it would be incommensurate with risk to cut off a place of production based on Medfly detections.

This policy is consistent with our existing importation requirements for lemons from other countries that have Medfly. We have no reason to believe these existing requirements have been ineffective.

One commenter stated that places of production should be suspended if B. chilensis is found on the lemons during NPPO inspections.

In the RMD, we said place of production “may be suspended” and are “subject to suspension” out of recognition that the investigation could determine that the fruit was clean when it left the orchard, and the pest was introduced later in the production chain.

Two commenters noted that the rule doesn't contain mitigations for CVC and its vectors. The commenters expressed concern that potential vectors could transmit CVC if they were allowed to hitchhike on exports.

Glassy-winged sharpshooters are the vector of concern for CVC. They are the subject of consistent surveys and are not in northwest Argentina. Were they to spread into northwest Argentina, the sharpshooters would be removed by washing and brushing and standard packinghouse procedures. Additionally, as external feeders, they are easy to detect during phytosanitary inspections and/or port of entry inspections. Finally, CVC cannot follow the pathway of lemons in the absence of a vector.

One commenter noted that the RMD concludes that seeds are unable to transmit CVC directly. The commenter stated that this directly contradicts the regulations in 7 CFR 319.37-2, which consider CVC to be seed-transmitted.

A Federal Order published on May 19, 2016, relieved restrictions on citrus seed for CVC. The Federal Order is available on the APHIS Web site at https://www.aphis.usda.gov/import_export/plants/plant_imports/federal_order/downloads/2016/2016-31.pdf. A rule codifying this Federal Order is in development. The citrus seed pest list prepared in November 2015 is referenced in this Federal Order. The pest list contains our current thinking about the transmissibility of CVC and other citrus diseases via seed.

Four commenters expressed concern that the rule does not contain mitigations for HLB.

APHIS has examined whether fruit is a pathway for HLB, and determined that HLB is not transmitted via fruit. Therefore, mitigations for HLB are not necessary.

One commenter stated that APHIS should not trust SENASA on the scope of the HLB outbreak in Argentina.

Neither the severity of the HLB outbreak in Argentina, nor its distribution, affect whether HLB-specific mitigations need to be included in the rule. As we explained above, HLB is not transmitted via fruit.

The same commenter stated that APHIS should not trust SENASA on distribution of Asian citrus psyllid (ACP), a vector of HLB, in Argentina.

The distribution of ACP in Argentina is not necessary for us to evaluate the risk of it following the pathway via the importation of lemons. As documented in the PRA, standard packinghouse procedures will remove ACP from the fruit. Only commercially produced fruit, which is subject to such procedures and will therefore be free of ACP, can be exported to the United States.

One commenter stated that the PRA should include information about distribution of HLB in Argentina.

APHIS does not consider this information to be necessary, given that HLB is not transmitted via fruit.

One commenter expressed several concerns about CBS. The commenter stated that CBS is impossible to eradicate once introduced, that it can have a lengthy latency period, and that trees infected with CBS are unmarketable.

APHIS notes that we never questioned the quarantine significance of CBS, just its ability to become established via fruit.

One commenter stated that justifications in the PRA for why CBS will not follow the pathway are not accurate. The commenter stated that the PRA assumes farmers in Argentina all farm in the same intensive manner.

The commenter is mistaken. In the systems approach for Argentina lemons, we have incorporated the same mitigations for CBS for that we are using for Florida citrus. These mitigations are based on a separate scientific review, which can be viewed on the APHIS Web site at https://www.aphis.usda.gov/plant_health/plant_pest_info/citrus/downloads/black_spot/cbs-risk-assessment.pdf.

Several commenters stated that APHIS erred in determining that CBS cannot follow the pathway on fruit. Another commenter expressed concern that CBS could become established in Southern California if infected fruit arrived at and were distributed through the Port of Long Beach.

Both Paul et al.6 and Magarey and Holtz 7 ran infection models which found California's climate, including that of Southern California, unsuitable for establishment of CBS. While isolated microclimates in Southern California could result in small pockets of CBS infection, the overall climatic conditions are unsuitable to establishment and spread.

6 Paul, I., van Jaarsveld, A.S., Korsten, L., & Hattingh, V. (2005). The potential global geographical distribution of citrus black spot caused by Guignardia citricarpa Kiely: likelihood of disease establishment in the European Union. Crop Protection, 24, 297-308.

7 Magarey, R., Chanelli, S., & Holtz T. (2011). Validation study and risk assessment: Guignardia citricarpa, (citrus black spot). USDA-APHIS-PPQ-CPHST-PERAL/NCSU.

One commenter stated that APHIS did not take into account either the reality of the residential yards in Southern California, or the numerous interceptions of Argentine citrus for CBS symptoms in shipments to the EU in the years since 2010.

These two facts do not affect the conclusion on the 2010 PRA that the establishment of the disease via the movement of fruit requires a combination of biological and climatic conditions that are unlikely to occur.

One commenter stated that the spread of CBS in Florida could be indicative of errors in the 2010 PRA.

The PRA found Florida's environment to be conducive to the spread of CBS, and examined only transmission via fruit. The spread of CBS within Florida could have occurred through a pathway other than fruit, and is not in itself indicative of errors in the 2010 PRA.

One commenter stated that the EU Food Safety Commission in 2014 issued a scientific opinion which deemed the risk of entry of the causal agent of CBS as moderately likely for citrus fruit without leaves.

APHIS notes that the proposed conditions for importation of lemons from northwest Argentina are the same as the conditions we apply to export citrus from the United States. We also note that the causal organism of CBS has two life cycle stages: A sexual stage represented by the ascospores of Guignardia citricarpa Kiely and an asexual stage represented by the pycnidiospores of P. citricarpa (McAlpine). These two stages are produced at different times, under different environmental conditions, at different locations on the plant and result in different epidemiological dynamics. The sexual stage of the disease may be found in plants and leaves; the asexual stage of the disease is found on fruit. The correlation between ascospore discharge and infection onset showed that pycnidiospores, the asexual stage, do not play a significant role in the disease cycle. For this reason fruit is not considered to be a pathway for CBS.

Several commenters asked how, if we do not know how CBS got into Florida, we know it cannot follow the pathway on fruit.

The PRA examined the biological and climatic conditions necessary for establishment of CBS through infected fruit, and determined that “the establishment of the disease via this pathway [the movement of fruit] requires a combination of biological and climatic conditions that are unlikely to occur.” It is important to acknowledge, as the EU scientific opinion did, that there are many possible pathways for the introduction of CBS, with some (such as smuggling of nursery stock) significantly more likely to result in establishment.

One commenter asked what circumstances would compel APHIS to require further mitigations for CBS in Argentina's packinghouses, and what mitigation steps it would be willing to institute in those circumstances.

We have considered the risk of CBS and how to mitigate it. Standard packinghouse procedures, including washing, brushing, disinfecting, treating, and waxing, address that risk effectively. Under the circumstances, we do not believe further mitigations are needed.

One commenter stated that the rule should restrict exports to areas of northwest Argentina that are free of CBS.

For the reasons discussed above, we do not consider this necessary.

Comments on Specific Provisions of the Proposed Rule

One commenter asked why the Provinces of Catamarca and Jujuy were included in the rule when they are not major lemon-producing regions.

As we explained in the proposed rule, SENASA asked for market access for these provinces. We therefore included them in the PRA and found that lemons could be safely exported from these provinces subject to the conditions described in the proposed rule.

One commenter stated that Brevipalpus spp. should not be listed as quarantine pests, but that citrus leprosis virus should be listed as a quarantine pest.

Citrus leprosis virus is not systemic. It could not be introduced into the United States, unless vectored by Brevipalpus spp. mites. For this reason we consider the mites to be quarantine pests.

One commenter stated that the details of the operational workplan need to be included in the regulations or otherwise made publicly available.

As we explained above, the mitigations in the operational workplan are the same as in the RMD and the rule. The operational workplan specifies details for day-to-day operations that are needed to carry out provisions of the rule and the RMD. As a result, operational workplans are living documents that change periodically to reflect new technologies and operational realities in the field.

One commenter asked what constitutes “direct involvement” in implementation and monitoring of the operational workplan.

The operational workplan provides APHIS with the standard operating procedures that the NPPO, places of production, packinghouses, and others involved in the production of the fruit will follow as part of the export program. Our oversight will include routine reviews and inspections of the program, but not continual oversight. That would be tantamount to mandatory preclearance program, which we do not consider necessary. The frequency with which we conduct site visits and review export program records will increase if any pest concerns are identified.

One commenter stated that a trust fund agreement to pay for APHIS personnel may be necessary.

A trust fund agreement is associated with preclearance programs in which there is continual APHIS oversight, which we do not consider warranted here.

One commenter stated that registration requirements should extend to contiguous orchards to mitigate the chance of contamination of the place of production during harvest after the initial freedom certification.

APHIS does not consider this to be necessary. As discussed above, the Brevipalpus spp. mites that exist in Argentina do not balloon—that is they do not produce streamers of silk and travel with wind currents for longer distances—and have limited mobility. It is unlikely that they could infest contiguous orchards after the initial freedom certification.

One commenter stated that registering small places of production may increase pest risk.

We disagree that small places of production may represent a higher pest risk than large ones. In order to be registered with the NPPO and participate in the export program, the NPPO (and, as warranted, APHIS) must determine that the place of production or packinghouse is able to adhere to the systems approach. This is true regardless of the size of the place of production or packinghouse. Routine inspections by the NPPO, and the possibility of monitoring by APHIS, will corroborate ongoing maintenance of systems approach provisions at registered places of production and packinghouses.

We proposed to require lemons from Argentina to be harvested green and within the time period of April 1 and August 31. If the lemons are harvested yellow or harvested outside of that time period, they would have to be treated for Medfly in accordance with 7 CFR part 305 and the operational workplan. Two commenters asked how we would determine whether a lemon was green or not.

In the ARS study that determined that lemons are a conditional non-host of Medfly, the term “yellow” was used interchangeably with “mature.” Immature lemons were considered to be a poor host. For purposes of the systems approach, we consider any lemon that is not green as ripe enough to require cold treatment. We are using additional ARS research 8 and a market standard on lemon color to determine if lemons are green.

8 Jang, E.B., R.L. Mangan, D.M. Obenland, M.L. Arpaia, and R. Rice. (undated). Defining Host Status of California Grown Lemons to Fruit Fly Infestation (PowerPoint Presentation). USDA-Agricultural Research Service and University of California. 8 pp.

Two commenters asked who will determine whether a lemon is green or yellow. One commenter asked where this determination will be made. That commenter also stated that APHIS employees should make the determination.

In Argentina, lemons are evaluated for color and graded as part of packinghouse procedures. The determination for color and grade is made by graders employed by SENASA.

One commenter stated that the finding that green fruit is harvested from March to May in Argentina appears to be based on 2007 information, which is outdated.

When green fruit is harvested in Argentina is irrelevant to the conclusions of the PRA. As we explained in the proposed rule, lemons that are harvested yellow would have to be treated for Medfly, regardless of the time of year in which they are harvested.

One commenter stated that the RMD and rule should be consistent with regard to when lemons do not need treatment.

The commenter seems to believe that there is a discrepancy between the RMD and the proposed rule because the requirement is phrased slightly differently, but this is not the case. Both the proposed rule and the RMD specify that a lemon must be green and shipped within the April-August window in order to avoid treatment.

One commenter expressed concern that the use of the term “safeguarded” in § 319.56-76(a)(8) is too vague. The commenter stated that the words “and protected from fruit fly infestation” should be inserted after the word “safeguarded” in that paragraph.

APHIS disagrees that this addition is necessary. We use the term “safeguarded” throughout the regulations to mean that fruit must be protected from infestation, or, in the case of treated fruit, reinfestation, by quarantine pests.

One commenter asked whether trucks and workers would be sanitized in between uses for U.S. exports and other uses, and if not, why not.

Packinghouse workers are required to wash their hands and wear clean protective clothing every time they enter the packinghouse. The fruit never touches the trucks; it is harvested and brought to the packinghouse in bins that are disinfected after each use. Fruit for export is shipped in clean new boxes. Old shipping boxes are never reused.

Several commenters asked how APHIS will determine pest-free places of production for B. chilensis, given that Argentine production for fresh consumption and processing is intermixed.

While B. chilensis exists in Argentina, there is no evidence that it exists in northwest Argentina. This is based on extensive and ongoing documentation SENASA has provided to APHIS. Due to the absence of B. chilensis in northwest Argentina, the intermixing of fresh and processed production sites in that area does not have a bearing on whether a site is pest-free for B. chilensis.

It is worth noting that we have no evidence that Argentine producers designate specific sites for fresh or processed production and use different production practices based on the intended use of the lemons. Rather, as a result of grading during packinghouse inspections, highly graded lots are designated for the fresh market, while the rest of the fruit goes to processing and other uses.

That being said, the rule specifies that APHIS will monitor implementation of the systems approach. This includes monitoring the distribution of B. chilensis in Argentina. If the distribution changes, we note that there are still several safeguards that would address the commenter's concern. First, the place of production must be inspected regularly by the NPPO of Argentina; these inspections would include inspections for B. chilensis. Second, the place of production must adhere to any pest control or management practices specified by APHIS and/or SENASA. An orchard that was in an area in which B. chilensis is known to occur, and in proximity to an orchard not participating in the export program, would be subject to management practices to address this risk. Finally, registration of places of production allows for traceback and quick remediation if infested fruit is discovered later in the production chain.

One commenter stated that APHIS should ask SENASA to prepare a grid-type schematic that shows the location of processed orchards as compared with orchards where fruit is grown for the fresh export market. The commenter stated that this analysis is essential, and that if SENASA will not prepare it, then APHIS should prepare it.

The grid suggested by the commenter is not possible. Orchards in Argentina are not designated for a particular type of production. Rather, as we explained above, lots are designated based on grading conducted in packinghouses.

Two commenters stated that the biometric sampling protocol for B. chilensis is insufficient.

APHIS disagrees. Mites have limited mobility. The commenters are referring to the fact that some species of mites are known to travel longer distances by ballooning, where the mites produce streamers of silk and travel with wind currents for longer distances. According to Childers and Rodrigues (2011), Brevipalpus mites do not produce silk and therefore are not capable of ballooning. Childers and Rodrigues indicate there is some evidence that these mites can blow from heavily infested plants downwind to nearby plants. They do not present evidence of long distance movement of Brevipalpus mites by the wind.

B. chilensis mites in Argentina are associated with the wine grape industry in the state of Mendoza (approximately 1,000 miles south of the region where lemons are produced). They are not present in Tucumán where most of the export lemons in Argentina are grown, nor, again, is there any evidence of their presence in the whole northwestern region.

The systems approach for B. chilensis is based on the pest's limited mobility. This systems approach has similarly been used in Chile for citrus for many years without interceptions of this mite in commercial shipments. In addition to the place of production inspection, every shipment of lemons to be exported will also be inspected for mites with the same wash technique. If mites are found on any shipment, that place of production will be removed for the rest of the export season.

One commenter stated that APHIS only described the B. chilensis protocol, without providing evidence of its adequacy. The commenter further stated that the lack of interceptions of the mite on fruit that has entered the United States from Chile is not sufficient evidence for the effectiveness of the protocol. Another commenter stated that there is no literature of evidence that suggests the protocol is effective.

APHIS disagrees. Mites and other small organisms have been studied by collecting them from their habitat through sieves that concentrate them. Southwood and Henderson in their classic textbook Ecological Methods9 devote chapters to this method of sampling.

9 Southwood, T.R.E., & Henderson, P.A. (2009). Ecological Methods. John Wiley & Sons.

This method of sampling has been used since the 18th century; use of Berlese funnels and sieves is ubiquitous in sampling mites and other small organisms in various habitats. The agricultural quarantine and inspection data that APHIS collects routinely suggests that this method, which has been used for almost 20 years by APHIS as a mitigation measure, has been very effective in detecting B. chilensis mites on fruit from Chile.

One commenter stated that it is impossible to know whether 100 samples is sufficient without knowing the size of places of production.

Regardless of the size of the orchard, 100 samples provides 95 percent confidence of a 3 percent infestation rate. This confidence level is sufficient given that B. chilensis is not known to exist within 1,000 miles of northwest Argentina and, biologically, tends to aggregate once established. APHIS believes that the overlapping protections of routine visual inspections, NPPO surveying for B. chilensis spread, and the biometric protocol provide a sufficient degree of phytosanitary protection.

One commenter stated that the B. chilensis biometric sampling protocol is not based on the biology of B. chilensis. The commenter stated that other species of Brevipalpus are known to have particular habitat preferences within a tree, such as the most shaded, humid areas (Childers & Rodrigues 2011). The commenter stated that if something like this is the case for B. chilensis, then a targeted survey, rather than biometric survey of the place of production, is needed to determine prevalence.

APHIS disagrees. Mites, including B. chilensis, reproduce and build up populations in a small area because of their limited dispersal capability. The sampling distribution is based on the premise that if one mite is found, there is a high probability that another mite is nearby. This is called an aggregated distribution. This probability distribution (or variation), is called hypergeometric, or negative binomial, and can be used to model the distribution of most insects and mites.

Very few insects and mites do not have aggregated distributions, and there is no evidence that B. chilensis does not have aggregated distributions. The production site survey is a targeted survey; the samples are taken from the leaves which is where the mite populations are highest. We note, moreover, that this survey is presently strictly precautionary. There is no evidence of B. chilensis in northwest Argentina.

Two commenters stated that biometric sampling may miss immature B. chilensis mites.

The mite exists in populations that contain eggs, immature stages, and adults. Only the adults can be identified reliably through microscopic examination of the filtrate from the sieve. The sieve will collect adult mites. The likelihood of only eggs or nymphs being present is very low, so APHIS can use the sieve sampling method to reliably detect populations of mites at production sites. APHIS will be requiring a number of samples and the probability that only eggs and larvae of the target mite would be present in all of the samples is very low. Moreover, if one sample detects adult B. chilensis mites, the production site will not be certified B. chilensis free.

One commenter asked how APHIS determined the efficacy of Chilean citrus protocol.

As we state in the RMD, our determination was based on the absence of detections of infested fruit in the export pathway over almost 20 years.

One commenter questioned whether it is appropriate to compare the citrus-growing area that exists in Chile to the growing areas in Northwest Argentina for purposes of dealing with Brevipalpus spp. mites. The commenter noted that the growing area in Argentina is much larger than the growing area in Chile, and stated that the growing area in Argentina has high rainfall and high humidity, while the growing area in Chile typically has low rainfall and low humidity. The commenter stated that the difference in climate makes the growing area in Argentina hospitable to certain pathogens, but did not specify which ones.

The commenter is mistaken about the climate in northwest Argentina. The scientists at the Obispo Columbres Agroindustrial Station, SENASA, and the lemon growers in Tucumán told us that northwest Argentina does not have high rainfall. On the contrary, rainfall is low and the lemon groves are often irrigated. Therefore, the mite populations should face similar climates in the citrus growing portions of Chile and the lemon growing parts of northwest Argentina. During the September 2016 site visit, we asked the scientists at the Obispo Columbres Agroindustrial station about the mites. They said that they had found two of the three Brevipalpus mite species (not B. chilensis) in the lemon production areas in northwest Argentina, but that they were not common. Further, the hot dry conditions favor mites more than rainy humid conditions. The mitigations for Brevipalpus mites should not be affected by any climate differences, which appear to be minimal.

One commenter stated that the protocol for citrus from Chile includes species of citrus that may be less hospitable to B. chilensis.

APHIS notes that the protocol for mites from Chile also includes fruit that are better hosts than lemons. The sampling method for determining low prevalence works regardless of mite populations on the host fruit.

Two commenters stated that surveying for B. chilensis around production sites is necessary because if there are high populations in the vicinity, or if wind is a strong factor in dispersal, mites are likely to be constantly moving into the orchard.

As noted above, B. chilensis are a generalist pest, and tend to aggregate. The likelihood of B. chilensis in a neighboring orchard, without spillover into the registered production site, is low. Accordingly, if mites are in the vicinity, they should be detected through routine place of production inspections and the biometric sampling protocol.

One commenter stated that the B. chilensis-specific protocol should be extended to all Brevipalpus spp. mites.

Currently Argentina is sampling for B. chilensis and the three Brevipalpus spp. mites that are potential vectors for citrus leprosis virus. We are only requiring pest free place of production for B. chilensis, because B. chilensis is itself a quarantine pest. We are requiring consignment freedom (by inspection of harvested fruit) for all of the mites. Brevipalpus species other than B. chilensis are only considered quarantine pests if they are carrying the citrus leprosis virus. The probability of movement of the citrus leprosis pathogen from an infected tree in Argentina to a suitable host in the United States via a Brevipalpus mite traveling on a lemon fruit is extremely low, and require several additional steps to acquire and spread the pathogen so we are not requiring production site freedom.

One commenter stated that the B. chilensis protocol should be extended to surrounding areas of production.

As we explained above, B. chilensis is not found within 1,000 miles of northwest Argentina, has low powers of mobility, and tends to aggregate. If it is not found in a registered place of production during routine surveys conducted by the NPPO to evaluate pest spread, as well as routine harvest inspections and two separate biometric samples associated with the systems approach, we are confident that it will not be on fruit for export.

One commenter stated that production sites should be inspected for B. chilensis throughout the harvest season.

If mites were found in a consignment at a packinghouse, the originating production site would lose its free status. For this reason it is not necessary to inspect production sites throughout the harvest season.

One commenter stated that the B. chilensis protocol should include surveying for citrus leprosis virus.

Symptoms of citrus leprosis virus are easy to detect, and fruit with such symptoms will be detected during standard packinghouse culling and phytosanitary inspections.

One commenter stated that fallen fruit should be cut and inspected for Medfly.

This effectively calls for place of production freedom for Medfly. APHIS notes that in the RMD, fallen fruit are specifically forbidden from being included in harvested fruit going to the packinghouse for fresh market. For this reason, we do not consider it necessary to sample fallen fruit for fruit flies or any other pest.

One commenter stated that trapping requirements for Medfly need to be delineated in the rule itself.

Historically, we have put trapping requirements in operational workplans, rather than rules, to allow flexibility in trapping protocols in order to respond to variations in population densities from season to season, as well as the development of new lure and bait technologies.

One commenter stated that trapping should be at least 50 percent with trimedlure and the other 50 percent should be baited with either 3-component or protein bait.

APHIS notes that both the 3-component bait and the protein bait are far less powerful lures for fruit flies than trimedlure, a pheromone. The trimedlure will draw flies in from farther away and is a more sensitive detection system. Trimedlure will also attract males and unmated females, which will make up a significant portion of any fruit fly population. The only thing that the protein or 3-component baits will attract is mated females, and if they are present then males and unmated females should also be present and will have already been detected by the more powerful trimedlure.

One commenter asked for greater detail about the requirements for packinghouses. The commenter specifically asked whether an entire facility would be included as a packinghouse, how many facilities would pack lemons for the U.S. market and what volume could a dedicated packinghouse expect to process.

A packinghouse has to be an entire facility. APHIS is aware of a few packinghouses that would serve as primary packinghouses; however, all packinghouses would be registered with the NPPO. Both the NPPO and APHIS will monitor packinghouses during routine inspections.

One commenter asked how large a consignment of lemons could be, and if there will be a limit on the size of consignments.

Consignments can vary in size. However, regardless of the size of the consignment, the sampling protocol is aimed at detecting a 3 percent infestation rate with at least 95 percent confidence.

One commenter asked how a biometric sample was defined.

The term `biometric sampling' simply means that the sample size that is smaller than a straight 2 percent sample can be used to detect pests on large consignments of the commodity. Taking a biometric sample is more efficient than taking a straight percentage sample.

One commenter stated that the number of samples inspected should be 600. The commenter stated that this is consistent with what other countries require from U.S. growers.

APHIS disagrees that the number of samples inspected should be 600. One hundred samples is consistent with the Chilean protocol, which has been effective at precluding infested fruit from being shipped. Inspecting an additional 500 fruit per sample does not substantially impact the probability of finding an infestation, and would be significantly more resource-intensive.

One commenter asked if the same method will be used to inspect for B. chilensis as is used for the production site protocol.

Yes, the same method will be used for both production sites and packinghouses.

One commenter asked about the efficacy data for post-harvest inspections.

Post-harvest inspections by the NPPO of an exporting country are a long-standing phytosanitary measure that APHIS employs as part of market access requirements. The safe importation of thousands of foreign commodities into the United States over a prolonged period of time is an indication of its efficacy as a phytosanitary measure.

One commenter stated that fruit that is infested with Medfly larvae should be prohibited from being shipped.

APHIS disagrees. In the event that a single immature Medfly is found in or with the lemons, then the lemons must be treated in accordance with part 305 of the regulations and the operational workplan using a cold treatment. This cold treatment has been shown to be effective at mitigating the risk of Medfly in lemons. Additionally, the registered place of production that produced the lemons in the consignment may be suspended from the export program, pending an investigation.

One commenter stated that remedial actions should be identical, regardless of quarantine pest detected.

The remedial action when quarantine pests are detected is that the fruit cannot be exported. Some findings of quarantine pests also disqualify production sites because the mitigation requires the production site to be a pest-free place of production.

One commenter noted that the rule referred to CBP inspectors, but the supporting documents refer to APHIS inspectors. The commenter asked for clarification as to who will conduct port of entry inspections.

CBP conducts inspections at ports of entries pursuant to authority delegated to APHIS. The use of CBP employees to carry out functions specifically delegated to APHIS is authorized by the Homeland Security Act of 2002. Because CBP is effectively acting as agents of APHIS for the purposes of these inspections, we use the term “APHIS.” These inspections sample imported commodities for evidence of pests. If pests are detected, APHIS identifiers will be used to positively identify the pests.

One commenter asked whether port of entry inspections would include biometric sampling for Brevipalpus mites. The commenter also asked how CBP would be able to detect the mites.

The B. chilensis protocol is used to establish place of production freedom, and is also used as part of the phytosanitary inspection by the NPPO. Port of entry inspection for B. chilensis and other Brevipalpus mites will look for the pests, as well as signs and symptoms of infestation, such as bronzing.

One commenter asked why, if information from port of entry inspections is “unreliable,” they can be stated to be effective.

“Not be detected at the port of entry” was removed as a criterion in the PRA because we do not have enough information about relative likelihood of detection at the port of entry to be able to weight this criterion relative to other elements. As a result, this criterion could not substantially impact the risk ratings. This does not imply that port of entry inspections are an ineffective component of a systems approach.

One commenter stated that the rule should specify how APHIS will monitor and enforce the systems approach. The commenter expressed concern that APHIS would have to commit substantial resources to ensure compliance with the operational workplan.

This request is predicated on the stated assumptions that SENASA lacks the ability and intent to abide by systems approach requirements. For reasons discussed above, we disagree with those assumptions.

One commenter stated that APHIS should require cold treatment of lemons from northwest Argentina.

This approach would not impose the least restrictive science-based actions needed to address plant pest risk, and thus would be inconsistent with our obligations under the SPS agreement.

One commenter stated that the rule should prohibit the importation of lemons from northwest Argentina into Florida. The commenter also stated that the rule should limit importation of lemons to areas north of the 38th parallel.

We have determined, for the reasons described in the RMD that accompanied the proposed rule, that the measures specified in the RMD will effectively mitigate the risk associated with the importation of lemons from northwest Argentina. The commenter did not provide any evidence suggesting that the mitigations are not effective. Therefore, we are not taking the action requested by the commenter.

Two commenters expressed concern that Argentine producers may use pesticides or practices that are not authorized in the United States.

We note that the Food and Drug Administration (FDA) of the Department of Health and Human Services regulates the pesticide, herbicide, and fertilizer residues that may be present on imported fruits and vegetables intended for human consumption. If illegal pesticides are detected, FDA will take action to remove them from the marketplace. Additionally, we note that the packinghouse disinfectants and treatments for pathogens that we are proposing for Argentina are the same used domestically.

One commenter stated that importing lemons from Argentina will involve carbon dioxide emissions that should be available to the consumer as they purchase the lemons. The commenter stated that the lemons should be labeled with the pounds of carbon dioxide emitted per pound of lemons.

This request is outside the scope of APHIS' statutory authority.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with minor editorial changes.

Executive Order 12866 and Regulatory Flexibility Act

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is summarized below, regarding the economic effects of this rule on small entities. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

This analysis examines potential economic impacts of a rule that will allow the importation of fresh lemons from a region in Northwest Argentina into the continental United States. A systems approach to pest risk mitigation will provide phytosanitary protection against pests of quarantine concern. Both U.S. producers and consumers will be affected by the rule. While producers' welfare will be negatively affected, welfare gains for consumers will outweigh producer losses, resulting in a net benefit to the U.S. economy.

Commercial lemon production takes place in California and Arizona. For the 2014/15 season, lemon-bearing acres totaled 55,300 (California 47,000, Arizona 8,300). In the same season, the value of U.S. production of lemons was $694 million. Over the production seasons 2008/09 to 2014/15, U.S. fresh lemon production averaged 535,244 metric tons (MT) per year. Over the same period, annual imports averaged 49,995 MT and exports averaged 101,849 MT. Because lemons imported from Argentina that are harvested green between April 1 and August 31 will not require treatment for Medfly, we expect that most will be imported during this period, which coincides roughly with the months in which U.S. lemon exports are declining and imports are increasing.

Effects of the rule are estimated using a partial equilibrium model of the U.S. lemon sector. Annual imports of fresh lemon from Argentina are expected to range between 15,000 and 20,000 MT, with volumes averaging 18,000 MT. Quantity, price and welfare changes are estimated for these three import scenarios.

If the United States imports 18,000 MT of fresh lemon from Argentina and there is no displacement of lemon imports from other countries, we estimate that the price (custom import value) of fresh lemon will decrease by about 4 percent. Consumer welfare gains of $22.4 million will outweigh producer welfare losses of $19.9 million, resulting in a net welfare gain of $2.5 million. The 15,000 MT and 20,000 MT scenarios show similar effects.

More reasonably, partial import displacement will occur, and price and welfare effects will be proportional to the net increase in U.S. lemon imports. Assuming as an upper-bound that one-half of the quantity of fresh lemons imported from Argentina displaces U.S. fresh lemon imports from elsewhere, we estimate for the 18,000 MT scenario that the price decline will be about 2 percent; consumer welfare gains and producer welfare losses will be $11.1 million and $10.0 million, respectively, yielding a net welfare benefit of $1.1 million.

The majority of businesses that may be affected by the final rule are small entities, including lemon producers, packers, wholesalers, and related establishments.

Executive Order 12988

This final rule allows lemons to be imported into the continental United States from Argentina. State and local laws and regulations regarding lemons imported under this rule will be preempted while the fruit is in foreign commerce. Fresh lemons are generally imported for immediate distribution and sale to the consuming public, and remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. No retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.

Paperwork Reduction Act

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this final rule, which were filed under 0579-0448, have been submitted for approval to the Office of Management and Budget (OMB). When OMB notifies us of its decision, if approval is denied, we will publish a document in the Federal Register providing notice of what action we plan to take.

E-Government Act Compliance

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.

List of Subjects for 7 CFR Part 319

Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.

Accordingly, we are amending 7 CFR part 319 as follows:

PART 319—FOREIGN QUARANTINE NOTICES 1. The authority citation for part 319 continues to read as follows: Authority:

7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

2. Section 319.28 is amended as follows: a. In paragraph (a)(1), by removing the words “(except for the States of Catamarca, Jujuy, Salta, and Tucuman, which are considered free of citrus canker)”. b. In paragraph (a)(2), by removing the word “Argentina,”. c. By redesignating paragraphs (e) through (i) as paragraphs (f) through (j), respectively, and adding a new paragraph (e). d. In newly redesignated paragraph (h), the words “paragraphs (b) through (e)” are removed and the words “paragraphs (b) through (f)” are added in their place.

The addition reads as follows:

§  319.28 Notice of quarantine.

(e) The prohibition does not apply to lemons (Citrus limon (L.) Burm. f.) from northwest Argentina that meet the requirements of §  319.56-76.

3. Section 319.56-76 is added to read as follows:
§  319.56-76 Lemons from northwest Argentina.

Fresh lemons (Citrus limon (L.) Burm. f.) may be imported into the continental United States from northwest Argentina (the Provinces of Catamarca, Jujuy, Salta, and Tucumán) only under the conditions described in this section. These conditions are designed to prevent the introduction of the following quarantine pests: Brevipalpus chilensis, the Chilean false red mite; B. californicus, the citrus flat mite, B. obovatus, the scarlet tea mite, and B. phoenicis, the false spider mite (referred to in this section as “Brevipalpus spp. mites”); Ceratitis capitata, the Mediterranean fruit fly; Cryptoblabes gnidiella, the honeydew moth; Elsinoë australis, the causal agent of sweet orange scab disease; Gymnandrosoma aurantianum (Lima), the citrus borer; and Xanthomonas citri subsp. citri (ex Hasse) Gabriel et al., the causal agent of citrus canker disease.

(a) General requirements—(1) Operational workplan. The national plant protection organization (NPPO) of Argentina must provide an operational workplan to APHIS that details the activities that the NPPO of Argentina and places of production and packinghouses registered with the NPPO of Argentina will, subject to APHIS' approval of the workplan, carry out to meet the requirements of this section. The operational workplan must include and describe the specific requirements as set forth in this section. APHIS will be directly involved with the NPPO of Argentina in monitoring and auditing implementation of the systems approach.

(2) Registered places of production. The fresh lemons considered for export to the continental United States must be grown by places of production that are registered with the NPPO of Argentina and that have been determined to be free from B. chilensis in accordance with this section.

(3) Registered packinghouses. The lemons must be packed for export to the continental United States in pest-exclusionary packinghouses that are registered with the NPPO of Argentina.

(4) Recordkeeping. The NPPO of Argentina must maintain all forms and documents pertaining to registered places of production and packinghouses for at least 1 year and, as requested, provide them to APHIS for review. Based on APHIS' review of records, APHIS may monitor places of production and packinghouses, as APHIS deems warranted.

(5) Commercial consignments. Lemons from Argentina can be imported to the continental United States in commercial consignments only. For purposes of this section, fruit in a commercial consignment must be practically free of leaves, twigs, and other plant parts, except for stems less than 1 inch long and attached to the fruit.

(6) Identification. The identity of the each lot of lemons from Argentina must be maintained throughout the export process, from the place of production to the arrival of the lemons at the port of entry into the continental United States. The means of identification that allows the lot to be traced back to its place of production must be authorized by the operational workplan.

(7) Harvesting restrictions or treatment for fruit flies. Lemons from Argentina must be harvested green and within the time period of April 1 and August 31. If they are harvested yellow or harvested outside of this time period, they must be treated for C. capitata in accordance with part 305 of this chapter and the operational workplan.

(8) Safeguarding. Lots of lemons destined for export to the continental United States must be safeguarded during movement from registered places of production to registered packinghouses as specified by the operational workplan.

(9) Phytosanitary certificate. Each consignment of lemons imported from Argentina into the continental United States must be accompanied by a phytosanitary certificate issued by the NPPO of Argentina with an additional declaration stating that the requirements of this section have been met and that the consignments have been inspected and found free of Brevipalpus spp. mites, B. chilensis, C. capitata, C. gnidiella, and G. aurantianum.

(b) Place of production requirements. (1) Prior to each harvest season, registered places of production of lemons destined for export to the continental United States must be determined by APHIS and the NPPO of Argentina to be free from B. chilensis based on biometric sampling conducted in accordance with the operational workplan. If a single live B. chilensis mite is discovered as a result of such sampling, the place of production will not be considered free from B. chilensis and will not be able to export lemons to the United States. Each place of production will have only one opportunity per harvest season to be considered free of B. chilensis, and certification of B. chilensis freedom will only last one harvest season.

(2) Places of production must remove plant litter and fallen debris from groves in accordance with the operational workplan. Fallen fruit may not be included in field containers of fruit brought to the packinghouse to be packed for export.

(3) Places of production must trap for C. capitata in accordance with the operational workplan. The NPPO must keep records regarding the placement and monitoring of all traps, as well as records of all pest detections in these traps, and provide the records to APHIS, as requested.

(4) Places of production must carry out any additional grove sanitation and phytosanitary measures specified for the place of production by the operational workplan.

(5) The NPPO of Argentina must visit and inspect registered places of production regularly throughout the exporting season for signs of infestations. These inspections must start no more than 30 days before harvest and continue until the end of the export season. The NPPO of Argentina must allow APHIS to monitor these inspections. The NPPO of Argentina must also provide records of pest detections and pest detection practices to APHIS. Before any place of production may export lemons to the continental United States pursuant to this section, APHIS must review and approve of these practices.

(6) If APHIS or the NPPO of Argentina determines that a registered place of production has failed to follow the requirements in this paragraph (b), the place of production will be excluded from the export program until APHIS and the NPPO of Argentina jointly agree that the place of production has taken appropriate remedial measures to address the plant pest risk.

(c) Packinghouse requirements. (1) During the time registered packinghouses are in use for packing lemons for export to the continental United States, the packinghouses may only accept lemons that are from registered places of production and that have been produced in accordance with the requirements of this section.

(2) Lemons destined for export to the continental United States must be packed within 24 hours of harvest in a registered pest-exclusionary packinghouse or stored in a degreening chamber in the registered pest-exclusionary packinghouse. Lemons must be packed for shipment to the continental United States in insect-proof cartons or containers, or covered with insect-proof mesh or plastic tarpaulin. These safeguards must remain intact until the lemons arrive in the United States, or the consignment will not be allowed to enter the United States.

(3) Prior to packing, the lemons must be washed, brushed, and surface disinfected for E. australis and X. citri and in accordance with the operational workplan, treated with an APHIS-approved fungicide, and waxed.

(4) After treatment, the NPPO of Argentina or officials authorized by the NPPO of Argentina must visually inspect a biometric sample of each consignment for quarantine pests, wash the lemons in this sample, and inspect the filtrate for B. chilensis in accordance with the operational workplan. A portion of the lemons must then be cut open and inspected for evidence of quarantine pests.

(i) If a single C. gnidiella or G. aurantianum in any stage of development is found on the lemons, the entire consignment is prohibited from export to the United States, and the registered place of production that produced the lemons is suspended from the export program until APHIS and the NPPO of Argentina jointly agree that the place of production has taken appropriate remedial measures to address plant pest risk.

(ii) If a single B. chilensis or Brevipalpus spp. mite in any stage of development is found on the lemons, the entire consignment is prohibited from export, and the registered place of production that produced the lemons may be suspended from the export program, pending an investigation.

(iii) If a single immature Medfly is found in or with the lemons, the lemons must be treated in accordance with part 305 of this chapter and the operational workplan. Additionally, the registered place of production that produced the lemons in the consignment may be suspended from the export program, pending an investigation.

(5) If APHIS or the NPPO of Argentina determines that a registered packinghouse has failed to follow the requirements in this paragraph (c), the packinghouse will be excluded from the export program until APHIS and the NPPO of Argentina jointly agree that the packinghouse has taken appropriate remedial measures to address the plant pest risk.

(d) Port of entry requirements. Consignments of lemons from Argentina will be inspected at the port of entry into the United States. If any quarantine pests are discovered on the lemons during inspection, the entire lot in which the quarantine pest was discovered will be subject to appropriate remedial measures to address this risk.

(Approved by the Office of Management and Budget under control number 0579-0448)
Done in Washington, DC, this 20th day of December 2016. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2016-31013 Filed 12-22-16; 8:45 am] BILLING CODE 3410-34-P
DEPARTMENT OF AGRICULTURE Office of Inspector General 7 CFR Part 2620 Availability of Information to the Public AGENCY:

Office of Inspector General, USDA.

ACTION:

Final rule.

SUMMARY:

The U.S. Department of Agriculture (USDA), Office of Inspector General (OIG) amends its regulation relating to the availability of its information to the public. The amendments are necessary to update its regulation in order to reflect reorganizations within OIG.

DATES:

Effective December 23, 2016.

FOR FURTHER INFORMATION CONTACT:

Christy Slamowitz, Counsel to the Inspector General, U.S. Department of Agriculture, 1400 Independence Avenue SW., Room 441-E, Washington, DC 20250-2308, Telephone: (202) 720-9110.

SUPPLEMENTARY INFORMATION:

The regulations regarding USDA OIG's processing of requests for information under the Freedom of Information Act (FOIA), 5 U.S.C. 552, were last published in 1995 (60 FR 52842). Since that time, OIG has had several internal reorganizations. As part of those reorganizations, OIG's FOIA program was transferred from OIG's defunct Office of Policy Development and Resources Management to OIG's Office of Counsel. In order to provide the public with current information regarding which OIG office processes FOIA requests, OIG is amending these regulations, which supplement USDA's FOIA regulations at subpart A of part 1 of this title, including the appendix.

Administrative Procedure Act

This rule relates to agency organization and internal agency management. Pursuant to 5 U.S.C. 553(A), such rules are not subject to the requirement to provide public notice of proposed rulemaking and opportunity for public comment. Therefore, notice and comment before the effective date are being waived.

Executive Orders 12866 and 13563

OIG has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Orders 12866 and 13563. OIG has determined that this rule is non-significant within the meaning of Executive Order 12866. Therefore, this rule is not required to be and has not been reviewed by the Office of Management and Budget (OMB).

Regulatory Flexibility Act

These regulations will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis as provided by the Regulatory Flexibility Act, as amended, is not required.

Executive Order 12291

This rule relates to internal agency organization and management. Therefore, it is exempt from the provisions of Executive Order 12291.

Paperwork Reduction Act

These proposed regulations impose no additional reporting and recordkeeping requirements. Therefore, clearance by OMB is not required.

Federalism (Executive Order 13132)

This rule does not have Federalism implications, as set forth in Executive Order 13132. 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.

Congressional Review Act

OIG has determined that this rule is not a major rule as defined by the Congressional Review Act, 5 U.S.C. 804.

List of Subjects in 7 CFR Part 2620

Freedom of information.

For the reasons set forth in the preamble, OIG amends 7 CFR chapter XXVI by revising part 2620 to read as follows: PART 2620—AVAILABILITY OF INFORMATION TO THE PUBLIC Sec. 2620.1 General statement. 2620.2 Public inspection. 2620.3 Requests. 2620.4 Denials. 2620.5 Appeals. Authority:

5 U.S.C. 301, 552; Inspector General Act of 1978, as amended, 5 U.S.C. app. 3.

§ 2620.1 General statement.

This part supplements the regulations of the Secretary of Agriculture implementing the Freedom of Information Act, 5 U.S.C. 552 (FOIA) (subpart A of part 1 of this title, including the appendix), and governs the availability of records of the Office of Inspector General (OIG) to the public upon request.

§ 2620.2 Public inspection.

The FOIA requires that certain materials be made available for public inspection in an electronic format. OIG records are available for public inspection on OIG's public Web site, https://www.usda.gov/oig/foia.htm.

§ 2620.3 Requests.

Requests for OIG records shall be submitted to OIG's Office of Counsel and will be processed in accordance with subpart A of part 1 of this title. Specific guidance on how to submit requests (including current contact methods) is available through OIG's Web site, https://www.usda.gov/oig/foiareq.htm, and USDA's public FOIA Web site.

§ 2620.4 Denials.

If it is determined that a requested record is exempt from mandatory disclosure and that discretionary release would be improper, the Counsel to the Inspector General or the Counsel's designee shall give written notice of denial in accordance with subpart A of part 1 of this title.

§ 2620.5 Appeals.

The denial of a requested record may be appealed in accordance with subpart A of part 1 of this title. Appeals shall be addressed to the Inspector General, U.S. Department of Agriculture, 1400 Independence Avenue SW., Whitten Building, Suite 441-E, Washington, DC 20250-2308. The Inspector General will give notice of the determination concerning an appeal in accordance with subpart A of part 1 of this title.

Dated: December 15, 2016. Phyllis K. Fong, Inspector General.
[FR Doc. 2016-30803 Filed 12-22-16; 8:45 am] BILLING CODE 3410-23-P
DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 214 and 264 Removal of Regulations Relating to Special Registration Process for Certain Nonimmigrants AGENCY:

Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

The Department of Homeland Security (DHS) is removing outdated regulations relating to an obsolete special registration program for certain nonimmigrants. DHS ceased use of the National Security Entry-Exit Registration System (NSEERS) program in 2011 after finding that the program was redundant, captured data manually that was already captured through automated systems, and no longer provided an increase in security in light of DHS's evolving assessment of the threat posed to the United States by international terrorism. The regulatory structure pertaining to NSEERS no longer provides a discernable public benefit as the program has been rendered obsolete. Accordingly, DHS is removing the special registration program regulations.

DATES:

This rule is effective December 23, 2016.

FOR FURTHER INFORMATION CONTACT:

Mr. Kekoa Koehler, Office of Policy, U.S. Department of Homeland Security. Phone: 202-447-4125. Email: [email protected]

SUPPLEMENTARY INFORMATION: Background History of the Special Registration Program

In 1991, the legacy Immigration and Naturalization Service (INS), then part of the Department of Justice (DOJ), published a final rule requiring the registration and fingerprinting of certain nonimmigrants bearing Iraqi and Kuwaiti travel documents, due to various factors, including concerns about misuse of Kuwaiti passports.1 In 1993, INS removed the regulations specific to such nonimmigrants, but added to the regulations at 8 CFR 264.1(f) a provision that allowed the Attorney General to require certain nonimmigrants of specific countries to be registered and fingerprinted upon arrival to the United States, pursuant to section 263(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1303(a).2 Pursuant to the amendment, the Attorney General could designate countries by Federal Register notice.3

1 56 FR 1566 (Jan. 16, 1991). Those regulations were at 8 CFR 264.3.

2 58 FR 68024 (Dec. 23, 1993).

3 The Attorney General initially required nonimmigrants from Iraq and Sudan to be registered and fingerprinted under the new provision and later added Iran and Libya. See 58 FR 68157 (Dec. 23, 1993) (Iraq and Sudan) and 61 FR 46829 (Sept. 5, 1996) (Iran and Libya). The INS consolidated the two notices in 1998. 63 FR 39109 (July 21, 1998).

In June 2002, after the September 11, 2001 terrorist attacks, INS proposed to expand the existing registration and fingerprinting program at 8 CFR 264.1(f) to require certain nonimmigrants to report to INS upon arrival, approximately 30 days after arrival, every 12 months after arrival, upon certain events such as a change of address, and at the time of departure from the United States.4 The proposed rule provided that the program would apply to nonimmigrants from countries that INS would designate in Federal Register notices and to individual nonimmigrants designated by either a U.S. consular officer or immigration officer at a U.S. port-of-entry as indicating a need for closer monitoring. Under the proposed rule, designated nonimmigrants would be required to be fingerprinted and photographed and to provide additional biographical information. The proposed rule also authorized INS to designate certain ports of departure for nonimmigrants subject to the program. In addition, INS proposed to amend 8 CFR 214.1 to require nonimmigrants selected for special registration to comply with 8 CFR 264.1(f) as a condition of maintaining nonimmigrant status.

4 67 FR 40581 (June 13, 2002).

The INS received 14 comments on the proposed rule, some in support of the proposed program and others opposed to it. In August 2002, INS finalized the proposed program, which became known as the National Security Entry-Exit Registration System (NSEERS), without substantial change.5 In September 2002, INS announced by Federal Register notice that the new program would be applied to those who were subject to the earlier registration program—nonimmigrants from Iraq, Iran, Libya, and Sudan—and added nonimmigrants from Syria.6 INS announced in November 2002 that only males 16 years of age and older from designated countries would be required to register under the program.7 Between November 2002 and January 2003, INS added another 20 countries to the compliance list, bringing the total to 25 countries.8 The responsibility for administering NSEERS was transferred to the Department of Homeland Security (DHS) in 2003 as part of the Homeland Security Act of 2002.9

5 67 FR 52584 (Aug. 12, 2002).

6 67 FR 57032 (Sept. 6, 2002).

7 67 FR 67766 (Nov. 6, 2002).

8See 67 FR 70526 (Nov. 22, 2002); 67 FR 77642 (Dec. 18, 2002); and 68 FR 2363 (Jan. 16, 2003). The 25 countries ultimately included in the compliance list were: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen.

9See Homeland Security Act of 2002, Public Law 107-296, secs. 402, 441, 442, 451, 1512(d), 1517, 116 Stat. 2135 (6 U.S.C. 202, 251, 252, 271, 552(d), 557); Homeland Security Act of 2002 Amendments, Public Law 108-7, div. L, sec. 105 (2003); see also 6 U.S.C. 542 note; 8 U.S.C. 1103(a), 1551 note.

In December 2003, DHS amended the NSEERS regulations by interim final rule to suspend the 30-day post-arrival and annual re-registration requirements.10 DHS determined that automatically requiring 30-day and annual re-registration for designated nonimmigrants was no longer necessary as DHS was implementing other systems to help ensure that all nonimmigrants remain in compliance with the terms of their visa and admission.11 The interim final rule provided that DHS would utilize a more tailored system in which, as a matter of discretion and on a case-by-case basis, the Department would notify nonimmigrants subject to the program to appear for re-registration interviews where DHS deemed it necessary to determine whether they were complying with the conditions of their status and admission. The interim final rule did not affect the procedures at ports-of-entry for nonimmigrants subject to the program.

10 68 FR 67578 (Dec. 2, 2003).

11Id. at 67579.

In 2011, DHS published a notice in the Federal Register indicating that DHS would no longer register nonimmigrants under NSEERS and removing all countries from the NSEERS compliance list.12 DHS had added no new countries to the compliance list since 2003, and it had since implemented multiple new automated systems that capture information of nonimmigrant travelers to the United States and support individualized determinations of admissibility.13 Among the new programs and practices that had been implemented by that time were the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT), which stores and manages the fingerprint scans and photographs required upon entry to the United States,14 and the Advance Passenger Information System (APIS), which requires that commercial vessels and commercial and private aircraft arriving in or departing the United States submit advance passenger and crew manifest information to U.S. Customs and Border Protection (CBP).15 In light of these and other improved programs and practices, as well as improved information sharing with foreign counterparts, DHS determined that the data captured by NSEERS, which DHS personnel entered manually, had become redundant and no longer provided any increase in security.16 Although the 2011 notice announced that DHS would no longer use the program for any countries, the notice did not remove the regulatory framework for NSEERS from the DHS regulations.

12 76 FR 23830 (Apr. 28, 2011).

13Id. at 23831 (stating that since the establishment of NSEERS, “DHS has developed substantial infrastructure and adopted more universally applicable means to verify the entry and exit of aliens into and out of the United States”).

14See 8 CFR 235.1(f)(1)(ii).

15See 19 CFR 4.7b, 4.64(b), 122.22, 122.26, 122.31, 122.49a, 122.49b, 122.75a, and 122.75b.

16 The manual collection of information required by NSEERS had also become a significant resource drain for CBP, particularly at its busiest ports of entry.

2012 DHS Office of Inspector General Report

In 2012, the DHS Office of the Inspector General (OIG) issued a report on border security information sharing within DHS that, among other things, recommended DHS fully eliminate NSEERS by removing the regulatory structure for the program.17 The OIG report found that processing NSEERS registrations constituted a significant portion of CBP's workload at ports-of-entry while the program was in operation, and that the NSEERS database often did not function properly. The report noted that CBP officers believed NSEERS reporting to be of little utility and that the time spent processing registrations constituted an inefficient use of resources. The OIG report found that DHS's newer automated targeting systems enabled more sophisticated data analysis and intelligence-driven targeting than under NSEERS, as the newer targeting systems consolidate passenger data from various systems, can search across those systems for certain trends or patterns, and can be updated quickly without the need for public notification in the Federal Register. The OIG report also found US-VISIT to be the more logical system for capturing biometric information at ports-of-entry due to US-VISIT's superior functionality. The OIG report concluded that advancements in information technology had rendered NSEERS obsolete and that leaving the program in place did not provide any discernable public benefit.18 The OIG report thus recommended removing the regulatory structure of NSEERS from DHS regulations.

17 Department of Homeland Security, Office of Inspector General, Information Sharing on Foreign Nationals: Border Security, OIG-12-39 (Feb. 2012).

18See id. at p. 35 (“The availability of newer, more capable DHS data systems argues against ever utilizing the NSEERS data system again.”).

Removal of the NSEERS Framework Regulations

Although DHS retained the regulations that provide the NSEERS framework, subsequent experience has confirmed that NSEERS is obsolete, that deploying it would be inefficient and divert personnel and resources from alternative effective measures, and that the regulation authorizing NSEERS is unnecessary. Since the suspension of NSEERS in 2011, DHS has not found any need to revive or consider the use of the program. Indeed, during this period, DHS's other targeting, data collection, and data management systems have become even more sophisticated. DHS now engages in security and law enforcement efforts that were not possible when NSEERS was established in 2002, and the Department continues to make significant progress in its abilities to identify, screen, and vet all travelers arriving to the United States; to collect and analyze biometric and biographic data; to target high-risk travelers for additional examination; and to track nonimmigrants' entry, stay, and exit from the country.

The information that was previously captured through NSEERS is now generally captured from nonimmigrants through other, more comprehensive and efficient systems. Below we describe several of DHS's data collections, systems, and procedures relating to nonimmigrants and their relation to the NSEERS program.

Biometric Information. At the time of NSEERS' implementation in 2002, most nonimmigrants were admitted to the United States without being either photographed or fingerprinted.19 Today, in contrast, CBP fingerprints and photographs nearly all nonimmigrants, regardless of nationality, at the time of entry into the United States. Furthermore, systems such as the Automated Biometric Identification System (IDENT), which were initially implemented by US-VISIT, are now used throughout DHS.20 IDENT is the central DHS-wide system for storage and processing of biometric and associated biographic information for a wide range of uses including national security, law enforcement, immigration and border management, intelligence, and background investigations. IDENT stores and processes biometric data—digital fingerprints, photographs, iris scans, and facial images—and links biometrics with biographic information to establish and verify identities. As noted above, these systems and procedures were not in place in 2002.

19See 67 FR at 40581-82 (June 13, 2002) (noting in 2002 that “current procedures do not provide for the collection of fingerprints at the port of entry from many aliens”); 67 FR at 52586 (Aug. 12, 2002).

20 The Consolidated and Further Continuing Appropriations Act of 2013, Public Law 113-6, enacted on March 26, 2013, made dramatic changes to US-VISIT's mission set and organization. The 2013 Act transferred activities such as entry-exit policy and operations and overstay analysis to operational components within DHS. Responsibility for the DHS's Automated Biometric Identification System was given to the newly-created Office of Biometric Identity Management, a subcomponent of the National Protection and Programs Directorate.

Arrival and Departure Information. CBP receives arrival and departure data from commercial vessel and aircraft carriers, as well as private aircraft, through APIS. CBP tracks this information, which is vetted against various law enforcement databases, in its Arrival and Departure Information System. CBP confirms the accuracy of this data information as part of the interview process for travelers arriving in the United States. And the available biographic departure data are matched against arrival data to determine who has complied with the terms of admission and who has overstayed. These systems and procedures did not exist in their current form in 2002.

Visa Information. Visa data is automatically vetted through various mechanisms through a joint coordination effort involving CBP, U.S. Immigration and Customs Enforcement, and the Department of State. This effort permits the relevant agency to take appropriate action, such as revoking visas or requiring additional scrutiny. These information sharing systems and procedures were not in place in 2002.

Nonimmigrant Students. Data on nonimmigrant students is now entered into the Student and Exchange Visitor Information System (SEVIS) by designated school officials at certified institutions and responsible officials in the Exchange Visitor Program. CBP officers at ports-of-entry can interface with SEVIS in real time to determine whether a student or exchange visitor has a current and valid certificate of eligibility to enter the United States. SEVIS did not exist when NSEERS was created.

Visa Waiver Program. The Electronic System for Travel Authorization (ESTA) now captures information used to determine the eligibility of visitors seeking to travel to the United States without a visa under the Visa Waiver Program (VWP). All travelers who intend to apply for entry under the VWP are now required to obtain an ESTA approval prior to boarding a carrier to travel by air or sea to the United States.21 CBP continuously vets ESTA applications against law enforcement databases for new information throughout the validity period and takes additional action as needed, including revocation of an ESTA approval. In November 2014, February 2016 and June 2016, DHS strengthened the VWP's security by adding additional elements on the ESTA application and revising the eligibility questions.22 The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, enacted on December 18, 2015, prohibits certain travelers who have been present in or are nationals of certain countries to travel or be admitted to the United States under the VWP.23 None of these measures related to the VWP were in place when NSEERS was promulgated.

21See 8 U.S.C. 1187(a)(11), (h)(3); 8 CFR 217.5.

22 79 FR 65414 (Nov. 4, 2014); 81 FR 8979 (Feb. 23, 2016); 81 FR 39681 (June 17, 2016).

23 The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, sec. 203, enacted as part of Division O, Title II of the Consolidated Appropriations Act of 2016, Public Law 114-113, applies to nationals of VWP countries who have been present in Iraq, Syria, countries listed under specified designation lists (currently Syria, Iran, and Sudan), or countries designated by the Secretary of Homeland Security (currently Libya, Somalia, and Yemen) at any time on or after March 1, 2011 (with limited government/military exceptions) and to nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria. See 8 U.S.C. 1187(a)(12). CBP modified the ESTA application on February 23, 2016 to include questions pertaining to dual citizenship or nationality, and travel to restricted countries. 81 FR 8979 (Feb. 23, 2016). CBP updated the ESTA application again on June 17, 2016 with new questions pertaining to the applicant's participation in the Global Entry Program and travel on or after March 1, 2011 to Libya, Somalia or Yemen. 81 FR 39680 (June 17, 2016).

Electronic Visa Update System: The Electronic Visa Update System (EVUS), which became effective on October 20, 2016, is an online system that allows for the collection of biographic and other information from nonimmigrants who hold a passport issued by an identified country containing a U.S. nonimmigrant visa of a designated category.24 Nonimmigrants subject to these regulations must periodically enroll in EVUS and obtain a notification of compliance with EVUS prior to travel to the United States. Though currently limited to nonimmigrants who hold a B1, B2, or B-1/B-2 visa issued without restriction for maximum validity contained in a passport issued by the People's Republic of China,25 additional countries could be added to address emerging national security issues.

24 8 CFR 215.23-215.24; 81 FR 72481 (Oct. 20, 2016).

25See 81 FR 72600 (Oct. 20, 2016).

Due to such changes, DHS has determined that the NSEERS model for border vetting and security, which focused on designated nationalities for special processing, is outmoded. Since the implementation of NSEERS in 2002, DHS has increasingly moved away from the NSEERS model and instead focused on a targeted, intelligence-driven border security model that identifies current and emerging threats in real time. For these reasons, DHS has concluded that NSEERS is obsolete and inefficient; that its implementation would be counterproductive to the Department's comprehensive security measures; and that the regulatory authority for NSEERS should thus be rescinded. For these reasons, DHS is removing the special registration program regulations found in 8 CFR 264.1(f).

Conforming Amendment

DHS is making a conforming amendment to 8 CFR 214.1(f) to remove the specific reference to 8 CFR 264.1(f), which INS added when it implemented NSEERS in 2002. The amendment reinstates the text of 8 CFR 214.1(f) prior to the implementation of NSEERS, with a minor change to reflect the transfer of duties from INS to DHS.

Statutory and Regulatory Requirements Administrative Procedure Act

The Administrative Procedure Act (APA) generally requires agencies to publish a notice of proposed rulemaking in the Federal Register and provide interested persons the opportunity to submit comments.26 The APA provides an exception to this prior notice and comment requirement for “rules of agency organization, procedure, or practice.” 27 This final rule is a procedural rule promulgated for agency efficiency purposes. DHS is removing regulations related to an outdated, inefficient, and decommissioned program. Thus, removing these regulations, which have not been used since 2011, reflects the current practice and procedure of DHS and will not affect the substantive rights or interests of the public.

26See 5 U.S.C. 553(b) and (c).

27 5 U.S.C. 553(b)(A).

The APA also provides an exception from notice and comment procedures when an agency finds for good cause that those procedures are “impracticable, unnecessary, or contrary to the public interest.” 28 DHS finds good cause to issue this rule without prior notice or comment, as such procedures are unnecessary. The removal of these regulations will have no substantive effect on the public because the regulations relate to a program which has not been utilized since 2011 and which has been made obsolete by DHS's more advanced and efficient processes, programs, and systems.

28 5 U.S.C. 553(b)(3)(B).

Further, the APA generally requires that substantive rules incorporate a 30-day delayed effective date.29 This rule, however, is merely procedural and does not impose substantive requirements; thus DHS finds that a delayed effective date is unnecessary.

29 5 U.S.C. 553(d).

Executive Orders 12866 and 13563

This regulation has been drafted and reviewed in accordance with Executive Orders 12866 and 13563. This rule is not a significant regulatory action under Executive Order 12866, and accordingly this rule has not been reviewed by the Office of Management and Budget.

Regulatory Flexibility Act

Because DHS is of the opinion that this rule is not subject to the notice and comment requirements of 5 U.S.C. 553, DHS does not consider this rule to be subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector.

This rule does not include any unfunded mandates. The requirements of Title II of the Act, therefore, do not apply, and DHS has not prepared a statement under the Act.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States companies to compete with foreign-based companies in domestic and export markets.

Executive Order 13132—Federalism

This rule would not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Executive Order 12988—Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Regulatory Amendments List of Subjects 8 CFR Part 214

Administrative practice and procedure, Aliens, Cultural exchange programs, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students.

8 CFR Part 264

Aliens, Reporting and recordkeeping requirements.

Amendments to the Regulations

For the reasons stated in the preamble, DHS amends chapter 1 of title 8 of the Code of Federal Regulations as set forth below.

8 CFR CHAPTER 1 PART 214—NONIMMIGRANT CLASSES 1. The general authority for part 214 continues to read as follows: Authority:

6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Public Law 104-208, 110 Stat. 3009-708; Public Law 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2.

2. Amend § 214.1 by revising paragraph (f) to read as follows:
§ 214.1 Requirements for admission, extension, and maintenance of status.

(f) False information. A condition of a nonimmigrant's admission and continued stay in the United States is the full and truthful disclosure of all information requested by DHS. A nonimmigrant's willful failure to provide full and truthful information requested by DHS (regardless of whether or not the information requested was material) constitutes a failure to maintain nonimmigrant status under section 237(a)(1)(C)(i) of the Act.

PART 264—REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED STATES 3. The general authority citation for part 264 continues to read as follows: Authority:

8 U.S.C. 1103, 1201, 1303-1305; 8 CFR part 2.

§ 264.1 [Amended]
4. In § 264.1, remove and reserve paragraph (f). Jeh Charles Johnson, Secretary.
[FR Doc. 2016-30885 Filed 12-22-16; 8:45 am] BILLING CODE 9110-9M-P
DEPARTMENT OF ENERGY 10 CFR Part 431 [Docket Number EERE-2014-BT-STD-0042] RIN 1904-AD34 Energy Conservation Standards for Commercial Water Heating Equipment: Availability of Updated Analysis Results AGENCY:

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

ACTION:

Notice of data availability (NODA).

SUMMARY:

In this NODA, the U.S. Department of Energy (DOE) presents its updated analysis used to convert the potential energy conservation standard levels the Department has considered for residential-duty commercial gas-fired storage water heaters from thermal efficiency and standby loss metrics to the uniform energy factor (UEF) metric, as required by a recent change in law. In a notice of proposed rulemaking (NOPR) for energy conservation standards for commercial water heating equipment published on May 30, 2016 (“May 2016 CWH ECS NOPR”), DOE analyzed these potential standard levels for residential-duty commercial gas-fired storage waters in terms of thermal efficiency and standby loss, and converted the levels to UEF using conversion factors that were proposed in a separate NOPR published on April 15, 2015 (“April 2015 conversion factor NOPR”). However, DOE subsequently published a supplemental NOPR (“August 2016 conversion factor SNOPR”) in the conversion factor rulemaking in response to new data on August 30, 2016, and recently issued a conversion factor final rule (“December 6, 2016 conversion factor final rule”) based upon the August 2016 conversion factor SNOPR, which finalized updated conversion factor equations. (See Docket EERE-2015-BT-TP-0007). This NODA presents the thermal efficiency and standby loss levels analyzed in the May 2016 CWH ECS NOPR for residential-duty gas-fired storage water heaters in terms of UEF, using the recently updated conversion factors adopted in the December 6, 2016 conversion factor final rule.

DATES:

DOE will accept comments, data, and information regarding this notice of data availability (NODA) no later than January 9, 2017.

ADDRESSES:

Instructions: Any comments submitted must identify the NODA for commercial water heating equipment, and provide docket number EERE-2014-BT-STD-0042 and/or regulatory information number (RIN) number 1904-AD34. Comments may be submitted using any of the following methods:

(1) Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

(2) Email: [email protected] Include the docket number and/or RIN in the subject line of the message.

(3) Postal Mail: Ms. Ashley Armstrong, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. If possible, please submit all items on a compact disc (CD), in which case it is not necessary to include printed copies.

(4) Hand Delivery/Courier: Ms. Ashley Armstrong, U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza SW., Suite 600, Washington, DC 20024. Telephone: (202) 586-6590. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

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

(5) Docket: The Docket Number EERE-2014-BT-STD-0042, is available for review at www.regulations.gov, including Federal Register notices, comments, and other supporting documents/materials. All documents in the docket are listed in the www.regulations.gov index. However, not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure.

A link to the docket Web page can be found at https://www.regulations.gov/docket?D=EERE-2014-BT-STD-0042. The www.regulations.gov Web page contains instructions on how to access all documents in the docket, including public comments.

FOR FURTHER INFORMATION CONTACT:

Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-6590. Email: [email protected]

Ms. Jennifer Tiedeman, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-6111. Email: [email protected]

SUPPLEMENTARY INFORMATION: Table of Contents I. Authority and Background II. Summary of the Updated Conversion Factor and Results III. Issues on Which DOE Seeks Public Comment I. Authority and Background

Title III Part C 1 of the Energy Policy and Conservation Act of 1975 (“EPCA” or, “the Act”), Public Law 94-163 (42 U.S.C. 6311-6317, as codified), added by Public Law 95-619, Title IV, Sec. 441(a), sets forth a variety of provisions designed to improve energy efficiency and established the Energy Conservation Program for Certain Industrial Equipment, which includes the commercial water heating equipment that is the subject of this rulemaking.2 (42 U.S.C. 6311(1)(K))

1 For editorial reasons, upon certification in the U.S. Code, Part C was re-designated Part A-1.

2 All references to EPCA in this document refer to the statute as amended through the Energy Efficiency Improvement Act of 2015 (EEIA 2015), Public Law 114-11 (April 30, 2015).

Under EPCA, DOE's energy conservation program generally consists of four parts: (1) Testing; (2) labeling; (3) energy conservation standards; and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products and equipment must use as the basis for certifying to DOE that their products and equipment comply with the applicable energy conservation standards adopted under EPCA, and for making other representations about the efficiency of those products. Similarly, DOE must use these test procedures to determine whether such products and certain equipment comply with any relevant standards promulgated under EPCA. (42 U.S.C. 6314) The initial Federal energy conservation standards and test procedures for commercial storage water heaters, instantaneous water heaters, and unfired hot water storage tanks (collectively referred to as “commercial water heating equipment” or “CWH equipment”) were added to EPCA by the Energy Policy Act of 1992 (EPACT 1992), Public Law 102-486. (42 U.S.C. 6313(a)(5) and 42 U.S.C. 6314(a)(4)(A)) These initial CWH equipment standards corresponded to the efficiency levels and equipment classes contained in the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standard 90.1-1989, in effect on October 24, 1992. The statute provided that if the efficiency levels in ASHRAE Standard 90.1 were amended after October 24, 1992, the Secretary of Energy (Secretary) must establish an amended uniform national standard at new minimum levels for each equipment type specified in ASHRAE Standard 90.1, unless DOE determines, through a rulemaking supported by clear and convincing evidence, that national standards more stringent than the new minimum levels would result in significant additional energy savings and be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)(I)-(II)) The statute was subsequently amended to require DOE to review its standards for commercial water heating equipment (and other “ASHRAE equipment”) every six years. (42 U.S.C. 6313(a)(6)(C)) On January 12, 2001, DOE published a final rule for commercial water heating equipment that amended energy conservation standards by adopting the levels in ASHRAE Standard 90.1-1999 for all types of commercial water heating equipment, except for electric storage water heaters.3 66 FR 3336. Most recently, on July 17, 2015, DOE published a final rule for commercial water heating equipment, in which DOE adopted the thermal efficiency level for oil-fired storage water heaters that was included in ASHRAE 90.1-2013. 80 FR 42614.

3 For electric storage water heaters, the standard in ASHRAE Standard 90.1-1999 was less stringent than the standard prescribed in EPCA and, consequently, would have increased energy consumption, so DOE maintained the standards for electric storage water heaters at the statutorily prescribed level.

On December 18, 2012, the American Energy Manufacturing Technical Corrections Act (AEMTCA), Public Law 112-210, was signed into law. In relevant part, it amended EPCA to require that DOE publish a final rule establishing a uniform efficiency descriptor and accompanying test methods for consumer water heaters and certain commercial water heating equipment within one year of the enactment of AEMTCA. (42 U.S.C. 6295(e)(5)(B)) The final rule must replace the energy factor (EF), thermal efficiency, and standby loss metrics with a uniform efficiency descriptor. (42 U.S.C. 6295(e)(5)(C)) On July 11, 2014, DOE published a final rule that fulfilled these requirements, establishing a uniform energy factor (UEF) as the uniform energy descriptor (“July 2014 final rule”).4 79 FR 40542 (July 2014 final rule). AEMTCA requires that, beginning one year after the date of publication of DOE's final rule establishing the uniform descriptor (i.e., July 13, 2015), the efficiency standards for the consumer water heaters and residential-duty commercial water heaters identified in the July 2014 final rule must be denominated according to the uniform efficiency descriptor established in that final rule (42 U.S.C. 6295(e)(5)(D)), and that DOE must develop a mathematical conversion for converting the measurement of efficiency from the test procedures and metrics in effect at that time to the uniform efficiency descriptor. (42 U.S.C. 6295(e)(5)(E)(i))

4 The uniform efficiency descriptor and accompanying test procedure apply to commercial water heating equipment with residential applications defined in the July 2014 final rule as a “residential-duty commercial water heater.” Specifically, in the July 2014 final rule, DOE adopted a definition for “residential-duty commercial water heater” that included seven classes: Gas-fired storage, oil-fired storage, electric storage, heat pump with storage, gas-fired instantaneous, electric instantaneous, and oil-fired instantaneous. 79 FR 40542, 40586. In a subsequent CWH equipment test procedure final rule published on November 10, 2016, DOE revised the definition by removing four classes; therefore, the revised definition for “residential-duty commercial water heater” includes three classes: Gas-fired storage, oil-fired storage, and electric instantaneous. 81 FR 79261, 79289.

Pursuant to 42 U.S.C. 6295(e)(5)(E)(ii) and (iii), the conversion factor must not affect the minimum efficiency requirements for covered water heaters, including residential-duty commercial water heaters. Furthermore, such conversions must not lead to a change in measured energy efficiency for covered residential and residential-duty commercial water heaters manufactured and tested prior to the final rule establishing the uniform efficiency descriptor. Id. EPCA also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1); 6313(a)(6)(B)(iii)(I)) In the December 6, 2016 conversion factor final rule, DOE's methodology for translating the standards ensures equivalent stringency between the then-existing standards (in terms of EF, thermal efficiency and standby loss metrics) and the updated standards (in terms of UEF). (See Docket EERE-2015-BT-TP-0007)

DOE initially presented proposals for establishing mathematical conversion factors for residential-duty commercial water heaters in a NOPR published on April 14, 2015 (“April 2015 conversion factor NOPR”) to be used to convert thermal efficiency and standby loss represented values to UEF represented values for residential-duty commercial water heaters. 80 FR 20116, 20143. DOE also proposed amendments to the minimum energy conservation standards for consumer water heaters and residential-duty commercial water heaters to translate the existing standards to the UEF metric without altering the stringency of the existing energy conservation standards. Id. at 20120. In a May 31, 2016 NOPR, DOE analyzed amended thermal efficiency and standby loss standards for residential-duty gas-fired storage water heaters, and used the conversion factors proposed in the April 2015 conversion factor NOPR to convert the analyzed thermal efficiency and standby loss levels to UEF.5 (“May 2016 CWH ECS NOPR”) DOE also used these conversion factors to develop UEF standard equations (dependent on rated volume) corresponding to the thermal efficiency and standby loss levels selected for each trial standard level (TSL) analyzed. 81 FR 34440, 34477.

5 DOE initiated this rulemaking pursuant to EPCA's requirement that every 6 years, DOE must conduct an evaluation of its standards for CWH equipment and publish either a notice of determination that such standards do not need to be amended or a notice of proposed rulemaking, including proposed amended standards. (42 U.S.C. 6313(a)(6)(C)(i))

Upon further analysis and review of the public comments received in response to the April 2015 conversion factor NOPR, DOE published a supplemental notice of proposed rulemaking on August 30, 2016 (“August 2016 conversion factor SNOPR”). In the SNOPR, DOE proposed revised mathematical conversion factors, as well as updates to the energy conservation standards for residential-duty commercial water heaters denominated in UEF. 81 FR 59736, 59793-59794, 59798. On December 6, 2016, DOE issued a final rule (“December 6, 2016 conversion factor final rule”) that adopted the mathematical conversion factors used to convert thermal efficiency and standby loss to UEF for residential-duty commercial water heaters that were proposed in the August 2016 conversion factor SNOPR. DOE also adopted the energy conservation standards for residential-duty commercial water heaters that were proposed in the August 2016 conversion factor SNOPR and that translate the existing thermal efficiency and standby loss standards to UEF standards. (See Docket EERE-2015-BT-TP-0007) In this NODA, DOE has used the updated conversion factors adopted in the December 6, 2016 conversion factor final rule to convert the thermal efficiency and standby loss levels analyzed in the May 2016 CWH ECS NOPR (i.e., levels more stringent than the existing thermal efficiency and standby loss standards) to UEF levels.

II. Summary of the Updated Conversion Factor and Results

The purpose of this NODA is to present the thermal efficiency and standby loss levels that were considered for residential-duty gas-fired commercial water heaters in the May 2016 CWH ECS NOPR in terms of UEF using the recently updated conversion factors adopted in the December 6, 2016 conversion factor final rule. In response to the May 2016 CWH ECS NOPR, DOE received feedback on the efficiency levels analyzed and the efficiency levels included in each TSL for residential-duty commercial gas-fired storage water heaters. DOE is considering this feedback, and will address the comments received in detail, along with any resulting changes to the analysis and relevant conclusions, in the forthcoming final rule. The NODA, however, does not reflect any change in the efficiency levels or TSLs considered in the May 2016 CWH ECS NOPR.

The December 6, 2016 conversion factor final rule adopted conversion factors for residential-duty commercial water heaters for all four draw patterns: High, medium, low, and very small.6 In the following equations, New UEF is the converted UEF value; Et is the thermal efficiency in fractional form (e.g., 0.80 instead of 80 percent); SL is the standby loss (Btu/h); P is input rate (Btu/h); F and G are coefficients as specified in Table 1 based on the applicable draw pattern; and UEFrd is a parameter for residential-duty commercial storage water heaters developed by DOE based on the water heater analysis model (WHAM) equation.7 The methodology and data used to develop these conversion factors are discussed in detail in the August 2016 conversion factor SNOPR. 81 FR 59750-59751, 59776-59778 (August 30, 2016).

6 The term “draw pattern” refers to the duration, flow rate, and timing of hot water draws during the test. The July 2014 final rule adopted four different draw patterns—very small, low, medium, and high—based on the delivery capacity (i.e., first hour rating or maximum gallons per hour rating) of the model under test. 79 FR 40542, 40550 (July 11, 2014). Because the UEF differs based on the draw pattern, separate conversion factors were established for each draw pattern.

7 For more information see: http://aceee.org/files/proceedings/1998/data/papers/0114.PDF.

ER23DE16.003 ER23DE16.004 Table 1—Coefficients for the Analytical UEF Conversion Factor for Residential-Duty Commercial Storage Water Heaters Draw pattern F G Very Small 0.821429 0.0043520 Low 0.821429 0.0011450 Medium 0.821429 0.0007914 High 0.821429 0.0005181

The thermal efficiency and standby loss levels analyzed in the May 2016 CWH ECS NOPR are shown in Table 2 (81 FR 34440, 34472 (May 31, 2016)), and the corresponding updated UEF levels are shown in Table 3. The standby loss and UEF levels correspond to the representative equipment capacities analyzed for residential-duty commercial gas-fired storage water heaters—75 gallon rated storage volume and 76,000 Btu/h rated input. In Table 3, the UEF values correspond to the high draw pattern—DOE believes most, if not all, residential-duty gas-fired storage water heater models will fall into the high draw pattern bin. In the May 2016 CWH ECS NOPR, DOE selected standby loss levels in Btu/h, and translated these values to modified standby loss standard equations using standby loss reduction factors. As proposed in the May 2016 CWH ECS NOPR and presented in this NODA, the standby loss reduction factor is a factor that is multiplied by the current standby loss equation. Because the standby loss reduction factor is a multiplicative factor that is applied to the existing standby loss equation (in lieu of independently changing the coefficients for the volume and input terms of the equation), the standby loss reduction factor preserves the dependence of the existing standby loss equation on rated input and storage volume. 81 FR 34440, 34476 (May 31, 2016).

Table 2—Thermal Efficiency and Standby Loss Levels for Residential-Duty Gas-Fired Storage Water Heaters Analyzed in the May 2016 CWH ECS NOPR [75 Gallon rated storage volume, 76,000 Btu/h rated input] Thermal efficiency level Thermal
  • efficiency
  • (%)
  • Standby loss (Btu/h) SL EL0 SL EL1 SL EL2 * SL EL3 *
    Et EL0 80 1048 836 811 707 Et EL1 82 1022 816 791 690 Et EL2 90 624 503 Et EL3 95 624 503 Et EL4 97 624 503 * Electromechanical flue dampers, which were analyzed in SL ELs 2-3, were not considered as a technology option for Er ELs 2-4 because these thermal efficiency levels can only be met by condensing water heaters. Flue dampers are not used with condensing water heaters because condensing water heaters include mechanical draft systems. Note: EL stands for efficiency level, Et stands for thermal efficiency, and SL stands for standby loss.
    Table 3—Updated UEF Levels Corresponding to Thermal Efficiency and Standby Loss Levels for Residential-Duty Gas-Fired Storage Water Heaters Analyzed in the May 2016 CWH ECS NOPR [75 gallon rated storage volume, 76,000 Btu/h rated input] Thermal efficiency level Thermal
  • efficiency
  • (%)
  • Uniform Energy Factor * SL EL0 SL EL1 SL EL2 ** SL EL3 **
    Et EL0 80 0.59 0.63 0.63 0.65 Et EL1 82 0.61 0.64 0.64 0.66 Et EL2 90 0.73 0.76 Et EL3 95 0.76 0.79 Et EL4 97 0.77 0.80 * UEF values were determined using the conversion factors for the high draw pattern adopted in the December 6, 2016 conversion factor final rule. (See Docket EERE-2015-BT-TP-0007) ** Electromechanical flue dampers, which were analyzed in SL ELs 2-3, were not considered as a technology option for Er ELs 2-4 because these thermal efficiency levels can only be met by condensing water heaters. Flue dampers are not used with condensing water heaters because condensing water heaters include mechanical draft systems. Note: EL stands for efficiency level, Et stands for thermal efficiency, and SL stands for standby loss.

    The energy conservation standards for residential-duty commercial water heaters adopted in the December 6, 2016 conversion factor final rule (i.e., denominated in UEF and translated from the existing thermal efficiency and standby loss standards) are linear equations dependent on rated volume. Therefore, the converted UEF standard equations for residential-duty gas-fired storage water heaters presented in this NODA are consistent with this equation format. DOE based its methodology for developing UEF standard equations for more-stringent thermal efficiency and standby loss levels on the “representative model” method used for determining the converted standards equations in terms of UEF in the December 6, 2016 conversion factor final rule, as outlined below. (See Docket EERE-2015-BT-TP-0007)

    DOE developed UEF standard equations corresponding to each combination of thermal efficiency and standby loss levels that DOE selected in the TSLs analyzed in the May 2016 CWH ECS NOPR. DOE converted the thermal efficiency level and standby loss value to UEF for each identified rated volume on the market and for each draw pattern using the conversion factors adopted in the December 6, 2016 conversion factor final rule. (See Docket EERE-2015-BT-TP-0007) To develop the UEF standard equation for each draw pattern and TSL, DOE used a linear regression between volume and UEF (see the December 6, 2016 conversion factor final rule for more details).

    Table 4 shows the thermal efficiency and standby loss levels included in each TSL in the May 2016 CWH ECS NOPR for residential-duty commercial gas-fired storage water heaters. 81 FR 34440, 34504 (May 31, 2016). Table 5 shows the updated UEF standard equations, dependent on rated volume, that were developed for each TSL and draw pattern using the conversion factors adopted in the December 6, 2016 conversion factor final rule. (See Docket EERE-2015-BT-TP-0007)

    Table 4—Trial Standard Levels From the May 2016 CWH ECS NOPR for Residential-Duty Gas-Fired Storage Water Heaters by Efficiency Level Trial standard level 0 1 2 3 4 Thermal Efficiency 80% 82% 90% 90% 97% Standby Loss Reduction Factor 1.00 0.77 0.48 0.48 0.48 Table 5—Updated UEF Equations for Trial Standard Levels From the May 2016 CWH ECS NOPR for Residential-Duty Gas-Fired Storage Water Heaters Draw Pattern * TSL 0 TSL 1 TSL 2 TSL 3 TSL 4 High 0.6597−(0.0009 × Vr) 0.7205−(0.0008 × Vr) 0.8107−(0.0008 × Vr) 0.8107−(0.0008 × Vr) 0.8675−(0.0009 × Vr) Medium 0.6002−(0.0011 × Vr) 0.6749−(0.0010 × Vr) 0.7686−(0.0010 × Vr) 0.7686−(0.0010 × Vr) 0.8192−(0.0011 × Vr) Low 0.5362−(0.0012 × Vr) 0.6227−(0.0012 × Vr) 0.7192−(0.0012 × Vr) 0.7192−(0.0012 × Vr) 0.7631−(0.0013 × Vr) Very Small 0.2674−(0.0009 × Vr) 0.3590−(0.0012 × Vr) 0.4459−(0.0014 × Vr) 0.4459−(0.0014 × Vr) 0.4622−(0.0015 × Vr) * Draw pattern is a classification of hot water use of a consumer water heater or residential-duty commercial water heater, based upon the first-hour rating. The draw pattern is determined using the Uniform Test Method for Measuring the Energy Consumption of Water Heaters in appendix E to subpart B of 10 CFR Part 430. Note: TSL 0 represents the baseline, and Vr is rated volume in gallons. UEF values were determined using the conversion factors adopted in the December 6, 2016 conversion factor final rule. (See Docket EERE-2015-BT-TP-0007). III. Issues on Which DOE Seeks Public Comment

    DOE is interested in receiving comments on the conversion of the thermal efficiency and standby loss levels for residential-duty gas-fired storage water heaters that were considered in the May 2016 CWH ECS NOPR to UEF levels and UEF standard equations using the conversion factors adopted by DOE in its December 6, 2016 final rule.

    Issued in Washington, DC, on December 7, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-30300 Filed 12-22-16; 8:45 am] BILLING CODE 6450-01-P
    FEDERAL ELECTION COMMISSION 11 CFR Parts 4, 5, 100, 110, 112, 113, and 300 [Notice 2016-14] Technical Amendments and Corrections AGENCY:

    Federal Election Commission.

    ACTION:

    Correcting amendments.

    SUMMARY:

    The Commission is making technical corrections to various sections of its regulations. These are non-substantive amendments to correct typographical errors, update references, and remove provisions that no longer apply.

    DATES:

    Effective December 23, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Eugene Lynch, Paralegal, 999 E Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

    SUPPLEMENTARY INFORMATION:

    Background

    The existing rules that are the subject of these corrections are part of the continuing series of regulations that the Commission has promulgated to implement the Presidential Election Campaign Fund Act, 26 U.S.C. 9001-13, and the Presidential Primary Matching Payment Account Act, 26 U.S.C. 9031-42 (collectively, the “Funding Acts”), and the Federal Election Campaign Act, 52 U.S.C. 30101-46 (“FECA”). The Commission is promulgating these corrections without advance notice or an opportunity for comment because they fall under the “good cause” exemption of the Administrative Procedure Act. 5 U.S.C. 553(b)(B). The Commission finds that notice and comment are unnecessary here because these corrections are merely typographical and technical; they effect no substantive changes to any rule. For the same reason, these corrections fall within the “good cause” exception to the delayed effective date provisions of the Administrative Procedure Act and the Congressional Review Act. 5 U.S.C. 553(d)(3), 808(2).

    Moreover, because these corrections are exempt from the notice and comment procedure of the Administrative Procedure Act under 5 U.S.C. 553(b), the Commission is not required to conduct a regulatory flexibility analysis under 5 U.S.C. 603 or 604. See 5 U.S.C. 601(2), 604(a). Nor is the Commission required to submit these revisions for congressional review under FECA or the Funding Acts. See 52 U.S.C. 30111(d)(1), (4) (providing for congressional review when Commission “prescribe[s]” a “rule of law”); 26 U.S.C. 9009(c)(1), (4), 9039(c)(1), (4) (same). Accordingly, these corrections are effective upon publication in the Federal Register.

    Corrections to FECA and Funding Act Rules in Chapter I of Title 11 of the Code of Federal Regulations A. Correction to 11 CFR Chapter I

    The Commission has renamed a division within the agency. As a result, throughout 11 CFR chapter I, the Commission is replacing every instance of the phrase “Public Disclosure Division” with the phrase “Public Disclosure and Media Relations Division.”

    B. Correction to 11 CFR 100.94

    The Commission is correcting a typographical error in paragraph (b) of this section by adding a comma after the word “maintaining”. This comma was inadvertently omitted when the Commission promulgated this paragraph.

    C. Correction to 11 CFR 100.155

    The Commission is correcting a typographical error in paragraph (b) of this section by adding a comma after the word “creating” and a comma after the word “maintaining”. These commas were inadvertently omitted when the Commission promulgated this paragraph.

    D. Correction to 11 CFR 110.6

    The Commission is revising paragraphs (c)(2)(i) and (c)(2)(ii)(C) of this section to correctly note the reporting requirements for candidates and authorized committees receiving earmarked contributions from conduits and intermediaries. These paragraphs currently state that candidates and authorized committees are required to report a conduit or intermediary forwarding earmarked contributions which, in the aggregate, exceed $200 in “any calendar year.” In 1999, however, Congress amended FECA to require that authorized committees aggregate and report all receipts and disbursements by election cycle, rather than by calendar year. Treasury and General Government Appropriations Act of 2000, Public Law 106-58, sec. 641, 113 Stat. 430, 477 (1999). In 2000, the Commission implemented this legislation by amending § 104.3(c) of its regulations, Election Cycle Reporting by Authorized Committees, 65 FR 42619-21 (July 11, 2000), but inadvertently failed to update paragraphs (c)(2)(i) and (c)(2)(ii)(C) of § 110.6 to conform to the statute and to revised § 104.3. To correct that oversight, the Commission is amending the relevant portions of the text in paragraphs (c)(2)(i) and (c)(2)(ii)(C).

    E. Corrections to 11 CFR 113.2

    The Commission is removing paragraph (f) of this section because it is no longer applicable. Paragraph (f) describes the “personal use” rules, which concern the permissible non-campaign uses of campaign funds, that applied to Members of Congress serving in the 102d or an earlier Congress. Because this paragraph does not apply to any Members serving in the 103d or a later Congress, which includes all current and future Members of Congress, the Commission is removing paragraph (f).

    F. Corrections to 11 CFR 300.12

    The Commission is removing and reserving this section because it contains transitional rules that no longer apply. When the Commission enacted rules concerning the use of non-federal funds in 2002, the Commission also promulgated § 300.12, which outlined how and by what date national committees of political parties were to disburse non-federal funds received before November 6, 2002. Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money, 67 FR 49064, 49091-92 (July 29, 2002); see also Bipartisan Campaign Reform Act, Public Law 107-155, sec. 402, 116 Stat. 81, 112-13 (2002). Since the deadline for the disbursement of these funds has long passed, this section is no longer necessary. Therefore, the Commission is removing and reserving this section. The Commission is also making conforming amendments by removing from § 300.1 two references to § 300.12.

    G. Correction to 11 CFR 300.13

    For the reasons discussed above regarding the removal of § 300.12, the Commission is also removing paragraphs (b) and (c) of § 300.13. Paragraph (b) directs national party committees to file termination reports disclosing the disposition of funds in non-federal accounts and building fund accounts by January 31, 2003. Paragraph (c) refers to reporting requirements for receipts and disbursements from national party committee non-federal accounts and building fund accounts for activity occurring between November 6 and December 31, 2002.

    List of Subjects 11 CFR Part 4

    Freedom of information.

    11 CFR Part 5

    Archives and records.

    11 CFR Part 100

    Elections.

    11 CFR Part 110

    Campaign funds, Political committees and parties.

    11 CFR Part 112

    Administrative practice and procedure, Elections.

    11 CFR Part 113

    Campaign funds, Political candidates.

    11 CFR Part 300

    Campaign funds, Nonprofit organizations, Political committees and parties, Political candidates.

    For the reasons set out in the preamble, the Federal Election Commission amends 11 CFR chapter I as follows:

    PART 4—PUBLIC RECORDS AND THE FREEDOM OF INFORMATION ACT 1. The authority citation for part 4 continues to read as follows: Authority:

    5 U.S.C. 552, as amended.

    § 4.1 [Amended]
    2. Amend paragraph (f) of § 4.1 to remove “Public Disclosure Division” and add, in its place, “Public Disclosure and Media Relations Division”. PART 5—ACCESS TO PUBLIC DISCLOSURE AND MEDIA RELATIONS DIVISION DOCUMENTS 3. The authority citation for part 5 continues to read as follows: Authority:

    52 U.S.C. 30108(d), 30109(a)(4)(B)(ii), 30111(a); 31 U.S.C. 9701.

    4. Revise the heading of part 5 to read as set forth above.
    § 5.1 [Amended]
    5. Amend paragraph (f) of § 5.1 to remove “Public Disclosure Division” and add, in its place, “Public Disclosure and Media Relations Division”.
    § 5.4 [Amended]
    6. Amend § 5.4 in paragraphs (a) introductory text and (c) by removing “Public Disclosure Division” and adding, in its place, “Public Disclosure and Media Relations Division”.
    § 5.5 [Amended]
    7. Amend § 5.5 in paragraphs (a) and (c) by removing “Public Disclosure Division” and adding, in its place, “Public Disclosure and Media Relations Division”. PART 100—SCOPE AND DEFINITIONS (52 U.S.C. 30101) 8. The authority citation for part 100 continues to read as follows: Authority:

    52 U.S.C. 30101, 30104, 30111(a)(8), and 30114(c).

    § 100.94 [Amended]
    9. Amend paragraph (b) of § 100.94 to add a comma after the word “maintaining”.
    § 100.155 [Amended]
    10. Amend paragraph (b) of § 100.155 to add a comma after the word “creating” and a comma after the word “maintaining”. PART 110—CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS 11. The authority citation for part 110 continues to read as follows: Authority:

    52 U.S.C. 30101(8), 30101(9), 30102(c)(2), 30104(i)(3), 30111(a)(8), 30116, 30118, 30120, 30121, 30122, 30123, 30124, and 36 U.S.C. 510.

    § 110.6 [Amended]
    12. Amend § 110.6 in paragraphs (c)(2)(i) and (c)(2)(ii)(C) by removing “calendar year” and adding, in its place, “election cycle”. PART 112—ADVISORY OPINIONS (52 U.S.C. 30108) 13. The authority citation for part 112 continues to read as follows: Authority:

    52 U.S.C. 30108, 30111(a)(8).

    § 112.2 [Amended]
    14. Amend paragraph (b) of § 112.2 to remove “Public Disclosure Division” and add, in its place, “Public Disclosure and Media Relations Division”. PART 113—PERMITTED AND PROHIBITED USES OF CAMPAIGN ACCOUNTS 15. The authority citation for part 113 continues to read as follows: Authority:

    52 U.S.C. 30102(h), 30111(a)(8), 30114, and 30116.

    § 113.2 [Amended]
    16. Remove paragraph (f) of § 113.2 and redesignate paragraph (g) as paragraph (f). PART 300—NON-FEDERAL FUNDS 17. The authority citation for part 300 continues to read as follows: Authority:

    52 U.S.C. 30104(e), 30111(a)(8), 30116(a), 30125, and 30143.

    § 300.1 [Amended]
    18. Amend § 300.1 as follows: a. In paragraph (b)(1), remove the last sentence. b. In paragraph (c)(1), remove the phrase “transition rules as BCRA takes effect,”.
    § 300.12 [Removed and Reserved]
    19. Remove and reserve § 300.12.
    § 300.13 [Amended]
    20. Amend § 300.13 as follows: a. Remove paragraphs (b) and (c). c. Redesignate paragraph (a) as an undesignated paragraph and remove the paragraph heading. Dated: December 12, 2016.

    On behalf of the Commission.

    Matthew S. Petersen, Chairman, Federal Election Commission.
    [FR Doc. 2016-30699 Filed 12-22-16; 8:45 am] BILLING CODE 6715-01-P
    DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Part 4 [Docket ID OCC-2016-0033] RIN 1557-AE12 Availability of Information Under the Freedom of Information Act AGENCY:

    Office of the Comptroller of the Currency

    ACTION:

    Interim final rule.

    SUMMARY:

    The Office of the Comptroller of the Currency (OCC) is amending its regulations governing the disclosure of information pursuant to requests made under the Freedom of Information Act (FOIA) to reflect changes to the FOIA made by the FOIA Improvement Act of 2016 and the OPEN FOIA Act of 2009 and to make other technical changes that update the OCC's FOIA regulations.

    DATES:

    The interim final rule is effective on December 23, 2016. Comments on the rule must be received by February 21, 2017.

    ADDRESSES:

    You may submit comments to the OCC by any of the methods set forth below. Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments through the Federal eRulemaking Portal or email, if possible. Please use the title “Availability of Information Under the Freedom of Information Act” to facilitate the organization and distribution of the comments. You may submit comments by any of the following methods:

    Federal eRulemaking Portal—“Regulations.gov”: Go to www.regulations.gov. Enter “Docket ID OCC-2016-0033” in the Search Box and click “Search.” Click on “Comment Now” to submit public comments.

    • Click on the “Help” tab on the Regulations.gov home page to get information on using Regulations.gov, including instructions for submitting public comments.

    Email: [email protected]

    Mail: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Suite 3E-218, mail stop 9W-11, Washington, DC 20219.

    Hand Delivery/Courier: 400 7th Street SW., Suite 3E-218, mail stop 9W-11, Washington, DC 20219.

    Fax: (571) 465-4326.

    Instructions: You must include “OCC” as the agency name and “Docket ID OCC-2016-0033” in your comment. In general, the OCC will enter all comments received into the docket and publish them on the Regulations.gov Web site without change, including any business or personal information that you provide such as name and address information, email addresses, or phone numbers. Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.

    You may review comments and other related materials that pertain to this rulemaking action by any of the following methods:

    Viewing Comments Electronically: Go to www.regulations.gov. Enter “Docket ID OCC-2016-0033” in the Search box and click “Search.” Click on “Open Docket Folder” on the right side of the screen. Comments and supporting materials can be viewed and filtered by clicking on “View all documents and comments in this docket” and then using the filtering tools on the left side of the screen.

    • Click on the “Help” tab on the Regulations.gov home page to get information on using Regulations.gov. The docket may be viewed after the close of the comment period in the same manner as during the comment period.

    Viewing Comments Personally: You may personally inspect and photocopy comments at the OCC, 400 7th Street SW., Washington, DC 20219. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling (202) 649-6700 or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597. Upon arrival, visitors will be required to present valid government-issued photo identification and submit to security screening in order to inspect and photocopy comments.

    FOR FURTHER INFORMATION CONTACT:

    For additional information, contact Melissa Lisenbee, Attorney, Legislative and Regulatory Activities Division, (202) 649-5490, or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597.

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Freedom of Information Act (FOIA) sets forth the process for obtaining federal agency records, unless the records (or any portion thereof) are protected from disclosure by one of the FOIA's nine exemptions or by one of its three special law enforcement record exclusions.1 On June 30, 2016, the FOIA Improvement Act of 2016 (the FOIA Improvement Act or the Act) 2 amended the FOIA to, among other changes, require Federal agencies to make certain records electronically available, extend the time available for a requester to appeal an adverse determination, amend the circumstances under which an agency can assess search and duplication fees, establish FOIA dispute resolution procedures, and establish a new standard for the withholding of information pursuant to a FOIA exemption.

    1 5 U.S.C. 552 et seq.

    2 Public Law 114-185 (2016).

    Additionally, under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA),3 the OCC is required to conduct a review at least once every 10 years to identify any outdated or otherwise unnecessary regulations. The OCC completed the last comprehensive review of its regulations under EGRPRA in 2006 and is concluding the current decennial review. As part of its current EGRPRA review, the OCC issued a notice of proposed rulemaking on March 14, 2016, that included proposed technical amendments to the OCC's part 4 FOIA regulations. The OCC did not receive any specific comments on the proposed FOIA amendments, and those changes will be reflected in this rulemaking to the extent they have not been superseded by the FOIA Improvement Act.4

    3 Public Law 104-208, 110 Stat. 3009 (1996).

    4 81 FR 13608 (March 14, 2016).

    Finally, the OPEN FOIA Act of 2009 (the OPEN FOIA Act),5 limited Exemption 3, which applies to information specifically exempted by statute. To be exempt under Exemption 3 following the OPEN FOIA Act, information must be exempt pursuant to a statute that requires: (1) That the matters be withheld from the public in such a manner as to leave no discretion on the issue, or establishes particular criteria for withholding or refers to particular types of matters to be withheld and, (2) if enacted after the date of enactment of the OPEN FOIA Act, specifically cites to Exemption 3 of the FOIA. Previously, statutes did not need to specifically cite to Exemption 3 of the FOIA.

    5 Public Law 111-83, 123 Stat. 2142, 2184 (2009).

    II. Description of the Interim Final Rule

    Twelve CFR part 4, subpart B, sets forth OCC policies regarding the availability of information under the FOIA and establishes procedures for requesters to follow when seeking information. This interim final rule amends 12 CFR part 4, subpart B, to implement the FOIA Improvement Act and the OPEN FOIA Act and to make technical changes to the regulations as a result of the OCC's EGRPRA review.

    Section 4.11 Purpose and Scope

    As part of the EGRPRA proposed rule, the OCC proposed to remove § 4.11(b)(4), which stated that the OCC's FOIA rules did not apply to FOIA requests filed with the former Office of Thrift Supervision (OTS) before July 21, 2011, because the OTS's rules would apply to those requests instead. The OCC adopted this provision when it amended part 4 to reflect the transfer of certain powers, authorities, rights, and duties of the OTS to the OCC pursuant to Title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).6 There are no remaining open FOIA requests that had been submitted to the OTS prior to its integration with the OCC. Therefore, § 4.11(b)(4) is no longer necessary and is removed by this interim final rule.

    6 Public Law 111-203, 124 Stat. 1376 (2010).

    Section 4.12 Information Available Under the FOIA

    Pursuant to the Act, the interim final rule amends 12 CFR 4.12 to revise the language about the availability of records in subsection (a), consistent with the FOIA Improvement Act; limit the deliberative process exemption; expand the information segregation provisions; update 12 CFR 4.12(b)(3) to be consistent with the OPEN FOIA Act; and implement proposed clarifications from the EGRPRA review.

    Section 4.12(a) currently provides that OCC records are available to the public except for records that the FOIA exempts from disclosure. The FOIA Improvement Act adds new language to the statute that relates to an agency's decision to disclose information that is covered by an exemption. This language provides for the withholding of information pursuant to a FOIA exemption only if an agency “reasonably foresees that disclosure would harm an interest protected by an exemption” or if the disclosure is prohibited by law.7

    7 5 U.S.C. 552(a)(8)(A)(i).

    These considerations will inform the OCC's future determinations about whether to disclose information covered by an exemption. Accordingly, the interim final rule removes the existing reference to “exempt records” in subsection (a) and replaces it with the phrase “[e]xcept as otherwise provided by the FOIA.” This language is broad enough to encompass the “reasonable foreseeability” and the “prohibited by law” language added by the FOIA Improvement Act, and it encompasses the former reference to coverage by an exemption as well. Based on legislative history, in which the sponsors of the Act expressed their intent to preserve the longstanding protections afforded by Exemption 8,8 the OCC does not anticipate that the Act or revised § 4.12(a) will alter the application of FOIA Exemption 8, which protects matters that are “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.” 9

    8 The Senate Judiciary Committee report on the FOIA Improvement Act states that:

    Extreme care should be taken with respect to disclosure under Exemption 8 which protects matters that are `contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.' Currently, financial regulators rely on Exemption 8, and other relevant exemptions in Section 552(b), to protect sensitive information received from regulated entities, or prepared in connection with the regulation of such entities, in fulfilling their goals of ensuring safety and soundness of the financial system, compliance with federal consumer financial law, and promoting fair, orderly, and efficient financial markets.

    Exemption 8 was intended by Congress, and has been interpreted by the courts, to be very broadly construed to ensure the security of financial institutions and to safeguard the relationship between the banks and their supervising agencies. The D.C. Circuit has gone so far as to state that in Exemption 8 Congress has provided “absolute protection regardless of the circumstances underlying the regulatory agency's receipt or preparation of examination, operating or condition reports.” Nothing in this legislation shall be interpreted to compromise the stability of any financial institution or the financial system, disrupt the operation of financial markets or undermine consumer protection efforts due to the release of confidential information about individuals or information that a financial institution may have, or encourage the release of confidential information about individuals. This legislation is not intended to lessen the protection under Exemption 8 created by Congress and traditionally afforded by the courts.

    S. Rep. No 114-4 (February 23, 2015).

    9 5 U.S.C. 552(b)(8).

    The interim final rule also amends the deliberative process exemption in § 4.12(b)(5) to reflect the Act's limitations on records created 25 years or more before the date of an information request. Previously, the deliberative process exemption protected all intra-agency and interagency memoranda and letters not routinely available by law to a private party in litigation, including memoranda, reports, and other documents prepared by OCC employees and records of deliberations and discussions at meetings of OCC employees. After the change, the deliberative process provision as amended by the interim final rule will exempt only those memoranda and letters created within 25 years of the date on which they were requested.

    Additionally, although the OCC's rules already provide for the separation and provision of nonexempt information, the interim final rule clarifies that, in cases in which full disclosure is not possible, the OCC considers whether partial disclosure of information is possible and takes reasonable steps necessary to segregate and release nonexempt information. This provision is consistent with current OCC practice.

    The interim final rule also amends § 4.12(b)(3) to reflect the OPEN FOIA Act provision that requires that statutes enacted after the date of the enactment of the OPEN FOIA Act must specifically cite to Exemption 3 of the FOIA in order to qualify under Exemption 3. The OPEN FOIA Act was enacted on October 28, 2009, so the requirement applies to statutes enacted after that date.

    Finally, the interim final rule adopts the changes to § 4.12(a) and (b) that the OCC proposed as part of its EGRPRA review. Previously, § 4.12(b)(10) exempted from disclosure any OTS information similar to that listed in the exemptions in § 4.12(b)(1) to (b)(9) to the extent the information is in the possession of the OCC. For purposes of clarification, we are amending the § 4.12(a) disclosure standard so that it applies to OTS records, in addition to OCC records, and removing the resulting unnecessary exemption in paragraph (b)(10).

    Section 4.14 Public Inspection in an Electronic Format

    Section 4.14(a) lists the types of information the OCC makes available for public inspection. Consistent with the Act's amendments to 5 U.S.C. 552(a)(2), the interim final rule adds two categories of information to § 4.14(a). New § 4.14(a)(11) specifies that the OCC will make available for public inspection in an electronic format any records, regardless of form or format, that have been released to any person under 5 U.S.C. 552(a)(3) provided that: (1) The OCC determines that, because of the nature of their subject matter, the records are or are likely to become the subject of subsequent requests for substantially the same record; or (2) the records have been requested three or more times.

    New § 4.14(a)(12) states that the OCC will provide reference materials or a guide for requesting records or information from the OCC, including an index of all major OCC information systems, a description of major information and record locator systems maintained by the OCC, and a handbook for obtaining various types and categories of public information from the OCC pursuant to FOIA and chapter 35 of title 44.

    Finally, the interim final rule makes clarifying and conforming changes to § 4.14, including amending § 4.14(a) and (b) to specify that information will be made available for public inspection in an electronic format to implement section 2 of the Act.

    Section 4.15 How To Request Records

    Pursuant to the Act, the interim final rule amends § 4.15, which describes the process for requesting OCC records. Specifically, to implement section 2 of the Act, the interim final rule amends § 4.15(c)(4) to specify that if a request for information is denied, the OCC will notify the requester of the right to seek dispute resolution services from the OCC's FOIA Public Liaison or the Office of Government Information Services through the processes described in new § 4.15(h).

    Pursuant to the Act's amendments to 5 U.S.C. 552(a)(6)(A)(i), the interim final rule also extends the time available for administrative appeal of a denial to release records from 35 days to 90 days. Under new § 4.15(d), requesters will have 90 days after the date of an initial denial determination to submit a written administrative appeal of denial of a request for records.

    Additionally, the interim final rule expands § 4.15(f), which addresses the time limits for FOIA request responses and provides for extensions in certain situations, including a 10-day extension for unusual circumstances.10 Pursuant to the Act's amendments to 5 U.S.C. 552(a)(6)(A)(i), the interim final rule adds a new § 4.15(f)(4) that provides additional information and alternatives for requesters when the OCC determines that a request will require more than a 10-day extension to process. Under this provision, if unusual circumstances apply to a request for records, and the OCC determines that it cannot respond to the request within the 10-day extension, the OCC will: (1) Notify the requester that the request cannot be processed within the 10-day extension; (2) provide the requester with an opportunity to limit the scope of the request so that it may be processed within the 10-day period or to arrange with the OCC an alternative time frame for processing the request or a modified request; (3) make available the FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the OCC; and (4) notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services.

    10 12 CFR 4.15(f)(3)(i).

    Finally, the interim final rule makes other clarifying and conforming changes to § 4.15, including amending § 4.15(d)(4) to specify that the OCC will provide notification of a denial of an appeal “in writing,” rather than “by mail.” The OCC expects this change will provide greater flexibility and efficiency by permitting other forms of communication, such as electronic mail. The interim final rule also amends § 4.15 to provide updated contact information for the Office of Management and Budget's (OMB) request portal, the OCC's Chief FOIA Officer, and the Federal Deposit Insurance Corporation.

    Section 4.17 FOIA Request Fees

    Section 4.17 provides information for the assessment and payment of FOIA request fees. As stated in § 4.17(b)(1), the OCC generally charges fees to fulfill FOIA requests. However, § 4.17(b)(6) provided that the OCC will not assess search or duplication fees, as applicable, if the OCC did not respond within the time limits set forth in § 4.15(f) and no unusual or exceptional circumstances applied. The FOIA Improvement Act provided additional information about the circumstances in which an agency may charge search or duplication fees if the agency does not meet the time limits provided by the FOIA. Thus, pursuant to the Act, the interim final rule amends § 4.17(b)(6) to update the circumstances in which the OCC is permitted to assess search or duplication fees, even if the OCC does not respond within the § 4.15(f) time limits.

    For example, amended § 4.17(b)(6) permits the OCC to assess search or duplication fees if the OCC has determined “unusual circumstances” (as defined in § 4.15(f)(3)(i)) apply, has provided timely written notice to the requester, and complies with the extended time limit.11 The interim final rule also permits the OCC to assess search or duplication fees if the OCC has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request. In such a situation, the OCC must provide a timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B) and discuss with the requester via written mail, electronic mail, or telephone (or make not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). Finally, if a court has determined that exceptional circumstances (as defined in 5 U.S.C. 552(a)(6)(C)) apply to the processing of a request, the OCC may assess search or duplication fees for the length of time provided by the court order.

    11 Section 4.15(f)(3)(i) states that the OCC may extend the time limits in unusual circumstances for a maximum of 10 business days. If the OCC extends the time limits, the OCC provides written notice to the person making the request or appeal, containing the reason for the extension and the date on which the OCC expects to make a determination. Unusual circumstances exist when the OCC requires additional time to: Search for and collect the requested records from field facilities or other buildings that are separate from the office processing the request or appeal; search for, collect, and appropriately examine a voluminous amount of requested records; consult with another agency that has a substantial interest in the determination of the request; or allow two or more components of the OCC that have substantial interest in the determination of the request to consult with each other. . . .”

    The interim final rule also updates the payment of fees contact information listed in § 4.17(c).

    Section 4.18 How To Track a FOIA Request

    The interim final rule makes a technical amendment to § 4.18(b) to provide updated contact information for the OCC's Communications Division that requesters may use to track the progress of their requests.

    III. Effective Date/Request for Comment

    The OCC is issuing the interim final rule without prior notice and the opportunity for public comment and the 30-day delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA).12 Pursuant to section 553(b)(B) of the APA, general notice and the opportunity for public comment are not required with respect to a rulemaking when an “agency for good cause finds (and incorporates the finding and a brief statement of the reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 13 The interim final rule's changes to 12 CFR part 4 are limited to technical changes and those that are necessary to implement the provisions of the FOIA Improvement Act and OPEN FOIA Act. Because the OCC is not exercising discretion with respect to the interim final rule's substantive revisions that implement the Act, the OCC believes the public interest is best served by implementing the interim final rule as soon as possible.

    12 5 U.S.C. 553.

    13 5 U.S.C. 553(b)(B).

    In addition, the OCC believes that providing a notice and comment period prior to issuance of the interim final rule is unnecessary because the OCC does not expect public objection to the regulations being promulgated, as this rule implements the substantive changes specified in the Act and technical, non-substantive updates and clarifications to part 4. Moreover, the OCC expects that the majority of the changes will provide additional services and critical updates that will assist FOIA requesters.

    The APA also requires a 30-day delayed effective date, except for (1) substantive rules that grant or recognize an exemption or relieve a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause.14 The OCC concludes that, because the rules recognize an exemption, the interim final rule is exempt from the APA's delayed effective date requirement.15 Additionally, the OCC finds good cause to publish the interim final rule with an immediate effective date for the same reasons set forth above under the discussion of section 553(b)(B) of the APA.

    14 5 U.S.C. 553(d).

    15 5 U.S.C. 553(d)(1).

    Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA),16 in determining the effective date and administrative compliance requirements for a new regulation that imposes additional reporting, disclosure, or other requirements on insured depository institutions (IDIs), the OCC must consider any administrative burdens that such regulation would place on depository institutions and the benefits of such regulation. In addition, section 302(b) of the RCDRIA requires any such new regulation to take effect on the first day of a calendar quarter that begins on or after the date on which the regulation is published in final form, with certain exceptions, including for good cause. The OCC has considered the administrative burdens that such regulations would place on institutions and the benefits of such regulations in determining the effective date and compliance requirements. Due to the nature of the rule's changes to the OCC's existing FOIA regulations, the interim final rule does not impose additional reporting, disclosure, or other requirements on IDIs, and section 302 of the RCDRIA therefore does not apply. Therefore, for the same reasons set forth above under the discussion of section 553(b)(B) of the APA, the OCC finds good cause exists under section 302 of RCDRIA to publish the interim final rule with an immediate effective date.

    16 12 U.S.C. 4802(a).

    While the OCC believes there is good cause to issue the rule without notice and comment and with an immediate effective date, the OCC is interested in the views of the public and requests comment on all aspects of the interim final rule.

    IV. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) 17 applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). As discussed above, consistent with section 553(b)(B) of the APA, the agencies have determined for good cause that general notice and opportunity for public comment is not necessary. Accordingly, the RFA's requirements relating to initial and final regulatory flexibility analysis do not apply.

    17 Public Law 96-354, Sept. 19, 1980, codified to 5 U.S.C. 601 et seq.

    V. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 18 states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid OMB control number. Because the interim final rule does not create a new, or revise an existing, collection of information, no information collection request submission needs to be made to the OMB.

    18 44 U.S.C. 3501-3521.

    VI. OCC Unfunded Mandates Reform Act of 1995 Determination

    Consistent with section 202 of the Unfunded Mandates Reform Act of 1995,19 before promulgating any final rule for which a general notice of proposed rulemaking was published, the OCC prepares an economic analysis of the final rule. As discussed above, the OCC has determined that the publication of a general notice of proposed rulemaking was unnecessary. Accordingly, the OCC has not prepared an economic analysis of the joint interim final rules.

    19 2 U.S.C. 1532.

    List of Subjects in 12 CFR Part 4

    Administrative practice and procedure, Freedom of information, Individuals with disabilities, Minority businesses, Organization and functions (Government agencies), Reporting and recordkeeping requirements, Women.

    Authority and Issuance

    For the reasons set forth in the preamble, the OCC hereby amends 12 CFR part 4 as set forth below.

    PART 4—ORGANIZATION AND FUNCTIONS, AVAILABILITY AND RELEASE OF INFORMATION, CONTRACTING OUTREACH PROGRAM, POST-EMPLOYMENT RESTRICTIONS FOR SENIOR EXAMINERS 1. The authority citation for part 4 continues to read as follows: Authority:

    5 U.S.C. 301, 552; 12 U.S.C. 1, 93a, 161, 481, 482, 484(a), 1442, 1462a, 1463, 1464, 1817(a), 1818, 1820, 1821, 1831m, 1831p-1, 1831o, 1833e, 1867, 1951 et seq., 2601 et seq., 2801 et seq., 2901 et seq., 3101 et seq., 3401 et seq., 5321, 5412, 5414; 15 U.S.C. 77uu(b), 78q(c)(3); 18 U.S.C. 641, 1905, 1906; 29 U.S.C. 1204; 31 U.S.C. 5318(g)(2), 9701; 42 U.S.C. 3601; 44 U.S.C. 3506, 3510; E.O. 12600 (3 CFR, 1987 Comp., p. 235).

    § 4.11 [Amended]
    2. Section 4.11 is amended by removing paragraph (b)(4). 3. Section 4.12 is amended by: a. Revising paragraphs (a), (b)(3), and (b)(5); b. In paragraph (b)(8), adding “and” at the end; c. In paragraph (b)(9), removing “; and” at the end and adding in its place a period; d. Removing paragraph (b)(10); and e. Revising the first sentence of paragraph (d).

    The revisions read as set forth below.

    § 4.12 Information available under the FOIA.

    (a) General. Except as otherwise provided by the FOIA, OCC and Office of Thrift Supervision (OTS) records are available to the public.

    (b) * * *

    (3) A record specifically exempted from disclosure by statute (other than 5 U.S.C. 552b), provided that the statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; establishes particular criteria for withholding, or refers to particular types of matters to be withheld; and, if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to 5 U.S.C. 552(b)(3);

    (5) An intra-agency or interagency memorandum or letter not routinely available by law to a private party in litigation, including memoranda, reports, and other documents prepared by OCC employees, and records of deliberations and discussions at meetings of OCC employees, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;

    (d) * * * If the OCC determines that full disclosure of a requested record is not possible, the OCC considers whether partial disclosure of information is possible and takes reasonable steps necessary to segregate and release nonexempt information. * * *

    4. Section 4.14 is amended by: a. Revising the section heading and paragraphs (a) and (c); and b. Amending paragraph (b) by removing the phrase “and copying”, and adding in its place “in an electronic format”.

    The revisions read as set forth below.

    § 4.14 Public inspection in an electronic format.

    (a) Available information. Subject to the exemptions listed in § 4.12(b), the OCC makes the following information available for public inspection in an electronic format:

    (1) Any final order, agreement, or other enforceable document issued in the adjudication of an OCC enforcement case, including a final order published pursuant to 12 U.S.C. 1818(u);

    (2) Any final opinion issued in the adjudication of an OCC enforcement case;

    (3) Any statement of general policy or interpretation of general applicability not published in the Federal Register;

    (4) Any administrative staff manual or instruction to staff that may affect a member of the public as such;

    (5) A current index identifying the information referred to in paragraphs (a)(1) through (a)(4) of this section issued, adopted, or promulgated after July 4, 1967;

    (6) A list of available OCC publications;

    (7) A list of forms available from the OCC, and specific forms and instructions; 1

    1 Some forms and instructions that national banks and Federal savings associations use are not available from the OCC. The OCC will provide information on where persons may obtain these forms and instructions upon request.

    (8) Any public Community Reinvestment Act performance evaluation;

    (9) Any public securities-related filing required under parts 11, 16, 194 or 197 of this chapter;

    (10) Any public comment letter regarding a proposed rule;

    (11) Any records, regardless of form or format, that have been released to any person under 5 U.S.C. 552(a)(3) provided that:

    (i) The OCC determines that, because of the nature of their subject matter, the records are or are likely to become the subject of subsequent requests for substantially the same records; or

    (ii) The records have been requested three or more times;

    (12) Reference materials or a guide for requesting records or information from the OCC, including an index of all major OCC information systems, a description of major information and record locator systems maintained by the OCC, and a handbook for obtaining various types and categories of public information from the OCC pursuant to FOIA and chapter 35 of title 44;

    (13) The public file (as defined in 12 CFR 5.9) with respect to a pending application described in part 5 of this chapter; and

    (14) Any OTS information similar to that listed in paragraphs (a)(1) through (a)(13) of this section, to the extent this information is in the possession of the OCC.

    (c) Addresses. The information described in paragraphs (a)(1) through (14) of this section is available from the Chief FOIA Officer, Communications Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219. The information described in paragraph (a)(13) of this section in the case of both national banks and Federal savings associations is available from the Licensing Manager at the appropriate district office at the address listed in § 4.5(a), or in the case of national banks and Federal savings associations supervised by the Large Bank Supervision Department, from the Large Bank Licensing Expert, Licensing Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219.

    5. Section 4.15 is amended by: a. Revising paragraph (b)(1), and revising paragraph (b)(2)(i) introductory text; b. Revising paragraphs (c)(2), (c)(4), and (d)(1) and (4); c. Removing “Saturday” in paragraph (f)(1) and adding it its place “Saturdays”; d. Adding paragraph (f)(4); e. Republishing paragraph (g); and f. Adding paragraph (h).

    The additions and revisions read as set forth below.

    § 4.15 How to request records.

    (b) * * * (1) General. Except as provided in paragraph (b)(2) of this section, a person requesting a record or filing an administrative appeal must submit the request or appeal:

    (i) Through the OCC's FOIA Web portal at https://foia-pal.occ.gov/palMain.aspx;

    (ii) Through the consolidated online request portal maintained by the Office of Management and Budget pursuant to 5 U.S.C. 552(m)(1); or

    (iii) Under this section to the Chief FOIA Officer, Communications Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219.

    (2) Exceptions—(i) Records at the Federal Deposit Insurance Corporation. A person requesting any of the following records, other than blank forms (see § 4.14(a)(7)), must submit the request to the FDIC, Legal Division, FOIA/PA Group, 550-17th Street NW., Washington, DC 20429, or fax to (703) 562-2797:

    (c) * * *

    (2) Initial determination. The Comptroller or the Comptroller's delegate initially determines whether to grant a request for OCC records and notifies the requester, in accordance with the time limits set forth in paragraph (f) of this section, of the determination and the reasons therefore and of the right to seek assistance from the OCC's FOIA Public Liaison.

    (4) If request is denied. If the OCC denies a request for records, in whole or in part, the OCC will notify the requester in writing. The notification is dated and contains a brief statement of the reasons for the denial, sets forth the name and title or position of the official making the decision, advises the requester of the right to seek dispute resolution services from the OCC's FOIA Public Liaison or the Office of Government Information Services, and advises the requester of the right to appeal to the Comptroller of the Currency in accordance with paragraph (d) of this section.

    (d) Administrative appeal of a denial—(1) Procedure. A requester must submit an administrative appeal of denial of a request for records in writing within 90 days after the date of the initial determination. The appeal must include the circumstances and arguments supporting disclosure of the requested records.

    (4) If appeal is denied. If the OCC denies an appeal, in whole or in part, the OCC notifies the requester in writing. The notification contains a brief statement of the reasons for the denial, sets forth the name and title or position of the official making the decision, and advises the requester of the right to judicial review of the denial under 5 U.S.C. 552(a)(4)(B).

    (f) * * *

    (4) Requests that require more than a 10-day extension to process. If the OCC determines unusual circumstances apply to a request for records, and the OCC determines it cannot respond to the request within the 10-day extension set forth in paragraph (f)(3)(i) of this section, the OCC will:

    (i) Notify the requester that the request cannot be processed within the time limit set forth in paragraph (f)(3)(i) of this section;

    (ii) Provide the requester with an opportunity to limit the scope of the request so that it may be processed within that 10-day period or to arrange with the OCC an alternative time frame for processing the request or a modified request;

    (iii) Make available the FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the OCC; and

    (iv) Notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services.

    (g) Date of receipt of request or appeal. The date of receipt of a request for records or an appeal is the date that Disclosure Services, Communications Division receives a request that satisfies the requirements of paragraph (c)(1) or (d)(1) of this section, except as provided in § 4.17(d).

    (h) Dispute resolution services. Requesters with concerns about the handling of their FOIA requests may contact the FOIA Public Liaison or the Office of Government Information Services for dispute resolution services.

    (1) To apply for dispute resolution assistance from the FOIA Public Liaison, requesters should submit a written request to the FOIA Public Liaison, Communications Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219.

    (2) For dispute resolution services through the Office of Government Services, requesters should contact the Office of Government Services as set forth at 36 CFR 1250.32.

    6. Section 4.17 is amended by: a. Revising paragraph (b)(6); and b. Amending paragraph (c)(1) by removing the phrase “Communications Division”, and adding in its place the phrase “Financial Management, Accounts Receivable”.

    The revisions read as set forth below.

    § 4.17 FOIA request fees.

    (b) * * *

    (6) No fee if the time limit passes and the OCC has not responded to the request. The OCC will not assess search or duplication fees, as applicable, if it fails to respond to a requester's FOIA request within the time limits specified under 5 U.S.C. 552(a)(6) and 12 CFR 4.15(f), except as follows:

    (i) Unusual circumstances—(A) General. If the OCC has determined that unusual circumstances (as defined in 5 U.S.C. 552(a)(6)(B) and § 4.15(f)(3)(i)) apply and the OCC provides timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B), the OCC may assess search or duplication fees, as applicable, for an additional 10 days. If the OCC fails to comply with the extended time limit, the OCC will not assess any search or duplication fees, as applicable.

    (B) Voluminous Requests. Notwithstanding paragraph (b)(6)(i)(A) of this section, if the OCC has determined that unusual circumstances (as defined in 5 U.S.C. 552(a)(6)(B) and § 4.15(f)(3)(i)) apply and more than 5,000 pages are necessary to respond to the request, the OCC may assess search or duplication fees, as appropriate, if the OCC provides a timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B) and discusses with the requester via written mail, electronic mail, or telephone (or makes not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii).

    (ii) In exceptional circumstances. If a court has determined that exceptional circumstances (as defined in 5 U.S.C. 552(a)(6)(C)) apply to the processing of a request, the OCC may assess search or duplication fees, as applicable, for the length of time provided by the court order.

    § 4.18 [Amended]
    7. Section 4.18 is amended by: a. In paragraph (a), removing the word “Department” and adding in its place the word “Division”, wherever it appears; and b. In paragraph (b), removing the phrase “Disclosure Officer”, and adding in its place the phrase “Chief FOIA Officer”. Dated: December 14, 2016. Thomas J. Curry, Comptroller of the Currency.
    [FR Doc. 2016-30725 Filed 12-22-16; 8:45 am] BILLING CODE P
    SMALL BUSINESS ADMINISTRATION 13 CFR Parts 121 and 125 RIN 3245-AG71 Credit for Lower Tier Small Business Subcontracting AGENCY:

    U.S. Small Business Administration.

    ACTION:

    Final rule.

    SUMMARY:

    The U.S. Small Business Administration (SBA) is amending its regulations to implement section 1614 of the National Defense Authorization Act for Fiscal Year 2014 (NDAA 2014). Section 1614 amended the Small Business Act to provide that where a prime contractor has an individual subcontracting plan for a specific prime contract with an executive agency, the prime contractor shall receive credit towards its subcontracting plan goals for awards made to small business concerns at any tier under the contract. The changes authorized by this statute will allow an other than small prime contractor that has an individual subcontracting plan for a contract to receive credit towards its small business subcontracting goals for subcontract awards made to small business concerns at any tier, to the extent reported on the subcontracting plans of its lower tier subcontractors. The final rule also implements the statutory requirements related to the subcontracting plans of all subcontractors that are required to maintain such plans, including the requirement to monitor subcontractors' performance and compliance toward reaching the goals set out in those plans as well as their compliance with subcontracting reporting requirements. SBA is also clarifying that the size standard for a particular subcontract must appear in the solicitation for the subcontract.

    DATES:

    This rule is effective on January 23, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Michael McLaughlin, Office of Policy, Planning and Liaison, 409 Third Street SW., Washington, DC 20416; (202) 205-5353; [email protected]

    SUPPLEMENTARY INFORMATION:

    Introduction

    The final rule implements Section 1614 of the National Defense Authorization Act for Fiscal Year 2014, Public Law 113-66, December 26, 2013 (hereinafter NDAA 2014). Section 1614 amended section 8(d)(6)(D) of the Small Business Act, 15 U.S.C. 637(d)(6)(d), to provide that where a prime contractor has a subcontracting plan for a specific prime contract with an executive agency, as required by Section 8(d) of the Small Business Act, the prime contractor will receive credit towards its subcontracting plan goals for awards made to small business concerns at any tier under the contract, to the extent reported under the subcontracting plan of a lower tier other than small subcontractor. When a prime contractor awards a subcontract to a firm, it is generally considered a first tier subcontract. That subcontractor may award a subcontract, which would be considered a second tier subcontract, and so on. Currently, with few exceptions, a prime contractor cannot receive credit towards its small business subcontracting plan goals for awards made below the first tier.

    SBA is amending its regulations to require other than small business prime contractors to count lower tier small business subcontract awards towards their federal small business subcontracting goals on unrestricted federal contracts, to the extent the lower tier subcontractor are required to report the information. With limited exceptions, unrestricted federal procurements and subcontracts over $700,000 ($1.5 million for construction of any public facility) include Federal Acquisition Regulation (FAR) clause 52.219-9 (Small Business Subcontracting Plan), which requires other than small contractors and their lower tier subcontractors to make a good faith effort to meet or to exceed the small business subcontracting goals established in their respective subcontracting plans. Failure to make this effort could result in liquidated damages, default termination, and negative performance reviews. For a subcontracting plan for a specific prime contract, the contractor or subcontractor is required to submit an Individual Subcontract Report (ISR) and Summary Subcontracting Report (SSR). The ISR is submitted semiannually during contract performance and upon contract completion. The SSR is submitted annually to procuring agencies. Both forms are submitted through the Electronic Subcontracting Reporting System (eSRS). Until this final rule, a large prime contractor could not take credit for a subcontract award to a second-tier small business subcontractor. Lastly, large prime contractors are already required to identify the size standard that applies to a subcontract. 13 CFR 121.410, 121.411, 125.3(c)(1)(v). Subcontractor size representation is reviewed during compliance reviews (See 13 CFR 125.3(f)(2)(i)) and size representations at the subcontract level may be protested (See 13 CFR 121.411). In addition, Section 868 of the National Defense Authorization Act of 2016, Public Law 114-92 (November 25, 2015), requires SBA, as part of the its scorecard on agency small business prime contracting and subcontracting performance, to compare “The number of small business concerns, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women awarded subcontracts in each North American Industry Classification System code during the fiscal year and a comparison to the number of awarded subcontracts during the prior fiscal year, if available.”

    SBA published a proposed rule regarding these changes in the Federal Register on October 6, 2015. 80 FR 60300 (October 6, 2015). SBA received a total of 13 comments. Two of these comments were generally positive without offering any comments on specific provisions. SBA received three comments that were generally opposed to the rule without offering comment on specific provisions. These three commenters generally felt that the statute and the regulations were likely to hurt small business subcontractors rather than help them, and would likely result in large prime contractors attempting to exert more control over their subcontractors. SBA received one comment that was not relevant; this comment made no mention of the proposed regulation.

    Two commenters did not think that SBA's regulatory impact analysis took into consideration the extra burden that large businesses would have under these changes. The commenters claimed that the costs and challenges of collecting the data are more than minimal, and that large businesses will incur more than minimal costs. Neither commenter provided data or analysis on what those costs would be, just a general statement that they would be more than minimal. SBA addressed this issue in its proposed rule. Any costs associated with the regulatory implementation of these provisions of the NDAA 2014 will be included in the proposed Federal Acquisition Regulation (FAR) changes. Thus, any Paperwork Reduction Act (PRA) costs associated with proposed rulemaking and implementation will occur during the FAR rulemaking process.

    SBA received one comment seeking clarification that this rule and credit for lower tier subcontracting does not affect Agencies' prime contract goaling numbers. This rule only applies to subcontracting plans, not to agency prime contract goaling requirements. Generally, agencies do not count subcontracting dollars awarded to small business concerns towards their prime contract goaling requirements, except for the Department of Energy. This rule does not change reporting under the SSR, which is how agencies receive credit for subcontracting. Firms will continue to report only their first-tier subcontracts on the SSR.

    SBA received one comment regarding enforcement of these regulations prior to FAR regulatory implementation and updates to eSRS. As noted in the proposed rule, it is SBA's position that this regulation will require changes to FAR prior to full implementation in eSRS.

    Summary of Proposed Rule, Comments, and SBA's Responses Part 121

    SBA proposed amending § 121.411(b) allowing prime contractors to accept a subcontractor's size certification electronically. The list of enumerated methods is illustrative only, and is not exhaustive. SBA received several comments on this issue, and all believed the proposed change was positive, but that more clarity was needed about who may accept the certifications, and whether this applied to socioeconomic certifications. Thus, SBA is adopting the language as proposed, with minor additions for clarity. The final rule now makes clear that prime and subcontractors may rely on any form of electronic certification that they deem appropriate provided it is given in connection with an offer for specific subcontract and it includes the language in SBA's regulation which provides that in order to accept an electronic representation, the representation must be in connection with an offer for a subcontract and the solicitation and subcontract provides that the subcontractor verifies by submission of the offer that the size and socioeconomic representations and certifications are current accurate and complete as of the date of offer for the subcontract. See 13 CFR 121.411(b), 125.3(c)(1)(v).

    Part 125

    In proposed § 125.3(a)(1), SBA included the new statutory definition for a subcontract that was enacted by NDAA 2014. SBA received one comment that requested more specificity with regard to what will be considered a subcontract. Specifically, this commenter wanted lists of what would and would not be considered a subcontract, based in part on FAR definitions. The proposed definition is taken from the statute, which was added by NDAA 2014, and SBA is adopting the statutory definition in the final rule. See 15 U.S.C. 632(dd)(1).

    In proposed § 125.3(a)(1)(i)(C), SBA provided guidance on when a prime contractor may receive credit for lower tier subcontracting. Specifically, the proposed rule stated that only individual subcontracting plans were entitled to receive the credit. SBA has revised this section based on the comments. Specifically, the final rule clearly states how commercial and individual plans differ, and what the prime contractor's and subcontractor's responsibilities and requirements are for individual subcontracting plans as required by the Small Business Act. SBA received several comments asking for clarification, and several comments asking SBA to also apply the new guidelines to commercial subcontracting plans. SBA addressed this issue in its proposed rule, “Section 1614 applies only when determining whether or not a prime contractor has met its individual subcontracting plan goals. Thus, Section 1614 does not apply where the prime contractor has a commercial plan or comprehensive subcontracting plan.” 80 FR 60300, 60301 (October 6, 2015). The Small Business Act specifically states that the prime contractor shall receive lower tier credit “if the subcontracting goals pertain to a single contract with the executive agency.” 15 U.S.C. 637(d)(16)(A)(i). A commercial plan, like a comprehensive subcontracting plan, applies to more than one government contract, and thus the lower tier credit provisions do not apply to those types of plans.

    SBA received two comments on the issue of double counting and the incorporation of subcontracting plans from lower tier, other than small subcontractors. One commenter suggested that SBA amend the language of the regulation and add examples to provide clarity. One commenter requested that SBA remove the requirement that other than small subcontractors are required to have their own subcontracting plan, if their plan is incorporated into the prime contractor's plan. The requirement that subcontractors have their own plan is an independent statutory requirement that must be met. SBA has crafted the final rule to make it clear that incorporation of lower tier goals does not change the requirements of the lower tier subcontractors to have its own subcontracting plans, meet their goals, and report on its first tier performance. Further, the prime contractor will continue to report on performance at the first tier level. The prime contractor's performance towards its lower tier small business subcontracting goals will be based on the reports of its other than small lower tier subcontractors with subcontracting plans to the extent that the lower tier subcontractor are required to report. The prime contractor remains responsible for ensuring accurate reporting to the government.

    SBA received two comments on proposed § 125.3(c)(1)(i), which proposed to require that in order for a prime contractor to receive credit for awards made at lower tiers, the prime contractor would be required to have a complete subcontracting plan, including incorporation of its subcontractor's goals, prior to award. The Small Business Act requires that subcontracting plans be submitted, negotiated, and approved before contract award. 15 U.S.C. 637(d)(4)(B) and (C). The commenters contend that having all of the necessary steps done and completed prior to award, including the incorporation of lower tier subcontractor's plans, is not practicable on all contracts. The commenters state that often the prime will not be aware of which companies their subcontractors may be utilizing. The Small Business Act provides that prime contractors “shall” receive credit for subcontractors at any tier pursuant to a subcontracting plan required by section 15 U.S.C. 637(d)(6)(D), which is the statutory requirement to require other than small subcontractors to have subcontracting plans if the subcontract exceeds certain threshold amounts. 15 U.S.C. 637(d)(16)(A)(i). Thus, the prime contractor with an individual subcontracting plan will be obligated to consider and establish goals based on the subcontracting plans of its other than small subcontractors prior to award of the contract.

    SBA proposed to amend § 125.3(c)(1)(v) to clarify which NAICS should apply to a subcontract and how primes should inform potential subcontractors which NAICS and corresponding size standard will be applied. SBA's regulations currently require that the prime contractor (or subcontractor that is subcontracting to another concern) must assign a NAICS code to the subcontract that best describes the work being performed or the product being purchased by that subcontract. The contractor may not simply pass down the NAICS assigned to the prime contract to all subcontracts. SBA received five negative comments on this requirement, and one comment that believed it would be in conflict with the FAR. However, this is not a new requirement. SBA's current regulations require that each subcontract have a NAICS assigned that describes the work being performed under the subcontract, with the corresponding size standard. While not a new requirement, SBA believes it is important to reiterate why this requirement is necessary to accurately reflect small business participation in subcontracting. Utilizing the prime contract's NAICS for subcontracts may not always accurately describe the work being done under that subcontract. SBA does not have a one-size-fits-all definition of what a small business is, because whether a firm is small depends largely on what type of work it performs, or what type of product it supplies. Utilizing one NAICS code for all subcontracts would distort the calculation of small business subcontracting performance.

    Several comments requested clarification on whether, based on the wording of this rule, all subcontracts would require a solicitation. That was not the intention of the regulation, and SBA has added a sentence to the regulation to make this clear. However, it should also be clear that the prime contractor (or lower tier subcontractor that is subcontracting) assigning the NAICS to the subcontract is responsible for providing notice of the size standard to prospective subcontractors prior to acceptance and formation of a subcontract. This is necessary to ensure that small businesses can accurately certify to their size status. SBA also added parentheticals to make clear that this applies to prime contractors and subcontractors.

    SBA proposed to add § 125.3(c)(1)(x) to implement 15 U.S.C. 637(d)(6)(D) of the Small Business Act, requiring prime contractors and subcontractors with subcontracting plans to do various tasks in connection with their subcontractors with subcontracting plans. SBA received one negative comment stating the requirements were too burdensome and one comment requesting clarification concerning whether these requirements pertain to commercial subcontracting plans. SBA also received a comment requesting that the requirements of this paragraph and paragraph (xi) be required only if the prime contractor incorporates its subcontractors' subcontracting plans. The requirements articulated in the proposed rule are required by statute for all subcontracting plans, and thus we are adopting the language as proposed in the final rule. Subcontractors of primes with commercial plans do not have to have subcontracting plans if the subcontract is for a commercial item. Consequently, the requirements of § 125.3(c)(1)(x) apply to a prime with a commercial plan to the extent its subcontractors have their own individual subcontracting plans, not commercial plans

    SBA received one comment stating that the dollar value thresholds in SBA's rule are different than the recently updated FAR thresholds. The revised inflation adjusted subcontracting plan thresholds became effective after SBA issued the proposed rule, and SBA has updated the thresholds in this final rule.

    SBA proposed to add § 125.3(c)(1)(xi) in order to incorporate new requirements from the statute concerning the records the prime contractor must maintain to demonstrate subcontractors at all tiers comply with the subcontracting plan requirements. Two commenters noted confusion as to what was meant by the phrase “recite the types of records the prime will maintain.” SBA is changing language to make clear that a written statement is required.

    Finally, with respect to liquidated damages, the Small Business Act provides that each contract subject to the requirements for a subcontracting plan shall contain a clause for the payment of liquidated damages upon a finding that a prime contractor has failed to make a good faith effort to comply with the requirements imposed on such subcontractor by section 8(d)(4)(F) of the Small Business Act, 15 U.S.C. 637(d)(4)(F). Thus, a prime contractor could be subject to liquidated damages if it fails to make a good faith effort to review and approve subcontracting plans submitted by its subcontractors; monitor subcontractor compliance with its approved subcontracting plans; ensure that subcontracting reports are submitted by its subcontractors when required; acknowledge receipt of its subcontractors' reports; compare the performance of its subcontractors to subcontracting plans and goals; and discuss performance with subcontractors when necessary to ensure its subcontractors make a good faith effort to comply with their subcontracting plans.

    Compliance With Executive Orders 12866, 13563, 12988, and 13132, the Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory Flexibility Act (5 U.S.C. 601-612) Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this final rule is a significant regulatory action for the purposes of Executive Order 12866. Accordingly, the next section contains SBA's Regulatory Impact Analysis. This is not a major rule, however, under the Congressional Review Act.

    Regulatory Impact Analysis 1. Is there a need for the regulatory action?

    The final regulations implement section 1614 of the National Defense Authorization Act for Fiscal Year 2014. Section 1614(c)(3) requires the Administrator to promulgate regulations necessary to implement the Act.

    2. What are the potential benefits and costs of this regulatory action?

    The benefits of the final regulations are minimal and the final costs cannot be determined until the FAR rules are proposed. Other than small business prime contractors and subcontractors already establish individual subcontracting plan goals and report on their achievements if the subcontracting plan thresholds are met. Under section 1614 of the NDAA 2014, a prime contractor with an individual subcontracting plan will receive credit towards its goals for small business performance at lower tiers. Thus, there will be some costs to the prime contractor to propose subcontracting plan goals that incorporate small business performance at lower tiers and to ensure that their subcontractors have plans and submit required reports, and there will also be costs to the Government to evaluate whether the prime contractor's goals adequately address maximum practicable small business subcontracting opportunity at all tiers. SBA estimates that there were approximately 34,000 individual subcontracting plans in fiscal year 2015, and that approximately 24,000 were at the prime contract level. Other than small firms may have multiple individual subcontracting plans at the prime and sub level, so the number of other than small firms affected by this rule will be less than the number of individual subcontracting plans, but we cannot say with any precision how many will be impacted. There may also be costs to the Government as eSRS may have to be modified to allow other than small prime contractors to receive small business credit at any tier towards their subcontracting plan goals. However, SBA is not able to estimate these costs because the system will be modified when this rule is implemented into the FAR and the process for capturing the lower tier reports is further defined. There should not be any costs imposed on small business concerns as this rule does not change any reporting or recordkeeping requirements for small business concerns.

    3. What are the alternatives to this final rule?

    Many of the final regulations are required to implement specific statutory provisions which require promulgation of implementing regulations. There are no other alternatives that would meet the statutory requirements.

    Executive Order 13563

    As part of its ongoing efforts to engage stakeholders in the development of its regulations, SBA has solicited comments and suggestions from the public and the procuring agencies on how to best implement section 1614 of NDAA 2014. For example, SBA received comments from the American Bar Association Section of Public Contract Law, the Associated General Contractors of America, the Council of Defense and Space Industry Associations, the U.S. Women's Chamber of Commerce, and Women Impacting Public Policy (WIPP).

    SBA has incorporated those comments and suggestions to the extent feasible. SBA has considered the comments received in response to the proposed rule and incorporated public input into the final rule to the extent feasible.

    Executive Order 12988

    For purposes of Executive Order 12988, SBA has drafted this final rule, to the extent practicable, in accordance with the standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, to minimize litigation, eliminate ambiguity, and reduce burden. This rule has no preemptive or retroactive effect.

    Executive Order 13132

    For the purpose of Executive Order 13132, SBA has determined that this final rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various layers of government. Therefore, SBA has determined that this final rule has no federalism implications warranting preparation of a federalism assessment.

    Paperwork Reduction Act, 44 U.S.C. Ch. 35

    For purposes of the Paperwork Reduction Act (PRA), SBA has determined that this final rule, if adopted in final form, would not impose new government-wide reporting and recordkeeping requirements on other than small prime contractors and subcontractors. If any information collection procedures change or are amended during the subsequent FAR rulemaking of this SBA rule, they will be addressed in the FAR rulemaking process.

    Regulatory Flexibility Act, 5 U.S.C. 601-612

    According to the Regulatory Flexibility Act (RFA), 5 U.S.C. 601, when an agency issues a rulemaking, it must prepare a regulatory flexibility analysis to address the impact of the rule on small entities. However, section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. The RFA defines “small entity” to include “small businesses,” “small organizations,” and “small governmental jurisdictions.” This final rule concerns various aspects of SBA's contracting programs. As such, the rule relates to small business concerns, but would not affect “small organizations” or “small governmental jurisdictions” because those programs generally apply only to “business concerns” as defined by SBA regulations, in other words, to small businesses organized for profit. “Small organizations” or “small governmental jurisdictions” are non-profits or governmental entities and do not generally qualify as “business concerns” within the meaning of SBA's regulations.

    This rule will impact other than small business concerns, as small business concerns are not required to have subcontracting plans. Other portions of the rule simply clarify existing regulations, and do not impose new requirements on small business concerns. As discussed previously, SBA's rules currently require firms to certify their size and socioeconomic status in connection with subcontracts. This rule simply clarifies that the requirement to certify applies to the solicitation for the subcontract. In sum, the final rule will not have a disparate impact on small businesses or impose any additional costs on small business concerns. For the reasons discussed, SBA certifies that this final rule will not have a significant economic impact on a substantial number of small business concerns.

    List of Subjects 13 CFR Part 121

    Government contracts, Government procurement, Small businesses, Size standards.

    13 CFR Part 125

    Government contracts, Government procurement, Reporting and recordkeeping requirements, Small businesses, Small business subcontracting.

    For the reasons stated in the preamble, SBA amends 13 CFR parts 121 and 125 as follows:

    PART 121—SMALL BUSINESS SIZE REGULATIONS 1. The authority citation for part 121 continues to read as follows: Authority:

    15 U.S.C. 632, 634(b)(6), 662, and 694a(9).

    2. Amend § 121.411 by removing the second sentence in paragraph (b) and adding two sentences in its place to read as follows:
    § 121.411 What are the size procedures for SBA's Section 8(d) Subcontracting Program?

    (b) * * * Prime contractors (or subcontractors) may accept paper self-certifications as to size and socioeconomic status or a subcontractor's electronic self-certification as to size or socioeconomic status, if the solicitation for the subcontract contains a clause which provides that the subcontractor verifies by submission of the offer that the size or socioeconomic representations and certifications are accurate and complete. Electronic submission may include any method acceptable to the prime contractor (or subcontractor) including, but not limited to, size representations and certifications made in SAM (or any successor system) and electronic conveyance of subcontractor certifications in prime contractor systems in connection with an offer for a subcontract. * * *

    PART 125—GOVERNMENT CONTRACTING PROGRAMS 3. The authority citation for part 125 continues to read as follows: Authority:

    15 U.S.C. 632(p), (q); 634(b)(6), 637, 644, 657f, and 657q.

    4. Amend § 125.3 as follows: a. Revise paragraph (a)(1) introductory text; b. Add paragraph (a)(1)(i)(C); c. Add paragraph (a)(1)(i)(D); d. Revise the heading for paragraph (c); e. Amend paragraph (c)(1) by removing “$650,000” and adding in its place “$700,000”; f. Revise the first sentence of paragraph (c)(1)(i); g. Revise paragraph (c)(1)(v); h. Remove the word “and” at the end of paragraph (c)(1)(viii); i. Remove the period at the end of paragraph (c)(1)(ix) and add in its place a semi-colon and the word “and”; and j. Add new paragraphs (c)5(1)(x) and (xi).

    The additions and revisions read as follows:

    § 125.3 What types of subcontracting assistance are available to small businesses?

    (a) * * *

    (1) Subcontract under this section means a legally binding agreement between a contractor that is already under contract to another party to perform work and a third party (other than one involving an employer-employee relationship), hereinafter referred to as the subcontractor, for the subcontractor to perform a part or all of the work that the contractor has undertaken.

    (i) * * *

    (C) Where the prime contractor has an individual subcontracting plan, the prime contractor shall establish two sets of small business subcontracting goals, one goal for the first tier and one goal for lower tier subcontracts awarded by other than small subcontractors with individual subcontracting plans. Under individual subcontracting plans the prime contractor shall receive credit for small business concerns performing as first tier subcontractors (first tier goal) and subcontractors at any tier pursuant to the subcontracting plans required under paragraph (c) of this section in an amount equal to the dollar value of work awarded to such small business concerns (lower tier goal). Other-than-small, lower tier subcontractors must have their own individual subcontracting plans if the subcontract is at or above the subcontracting plan threshold, and are required to make a good faith effort to meet their subcontracting plan goals. The prime contractor and any subcontractor with a subcontracting plan are responsible for reporting on subcontracting performance under their contracts or subcontracts at their first tier. The prime contractor's performance under its individual subcontracting plan will be calculated using its own reporting at the first tier for its first tier goal and its subcontractors' first tier reports under their plans for the lower tier subcontracting goals. The prime contractor's performance under the individual subcontracting plan must be evaluated based on its combined performance under the first tier and lower tier goal.

    (D) Other-than-small prime contractors and subcontractors with subcontracting plans shall report on their subcontracting performance on the Summary Subcontracting report (SSR) at their first tier only.

    (c) Additional responsibilities of other than small contractors. * * *

    (1) * * *

    (i) Submitting and negotiating before award an acceptable subcontracting plan that reflects maximum practicable opportunities for small businesses in the performance of the contract as subcontractors or suppliers at all tiers of performance. * * *

    (v) The contractor must assign to each subcontract, and to each solicitation, if a solicitation is utilized, the NAICS code and corresponding size standard that best describes the principal purpose of the subcontract (see § 121.410 of this chapter). A formal solicitation is not required for each subcontract, but the contractor must provide some form of written notice of the NAICS code and size standard assigned to potential offerors prior to acceptance and award of the subcontract. The prime contractor (or subcontractor) may rely on a subcontractor's electronic representations and certifications, if the solicitation for the subcontract contains a clause which provides that the subcontractor verifies by submission of the offer that the size or socioeconomic representations and certifications are current, accurate and complete as of the date of the offer for the subcontract. Electronic submission may include any method acceptable to the prime contractor (or subcontractor) including, but not limited to, size or socioeconomic representations and certifications made in SAM (or any successor system). A prime contractor (or subcontractor) may not require the use of SAM (or any successor system) for purposes of representing size or socioeconomic status in connection with a subcontract;

    (x) Except when subcontracting for commercial items, the prime contractor must require all subcontractors (except small business concerns) who receive subcontracts in excess of $1,500,000 in the case of a subcontract for the construction of any public facility, or in excess of $700,000 in the case of all other subcontracts, and which offer further subcontracting possibilities, to adopt a subcontracting plan of their own consistent with this section, and must ensure at a minimum that all subcontractors required to maintain subcontracting plans pursuant to this paragraph will review and approve subcontracting plans submitted by their subcontractors; monitor their subcontractors' compliance with their approved subcontracting plans; ensure that subcontracting reports are submitted by their subcontractors when required; acknowledge receipt of their subcontractors' reports; compare the performance of their subcontractors to their subcontracting plans and goals; and discuss performance with their subcontractors when necessary to ensure their subcontractors make a good-faith effort to comply with their subcontracting plans; and

    (xi) The prime contractor must provide a written statement of the types of records it will maintain to demonstrate procedures which have been adopted to ensure subcontractors at all tiers comply with the requirements and goals set forth in the subcontracting plan established in accordance with paragraph (c)(1)(x) of this section, including the establishment of source lists of small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women; the efforts to identify and award subcontracts to such small business concerns; and size or socioeconomic certifications or representations received in connection with each subcontract.

    Dated: December 14, 2016. Maria Contreras-Sweet, Administrator.
    [FR Doc. 2016-30874 Filed 12-22-16; 8:45 am] BILLING CODE 8025-01-P
    SECURITES AND EXCHANGE COMMISSION 17 CFR Part 242 [Release No. 34-79237A] RIN 3235-AL99 Consolidated Audit Trail ACTION:

    Notification regarding expired temporary rule.

    SUMMARY:

    The Commission is providing notice regarding temporary Rule 608T under the Securities Exchange Act of 1934. The Commission designated 12:01 a.m. on November 16, 2016, as the expiration time for Rule 608T, because after that time the rule would no longer be necessary.

    DATES:

    December 23, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Rebekah Liu, Special Counsel, at (202) 551-5665; Jennifer Colihan, Special Counsel, at (202) 551-5642; Leigh Duffy, Special Counsel, at (202) 551-5928; John Lee, Special Counsel, at (202) 551-5689; or Ted Uliassi, Special Counsel, at (202) 551-6905, or Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-7010.

    SUPPLEMENTARY INFORMATION:

    On November 3, 2016, the Securities and Exchange Commission adopted a temporary rule, Rule 608T, under the Securities Exchange Act of 1934 to extend to November 15, 2016, the date by which the Commission was required to act on the proposed National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan”). Rule 608T solely governed the timeframe for action on the proposed CAT NMS Plan. The Commission adopted the temporary rule as an interim final temporary rule in light of the impending November 10, 2016 date designated by the Commission under Rule 608 as the date by which the Commission would take action on the proposed CAT NMS Plan. The Commission designated 12:01 a.m. on November 16, 2016, as the expiration time for Rule 608T because after that time the temporary rule would no longer be necessary.

    On November 3, 2016, the Commission published the temporary rule on its Web site. Due to a subsequent clerical error, the temporary rule was not published in the Federal Register. On November 8, 2016, the Commission provided public notice of its scheduled open meeting to consider the CAT NMS Plan, posting the notice on its Web site, and on November 15, 2016, the Commission approved the CAT NMS Plan at its open meeting. The expiration time of 12:01 a.m. on November 16, 2016 for the temporary rule has now passed.

    Dated: December 19, 2016. Brent J. Fields, Secretary.
    [FR Doc. 2016-30883 Filed 12-22-16; 8:45 am] BILLING CODE 8011-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 882 [Docket No. FDA-2016-N-4165] Medical Devices; Neurological Devices; Classification of the Neurovascular Mechanical Thrombectomy Device for Acute Ischemic Stroke Treatment AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA) is classifying the neurovascular mechanical thrombectomy device for acute ischemic stroke treatment into class II (special controls). The special controls that will apply to the device are identified in this order and will be part of the codified language for the neurovascular mechanical thrombectomy device for acute ischemic stroke treatment's classification. The Agency is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of the device.

    DATES:

    This order is effective December 23, 2016. The classification was applicable on September 2, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Leigh Anderson, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2656, Silver Spring, MD 20993-0002, 301-796-5613, [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976 (the date of enactment of the Medical Device Amendments of 1976), generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval unless and until the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807) of the regulations.

    Section 513(f)(2) of the FD&C Act, as amended by section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144), provides two procedures by which a person may request FDA to classify a device under the criteria set forth in section 513(a)(1). Under the first procedure, the person submits a premarket notification under section 510(k) of the FD&C Act for a device that has not previously been classified and, within 30 days of receiving an order classifying the device into class III under section 513(f)(1) of the FD&C Act, the person requests a classification under section 513(f)(2). Under the second procedure, rather than first submitting a premarket notification under section 510(k) of the FD&C Act and then a request for classification under the first procedure, the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence and requests a classification under section 513(f)(2) of the FD&C Act. If the person submits a request to classify the device under this second procedure, FDA may decline to undertake the classification request if FDA identifies a legally marketed device that could provide a reasonable basis for review of substantial equivalence with the device or if FDA determines that the device submitted is not of “low-moderate risk” or that general controls would be inadequate to control the risks and special controls to mitigate the risks cannot be developed.

    In response to a request to classify a device under either procedure provided by section 513(f)(2) of the FD&C Act, FDA shall classify the device by written order within 120 days. This classification will be the initial classification of the device.

    On October 26, 2015, Concentric Medical, Inc., submitted a request for classification of the Trevo ProVue and XP ProVue Retrievers (Trevo Retrievers) under section 513(f)(2) of the FD&C Act.

    In accordance with section 513(f)(2) of the FD&C Act, FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1). FDA classifies devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the request, FDA determined that the device can be classified into class II with the establishment of special controls. FDA believes these special controls, in addition to general controls, will provide reasonable assurance of the safety and effectiveness of the device.

    Therefore, on September 2, 2016, FDA issued an order to the requestor classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 882.5600.

    Following the effective date of this final classification order, any firm submitting a premarket notification (510(k)) for a neurovascular mechanical thrombectomy device for acute ischemic stroke treatment will need to comply with the special controls named in this final order.

    The device is assigned the generic name neurovascular mechanical thrombectomy device for acute ischemic stroke treatment, and it is identified as a prescription device used in the treatment of acute ischemic stroke to improve clinical outcomes. The device is delivered into the neurovasculature with an endovascular approach, mechanically removes thrombus from the body, and restores blood flow in the neurovasculature.

    FDA has identified the following risks to health associated specifically with this type of device, as well as the measures required to mitigate these risks in table 1.

    Table 1—Neurovascular Mechanical Thrombectomy Device for Acute Ischemic Stroke Treatment Risks and Mitigation Measures Identified risk Mitigation measure Adverse Tissue Reaction Biocompatibility Evaluation. Infection Sterility Testing, Shelf-Life Testing, Labeling. Tissue or Vessel Damage: • Dissection Non-clinical Performance Testing. • Perforation Clinical Performance Testing. • Hemorrhage Labeling. Stroke Progression Non-clinical Performance Testing, Clinical Performance Testing, Labeling. Emboli Non-clinical Performance Testing, Clinical Performance Testing, Labeling.

    FDA believes that the special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of the safety and effectiveness.

    Neurovascular mechanical thrombectomy device for acute ischemic stroke treatment devices are not safe for use except under the supervision of a practitioner licensed by law to direct the use of the device. As such, the device is a prescription device and must satisfy prescription labeling requirements (see 21 CFR 801.109 Prescription devices).

    Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device. Therefore, this device type is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification, prior to marketing the device, which contains information about the neurovascular mechanical thrombectomy device for acute ischemic stroke treatment they intend to market.

    II. Analysis of Environmental Impact

    The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    III. Paperwork Reduction Act of 1995

    This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120, and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.

    List of Subjects in 21 CFR Part 882

    Medical devices, Neurological devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 882 is amended as follows:

    PART 882—NEUROLOGICAL DEVICES 1. The authority citation for part 882 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

    2. Add § 882.5600 to subpart F to read as follows:
    § 882.5600 Neurovascular mechanical thrombectomy device for acute ischemic stroke treatment.

    (a) Identification. A neurovascular mechanical thrombectomy device for acute ischemic stroke treatment is a prescription device used in the treatment of acute ischemic stroke to improve clinical outcomes. The device is delivered into the neurovasculature with an endovascular approach, mechanically removes thrombus from the body, and restores blood flow in the neurovasculature.

    (b) Classification. Class II (special controls). The special controls for this device are:

    (1) The patient contacting components of the device must be demonstrated to be biocompatible.

    (2) Non-clinical performance testing must demonstrate that the device performs as intended under anticipated conditions of use, including:

    (i) Mechanical testing to demonstrate the device can withstand anticipated tensile, torsional, and compressive forces.

    (ii) Mechanical testing to evaluate the radial forces exerted by the device.

    (iii) Non-clinical testing to verify the dimensions of the device.

    (iv) Non-clinical testing must demonstrate the device can be delivered to the target location in the neurovasculature and retrieve simulated thrombus under simulated use conditions.

    (v) Non-clinical testing must demonstrate the device is radiopaque and can be visualized.

    (vi) Non-clinical testing must evaluate the coating integrity and particulates under simulated use conditions.

    (vii) Animal testing must evaluate the safety of the device, including damage to the vessels or tissue under anticipated use conditions.

    (3) Performance data must support the sterility and pyrogenicity of the patient contacting components of the device.

    (4) Performance data must support the shelf-life of the device by demonstrating continued sterility, package integrity, and device functionality over the specified shelf-life.

    (5) Clinical performance testing of the device must demonstrate the device performs as intended for use in the treatment of acute ischemic stroke and must capture any adverse events associated with the device and procedure.

    (6) The labeling must include:

    (i) Information on the specific patient population for which the device is intended for use in the treatment of acute ischemic stroke, including but not limited to, specifying time from symptom onset, vessels or location of the neurovasculature that can be accessed for treatment, and limitations on core infarct size.

    (ii) Detailed instructions on proper device preparation and use for thrombus retrieval from the neurovasculature.

    (iii) A summary of the clinical testing results, including a detailed summary of the device- and procedure-related complications and adverse events.

    (iv) A shelf life.

    Dated: December 19, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-31007 Filed 12-22-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF JUSTICE Bureau of Prisons 28 CFR Parts 500 and 553 [Docket No. BOP-1163] RIN 1120-AB63 Contraband and Inmate Personal Property: Technical Change AGENCY:

    Bureau of Prisons, Justice.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Bureau of Prisons makes a minor technical change to its regulations on contraband and inmate personal property to maintain consistency in language which describes the purpose of the regulations as ensuring the safety, security, or good order of the facility or protection of the public.

    DATES:

    This rule will be effective on January 23, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone (202) 307-2105.

    SUPPLEMENTARY INFORMATION:

    In this document, the Bureau of Prisons (Bureau) finalizes a minor technical change to its regulations on contraband and inmate personal property to maintain consistency in language which describes the purpose of the regulations as ensuring the “safety, security, or good order of the facility or protection of the public.”

    Variations on this phrase appear throughout the Bureau's regulations in 28 CFR Chapter V. See 28 CFR 500.1(h), 501.2(b), 501.3(b), 511.10(a), 511.11(a), 511.12(a), 511.15(b), 511.17(b), 540.12(a), 540.14(c) and (d), 540.15(d), 540.40, 540.44(c), 540.51(h), 540.70, 540.71(b) and (d), 540.100(a), 540.101(a), 541.12, 541.43(b), 541.63(c), 543.11(f), 543.14(a) and (c), 543.15(c), 543.16(b), 544.20, 544.21(b), 548.10, 548.16-548.18, 549.13(b), 549.50, 549.51(b), 551.1, 551.10, 551.12(d), 551.16(a), 551.31(b), 551.34(b), 551.35, 551.71(d), 551.110(a), 551.112(b), 551.113(a), 551.115(a), 552.13(b), 552.20, 552.21(a) and (d), 553.11(h), 553.12(b).

    The Bureau has conformed the phrase in all revised regulations since approximately 2005. This rule likewise conforms this phrase in the Bureau's regulations on contraband. An interim rule on this subject was published on August 3, 2015 (80 FR 45883), and became effective on September 2, 2015, although public comments were accepted until October 2, 2015.

    Prior to the September 2, 2015, effective date of the interim rule, the definition of contraband in § 500.1(h) read as follows: “Contraband is material prohibited by law, or by regulation, or material which can reasonably be expected to cause physical injury or adversely affect the security, safety, or good order of the institution.” The interim rule conformed the “security, safety, or good order” phrase to the language we have used in recent years, to read as follows: “Contraband is material prohibited by law, regulation, or policy that can reasonably be expected to cause physical injury or adversely affect the safety, security, or good order of the facility or protection of the public.”

    Likewise, to conform the phrase and underscore the importance of prohibiting contraband, we added the phrase to the end of the first sentence of § 553.10, regarding inmate personal property, to read as follows: “It is the policy of the Bureau of Prisons that an inmate may possess ordinarily only that property which the inmate is authorized to retain upon admission to the institution, which is issued while the inmate is in custody, which the inmate purchases in the institution commissary, or which is approved by staff to be mailed to, or otherwise received by an inmate, that does not threaten the safety, security, or good order of the facility or protection of the public.” [Emphasis added.] Further, § 543.12(b) contained another description/definition of contraband, categorizing it as either “hard contraband” or “nuisance contraband.” The interim rule added the “safety, security” phrase to this regulation as well.

    It is important to note that neither the interim nor this final rule change the substantive requirements or obligations relating to petitions for commutation of sentence, nor do they seek to alter the Bureau's responsibilities in this regard.

    Public Comments

    We received two comments on the August 3, 2015 interim rule via the publicly-accessible regulations.gov Web site.

    One commenter requested that the Bureau of Prisons “plainly spell out the changes that are being put out for public notice,” indicating confusion with regard to the interim rule changes.

    The interim rule contained an explanation of the changes made by the interim rule. It is possible that the commenter may have read only the summary available on the regulations.gov Web site, rather than the entire interim rule document. However, for the benefit of any who may have been confused by the interim rule, we offer the following explanation.

    The interim rule document made a minor technical change to the Bureau of Prisons regulations on contraband and inmate personal property: We added the phrase “safety, security, or good order of the facility or protection of the public.” We did this to show that this is the purpose of the contraband regulations—to ensure the “safety, security, or good order of the facility or protection of the public.” We also did this because this phrase appears, for the same purpose, throughout the Bureau's other regulations, and we have used this phrase in new regulations, when possible, since 2005. The addition of the phrase did not change the meaning or requirements of the regulations to which it was added, and did not alter the Bureau's responsibilities.

    The second commenter stated as follows: “So many times inmates come to facilities and mix with wrong crowds out of fear or intimidation. Leaving lockers unlocked due to [comfort] and many other reasons. These things should be [taken into account] if this happens three times in one year they should be further reviews on the inmates. This is not tolerated but common for Camps.” This comment is not relevant to the current regulation change, which does not discuss inmate lockers or storage of personal property. The Bureau will take this comment into consideration when developing new policy with regard to inmates in federal prison camps.

    For the aforementioned reasons, the Bureau now finalizes the interim rule published on August 2, 2015, without change.

    Executive Order 12866. This regulation falls within a category of actions that the Office of Management and Budget (OMB) has determined not to constitute “significant regulatory actions” under section 3(f) of Executive Order 12866 and, accordingly, it was not reviewed by OMB.

    Executive Order 13132. This regulation will not have substantial direct effect on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, we determine that this regulation does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

    Regulatory Flexibility Act. The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by approving it certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This regulation pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.

    Unfunded Mandates Reform Act of 1995. This regulation will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

    Small Business Regulatory Enforcement Fairness Act of 1996. This regulation is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This regulation will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

    List of Subjects in 28 CFR Parts 500 and 553

    Prisoners.

    Kathleen M. Kenney, Assistant Director/General, Counsel, Federal Bureau of Prisons. Under rulemaking authority vested in the Attorney General in 5 U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of Prisons in 28 CFR 0.96, the interim rule amending 28 CFR parts 500 and 553, which was published at 80 FR 45883, on August 3, 2015, is adopted as a final rule without change.
    [FR Doc. 2016-30998 Filed 12-22-16; 8:45 am] BILLING CODE 4410-05-P
    DEPARTMENT OF THE TREASURY Office of Foreign Assets Control 31 CFR Part 560 Iranian Transactions and Sanctions Regulations AGENCY:

    Office of Foreign Assets Control, Treasury.

    ACTION:

    Final rule.

    SUMMARY:

    The Department of the Treasury's Office of Foreign Assets Control (OFAC) is adopting a final rule amending the Iranian Transactions and Sanctions Regulations (ITSR) to reflect OFAC's licensing policies and address inquiries from the regulated public. This final rule makes changes relating to authorized sales of agricultural commodities, medicine, and medical devices to Iran pursuant to the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), as amended, and clarifies the definition of the terms goods of Iranian origin and Iranian-origin goods.

    DATES:

    Effective: December 23, 2016.

    FOR FURTHER INFORMATION CONTACT:

    The Department of the Treasury's Office of Foreign Assets Control: Assistant Director for Licensing, tel.: 202-622-2480, Assistant Director for Regulatory Affairs, tel.: 202-622-4855, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; or the Department of the Treasury's Office of the Chief Counsel (Foreign Assets Control), Office of the General Counsel, tel.: 202-622-2410.

    SUPPLEMENTARY INFORMATION:

    Electronic Availability

    This document and additional information concerning OFAC are available from OFAC's Web site (www.treasury.gov/ofac).

    Background TSRA Amendments

    OFAC first issued regulations to implement TSRA (22 U.S.C. 7201 et seq.) on July 12, 2001 (66 FR 36683). Since then, OFAC has amended the licensing provisions of the ITSR (and its predecessor, the Iranian Transactions Regulations), 31 CFR part 560, as they relate to the exportation and reexportation of agricultural commodities, medicine, or medical devices to Iran on a number of occasions. As set forth in more detail below, OFAC is adopting a final rule to amend the licensing provisions of the ITSR to expand the scope of medical devices and agricultural commodities generally authorized for export or reexport to Iran and, in response to feedback from the regulated public regarding improving patient safety, provide new or expanded authorizations relating to training, replacement parts, software and services related to the operation, maintenance, and repair of medical devices, and items that are broken or connected to product recalls or other safety concerns.

    Statutory Background

    TSRA provides that, with certain exceptions, the President may not impose a unilateral agricultural sanction or unilateral medical sanction against a foreign country or foreign entity unless, at least 60 days before imposing such a sanction, the President submits a report to Congress describing the proposed sanction and the reasons for it and Congress enacts a joint resolution approving the report. See 22 U.S.C. 7202. Section 906 of TSRA, however, requires in pertinent part that the export of agricultural commodities, medicine, or medical devices to the government of a country that has been determined by the Secretary of State, pursuant to, inter alia, Section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), to have repeatedly provided support for acts of international terrorism,1 or to any entity in such a country, shall be made pursuant to one-year licenses issued by the United States Government, except that the requirements of such one-year licenses shall be no more restrictive than general licenses administered by the Department of the Treasury. See 22 U.S.C. 7205(a)(1). Section 906 also specifies that procedures shall be in place to deny licenses for exports of agricultural commodities, medicine, or medical devices to any entity within such country promoting international terrorism.

    1 The Secretary of State made such a determination with respect to Iran on January 19, 1984.

    As provided in Section 221 of the USA PATRIOT Act (Pub. L. 107-56) (codified at 22 U.S.C. 7210), nothing in TSRA shall limit the application or scope of any law, including any Executive order or regulation promulgated pursuant to such law, establishing criminal or civil penalties for the unlawful export of any agricultural commodity, medicine, or medical device to: A Foreign Terrorist Organization; a foreign organization, group, or person designated pursuant to Executive Orders 12947 or 13224 (sanctions on terrorists and certain supporters of terrorism); weapons of mass destruction or missile proliferators; or designated narcotics trafficking entities. In addition, TSRA provides in Section 904(2) that the restrictions on the imposition of unilateral agricultural sanctions or unilateral medical sanctions shall not affect any authority or requirement to impose a sanction to the extent such sanction applies to any agricultural commodity, medicine, or medical device that is controlled on the United States Munitions List (USML), controlled on any control list established under the Export Administration Act of 1979 or any successor statute, or used to facilitate the design, development, or production of chemical or biological weapons, missiles, or weapons of mass destruction. See 22 U.S.C. 7203(2).

    Specific TSRA-Related Regulatory Amendments

    On October 22, 2012, OFAC adopted a final rule that, among other things, added a general license in § 560.530(a)(3) of the ITSR that authorized the exportation or reexportation of medicine and basic medical supplies to the Government of Iran, to individuals or entities in Iran, or to persons in third countries purchasing specifically for resale to any of the foregoing, and the conduct of related transactions (see 77 FR 64664). The term “basic medical supplies” was defined to mean those medical devices, as defined in the ITSR, that were included on the List of Basic Medical Supplies made available on OFAC's Web site and published in the Federal Register, but did not include replacement parts. On April 17, 2014, OFAC adopted a final rule that, among other things, updated the definition of “basic medical supplies” to exclude the word “basic” and make related conforming changes, including renaming the list on OFAC's Web site as the “List of Medical Supplies” (see 79 FR 18990). On November 2, 2015 and April 12, 2016, OFAC updated the List of Medical Supplies to add additional medical devices to the list.

    Also on April 17, 2014, OFAC expanded an existing general license in § 560.530(a)(2) that authorized the exportation and reexportation of food to authorize the exportation or reexportation of the broader category of agricultural commodities, with certain specified exceptions, to the Government of Iran, to individuals or entities in Iran, or to persons in third countries purchasing specifically for resale to any of the foregoing, and the conduct of related transactions (see 79 FR 18980). OFAC also added a general license in § 560.530(a)(4) authorizing the exportation or reexportation of replacement parts for certain medical devices, provided that the replacement parts are designated as EAR99 or, in the case of replacement parts that are not subject to the EAR, would be designated as EAR99 if they were located in the United States, and further provided that the replacement parts are limited to a one-for-one basis of exchange (i.e., only one replacement part can be exported or reexported to replace a broken or non-operational component).

    Since these amendments, in consultation with the Department of State, OFAC has routinely issued specific licenses authorizing the exportation or reexportation of certain additional medical devices and agricultural commodities to the Government of Iran, to individuals or entities in Iran, or to persons in third countries purchasing such goods specifically for resale to any of the foregoing. In addition, OFAC has continued to receive feedback from the regulated public and review its TSRA licensing procedures, particularly the procedures for licensing exports and reexports of medical devices and agricultural commodities.

    As a result of this review, OFAC today is amending the general license relating to authorized sales of certain medical devices in § 560.530(a)(3) to expand the scope of medical devices that may be exported or reexported to Iran without specific authorization. OFAC is also narrowing the list of agricultural commodities excluded from the general license relating to authorized sales of agricultural commodities in § 560.530(a)(2). In addition, in response to feedback from the regulated public regarding improving patient safety, OFAC is making the following changes: Expanding existing general licenses to authorize the provision of training for the safe and effective use or operation of agricultural commodities, medicine, and medical devices; expanding an existing general license authorizing the exportation or reexportation to Iran of replacement parts to permit certain additional replacement parts to be exported or reexported and stored for future use; adding a new general license to authorize the exportation and reexportation to Iran of software and services related to the operation, maintenance, and repair of medical devices previously exported pursuant to an OFAC authorization; and adding a new general license to authorize the importation into the United States of items previously exported pursuant to an OFAC authorization in connection with product recalls, adverse events, or other safety concerns, as set forth in more detail below.

    Additional medical devices. OFAC is amending the existing general license in § 560.530(a)(3) relating to authorized exports or reexports of certain medical devices specified on the List of Medical Supplies. As amended, the general license has been expanded to authorize the exportation or reexportation to Iran of all items meeting the definition of the term “medical device” as set forth in § 560.530(e)(3), except for certain medical devices that are explicitly excluded from the authorization as specified in a new List of Medical Devices Requiring Specific Authorization, which is maintained on OFAC's Web site on the Iran Sanctions page, as set forth in revised § 560.530(a)(3)(ii). The List of Medical Devices Requiring Specific Authorization will also be published in the Federal Register, as will any changes to this list. The exportation and reexportation of the specified excluded medical devices requires specific authorization from OFAC, as reflected in amended § 560.530(a)(1)(ii)(C). Medical devices other than those specified on the new List of Medical Devices Requiring Specific Authorization may be exported or reexported to Iran without separate authorization from OFAC. In light of these changes, this rule also eliminates reference to the List of Medical Supplies.

    Excluded agricultural commodities. OFAC is also narrowing the list of excluded agricultural commodities set forth in § 560.530(a)(2)(ii). Pursuant to this amendment, the general license in § 560.530(a)(2) now authorizes the exportation or reexportation to Iran of shrimp and shrimp eggs.

    Training. OFAC is adding a new provision in § 560.530(a)(2)(iv) to generally authorize the provision of training necessary and ordinarily incident to the safe and effective use of agricultural commodities exported or reexported pursuant to the general license in § 560.530(a)(2). OFAC similarly is adding a new provision in § 560.530(a)(3)(v) to authorize the provision of training necessary and ordinarily incident to the safe and effective use or operation of medicine and medical devices exported or reexported pursuant to the general license in § 560.530(a)(3).

    Additional replacement parts. OFAC is amending the existing general license in § 560.530(a)(4) authorizing exports or reexports of and related transactions for replacement parts for certain medical devices that are designated as EAR99 or, in the case of replacement parts that are not subject to the EAR, would be designated as EAR99 if they were located in the United States, on a one-for-one export or reexport basis of exchange. As amended, the general license removes the requirement for a one-for-one basis of exchange and allows the exportation and reexportation of such replacement parts provided that they are intended to replace a broken or nonoperational component of a medical device previously exported or reexported to Iran pursuant to an OFAC authorization or that the exportation or reexportation of the replacement part is ordinarily incident and necessary to the proper preventative maintenance of such a medical device, and further provided that the number of replacement parts that are exported or reexported to and stored in Iran does not exceed the number of corresponding parts in use in relevant medical devices in Iran.

    Software and services related to the operation, maintenance, and repair of medical devices. OFAC is adding a new general license in § 560.530(a)(5) to authorize the exportation or reexportation to Iran of software and services related to the operation, maintenance, and repair of medical devices that previously were exported or reexported to Iran pursuant to an OFAC authorization, provided that, among other things, such software is designated as EAR99, or in the case of software that is not subject to the EAR, would be designated as EAR99 if it were located in the United States. In § 560.530(a)(5)(i), OFAC is adding an authorization for the exportation or reexportation to Iran of software necessary for the installation and operation of medical devices authorized for export or reexport by OFAC. In § 560.530(a)(5)(ii), OFAC is adding an authorization to allow the exportation or reexportation of software updates for those devices. In § 560.530(a)(5)(iii), OFAC is adding an authorization for repair services for medical devices authorized for export or reexport to Iran by OFAC, including inspection, testing, calibration, and diagnostic services to ensure patient safety or effective operation of such medical devices.

    Importation of items that are broken, defective, or non-operational or in connection with product recalls, adverse events, or other safety concerns. OFAC also is adding a new general license in § 560.530(a)(6) to authorize the importation into the United States of certain U.S.-origin agricultural commodities, medicine, and medical devices that previously were exported or reexported to Iran pursuant to the authorization in § 560.530 and that are broken, defective, or non-operational or connected to product recalls, adverse events, or other safety concerns.

    Conforming change to section headings. In light of the addition of several new general licenses in § 560.530, OFAC is also making a conforming change to the section heading to reflect the additions. As the new general licenses require the payment and financing terms set forth in § 560.532, OFAC is making a similar conforming change to that section heading to reflect the additions.

    Amendment to Definition of “Goods of Iranian Origin” and “Iranian-Origin Goods”

    To address inquiries from the regulated public, including with regard to the status of goods on vessels and aircraft, OFAC also is amending the definition in § 560.306 of the terms goods of Iranian origin and Iranian-origin goods to clarify that this definition does not include certain categories of goods, provided that such goods were not grown, produced, manufactured, extracted, or processed in Iran. First, the amended definition excludes goods exported or reexported to Iran under an authorization issued pursuant to this part (e.g., a medical device or a personal communications device exported or reexported to Iran pursuant to a general or specific license issued pursuant to this part) and that have subsequently been reexported from and are located outside of Iran. Second, the amended definition also clarifies that it does not include goods transported on a vessel or aircraft, as well as the underlying vessel or aircraft itself, that passed though Iranian territorial waters or stopped at a port or place in Iran en route to a destination outside of Iran and that have not otherwise come into contact with Iran. A note clarifies that, pursuant to this section, goods that are temporarily offloaded from a vessel in Iranian territorial waters or at a port in Iran and reloaded onto the same vessel or another vessel in the same location en route to a destination outside of Iran and that have not otherwise come into contact with Iran are not considered goods of Iranian origin. Similarly, goods that are offloaded from an aircraft at a place in Iran and reloaded onto the same aircraft or another aircraft in the same location en route to a destination outside of Iran and that have not otherwise come into contact with Iran are not considered goods of Iranian origin. This amended definition is relevant to the prohibitions in §§ 560.201 and 560.206 of the ITSR, which remain in place; it is not relevant to the prohibitions in §§ 560.204, 560.205, and 560.211 on exports of goods to Iran and on transactions in goods involving blocked persons, which also remain in place.

    Public Participation

    Because the amendment of the ITSR involves a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

    Paperwork Reduction Act

    The collections of information related to the ITSR are contained in 31 CFR part 501 (the Reporting, Procedures and Penalties Regulations). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

    List of Subjects in 31 CFR Part 560

    Administrative practice and procedure, Agricultural commodities, Banks, Banking, Iran, Medicine, Medical devices.

    For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control amends 31 CFR part 560 as follows:

    PART 560—IRANIAN TRANSACTIONS AND SANCTIONS REGULATIONS 1. The authority citation for part 560 continues to read as follows: Authority:

    3 U.S.C. 301; 18 U.S.C. 2339B, 2332d; 22 U.S.C. 2349aa-9; 22 U.S.C. 7201-7211; 31 U.S.C. 321(b); 50 U.S.C. 1601-1651, 1701-1706; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 110-96, 121 Stat. 1011 (50 U.S.C. 1705 note); Pub. L. 111-195, 124 Stat. 1312 (22 U.S.C. 8501-8551); Pub. L. 112-81, 125 Stat. 1298 (22 U.S.C. 8513a); Pub. L. 112-158, 126 Stat. 1214 (22 U.S.C. 8701-8795); E.O. 12613, 52 FR 41940, 3 CFR, 1987 Comp., p. 256; E.O. 12957, 60 FR 14615, 3 CFR, 1995 Comp., p. 332; E.O. 12959, 60 FR 24757, 3 CFR, 1995 Comp., p. 356; E.O. 13059, 62 FR 44531, 3 CFR, 1997 Comp., p. 217; E.O. 13599, 77 FR 6659, 3 CFR, 2012 Comp., p. 215; E.O. 13628, 77 FR 62139, 3 CFR, 2012 Comp., p. 314.

    Subpart C—General Definitions 2. Amend § 560.306 by revising paragraph (a), redesignating paragraphs (b) through (d) as paragraphs (c) through (e), and adding new paragraph (b) to read as follows:
    § 560.306 Iranian-origin goods or services; goods or services owned or controlled by the Government of Iran.

    (a) Except as provided in paragraph (b) of this section, the terms goods of Iranian origin and Iranian-origin goods include:

    (1) Goods grown, produced, manufactured, extracted, or processed in Iran; and

    (2) Goods that have entered into Iranian commerce.

    (b) The terms goods of Iranian origin and Iranian-origin goods do not include the following categories of goods, provided that such goods were not grown, produced, manufactured, extracted, or processed in Iran:

    (1) Goods exported or reexported to Iran under an authorization issued pursuant to this part and that have subsequently been reexported from and are located outside of Iran; or

    (2) Goods transported on a vessel or aircraft, as well as the vessel or aircraft itself, that passed though Iranian territorial waters or stopped at a port or place in Iran en route to a destination outside of Iran and that have not otherwise come into contact with Iran.

    Note to paragraph (b)(2) of § 560.306:

    Pursuant to this section, goods that are temporarily offloaded from a vessel in Iranian territorial waters or at a port or place in Iran and reloaded onto the same vessel or another vessel in the same location en route to a destination outside of Iran and that have not otherwise come into contact with Iran are not considered goods of Iranian origin. Similarly, goods that are offloaded from an aircraft at a place in Iran and reloaded onto the same aircraft or another aircraft in the same location en route to a destination outside of Iran and that have not otherwise come into contact with Iran are not considered goods of Iranian origin.

    Subpart E—Licenses, Authorizations, and Statements of Licensing Policy 3. Amend § 560.530 as follows: a. Revise the section heading and paragraphs (a)(1)(ii)(C) and (D) and (a)(2)(ii) and (iii); b. Add paragraph (a)(2)(iv); c. Revise paragraphs (a)(3)(i), (ii), and (iv); d. Add paragraph (a)(3)(v); e. Revise paragraphs (a)(4)(i) and (ii); f. Add paragraphs (a)(5) and (6); and g. Revise paragraph (c)(5).

    The revisions and additions read as follows:

    § 560.530 Commercial sales, exportation, and reexportation of agricultural commodities, medicine, medical devices, and certain related software and services.

    (a)(1) * * *

    (ii) * * *

    (C) The excluded medical devices specified in paragraph (a)(3)(ii) of this section; and

    (D) Agricultural commodities (as defined in paragraph (e)(1) of this section), medicine (as defined in paragraph (e)(2) of this section), and medical devices (as defined in paragraph (e)(3) of this section) to military, intelligence, or law enforcement purchasers or importers.

    (2) * * *

    (ii) Excluded agricultural commodities. Paragraph (a)(2)(i) of this section does not authorize the exportation or reexportation of the following items: Castor beans, castor bean seeds, certified pathogen-free eggs (unfertilized or fertilized), dried egg albumin, live animals (excluding live cattle, shrimp, and shrimp eggs), embryos (excluding cattle embryos), Rosary/Jequirity peas, non-food-grade gelatin powder, peptones and their derivatives, super absorbent polymers, western red cedar, or all fertilizers.

    (iii) Excluded persons. Paragraph (a)(2)(i) of this section does not authorize the exportation or reexportation of agricultural commodities to military, intelligence, or law enforcement purchasers or importers.

    (iv) General license for related training. The provision by a covered person (as defined in paragraph (e)(4) of this section) of training necessary and ordinarily incident to the safe and effective use of agricultural commodities exported or reexported pursuant to paragraph (a)(2) of this section to the Government of Iran, to any individual or entity in Iran, or to persons in a third country purchasing such goods specifically for resale to any of the foregoing is authorized, provided that:

    (A) Unless otherwise authorized by specific license, payment terms and financing for sales pursuant to this general license are limited to, and consistent with, those authorized by § 560.532;

    (B) Any technology released pursuant to this authorization is designated as EAR99; and

    (C) Such training is not provided to any military, intelligence, or law enforcement entity, or any official or agent thereof.

    (3)(i) General license for the exportation or reexportation of medicine and medical devices. Except as provided in paragraphs (a)(3)(ii) through (iv) of this section, the exportation or reexportation by a covered person (as defined in paragraph (e)(4) of this section) of medicine (as defined in paragraph (e)(2) of this section) and medical devices (as defined in paragraph (e)(3) of this section) to the Government of Iran, to any individual or entity in Iran, or to persons in third countries purchasing specifically for resale to any of the foregoing, and the conduct of related transactions, including the making of shipping and cargo inspection arrangements, obtaining of insurance, arrangement of financing and payment, shipping of the goods, receipt of payment, and entry into contracts (including executory contracts), are hereby authorized, provided that, unless otherwise authorized by specific license, payment terms and financing for sales pursuant to this general license are limited to, and consistent with, those authorized by § 560.532; and further provided that all such exports or reexports are shipped within the 12-month period beginning on the date of the signing of the contract for export or reexport.

    (ii) Excluded medical devices. Paragraph (a)(3)(i) of this section does not authorize the exportation or reexportation of medical devices on the List of Medical Devices Requiring Specific Authorization, which is maintained on OFAC's Web site (www.treasury.gov/ofac) on the Iran Sanctions page.

    (iv) Excluded persons. Paragraph (a)(3)(i) of this section does not authorize the exportation or reexportation of medicine or medical devices to military, intelligence, or law enforcement purchasers or importers.

    (v) General license for related training. The provision by a covered person (as defined in paragraph (e)(4) of this section) of training necessary and ordinarily incident to the safe and effective use of medicine and medical devices exported or reexported pursuant to paragraph (a)(3) of this section to the Government of Iran, to any individual or entity in Iran, or to persons in a third country purchasing such goods specifically for resale to any of the foregoing is authorized, provided that:

    (A) Unless otherwise authorized by specific license, payment terms and financing for sales pursuant to this general license are limited to, and consistent with, those authorized by § 560.532;

    (B) Any technology released pursuant to this authorization is designated as EAR99; and

    (C) Such training is not provided to any military, intelligence, or law enforcement entity, or any official or agent thereof.

    (4) * * *

    (i) Except as provided in paragraph (a)(4)(ii) of this section, the exportation or reexportation by a covered person (as defined in paragraph (e)(4) of this section) of replacement parts to the Government of Iran, to any individual or entity in Iran, or to persons in third countries purchasing specifically for resale to any of the foregoing, for medical devices (as defined in paragraph (e)(3) of this section) exported or reexported pursuant to paragraph (a)(1) or (a)(3)(i) of this section, and the conduct of related transactions, including the making of shipping and cargo inspection arrangements, obtaining of insurance, arrangement of financing and payment, shipping of the goods, receipt of payment, and entry into contracts (including executory contracts), are hereby authorized, provided that, unless otherwise authorized by specific license, payment terms and financing for sales pursuant to this general license are limited to, and consistent with, those authorized by § 560.532; and further provided that:

    (A) Such replacement parts are designated as EAR99, or, in the case of replacement parts that are not subject to the Export Administration Regulations, 15 CFR parts 730 through 774 (EAR), would be designated as EAR99 if they were located in the United States;

    (B) Such replacement parts are exported or reexported to replace a broken or nonoperational component of a medical device that previously was exported or reexported pursuant to paragraph (a)(3)(i) of this section, or the exportation or reexportation of such replacements parts is necessary and ordinarily incident to the proper preventative maintenance of such a medical device;

    (C) The number of replacement parts that are exported or reexported and stored in Iran does not exceed the number of corresponding operational parts currently in use in relevant medical devices in Iran; and

    (D) The broken or non-operational replacement parts that are being replaced are promptly exported, reexported, or otherwise provided to a non-Iranian entity located outside of Iran selected by the supplier of the replacement parts.

    (ii) Excluded persons. Paragraph (a)(4)(i) of this section does not authorize the exportation or reexportation of replacement parts for medical devices to military, intelligence, or law enforcement purchasers or importers.

    (5) General license for services and software necessary for the operation, maintenance, and repair of medical devices—(i) Operational software. Except as provided in paragraph (a)(5)(iv) of this section, the exportation or reexportation by a covered person (as defined in paragraph (e)(4) of this section) to the Government of Iran, to any individual or entity in Iran, or to persons in a third country purchasing specifically for resale to any of the foregoing, of software necessary for the installation and operation of medical devices or replacement parts exported or reexported pursuant to this section, and the conduct of related transactions, are hereby authorized, provided that such software is designated as EAR99, or in the case of software that is not subject to the EAR, would be designated as EAR99 if it were located in the United States, and further provided that, unless otherwise authorized by specific license, payment terms and financing for sales pursuant to this general license are limited to, and consistent with, those authorized by § 560.532.

    (ii) Software updates. Except as provided in paragraph (a)(5)(iv) of this section, the exportation or reexportation by a covered person (as defined in paragraph (e)(4) of this section) to the Government of Iran, to any individual or entity in Iran, or to persons in a third country purchasing specifically for resale to any of the foregoing, of software intended for and limited to the provision of safety and service updates and the correction of system or operational errors in medical devices, replacement parts, and associated software that previously were exported, reexported, or provided pursuant to this part, and the conduct of related transactions, are hereby authorized, provided that such software is designated as EAR99, or in the case of software that is not subject to the EAR, would be designated as EAR99 if it were located in the United States, and further provided that, unless otherwise authorized by specific license, payment terms and financing for sales pursuant to this general license are limited to, and consistent with, those authorized by § 560.532. Such software updates may be exported or reexported only to the same end user to whom the original software was exported or reexported.

    (iii) Maintenance and Repair Services. Except as provided in paragraph (a)(5)(iv) of this section, the exportation or reexportation by a covered person (as defined in paragraph (e)(4) of this section) to the Government of Iran, to any individual or entity in Iran, or to persons in a third country purchasing specifically for resale to any of the foregoing, of services necessary to maintain and repair medical devices that previously were exported or reexported pursuant to this section, including inspection, testing, calibration, or repair services to ensure patient safety or effective operation, and the conduct of related transactions, are hereby authorized, provided that such services do not substantively alter the functional capacities of the medical device as originally authorized for export or reexport, and further provided that, unless otherwise authorized by specific license, payment terms and financing for sales pursuant to this general license are limited to, and consistent with, those authorized by § 560.532.

    (iv) Excluded persons. Paragraphs (a)(5)(i) through (iii) of this section do not authorize the exportation or reexportation of software, software updates, or maintenance and repair services for medical devices to military, intelligence, or law enforcement purchasers or importers.

    (6)(i) General license for the importation of certain U.S.-origin agricultural commodities, medicine, and medical devices. Except as provided in paragraph (a)(6)(ii) of this section, the importation into the United States of U.S.-origin agricultural commodities, medicine, and medical devices, including parts, components, or accessories thereof, that previously were exported or reexported pursuant to the authorizations in this section and that are broken, defective, or non-operational, or are connected to product recalls, adverse events, or other safety concerns, and the conduct of related transactions, are hereby authorized.

    (ii) Excluded persons. Paragraph (a)(6)(i) of this section does not authorize the importation into the United States of U.S.-origin agricultural commodities, medicine, and medical devices that previously were exported or reexported pursuant to the authorizations in this section as broken, defective, or non-operational, or in connection with product recalls, adverse events, or other safety concerns, from military, intelligence, or law enforcement purchasers or importers.

    (c) * * *

    (5) For items subject to the EAR, an Official Commodity Classification of EAR99 issued by the Department of Commerce's Bureau of Industry and Security (BIS), certifying that the product is designated as EAR99, is required to be submitted to OFAC with the request for a license authorizing the exportation or reexportation of all fertilizers, live horses, western red cedar, or the excluded medical devices specified in paragraph (a)(3)(ii) of this section. See 15 CFR 748.3 for instructions for obtaining an Official Commodity Classification of EAR99 from BIS.

    4. Amend § 560.532 by revising the section heading to read as follows:
    § 560.532 Payment for and financing of exports and reexports of agricultural commodities, medicine, and medical devices, and certain related software and services.
    John E. Smith, Acting Director, Office of Foreign Assets Control.
    [FR Doc. 2016-30968 Filed 12-22-16; 8:45 am] BILLING CODE 4810-AL-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0304; FRL-9957-20-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Control of Volatile Organic Compounds Emissions From Fiberglass Boat Manufacturing Materials AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the State of Maryland. This revision pertains to Maryland's adoption of the requirements in EPA's control technique guidelines (CTG) for fiberglass boat manufacturing materials. EPA is approving this Maryland SIP submittal as it is in accordance with the requirements of the Clean Air Act (CAA).

    DATES:

    This final rule is effective on January 23, 2017.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2016-0304. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Gavin Huang, (215) 814-2042, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On August 1, 2016 (81 FR 50427 and 81 FR 50336), EPA simultaneously published a notice of proposed rulemaking (NPR) and a direct final rule (DFR) for the State of Maryland. On September 16, 2016 (81 FR 63701), EPA withdrew the DFR due to the receipt of a comment on the proposed rulemaking. In the NPR, EPA proposed to include in the Maryland SIP a Maryland regulation which adopted the requirements in EPA's CTG for fiberglass boat manufacturing materials. The formal SIP revision (#15-07) was submitted by Maryland on December 23, 2015.

    As described in the DFR published on August 1, 2016 (81 FR 50336), section 172(c)(1) of the CAA provides that SIPs for nonattainment areas must include reasonably available control measures (RACM), including reasonably available control technology (RACT), for sources of emissions. Additionally, Maryland is in the Ozone Transport Region (OTR) established under section 184(a) of the CAA. Pursuant to section 184(b)(1)(B) of the CAA, all areas in the OTR must submit SIP revisions that include implementation of RACT with respect to all sources of volatile organic compounds (VOC) in the states covered by a CTG. See CAA section 184(b)(1).

    In September 2008, EPA developed a CTG entitled Control Techniques Guidelines for Fiberglass Boat Manufacturing Materials (Publication No. EPA 453/R-08-004). The CTG for fiberglass boat manufacturing materials provides control recommendations for reducing VOC emissions from the use of gel coats, resins, and materials used to clean application equipment in fiberglass boat manufacturing operations. This CTG applies to facilities that manufacture hulls or decks of boats from fiberglass or build molds to make fiberglass boat hulls or decks.

    II. Summary of SIP Revision

    On December 23, 2015, the Maryland Department of the Environment (MDE) submitted on behalf of the State of Maryland to EPA SIP revision #15-07 concerning implementation of RACT requirements for the control of VOC emissions from fiberglass boat manufacturing materials. Maryland adopted EPA's CTG standards for fiberglass boat manufacturing materials through a regulation found at Code of Maryland Regulations (COMAR) 26.11.19 (relating to VOC from specific processes). This SIP revision adds COMAR 26.11.19.26-1 (control of VOC emissions from fiberglass boat manufacturing materials) to the Maryland SIP and also includes an amendment to COMAR 26.11.19.26 (control of VOC emissions from reinforced plastic manufacturing) which was previously approved into the Maryland SIP. In addition to adopting EPA's CTG standards, COMAR 26.11.19.26-1 includes numerous terms and definitions to support the interpretation of the measures, as well as work practices for cleaning, compliance and monitoring requirements, sampling and testing, and record keeping requirements. The amendment to COMAR 26.11.19.26 at COMAR 26.11.19.26A exempts fiberglass boat manufacturing from provisions within COMAR 26.11.19.26 to avoid duplicative or conflicting requirements. Prior to Maryland's new COMAR 26.11.19.26-1, fiberglass boat manufacturing materials were covered under COMAR 26.11.19.26 which did not address fully EPA's CTG requirements. Thus, with COMAR 26.11.19.26-1 now addressing fiberglass boat manufacturing materials, Maryland has revised COMAR 26.11.19.26A to clarify and exempt fiberglass boat manufacturing materials from COMAR 26.11.19.26A as these are now clearly addressed in COMAR 26.11.19.26-1. EPA finds the provisions in COMAR 26.11.19.26-1 identical to the CTG standards for fiberglass boat manufacturing materials and therefore approvable in accordance with sections 172(c)(1) and 184(b)(1)(B) of the CAA.

    III. Public Comments and EPA's Responses

    EPA received a comment from the Export Inspection Council of India within the Ministry of Commerce and Industry, Government of India (hereinafter referred to as “Commenter”) on the August 1, 2016 NPR.

    Comment: The Commenter sought clarification to determine if Maryland's adoption of EPA's CTG guidelines for fiberglass boat manufacturing materials applied to international manufacturing facilities that export fiberglass boats into the United States. Additionally, if the proposed guidelines are applicable to imported boats, the Commenter questioned how EPA will implement the guidelines and if they will add to the international import requirements of fiberglass boats into the United States.

    Response: EPA thanks the Commenter for its submission seeking clarification of the Maryland regulation on fiberglass boat manufacturing. COMAR 26.11.19.26-1 applies to fiberglass manufacturing facilities that manufacture hulls or decks of fiberglass boats, assemble fiberglass boats from premanufactured hulls and decks, or build molds to make hulls or decks of fiberglass boats. See COMAR 26.11.19.26-1(B)(5). As such, the regulation applies only to manufacturing, assembling or building occurring within Maryland and does not apply to fiberglass boats imported into the State from other locations, including from locations overseas. In addition, under Annotated Code of Maryland § 2-103(b), Maryland and the Maryland Department of the Environment specifically only have jurisdiction over emissions into the air in the State and over ambient air quality in the State of Maryland. Because Maryland's regulatory authority therefore does not extend to regulating activities outside the State, EPA is clarifying that COMAR 26.11.19.26-1 does not regulate nor apply to fiberglass boat manufacturing done outside the State of Maryland. Because the regulation does not apply to fiberglass boat manufacturing outside the State of Maryland, EPA need not respond to the Commenter's inquiry as to how COMAR 26.11.19.26-1 would be implemented for imported fiberglass boats. Finally, EPA clarifies that COMAR 26.11.19.26-1 does not add to import requirements for fiberglass boats being imported into Maryland.

    IV. Final Action

    EPA is approving the December 23, 2015 Maryland SIP submittal, which revises the Maryland SIP by adding new regulation COMAR 26.11.19.26-1 and amending COMAR 26.11.19.26, because the SIP submittal meets the requirement to adopt RACT for sources covered by EPA's CTG standards for fiberglass boat manufacturing materials and is in accordance with requirements in CAA sections 172, 182 and 184.

    V. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of COMAR 26.11.19.26-1 and an amendment to COMAR 26.11.19.26 addressing VOC content limits for fiberglass boat manufacturing into the Maryland SIP. Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

    1 62 FR 27968 (May 22, 1997).

    VI. Statutory and Executive Order Reviews A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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 CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

    B. Submission to Congress and the Comptroller General

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

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 21, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving the Maryland SIP revision adding new regulation COMAR 26.11.19.26-1 and amending COMAR 26.11.19.26 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Ozone, Volatile organic compounds.

    Dated: December 7, 2016. Shawn M. Garvin, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart V—Maryland 2. In § 52.1070, the table in paragraph (c) is amended by revising COMAR 26.11.19.26 and the entry for COMAR 26.11.19.26-1. The amended text reads as follows:
    § 52.1070 Identification of plan.

    (c) * * *

    EPA-Approved Regulations, Technical Memoranda, and Statutes in the Maryland SIP Code of
  • Maryland
  • Administrative
  • Regulations (COMAR)
  • citation
  • Title/subject State effective date EPA approval date Additional
  • explanation/
  • citation at
  • 40 CFR 52.1100
  • *         *         *         *         *         *         * 26.11.19 Volatile Organic Compounds From Specific Processes *         *         *         *         *         *         * 26.11.19.26 Control of Volatile Organic Compound Emissions from Reinforced Plastic Manufacturing 09/28/15 12/23/16 [Insert Federal Register citation] Amendment to .26A. 26.11.19.26-1 Control of Volatile Organic Compound Emissions from Fiberglass Boat Manufacturing 09/28/15 12/23/16 [Insert Federal Register citation] New Regulation. *         *         *         *         *         *         *
    [FR Doc. 2016-30880 Filed 12-22-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-SFUND-1989-0009; FRL-9957-31-Region 3] National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the North Penn Area 6 Superfund Site AGENCY:

    Environmental Protection Agency.

    ACTION:

    Direct final rule; notice of partial deletion of the North Penn Area 6 Superfund Site from the National Priorities List.

    SUMMARY:

    The Environmental Protection Agency (EPA) Region III is publishing a direct final notice of partial deletion of a portion of the North Penn Area 6 Superfund Site (Site) located in Lansdale Borough, Montgomery County, Pennsylvania, from the National Priorities List (NPL). The deletion affects approximately 6.5 acres located at 135 East Hancock Street (the “Administrative Parcel”). The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is found at Appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). This direct final partial deletion is being published by EPA with the concurrence of the Commonwealth of Pennsylvania, through the Pennsylvania Department of Environmental Protection (PADEP), because EPA has determined that all appropriate response actions at the Administrative Parcel under CERCLA, other than five-year reviews, have been completed. However, this partial deletion does not preclude future actions at the Administrative Parcel under Superfund.

    This partial deletion pertains to soils and groundwater of the Administrative Parcel portion of the Site. The other portions of the Site will remain on the NPL, and are not being considered for deletion as part of this action.

    DATES:

    This direct final partial deletion is effective February 21, 2017 unless EPA receives adverse comments by January 23, 2017. If adverse comments are received, EPA will publish a timely withdrawal of the direct final partial deletion in the Federal Register informing the public that the partial deletion will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-1989-0009, by one of the following methods:

    http://www.regulations.gov. Follow on-line instructions for submitting comments.

    Email: [email protected]

    Mail: U.S. Environmental Protection Agency, Region III, Attn: Huu Ngo (3HS21), 1650 Arch Street, Philadelphia, PA 19103-2029

    Hand Delivery: U.S. Environmental Protection Agency, Region III, Attn: Huu Ngo (3HS21), 1650 Arch Street, Philadelphia, PA 19103-2029, Phone: 215-814-3187, Business Hours: Mon. through Fri.—8:00 a.m. to 4:30 p.m. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID no. EPA-HQ-SFUND-1989-0009. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at:

    • U.S. EPA Region III, Superfund Records Center, 6th Floor, 1650 Arch Street, Philadelphia, PA 19103-2029; (215) 814-3157, Monday through Friday 8:00 a.m. to 5:00 p.m.

    • The Lansdale Public Library, 301 Vine St, Lansdale, PA 19446; phone (215) 855-3228. Monday through Friday 10:00 a.m.-9:00 p.m.

    FOR FURTHER INFORMATION CONTACT:

    Huu Ngo, Remedial Project Manager (3HS21), U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103-2029; (215) 814-3187; email: [email protected]

    SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction II. NPL Deletion Criteria III. Partial Deletion Procedures IV. Basis for Partial Site Deletion V. Partial Deletion Action I. Introduction

    EPA Region III is publishing this direct final Notice of Partial Deletion of a portion the North Penn Area 6 Superfund Site from the National Priorities List (NPL). This partial deletion pertains to the soils and groundwater of the Administrative Parcel portion of the Site. The NPL constitutes Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the North Penn Area 6 Site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List. 60 FR 55466 (Nov. 1, 1995). As described in 40 CFR 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund-financed remedial actions if future conditions warrant such actions.

    Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses the procedures that EPA is using for this action. Section IV discusses the Administrative Parcel of the North Penn Area 6 Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Administrative Parcel portion of the Site from the NPL unless adverse comments are received during the public comment period.

    II. NPL Deletion Criteria

    The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the Commonwealth, whether any of the following criteria have been met:

    i. Responsible parties or other persons have implemented all appropriate response actions required;

    ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

    iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

    Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates such action is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

    III. Partial Deletion Procedures

    The following procedures apply to deletion of the Administrative Parcel portion of the Site:

    (1) EPA consulted with the Commonwealth of Pennsylvania prior to developing this direct final Notice of Partial Deletion and the Notice of Intent for Partial Deletion co-published today in the “Proposed Rules” section of the Federal Register.

    (2) EPA provided the Commonwealth 30 working days for review of this notice and the parallel Notice of Intent for Partial Deletion prior to their publication today, and the Commonwealth, through PADEP, concurred on the partial deletion of the Site from the NPL.

    (3) Concurrently with the publication of this direct final Notice of Partial Deletion, a notice of the availability of the parallel Notice of Intent for Partial Deletion is being published in a major local newspaper, The Reporter. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent for Partial Deletion of the Site from the NPL.

    (4) The EPA placed copies of documents supporting the partial deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

    (5) If adverse comments are received within the 30-day public comment period on this partial deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Partial Deletion before its effective date, and will prepare a response to comments and continue with the deletion process, as appropriate, on the basis of the Notice of Intent for Partial Deletion and the comments already received.

    Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

    IV. Basis for Partial Site Deletion

    The following information provides EPA's rationale for deleting the Administrative Parcel portion of the Site from the NPL:

    Site Background and History

    The North Penn Area 6 Superfund Site (EPA Identification Number PAD980926976) is located primarily in Lansdale Borough, Montgomery County, Pennsylvania. The Site is comprised of multiple properties contaminated primarily with volatile organic compounds (VOCs) in the soil and associated groundwater contamination. One of the properties consists of approximately 10 acres of land located at 135 East Hancock Street in Lansdale Borough (the “Property”). The Property was formerly occupied by the Tate Andale Company, and later by the Rogers Mechanical Company. The Administrative Parcel is comprised of approximately 6.5 acres located within the Property.

    The current owner of the Property, including the Administrative Parcel, is Andale Properties, LLC. Andale Properties, LLC plans to redevelop the Property for future residential purposes. Andale Properties, LLC has divided the Property into four Phases (1 through 4) for redevelopment. The Administrative Parcel is comprised of Phases 2 and 3.

    The Property is currently occupied by three buildings, portions of two former structures, and footers and concrete pads from previous on-site buildings. A treatment system operated currently by EPA for treatment of groundwater and multiple monitoring wells are also present at the Property. The Property is bordered to the southwest by East Hancock Street, and to the west, northwest, and east by railroad lines. The ground surface elevation of the Property is approximately 370 feet above mean sea level. The Property consists of relatively flat terrain with a gradual slope towards the southwest. There are no surface water bodies located within the boundaries of the Property. The nearest body of water is the Towamencin Creek, which is located approximately 2,800 feet southwest of the Property. Surface water runoff following precipitation events either infiltrates the ground surface or drains towards the western portion of the Property prior to entering a swale adjacent to the neighboring railroad tracks. Surrounding land use includes commercial, industrial, and residential uses.

    The Tate Andale Company formerly occupied the Property dating back to at least the 1920s, and historically used the Property to fabricate oil coolers, heaters, and strainers. Rogers Mechanical Company purchased the Property in 1985 and operated a plumbing and heating business. The former Tate Andale Company was one of twenty-six property owners/operators to be identified as a potentially responsible party (PRP) at the Site following the detection of groundwater contamination in the Lansdale area in 1979. North Penn Area 6 was proposed to the National Priorities List on January 22, 1987 (52 FR 27620), and became a Superfund Site when the listing became final on March 31, 1989 (54 FR 13296). EPA divided the Site into three operable units (OUs). Operable Unit One (OU1) consists of Fund-financed response actions to address the contaminated soils at certain of the properties that comprise the Site. Operable Unit Two (OU2) consists of PRP-financed response actions to address the contaminated soils at certain other properties that comprise the Site. Operable Unit Three (OU3) consists of Fund-financed and PRP-financed response actions to address the contaminated groundwater over the entire Site. All activities associated with investigation and remediation at the Property were performed by EPA and financed by the Fund, and are part of OU1 and OU3. The Administrative Parcel consists of soils and groundwater on the aforementioned approximately 6.5 acre portion of the Property.

    Remedial Investigation and Feasibility Study (OU1)

    Soils at the Property were investigated as part of the OU1 Remedial Investigation and Feasibility Study (RI/FS). The OU1 RI at the Property focused primarily on a coal ash and scrap metal pile located on the southwestern portion of the Property and another area on the eastern portion of the Property. Soil gas and soil samples were collected from these areas, and elevated levels of VOCs were found in the area on the eastern portion of the Property. Trichloroethylene (TCE) was detected at concentrations up to 4600 μg/kg, and contaminants associated with the breakdown of TCE were also found at elevated levels. The Risk Assessment determined that the contaminant levels would present a risk to groundwater, and a cleanup standard of 131 μg/kg for TCE in soil was determined to protect groundwater. An area comprising roughly 18,000 cubic feet of soil on the east side of the Property was determined to require treatment. The OU1 Feasibility Study considered alternatives for remediation of the VOC-contaminated soil including No Action, Containment with Cap, Vapor Extraction, Low Temperature Thermal Desorption, Soil Washing/Biotreatment, Excavation and Off-site Disposal, and In-Place Processing with Hot Air Injection.

    Selected Remedy (OU1)

    The Property was one of four properties addressed in the 1995 Record of Decision (ROD) for OU1. The OU1 Remedial Action Objective was to prevent further contamination of groundwater from contaminated soils. The selected alternative was in-place processing using hot air injection, with excavation and off-site disposal as a back-up. During the Remedial Design, it was determined that hot air injection would not achieve the performance standards of the OU1 ROD, and the backup remedy of excavation and off-site disposal was used to meet performance standards. Approximately 861 cubic yards of contaminated soil were removed from the Property as part of the OU1 remedial action and disposed of in a Resource Conservation and Recovery Act (RCRA) permitted landfill facility in Model City, New York. EPA approved the OU1 remedial action report for the Property in 2001.

    Operable Unit 2 (OU2)

    OU2 consists of soils investigations at certain enforcement-lead properties. The Property (including the Administrative Parcel to be deleted from the NPL) is not included in OU2.

    Remedial Investigation and Feasibility Study (OU3)

    Groundwater contamination was investigated as part of the RI/FS for OU3. Groundwater contamination at the Property is focused primarily in the southwestern portion of the Property. The OU3 RI/FS found contamination from VOCs at unacceptable levels in monitoring wells and a former production well (TA-1) on the Property. Contamination in well TA-1 was found at concentrations up to 7,740 μg/L of TCE, and the Property was included in the OU3 Feasibility Study to evaluate alternatives for treatment of the groundwater. The OU3 Feasibility Study considered several alternatives involving extraction of contaminated groundwater using differing treatment technologies and differing discharge points.

    Selected Remedy (OU3)

    The Property was included in the OU3 ROD in 2000, which called for construction of groundwater extraction and treatment systems at several properties, including the Property, included in the Site to remediate the contaminated groundwater. The goal of the groundwater extraction and treatment systems is to restore the aquifer to beneficial use as a potable use aquifer. The major components of the selected remedy in the OU3 ROD include the following:

    • Completion of a groundwater remedial design study to determine the most efficient design of a groundwater extraction and treatment system.

    • Installation, operation, and maintenance of on-site groundwater extraction wells to remove contaminated groundwater from beneath the Site and to prevent contaminants from migrating off-site.

    • Installation, operation, and maintenance of air stripping treatment at on-site groundwater extraction wells to treat groundwater to required cleanup levels.

    • Construction, operation, and maintenance of a pipeline from the on-site groundwater treatment systems to the nearest surface water body or storm drain leading to a surface water body.

    • Periodic sampling of groundwater and treated water to ensure treatment components are effective and groundwater remediation is progressing towards the cleanup levels.

    During the Remedial Design of the groundwater extraction and treatment system at the Property, EPA conducted a pump test on the extraction well at the Property. The well failed to produce an adequate yield of contaminated water to treat to significantly improve groundwater quality. As a result, EPA conducted additional testing to determine if adding a vapor extraction unit to the treatment system at the Property would increase contaminant removal and improve the performance of the OU3 selected remedy at the Property. Based on those results, EPA issued an Explanation of Significant Differences (ESD) on September 16, 2009, requiring implementation of a modified remedy at the Property which includes vapor extraction to enhance the performance of the remedy selected in the OU3 ROD. Testing also indicated that significant cost savings could be achieved by replacing the air stripper at the Property with a vessel containing granular activated carbon (GAC). Therefore, the ESD further allowed EPA to modify the OU3 remedy at the Property to allow for this form of treatment. The treatment system at the Property was built, and determined to be operational and functional in 2012. EPA plans on transferring the groundwater treatment system at the Property to PADEP for Operation and Maintenance (O&M) in 2022.

    Response Actions

    During the Remedial Design of the OU1 remedy to address contaminated soils at the Property, it was determined that the alternative selected in the OU1 ROD would not achieve the performance standards of the ROD; therefore, the backup remedy of excavation and off-site disposal was used to meet the performance standards. Approximately 861 cubic yards of contaminated soil were removed from the Property as part of the OU1 remedial action. EPA approved the OU1 remedial action report for the Property in 2001. No further actions to remediate the soil at the Property have been required.

    During the Remedial Design of the OU3 remedy to address contaminated groundwater at the Property, it was determined that the alternative selected in the OU3 ROD would not treat enough contaminated water at the Property to significantly improve groundwater quality. As a result, EPA issued the ESD to require a modified remedy at the Property which includes vapor extraction and allows for the replacement of the air stripper with a vessel containing GAC to enhance the performance of the remedy selected in the OU3 ROD. EPA built the treatment system at the Property, and determined that it was operational and functional in 2012. EPA continues to operate and maintain the groundwater treatment system at the Property.

    Cleanup Levels

    In the OU1 ROD, EPA selected a soil cleanup level of 131 μg/kg of trichloroethylene (TCE) to be protective of groundwater. To expedite backfilling of excavated areas at the Property, EPA conducted Quality Control sampling prior to excavation to delineate the extent of contamination, and eliminate the need to keep excavation areas open while additional sampling and analysis were being performed to determine if the performance standard (cleanup level) for soil in the OU1 ROD had been met. Thirty samples were collected at the Property and sent for analysis. The performance standard was exceeded at one location; therefore, additional samples were collected further out. As a result of the sampling, the boundary of excavation was extended out five feet to comply with the OU1 performance standard. After the excavation and off-site disposal of soils was completed, EPA certified the OU1 Remedial Action at the Property to be complete.

    The OU3 remedy to address contaminated groundwater called for restoration of the aquifer to beneficial use as a potable use aquifer. The OU3 ROD set the groundwater cleanup level as the EPA Maximum Contaminant Level (MCL). The MCL for TCE is 5 ug/L. There are currently ten monitoring wells on or near the Property: ROG-1S, ROG-1D, ROG-2S, ROG-2I, ROG-3S, ROG-3I, ROG-4S, ROG-4I, ROG-5, and ROG-6, in addition to the extraction well TA-1. Currently, only two of the monitoring wells at the Property, ROG-3S and ROG-4S, show contamination above the MCL. Most monitoring wells at the Property have shown downward trends in contamination since the OU3 remedy was implemented. The monitoring wells located in the Administrative Parcel (ROG-1S, ROG1D, ROG-2S, and ROG-2I) have never exhibited contaminant concentrations in excess of the performance standard (cleanup level) for groundwater in the OU3 ROD and are considered to be upgradient from the current contaminated groundwater plume.

    Operation and Maintenance (O&M)

    There are no O&M requirements and no institutional controls for OU1 at the Property. For OU3, EPA plans on transferring the groundwater treatment system at the Property to PADEP for O&M in 2022. There are no institutional controls for OU3 at the Property. The monitoring wells on the Administrative Parcel will continue to be sampled.

    Five-Year Review

    The selected remedial actions, upon completion, will not leave hazardous substances, pollutants, or contaminants on site above levels that allow for unlimited use and unrestricted exposure; however, the OU3 remedial action will require more than five years to complete. As a result, EPA will perform Five Year Reviews at the Site pursuant to Section 121(c) of CERCLA, 42 U.S.C. 9621(c), until the cleanup levels for groundwater in the OU3 ROD are achieved, allowing for unlimited use and unrestricted exposure. Five Year Reviews will be triggered by the date that construction is completed at the entire Site.

    Additional Investigations

    The owner of the Property performed additional investigations at the Property subsequent to EPA's investigations. In 2005, fifty soil borings were advanced throughout the Property. A soil sample was collected from each soil boring and analyzed for VOC contamination. No soil samples exceeded EPA's performance standards (cleanup levels) for soil in the OU1 ROD. Nine composite samples were also collected and analyzed for semi-volatile organic compounds (SVOCs), polychlorinated biphenyls (PCBs), pesticides, metals, and cyanide. SVOCs, PCBs, pesticides, and cyanide were not detected at elevated levels in these samples; however, arsenic was detected in three samples at levels that exceeded background and EPA Regional Screening Levels (RSLs). In 2006, the owner of the Property conducted additional sampling in the vicinity of the samples where the elevated levels of arsenic were found. Eighteen additional soil borings were advanced, and two soil samples were collected from each boring. Elevated levels of arsenic were detected in two soil borings. EPA conducted a more rigorous evaluation of the risks associated with the arsenic levels and determined that the risks associated with the concentrations are within EPA's acceptable risk range.

    The owner of the Property also conducted sampling to evaluate the planned construction of a stormwater basin on the Lansdale Borough electrical substation property located within the boundaries of the Property. Twelve test pits were excavated, two of which are located within the Administrative Parcel. The test pits were analyzed for VOCs, and a composite sample was analyzed for SVOCs, pesticides, PCBs, metals, and cyanide. No VOCs were detected at levels above EPA's performance standards (cleanup levels) for soil in the OU1 ROD. SVOCs, PCBs, metals, and cyanide were not detected at elevated levels.

    The owner of the Property conducted additional sampling in 2016 on an approximately 3,000 cubic yard pile of top soil to be used as ground cover for the residential development. Twelve samples were collected from the pile and analyzed for metals. One sample was analyzed for hexavalent chromium. Metals concentrations were all found to be within EPA's acceptable risk range.

    Community Involvement

    Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket on which EPA relied for recommendation of the deletion of the Administrative Parcel from the NPL are available to the public in the information repositories. The locations of the information repositories are set forth at the end of the Addresses section at the beginning of this notice.

    Determination That the Criteria for Deletion Have Been Met

    EPA has determined based on the investigations conducted that all appropriate response actions under CERCLA have been implemented at the Administrative Parcel. The remedial action for OU1 removed contaminated soil from the Administrative Parcel. The implemented OU1 remedy for soils has achieved performance standards specified in the OU1 ROD at the Administrative Parcel. The four monitoring wells (ROG1S, ROG1D, ROG2S, and ROG2I) that are located within the Administrative Parcel have not shown significant detections of contaminants. These wells are also considered upgradient from the current contaminated groundwater plume. The implemented OU3 remedy for groundwater has achieved performance standards specified in the OU3 ROD at the Administrative Parcel and will continue to extract and treat contaminated groundwater at other portions of the Property. The selected remedial action objectives and associated cleanup levels for OU1 and OU3 at the Administrative Parcel are consistent with agency policy and guidance and have been achieved at the Administrative Parcel. No further Superfund response action for the Administrative Parcel is needed to protect human health and the environment. Other procedures for deletion required by 40 CFR 300.425(e) are detailed in Section III of this direct Final Notice of Partial Deletion of a portion of the Site.

    V. Partial Deletion Action

    The EPA, with concurrence of the Commonwealth of Pennsylvania, through the PADEP, has determined that all appropriate response actions under CERCLA, other than five-year reviews and monitoring, have been completed for the Administrative Parcel. Therefore, EPA is deleting the Administrative Parcel portion of the North Penn Area 6 Superfund Site from the NPL.

    Because EPA considers this action noncontroversial and routine, EPA is taking it without prior publication. This action will be effective February 21, 2017 unless EPA receives adverse comments by January 23, 2017. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of partial deletion before the effective date of the partial deletion, and it will not take effect. EPA will prepare a response to comments and continue with the deletion process, as appropriate, on the basis of the notice of intent to partially delete and the comments already received. There will be no additional opportunity to comment.

    List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

    Dated: December 5, 2016. Cecil Rodrigues, Acting Regional Administrator, Region III.

    For the reasons set out in this document, 40 CFR part 300 is amended as follows:

    PART 300—NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN 1. The authority citation for part 300 continues to read as follows: Authority:

    33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR 1987 Comp., p. 193.

    2. Table 1 of appendix B to part 300 is amended by revising the PA entry for “North Penn-Area 6”, “Lansdale” to read as follows: Appendix B to Part 300—[Amended] Table 1—General Superfund Section State Site name City/County Notes (a) *         *         *         *         *         *         * PA North Penn-Area 6 Lansdale P *         *         *         *         *         *         * (a) = Based on issuance of health advisory by Agency for Toxic Substances and Disease Registry (if scored, HRS score need not be greater than or equal to 28.50). S = State top priority (included among the 100 top priority sites regardless of score). P = Sites with partial deletion(s).
    [FR Doc. 2016-31032 Filed 12-22-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 721 [EPA-HQ-OPPT-2016-0207; FRL-9956-13] RIN 2070-AB27 Significant New Use Rules on Certain Chemical Substances; Technical Correction AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule; technical correction.

    SUMMARY:

    EPA issued a final rule in the Federal Register of November 17, 2016 for 57 chemical substances that were the subject of premanufacture notices (PMNs). For the chemical substance that was the subject of PMN P-15-614, EPA inadvertently listed an incorrect Chemical Abstract Service (CAS) Registry Number. In addition, for the chemical substance that was the subject of PMN P-16-52, EPA inadvertently used the incorrect name. The amendment in this document is being issued to correct these errors.

    DATES:

    This technical correction is effective January 17, 2017.

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2016-0207, is available at http://www.regulations.gov or at the Office of Pollution Prevention and Toxics Docket (OPPT Docket), Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    For technical information contact: Kenneth Moss, Chemical Control Division, Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (202) 564-9232; email address: [email protected]

    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554-1404; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Does this action apply to me?

    The Agency included in the November 17, 2016 final rule a list of those who may be potentially affected by this action.

    II. What does this technical correction do?

    EPA issued a final rule in the Federal Register of November 17, 2016 (81 FR 81250) (FRL-9953-41) for significant new uses for 57 chemical substances that were the subject of PMN notices. EPA included the wrong Chemical Abstracts Service (CAS) Registry Number for §  721.10949 and the wrong name for § 721.10958. This action corrects these errors.

    III. Why is this correction issued as a final rule?

    Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical correction final without prior proposal and opportunity for comment. The SNUR at § 721.10949 contains the wrong CAS number associated with PMN P-15-614, and the SNUR at § 721.10958 contains the wrong name associated with PMN P-16-52 that was the basis for the SNUR. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

    IV. Do any of the statutory and Executive Order reviews apply to this action?

    No. For a detailed discussion concerning the statutory and executive order review, refer to Unit XII. of the November 17, 2016 final rule.

    V. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 721

    Environmental protection, Chemicals, Hazardous substances, Reporting and Recordkeeping requirements.

    Dated: December 9, 2016. Maria J. Doa, Director, Chemical Control Division, Office of Pollution Prevention and Toxics.

    Therefore, 40 CFR part 721 is corrected as follows:

    PART 721—[AMENDED] 1. The authority citation for part 721 continues to read as follows: Authority:

    15 U.S.C. 2604, 2607, and 2625(c).

    2. In § 721.10949, revise paragraph (a)(1) to read as follows:
    § 721.10949 Neodymium sulfur yttrium oxide.

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified as neodymium sulfur yttrium oxide (PMN P-15-614; CAS No. 1651153-45-5) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    3. In § 721.10958, revise the section heading and paragraph (a)(1) to read as follows:
    § 721.10958 Dialkylol amine, polymer with succinic anhydride and aromatic carboxylic acid (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as dialkylol amine, polymer with succinic anhydride and aromatic carboxylic acid (PMN P-16-52) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    [FR Doc. 2016-30769 Filed 12-22-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 413, 414 and 494 [CMS-1651-CN] Medicare Program; End-Stage Renal Disease Quality Incentive Program; Durable Medical Equipment, Prosthetics, Orthotics, and Supplies Competitive Bidding Program Bid Surety Bonds, State Licensure, and Appeals Process for Breach of Contract Actions; Correction AGENCY:

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

    ACTION:

    Final rule; correction.

    SUMMARY:

    This document corrects technical and typographical errors that appeared in the final rule published in the Federal Register on November 4, 2016, entitled “Medicare Program; End-Stage Renal Disease Prospective Payment System, Coverage and Payment for Renal Dialysis Services Furnished to Individuals with Acute Kidney Injury, End-Stage Renal Disease Quality Incentive Program, Durable Medical Equipment, Prosthetics, Orthotics and Supplies Competitive Bidding Program Bid Surety Bonds, State Licensure and Appeals Process for Breach of Contract Actions, Durable Medical Equipment, Prosthetics, Orthotics and Supplies Competitive Bidding Program and Fee Schedule Adjustments, Access to Care Issues for Durable Medical Equipment; and the Comprehensive End-Stage Renal Disease Care Model.”

    DATES:

    This correction is effective on January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Julia Howard, (410) 786-8645, for issues related to DMEPOS CBP and bid surety bonds, state licensure, and the appeals process for breach of DMEPOS CBP contract actions. Stephanie Frilling, (410) 786-4507, for issues related to the ESRD QIP.

    SUPPLEMENTARY INFORMATION: I. Background

    In FR Doc. 2016-26152 of November 4, 2016 (81 FR 77834) (hereinafter referred to as the CY 2017 ESRD PPS final rule) there are technical and typographical errors that are discussed in the “Summary of Errors,” and further identified and corrected in the “Correction of Errors” section below. The provisions in this correction notice are effective as if they had been included in the CY 2017 ESRD PPS final rule published in the Federal Register on November 4, 2016.

    II. Summary of Errors

    On page 77874, we inadvertently made technical errors with respect to the calculation of the performance standard values in Table 2, “Improvement of Performance Standards Over Time.”

    On page 77886, we inadvertently made technical errors with respect to the calculation based on the most recently available data of the Achievement Threshold and Performance Standard values that apply to the Kt/V Composite, Standardized Transfusion Ratio and Hypercalcemia measures, and the calculation based on the most recently available data of the Achievement Threshold, Benchmark and Performance Standard values that apply to the ICH CAHPS measure in Table 6, “Finalized Numerical Values for the Performance Standards for the PY 2019 ESRD QIP Clinical Measures Using the Most Recently Available Data.” We also inadvertently included values for the Achievement Threshold, Benchmark and Performance Standard for the Standardized Hospitalization Ratio Clinical Measure, which is not a measure that we have adopted for the PY 2019 program.

    On page 77897, we inadvertently included values for the Standardized Hospitalization Ratio Clinical Measure, which is not a finalized PY 2019 ESRD QIP measure, in Table 12, “PY 2020 Clinical Measure Including Facilities With at Least 11 Eligible Patients Per Measure.”

    On page 77932 we made a technical error in our response to the first comment under “1. Bid Surety Bond Requirement”. In our response, we stated “While we acknowledge that there will be a number of entities that are required to make large expenditures in order to obtain a bid surety bond for each CBA in which they are submitting a bid, we anticipate that this revision on the bid surety bond amount from $100,000 to $50,000 will reduce that overall burden on all suppliers.” We inadvertently included the term “suppliers” at the end of the sentence but the term should read “bidders.”

    On page 77933 in our response to the comment on why the bid surety bond was only required until January 1, 2019, we inadvertently included a “1” in the reference to the round of competition in 2019 in which the bid surety bond requirement commences. The reference should read “Round 2019” and not “Round 1 2019.”

    At the top of page 77934 in our discussion on “Appeals Process for a DMEPOS Competitive Bidding Breach of Contract Action” we repeated a typographical error from the proposed rule (81 FR 42849) by stating that we proposed removing “§ 414.423(g)(2)(i)” from the regulation. The correct citation in this discussion should read “§ 414.422(g)(2)(i)”, consistent with the proposal to remove corrective action plan from the list of actions for a breach of contract in the regulation, as described in the preamble and regulation text of the proposed and final rules (81 FR 42849, 42878, and 81 FR 77934, 77967).

    III. Waiver of Proposed Rulemaking, 60-Day Comment Period, and Delay of Effective Date

    Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of the proposed rule in the Federal Register before the provisions of a rule take effect. Similarly, section 1871(b)(1) of the Act requires the Secretary to provide notice of the proposed rule in the Federal Register and provide a period of not less than 60 days for public comment. In addition, section 553(d) of the APA, and section 1871(e)(1)(B)(i) of the Act mandate a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the notice and comment and delay in effective date. APA requirements; in cases in which these exceptions apply, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act provide exceptions from the notice and 60-day comment period and delay in effective date requirements as well. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with normal rulemaking requirements for good cause if the agency makes a finding that the notice and comment process are impracticable, unnecessary, or contrary to the public interest. In addition, both section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and an agency includes a statement of support.

    In our view, this correcting document does not constitute rulemaking that would be subject to these requirements. This correcting document is simply correcting technical errors in the preamble and does not make substantive changes to the policies or payment methodologies that were adopted in the final rule, and therefore, it is unnecessary to follow the notice and comment procedure in this instance.

    Even if this were a rulemaking to which the notice and comment and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the CY 2017 ESRD PPS final rule or delaying the effective date would be contrary to the public interest because it is in the public's interest for dialysis facilities to receive appropriate payments in as timely a manner as possible, and to ensure that the CY 2017 ESRD PPS final rule accurately reflects our policies as of the date they take effect and are applicable. Further, such procedures would be unnecessary, because we are not altering the payment methodologies or policies. For these reasons, we believe we have good cause to waive the notice and comment and effective date requirements.

    IV. Correction of Errors

    In FR Doc. 2016-26152 of November 4, 2016 (81 FR 77834), we make the following corrections:

    1. On page 77874, Table 2 is corrected to read as follows:

    Table 2—Improvement of Performance Standards Over Time Measure PY 2015 PY 2016 PY 2017 PY 2018 PY 2019 Hemoglobin >12 g/dL 1% 0% Vascular Access Type: % Fistula 60% 62.3% 64.46% 65.94% 65.93% % Catheter 13% 10.6% 9.92% 8.80% 9.19% Kt/V: Adult Hemodialysis 93% 93.4% 96.89% 97.24% Adult Peritoneal Dialysis 84% 85.7% 87.10% 89.47% Pediatric Hemodialysis 93% 93% 94.44% 93.94% Pediatric Peritoneal Dialysis 72.60% Hypercalcemia 1.70% 1.30% 1.19% 1.85% NHSN Bloodstream Infection SIR 0.861 0.797 Standardized Readmission Ratio 0.998 0.998 0.998 Standardized Transfusion Ratio 0.923 0.894

    2. On page 77886, Table 6 is corrected to read as follows:

    Table 6—Finalized Numerical Values for the Performance Standards for the PY 2019 ESRD QIP Clinical Measures Using the Most Recently Available Data Measure Achievement
  • threshold
  • Benchmark Performance
  • standard
  • Vascular Access Type: %Fistula 53.66% 79.62% 65.93% %Catheter 17.20% 2.95% 9.19% Kt/V Composite 86.99% 97.74% 93.08% Hypercalcemia 4.24% 0.32% 1.85% Standardized Transfusion Ratio 1.488 0.421 0.901 Standardized Readmission Ratio 1.289 0.624 0.998 NHSN Bloodstream Infection 1.738 0 0.797 ICH CAHPS: Nephrologists' Communication and Caring 56.41% 77.06% 65.89% ICH CAHPS: Quality of Dialysis Center Care and Operations 52.88% 71.21% 60.75% ICH CAHPS: Providing Information to Patients 72.09% 85.55% 78.59% ICH CAHPS: Overall Rating of Nephrologists 49.33% 76.57% 62.22% ICH CAHPS: Overall Rating of Dialysis Center Staff 48.84% 77.42% 62.26% ICH CAHPS: Overall Rating of the Dialysis Facility 51.18% 80.58% 65.13% Data Sources: VAT measures: 2015 Medicare claims; SRR, STrR: 2015 Medicare claims; Kt/V: 2015 Medicare claims and 2015 CROWNWEB; Hypercalcemia: 2015 CROWNWeb; NHSN: CDC; CAHPS: 2015 ICH CAHPS surveys.

    3. On page 77897, Table 12 is corrected to read as follows:

    Table 12—PY 2020 Clinical Measures Including Facilities With at Least 11 Eligible Patients per Measure Measure N 75th/25th
  • Percentile
  • 90th/10th
  • Percentile
  • Std error Statistically
  • Indistin-
  • guishable
  • Truncated
  • mean
  • Truncated
  • SD
  • TCV TCV's 0.10
    Kt/V Delivered Dose above minimum 6210 96.0 98.0 0.093 No 92.5 4.20 0.05 Yes. Fistula Use 5906 73.2 79.6 0.148 No 65.7 8.88 0.14 No. Catheter Use 5921 5.43 2.89 0.093 No 1 90.1 5.16 <0.01 Yes. Serum Calcium >10.2 6257 0.91 0.32 0.049 No 1 97.8 1.48 <0.01 Yes. NHSN—SIR 5781 0.41 0.00 0.011 No 0.963 0.57 <0.01 Yes. SRR 5739 0.82 0.64 0.004 No 0.995 0.21 <0.01 Yes. STrR 5650 0.64 0.43 0.008 No 0.965 0.37 <0.01 Yes. ICH CAHPS: Nephrologists communication and caring 3349 71.8 77.1 0.159 No 65.7 7.11 0.11 No. Quality of dialysis center care and operations 3349 66.2 71.2 0.134 No 60.9 6.20 0.10 No. Providing information to patients 3349 82.4 85.6 0.101 No 78.4 4.61 0.06 Yes. Rating of Nephrologist 3349 69.9 76.6 0.204 No 62.0 9.29 0.15 No. Rating of dialysis facility staff 3349 70.9 77.4 0.215 No 62.0 9.92 0.16 No. Rating of dialysis center 3349 73.8 80.6 0.221 No 64.8 10.18 0.16 No. 1 Truncated mean for percentage is reversed (100 percent−truncated mean) for measures where lower score = better performance.

    4. On page 77932, third column, line 17, the word “suppliers” is corrected to read as “bidders”.

    5. On page 77933, first column, line 30, remove the number “1” before “2019”.

    6. On page 77934, first column, line 3, the citation “§ 414.423(g)(2)(i)” is corrected to read “§ 414.422(g)(2)(i)”.

    Dated: December 19, 2016. Madhura Valverde, Executive Secretary to the Department, Department of Health and Human Services.
    [FR Doc. 2016-31019 Filed 12-22-16; 8:45 am] BILLING CODE 4120-01-P
    DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 219 [Docket No. FRA-2001-11213, Notice No. 21] Drug and Alcohol Testing: Determination of Minimum Random Testing Rates for 2017 AGENCY:

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

    ACTION:

    Notice of determination.

    SUMMARY:

    This notice of determination provides the FRA Administrator's minimum annual random drug and alcohol testing rates for calendar year 2017.

    DATES:

    Effective December 23, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Jerry Powers, FRA Drug and Alcohol Program Manager, W33-310, Federal Railroad Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone 202-493-6313); or Sam Noe, FRA Drug and Alcohol Program Specialist (telephone 615-719-2951).

    SUPPLEMENTARY INFORMATION:

    For the next calendar year, FRA determines the minimum annual random drug testing rate and the minimum annual random alcohol testing rate for railroad employees covered by hours of service laws and regulations (covered service employees) based on the railroad industry data available for the two previous calendar years (for this Notice, calendar years 2014 and 2015). Railroad industry data submitted to FRA's Management Information System (MIS) shows the rail industry's random drug testing positive rate for covered service employees has continued to be below 1.0 percent for the applicable two calendar years. FRA's Administrator has therefore determined the minimum annual random drug testing rate for the period January 1, 2017, through December 31, 2017, will remain at 25 percent of covered service employees under § 219.602 of FRA's drug and alcohol rule (49 CFR part 219). In addition, because the industry-wide random alcohol testing violation rate for covered service employees has continued to be below 0.5 percent for the applicable two calendar years, the Administrator has determined the minimum random alcohol testing rate will remain at 10 percent of covered service employees for the period January 1, 2017, through December 31, 2017, under § 219.608. Because these rates represent minimums, railroads may conduct FRA random testing at higher rates.

    In a June 10, 2016, final rule, FRA expanded the scope of part 219 to cover maintenance-of-way (MOW) employees (81 FR 37894). MOW employees will become subject to FRA random drug and alcohol testing on June 12, 2017, when the final rule takes effect. In 1994, when FRA, in concert with the other DOT modes, established a drug MIS system (58 FR 68232, December 23, 1993), FRA set its initial minimum random drug testing rate at 50 percent for covered employees because of the lack of data to gauge the extent of the drug abuse problem at that time. FRA set its minimum random alcohol testing rate for covered employees at 25 percent for the same reason. As its MIS data continued to show consistently low industry-wide drug and alcohol positive rates among covered employees, FRA lowered its minimum annual random drug and alcohol testing rates to their current respective rates of 25 and 10 percent.

    Similarly, because FRA has no MIS data for MOW employees yet, the Administrator has determined that for the period June 12, 2017, through December 31, 2017, the minimum annual random drug testing rate will be set at 50 percent of MOW employees, and the minimum annual random alcohol testing rate will be set at 25 percent of MOW employees. As with covered employees, because these rates represent minimums, railroads may conduct FRA random testing of MOW employees at higher rates.

    Issued in Washington, DC, on December 20, 2016. Sarah E. Feinberg, Administrator.
    [FR Doc. 2016-31009 Filed 12-22-16; 8:45 am] BILLING CODE 4910-06-P
    DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 225 [FRA-2008-0136, Notice No. 9] RIN 2130-ZA14 Monetary Threshold for Reporting Rail Equipment Accidents/Incidents for Calendar Year 2017 AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    This rule increases the rail equipment accident/incident monetary reporting threshold (reporting threshold) from $10,500 to $10,700 for railroad accidents/incidents involving property damage that occur during calendar year (CY) 2017 that FRA's accident/incident reporting regulations require railroads to report to the agency. This action is needed to ensure FRA's reporting requirements reflect cost increases that have occurred since FRA last published the reporting threshold in December 2015.

    DATES:

    This final rule is effective January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Kebo Chen, Staff Director, U.S. Department of Transportation, Federal Railroad Administration, Office of Safety Analysis, RRS-22, Mail Stop 25, West Building 3rd Floor, Room W33-314, 1200 New Jersey Ave. SE., Washington, DC 20590 (telephone 202-493-6079); or Gahan Christenson, Trial Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-124, 1200 New Jersey Ave. SE., Washington, DC 20590 (telephone 202-493-1381).

    SUPPLEMENTARY INFORMATION: Background

    A “rail equipment accident/incident” is a collision, derailment, fire, explosion, act of God, or other event involving the operation of railroad on-track equipment (standing or moving) that results in damages to railroad on-track equipment, signals, tracks, track structures, or roadbed, including labor costs and the costs for acquiring new equipment and material, greater than the reporting threshold for the year in which the event occurs. 49 CFR 225.19(c). A railroad must report each rail equipment accident/incident to FRA using the Rail Equipment Accident/Incident Report (Form FRA F 6180.54). See 49 CFR 225.19(b), (c) and 225.21(a). Paragraphs (c) and (e) of 49 CFR 225.19 further provide that FRA will adjust the dollar figure that constitutes the reporting threshold, if necessary, every year under the procedures in appendix B to 49 CFR part 225 (Appendix B) to reflect any cost increases or decreases.

    In addition to periodically reviewing and adjusting the reporting threshold under Appendix B, FRA periodically amends its method for calculating the threshold. In 49 U.S.C. 20901(b), Congress requires that FRA base the reporting threshold on publicly available information obtained from the Bureau of Labor Statistics (BLS), other objective government source, or be subject to notice and comment. In 1996, FRA adopted a new method for calculating the reporting threshold for rail equipment accidents/incidents. See 61 FR 60632, Nov. 29, 1996. In 2005, FRA again amended its method for calculating the reporting threshold because the BLS ceased collecting and publishing the railroad wage data FRA used in the calculation. Consequently, FRA substituted railroad employee wage data the Surface Transportation Board (STB) collects for the data BLS ceased to collect. See 70 FR 75414, Dec. 20, 2005. In a separate rulemaking, FRA intends to evaluate and amend, if appropriate, its method for calculating the reporting threshold and, as a result, the formula used to calculate the reporting threshold may change. FRA intends to reexamine its method for calculating the reporting threshold because new methodologies for calculating the threshold are available. FRA believes updating its methodology to include these advances will ensure the reporting threshold reflects changes in equipment and labor costs as accurately as possible.

    New Reporting Threshold

    Approximately one year has passed since FRA reviewed the reporting threshold. See 80 FR 80683, Dec. 28, 2015. Consequently, FRA has recalculated the reporting threshold under 49 CFR 225.19(c), based on increased costs for labor and increased costs for equipment. FRA has determined that the current reporting threshold of $10,500, which applies to rail equipment accidents/incidents that occur during CY 2016, should increase by $200 to $10,700 for rail equipment accidents/incidents occurring during CY 2017. The specific inputs to the equation set forth in Appendix B (i.e., Tnew = Tprior * [1 + 0.4(WnewWprior)/Wprior + 0.6(EnewEprior)/100]) are:

    Tprior Wnew Wprior Enew Eprior $10,500 $29.99942 $29.80388 203.33333 200.63333 Where: Tnew = New threshold; Tprior = Prior threshold (with reference to the threshold, “prior” refers to the previous threshold rounded to the nearest $100, as reported in the Federal Register); Wnew = New average hourly wage rate, in dollars; Wprior = Prior average hourly wage rate, in dollars; Enew = New equipment average Producer Price Index (PPI) value; Eprior = Prior equipment average PPI value. Using the above figures, the calculated new threshold, (Tnew) is $10,697.669, which is rounded to the nearest $100 for a final new reporting threshold of $10,700 for CY 2017.1

    1 On June 12, 2013, Union Pacific Railroad Company filed a revised 2nd Quarterly Report of Wage A&B Data (Form A Wage Statistics Summary—0100) for 2012 with the Surface Transportation Board, following the publication of the 2013 threshold. Based upon the revised data, the 2013 threshold would have been $10,000 (Tnew = 9500*(1+0.4*(26.10−24.93)/24.93+0.6*(191.5−186.37)/100.00) = 9970.76). The current method for calculating the current threshold requires using the prior threshold as published in the Federal Register. Even though the corrected threshold for 2013 would have been higher at $10,000, leading to a higher Tprior in the calculation for 2014, the end result for 2014 is still $10,500 using the current formula.

    Notice and Comment Procedures

    In this rule, FRA has recalculated the reporting threshold based on the formula discussed in detail and adopted, after notice and comment, in the final rule published December 20, 2005. See 70 FR 75414, Dec. 20, 2005. FRA finds both the current cost data inserted into this pre-existing formula and the original cost data that they replace were obtained from reliable Federal government sources. FRA finds this rule imposes no additional burden on any person, but rather is intended to provide a benefit by permitting the valid comparison of accident data over time. Accordingly, finding that notice and comment procedures are either impracticable, unnecessary, or contrary to the public interest, FRA is proceeding directly to a final rule.

    FRA regularly reviews and recalculates the reporting threshold using the formula published in Appendix B near the end of each CY. Therefore, any person affected by this rule should anticipate the on-going adjustment of the reporting threshold and has reasonable time to make any minor changes necessary to come into compliance with the reporting requirements. FRA attempts to use the most recent data available to calculate the updated reporting threshold prior to the next CY. FRA has found that issuing the rule no later than December of each CY and making the rule effective on January 1, of the next year, allows FRA to use the most up-to-date data when calculating the reporting threshold and to compile data that accurately reflects rising wages and equipment costs. As such, FRA finds that it has good cause to make this final rule effective January 1, 2017.

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

    FRA evaluated this final rule under existing policies and procedures and determined it is non-significant under both Executive Orders 12866 and 13563, and DOT policies and procedures. See 44 FR 11034, Feb. 26, 1979.

    Regulatory Flexibility Act

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

    The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities, unless the Secretary certifies the rule will not have a significant economic impact on a substantial number of small entities. Under Section 312 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), Federal agencies may adopt their own size standards for small entities in consultation with SBA and in consultation with public comment. Under that authority, FRA has published a final statement of agency policy formally establishing for FRA's regulatory purposes “small entities” as railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR 1201.1-1 ($20 million or less in inflation-adjusted annual revenues, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less). See 49 CFR part 209, appendix C. FRA used this definition for this rulemaking.

    About 743 of the approximately 792 railroads in the United States are considered small entities by FRA. FRA certifies that this final rule will have no significant economic impact on a substantial number of small entities. To the extent that this rule has any impact on small entities, the impact will be neutral or insignificant. The frequency of rail equipment accidents/incidents, and therefore also the frequency of required reporting, is generally proportional to the size of the railroad. A railroad employing thousands of employees and operating trains millions of miles is exposed to greater risks than one whose operation is substantially smaller. Small railroads may go for months at a time without having a reportable occurrence of any type, and even longer without having a rail equipment accident/incident. For example, FRA data indicate railroads reported 2,029 rail equipment accidents/incidents in 2011, with small railroads reporting 276 of them. Data for 2012 show railroads reported 1,765 rail equipment accidents/incidents, with small railroads reporting 254 of them. Data for 2013 show that 1,849 rail equipment accidents/incidents were reported, with small railroads reporting 271 of them. In 2014, 1,870 rail equipment accidents/incidents were reported, and small railroads reported 230 of them. In 2015, 1,912 rail equipment accidents/incidents were reported, with small railroads reporting 253 of them. On average over those five calendar years, small railroads reported about 14% (ranging from 12% to 15%) of the total number of rail equipment accidents/incidents. FRA notes that these data are accurate as of the date of issuance of this final rule, and are subject to minor changes due to additional reporting. Absent this rulemaking (i.e., absent increasing the reporting threshold), the number of reportable accidents/incidents in CY 2017 would likely increase, as keeping the 2016 threshold in place would not allow it to keep pace with the increasing dollar amounts of wages and rail equipment repair costs. Therefore, this rule will be neutral in effect. Increasing the reporting threshold will slightly decrease the recordkeeping burden for railroads over time. Any recordkeeping burden will not be significant and will affect the large railroads more than the small railroads, due to the higher proportion of reportable rail equipment accidents/incidents experienced by large entities.

    Furthermore, FRA has determined the RFA does not apply to this rulemaking. Given this rule merely updates the reporting threshold for CY 2017 using the formula developed through notice and comment rulemaking and published in Appendix B, FRA finds notice and public comment is unnecessary and would serve no public benefit. The Small Business Administration's A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act (2012, p.55), provides:

    If, under the APA or any rule of general applicability governing federal grants to state and local governments, the agency is required to publish a general notice of proposed rulemaking (NPRM), the RFA must be considered [citing 5 U.S.C. 604(a)] . . . . If an NPRM is not required, the RFA does not apply.

    Because this rulemaking does not require a Notice of Proposed Rulemaking, the RFA does not apply. Paperwork Reduction Act

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

    Federalism Implications

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

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

    Environmental Impact

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

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

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

    Unfunded Mandates Reform Act of 1995

    Under Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement detailing the effect on State, local, and tribal governments and the private sector. This final rule will not result in the expenditure of more than $156,000,000 by the public sector in any one year. Thus, preparation of such a statement is not required.

    Energy Impact

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

    Executive Order 12898 (Environmental Justice)

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

    Executive Order 13175 (Tribal Consultation)

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

    Trade Impact

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

    Privacy Act

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

    List of Subjects in 49 CFR Part 225

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

    The Rule

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

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

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

    2. In § 225.19, revise the first sentence of paragraph (c), and paragraph (e) to read as follows:
    § 225.19 Primary groups of accidents/incidents.

    (c) Group II—Rail equipment. Rail equipment accidents/incidents are collisions, derailments, fires, explosions, acts of God, and other events involving the operation of on-track equipment (standing or moving) that result in damages higher than the current reporting threshold (i.e., $6,700 for calendar years 2002 through 2005, $7,700 for calendar year 2006, $8,200 for calendar year 2007, $8,500 for calendar year 2008, $8,900 for calendar year 2009, $9,200 for calendar year 2010, $9,400 for calendar year 2011, $9,500 for calendar year 2012, $9,900 for calendar year 2013, $10,500 for calendar year 2014, $10,500 for calendar year 2015, $10,500 for calendar year 2016, and $10,700 for calendar year 2017) to railroad on-track equipment, signals, tracks, track structures, or roadbed, including labor costs and the costs for acquiring new equipment and material. * * *

    (e) The reporting threshold is $6,700 for calendar years 2002 through 2005, $7,700 for calendar year 2006, $8,200 for calendar year 2007, $8,500 for calendar year 2008, $8,900 for calendar year 2009, $9,200 for calendar year 2010, $9,400 for calendar year 2011, $9,500 for calendar year 2012, $9,900 for calendar year 2013, $10,500 for calendar year 2014, $10,500 for calendar year 2015, $10,500 for calendar year 2016, and $10,700 for calendar year 2017. The procedure for determining the reporting threshold for calendar years 2006 and beyond appears as paragraphs 1-8 of appendix B to part 225.

    Sarah E. Feinberg, Administrator.
    [FR Doc. 2016-30812 Filed 12-22-16; 8:45 am] BILLING CODE 4910-06-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 11 [Docket No. FWS-HQ-LE-2016-0045; FF09L00200-FX-LE18110900000] RIN 1018-BB32 Civil Penalties; Inflation Adjustments for Civil Monetary Penalties AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Adoption of interim rule as final rule.

    SUMMARY:

    The U.S. Fish and Wildlife Service (Service or we) is adopting, as a final rule, without change, an interim rule that revised our civil procedure regulations and increased civil monetary penalties for inflation.

    DATES:

    Effective on December 23, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Paul Beiriger, Special Agent in Charge, Branch of Investigations, U.S. Fish and Wildlife Service, Office of Law Enforcement, (703) 358-1949.

    SUPPLEMENTARY INFORMATION: Background

    The regulations at 50 CFR part 11 provide uniform rules and procedures for the assessment of civil penalties resulting from violations of certain laws and regulations enforced by the Service.

    On June 28, 2016, the Service published in the Federal Register an interim rule (81 FR 41862) that amended 50 CFR part 11, in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act; sec. 701 of Pub. L. 114-74) and Office of Management and Budget guidance, to adjust for inflation the statutory civil monetary penalties that may be assessed for violations of Service-administered statutes and their implementing regulations. We are required to adjust civil monetary penalties as necessary for inflation according to a formula specified in the Inflation Adjustment Act.

    The interim rule became effective on July 28, 2016. We accepted public comments for 60 days on the interim rule, ending August 29, 2016. By that date, we did not receive any comments on the interim rule. Therefore, we are affirming the interim rule as a final rule, without change.

    The interim rule is available at http://www.regulations.gov under Docket No. FWS-HQ-LE-2016-0045.

    List of Subjects in 50 CFR Part 11

    Administrative practice and procedure, Exports, Fish, Imports, Penalties, Plants, Transportation, Wildlife.

    PART 11—CIVIL PROCEDURES Accordingly, we are adopting as a final rule, without change, the interim rule amending 50 CFR part 11 that was published at 81 FR 41862 on June 28, 2016. Dated: December 12, 2016. Michael J. Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
    [FR Doc. 2016-31038 Filed 12-22-16; 8:45 am] BILLING CODE 4333-15-P
    81 247 Friday, December 23, 2016 Proposed Rules NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 [NRC-2016-0270] Guidance for Implementation of 10 CFR 50.59, `Changes, Tests, and Experiments’ AGENCY:

    Nuclear Regulatory Commission.

    ACTION:

    Draft regulatory guide; request for comment.

    SUMMARY:

    The U.S. Nuclear Regulatory Commission (NRC) is issuing for public comment draft regulatory guide (DG), DG-1334, “Guidance for Implementation of 10 CFR 50.59, `Changes, Tests, and Experiments.' ” This draft regulatory guide provides licensees and applicants with a method that the staff of the NRC considers acceptable for use in complying with the Commission's regulations on the process by which licensees may make changes to their facilities and procedures, as described in the safety analysis report, without prior NRC approval, under certain conditions.

    DATES:

    Submit comments by February 21, 2017. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. Although a time limit is given, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.

    ADDRESSES:

    You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specified subject):

    Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0270. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: [email protected] For technical questions, contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document.

    Mail comments to: Cindy Bladey, Office of Administration, Mail Stop: OWFN-12H08, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. For additional direction on accessing information and submitting comments, see “Obtaining Information and Submitting Comments” in the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Brian Harris, Office of Nuclear Reactor Regulation, telephone: 301-415-2277; email: [email protected] and Mark Orr, Office of Nuclear Regulatory Research, telephone: 301-415-6003; email: [email protected] Both are staff of the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

    SUPPLEMENTARY INFORMATION:

    I. Obtaining Information and Submitting Comments A. Obtaining Information

    Please refer to Docket ID NRC-2016-0270 when contacting the NRC about the availability of information regarding this action. You may obtain publically-available information related to this action, by any of the following methods:

    Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0270.

    NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected] The draft regulatory guide is electronically available in ADAMS under Accession No. ML16089A381. The regulatory analysis for DG-1334 is available in ADAMS under Accession number ML16089A379.

    NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

    B. Submitting Comments

    Please include Docket ID NRC-2016-0270 in your comment submission.

    The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at http://www.regulations.gov as well as enters the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

    If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.

    II. Additional Information

    The NRC is issuing for public comment a draft regulatory guide (DG-1334) in the NRC's “Regulatory Guide” series. This series was developed to describe and make available to the public information regarding methods that are acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques that the staff uses in evaluating specific issues or postulated events, and data that the staff needs in its review of applications for permits and licenses.

    The draft regulatory guide, entitled, “Guidance for Implementation of 10 CFR 50.59, `Changes, Tests, and Experiments.' ” is a proposed revision temporarily identified by its task number, DG-1334. DG-1334 is proposed revision 1 of RG 1.187, “Guidance for Implementation of 10 CFR 50.59, `Changes, Tests, and Experiments.' ” The draft regulatory guide provides licensees and applicants with a method that the NRC staff considers acceptable for use in complying with the Commission's regulations on the process by which licensees may make changes to their facilities and procedures as described in the safety analysis report, without prior NRC approval, under certain conditions. The NRC has also prepared a regulatory analysis (ADAMS Accession number ML16089A379) in support of DG-1334.

    This draft regulatory guide clarifies potentially unclear statements in Section 4.3.8 of Nuclear Energy Institute document 96-07, Revision 1, “Guidelines for 10 CFR 50.59 Implementation,” (ADAMS Accession number ML003771157) which was endorsed in RG 1.187, Rev 0, (ADAMS Accession number ML003759710) as acceptable guidance for how to comply with NRC regulations in section 50.59 of title 10 of the Code of Federal Regulations (10 CFR). Because of the potentially unclear statements in Section 4.3.8 of NEI 96-07, licensees may misinterpret the definition governing the “. . . departure from a method of evaluation . . .” described in the plant's final safety analysis report (as updated).

    The draft regulatory guide also adds clarification to statements in Section 4.3.5 of NEI 96-07, Revision 1, whereby licensees may misinterpret the last sentence in the second paragraph in Section 4.3.5 if considered in isolation of the statements earlier discussed in the paragraph.

    III. Backfitting and Issue Finality

    Draft regulatory guide DG-1334, if finalized as Regulatory Guide 1.187, Revision 1, would provide guidance on acceptable ways of determining whether licensees may make changes to their facilities and procedures as described in the safety analysis report, without prior NRC approval, under the change process established in 10 CFR 50.59. The draft regulatory guide, if finalized, would not constitute backfitting as defined in 10 CFR 50.109 (the Backfit Rule) and is not otherwise inconsistent with the issue finality provisions in 10 CFR part 52, “Licenses, Certifications and Approvals for Nuclear Power Plants.” The subject of this draft regulatory guide, as described above, is an NRC-defined process which does not fall within the purview of subjects covered by either the Backfit Rule or the issue finality provision in 10 CFR part 52. Issuance of the draft regulatory guide, in final form, would not constitute backfitting, and no further consideration of backfitting is required in order to issue the draft or final regulatory guide in final form.

    Dated at Rockville, Maryland, this 19th day of December, 2016.

    For the Nuclear Regulatory Commission.

    Thomas H. Boyce, Chief, Regulatory Guidance and Generic Issues Branch, Division of Engineering, Office of Nuclear Regulatory Research.
    [FR Doc. 2016-30921 Filed 12-22-16; 8:45 am] BILLING CODE 7590-01-P
    FEDERAL RESERVE SYSTEM 12 CFR Parts 217 and 225 [Docket No. R-1547; RIN 7100 AE-58 Risk-Based Capital and Other Regulatory Requirements for Activities of Financial Holding Companies Related to Physical Commodities and Risk-Based Capital Requirements for Merchant Banking Investments, Regulations Q and Y AGENCY:

    Board of Governors of the Federal Reserve System (Board).

    ACTION:

    Notice of proposed rulemaking; extension of comment period.

    SUMMARY:

    On September 30, 2016, the Board published in the Federal Register a notice of proposed rulemaking (NPR) to adopt additional limitations on physical commodity trading activities conducted by financial holding companies under complementary authority granted pursuant to section 4(k) of the Bank Holding Company Act and clarify certain existing limitations on those activities; amend the Board's risk-based capital requirements to better reflect the risks associated with a financial holding company's physical commodity activities; rescind the findings underlying the Board orders authorizing certain financial holding companies to engage in energy management services and energy tolling; remove copper from the list of metals that bank holding companies are permitted to own and store as an activity closely related to banking; and increase transparency regarding physical commodity activities of financial holding companies through more comprehensive regulatory reporting.

    Due to the range and complexity of the issues addressed in the NPR, the public comment period has been extended until February 20, 2017. This action will allow interested persons additional time to analyze the proposal and prepare their comments.

    DATES:

    The comment period for the notice of proposed rulemaking published on September 23, 2016, (81 FR 67220) regarding risk-based capital and other regulatory requirements for activities of financial holding companies related to physical commodities and risk-based capital requirements for merchant banking investments is extended from December 22, 2016 to February 20, 2017.

    ADDRESSES:

    You may submit comments by any of the methods identified in the NPR.1 Please submit your comments using only one method.

    1See 81 FR 67220 (September 30, 2016).

    FOR FURTHER INFORMATION CONTACT:

    Constance M. Horsley, Assistant Director, (202) 452-5239, Elizabeth MacDonald, Manager, (202) 475-6316, Kevin Tran, Supervisory Financial Analyst, (202) 452-2309, or Vanessa Davis, Supervisory Financial Analyst, (202) 475-6674, Division of Banking Supervision and Regulation; or Laurie Schaffer, Associate General Counsel, (202) 452-2277, Michael Waldron, Special Counsel, (202) 452-2798, Will Giles, Senior Counsel, (202) 452-3351, or Mary Watkins, Attorney, (202) 452-3722, Legal Division, Board of Governors of the Federal Reserve System, 20th and C Streets NW., Washington, DC 20551. For the hearing impaired only, Telecommunication Device for the Deaf (TDD), (202) 263-4869.

    SUPPLEMENTARY INFORMATION:

    On September 30, 2016, the Board published in the Federal Register the NPR. The Board originally set the end of comment period as December 22, 2016, which is 90 days after the date the proposal was published on the Board's Web site and 83 days after the date the proposal was published in the Federal Register.

    The Board has received comment letters requesting that the Board extend the comment period for the NPR.2 In support of this request, commenters assert that the December 22, 2016 deadline does not provide sufficient time to thoroughly analyze the full impact of this complex and wide-ranging proposal. The commenters note that a variety of types of participants in physical commodities markets, such as mining companies, other upstream producers and municipally-owned natural gas districts, may be impacted by the multiple proposals contained in the Commodities NPR and that additional time is needed to understand those impacts and develop meaningful, constructive comments.

    2 The Board has received requests from Barrick Gold of North America, the National Mining Association, and Clarke Mobile Counties Gas District and its affiliate, the Black Belt Energy Gas District, to extend the end of the comment period.

    Due to the range and complexity of the issues addressed in the NPR, the public comment period has been extended until February 20, 2017. This action will allow interested persons additional time to analyze the proposal and prepare their comments.

    By order of the Board of Governors of the Federal Reserve System, acting through the Secretary of the Board under delegated authority, December 20, 2016. Robert deV. Frierson, Secretary of the Board.
    [FR Doc. 2016-30993 Filed 12-22-16; 8:45 am] BILLING CODE 6210-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 91 [Docket No. FAA-2015-2147; Notice No. 15-05] RIN 2120-AK51 Transponder Requirement for Gliders; Withdrawal AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Advance notice of proposed rulemaking (ANPRM); withdrawal.

    SUMMARY:

    The FAA is withdrawing a previously published advance notice of proposed rulemaking that sought public comment from interested persons involving glider operations in the National Airspace System. The action responded to recommendations from members of Congress and the National Transportation Safety Board and was intended to gather information to determine whether the current glider exception from transponder equipage and use provides the appropriate level of safety in the National Airspace System. The FAA is withdrawing that action because the limited safety benefit gained does not justify the high cost of equipage.

    DATES:

    This action becomes effective December 23, 2016.

    FOR FURTHER INFORMATION CONTACT:

    For technical questions concerning this action, contact Patrick J. Moorman, Airspace Regulations Team, AJV-113, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-8783; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    On August 28, 2006, a Hawker 800XP aircraft 1 and a Schleicher ASW27-18 glider were involved in a non-fatal midair collision near Reno, Nevada. The collision occurred in flight about 42 nautical miles (NM) south-southeast of the Reno-Tahoe International Airport (RNO), at an altitude of about 16,000 feet (ft.) above mean sea level (MSL), and in an area where gliders are excepted from the transponder equipment requirements in Title 14, section 91.215(b), of the Code of Federal Regulations (14 CFR).2 The glider was equipped with a transponder, but the transponder was not turned on at the time of the accident.

    1 The Hawker 800XP aircraft was equipped with a Traffic Alert and Collision Avoidance System (TCAS). TCAS is a family of airborne devices that function independently of the ground-based air traffic control (ATC) system, and provide collision avoidance protection for a broad spectrum of aircraft types. All TCAS systems provide some degree of collision threat alerting, and a traffic display.

    2 The exceptions to the rule allow aircraft that were originally certificated without an engine-driven electrical system, such as balloons and gliders, to be operated in the following areas without a transponder: within a 30 nautical mile radius (NMR) of the 36 listed airports listed in Appendix D to part 91 (Mode C veil), provided aircraft remain outside the Class A, B, or C airspace and are below the ceiling of the airspace designated for the Class B or C airport, or 10,000 feet MSL, whichever is lower; above 10,000 feet MSL; and in the airspace from the surface to 10,000 feet MSL within a 10 NMR of any airport listed in appendix D, excluding the airspace below 1,200 feet outside of the lateral boundaries of the surface area of the airspace designated for that airport.

    On March 31, 2008, the National Transportation Safety Board (NTSB) provided safety recommendations to the FAA resulting from an investigation of the accident.3 The findings of the accident investigation address the limitations of the see-and-avoid concept in preventing midair collisions and, more specifically, the benefits of using transponders in gliders for collision avoidance. The NTSB recommended that the FAA remove the glider exceptions pertaining to the transponder equipment and use requirements, finding that “transponders are critical to alerting pilots and controllers to the presence of nearby traffic so that collisions can be avoided.”

    3 A-08-10 through 13, Safety Recommendations. National Transportation Safety Board, Washington, DC 20594, March 31, 2008. A copy of this letter has been placed in the docket. www.regulations.gov docket FAA-2005-2147. Note: while NTSB used the term “exemption” the correct term as it relates to this airspace is “excepted.”

    On June 16, 2015, the FAA published an Advance Notice of Proposed Rulemaking (ANPRM) to respond to recommendations from two members of Congress 4 and the NTSB. 80 FR 34346. The ANPRM requested comments on a proposed rulemaking that would require gliders operating in the National Airspace System (NAS) to be equipped with transponders. The FAA did not propose specific regulatory changes but rather sought public comment on the use of transponders in gliders operating within the excepted areas of § 91.215. The ANPRM also sought input on more recent alternatives to glider equipage including the use of Traffic Awareness Beacon System (TABS) 5 and Automatic Dependent Surveillance Broadcast (ADS-B) Out equipment.6 The FAA asked for comments from the public and industry to aid in the development of a proposed rule and the analysis of its economic impact.

    4 The FAA received letters from Senator Harry Reid (D-NV) and Representative Mark E. Amodei (R-NV); Letters are posted to the docket at www.regulations.gov, docket no. FAA-2015-2147.

    5 TABS is a surveillance system derived from existing transponder and ADS-B requirements. It was developed to increase safety by providing a standard for a low cost surveillance solution for aircraft excepted from §§ 91.215 and 91.225. An aircraft equipped with TABS is visible to other aircraft equipped with collision avoidance systems such as Traffic Advisory System (TAS), Traffic Alert and Collision Avoidance System (TCAS) I, TCAS-II, and ADS-B In. However, a TABS-equipped aircraft is not displayed to controllers. The FAA published Technical Standard Order (TSO)-C199, the standard for TABS, on October 10, 2014.

    6 ADS-B is a satellite-based surveillance system that uses Global Positioning System (GPS) technology to determine an aircraft's location, airspeed, and other data, and broadcasts that information to a network of ground stations, which relays the data to air traffic control displays, and to nearby aircraft equipped to receive the data via ADS-B In.

    Overview of Withdrawal

    Based on the information gathered from the ANPRM and a review of the current operating environment, the FAA finds that it does not have sufficient basis to move forward with rulemaking at this time. While the FAA has determined it is not warranted to move forward with a proposal to remove the glider exception in § 91.215, the FAA will continue to work with local glider communities to increase safety awareness. The FAA will also continue to consider surveillance system alternatives and to work with interested persons to mitigate the risk of aircraft collision with gliders. Further, the FAA recommends that all glider aircraft owners equip their gliders with a transponder meeting regulatory requirements, a rule-compliant ADS-B Out system, or a TABS device.

    Comment Summary

    The FAA received 231comments in response to its ANPRM. Of the 231 comments received, approximately 18 organizations and 213 individual or anonymous commenters responded. Approximately 161 comments were unfavorable (adverse), 52 comments were favorable, and 18 comments were neutral. Of the 18 organizations that commented, 14 responded unfavorably (adverse), 2 favorably, and 2 were neutral. Three comments received after the comment period closed were also considered.

    The following organizations responded: Soaring Society of America (SSA), Aircraft Owners and Pilots Association (AOPA), Vintage Sailplane Association (VSA), Experimental Aircraft Association (EAA), Civil Air Patrol (CAP), National Transportation Safety Board (NTSB), American Association for Justice (AAJ), and approximately 11 local soaring clubs or groups. Individual and anonymous commenters were representative of all pilot types: glider, general aviation (GA), airline and military, many commenters holding multiple ratings, with glider and general aviation pilots representing the majority.

    Individual and anonymous commenters in favor of removing the transponder exception were primarily concerned about safety, some relaying personal experiences not accompanied by supporting documentation, such as a near mid-air collision (NMAC) report.7 Several commenters recommended the FAA consider alternatives to transponder equipage, including ADS-B,TABS, or FLARM.8

    7 An NMAC is an incident associated with the operation of an aircraft in which a possibility of a collision occurs as a result of proximity of less than 500 feet to another aircraft, or a report is received from flightcrew members stating that a collision hazard existed between two or more aircraft. A report does not necessarily involve the violation of regulations or error by the air traffic control system, nor does it necessarily represent an unsafe condition. The fact that flightcrew members initiate NMAC reports raises two important issues. First, to some degree the data likely will be subjective. This necessitates that considerable caution be exercised when evaluating individual NMAC reports. Second, it is most likely the number of NMAC reports filed will not represent the totality of such events.

    8 FLARM is an electronic system designed to alert pilots of potential collisions between aircraft. FLARM is approved by the European Aviation Safety Agency for fixed installation in certified aircraft. Aircraft equipped with FLARM (including a variant known as PowerFLARM that can receive transponder and ADS-B signals from other aircraft) are visible only to other FLARM-equipped aircraft. There is no FAA TSO for FLARM because FLARM uses proprietary technology rather than industry consensus standards.

    All comments are available for viewing in the rulemaking docket (FAA-2015-2147). To view comments, go to http://www.regulations.gov and insert the docket number.

    Discussion of Comments 1. Safety Benefit of Transponders

    Of the approximately 161 unfavorable (adverse) comments received, many addressed the high cost of transponder equipage and the limited safety benefit by requiring such equipage.

    During the ANPRM process, the FAA also reviewed glider midair and NMAC reports at the local and national level. After further analysis of safety related statistics, the FAA found that nationally, from August 2005 through August 2015, the Aviation Safety Reporting System (ASRS) database reflects 1,841 reported NMAC for all airspace areas. Of these NMACs, 50 involve a glider and another aircraft type, or 2.72% of reported NMACs over a 10-year period for an average of 5NMACs per year. In 2008, the last year data was available for all aircraft categories, statistics show there were 236,519 active aircraft, including 1,914 gliders, or about 0.81% of the active fleet.

    Nationally, the removal of the glider exception from § 91.215 would help to prevent those instances where a glider NMAC occurs with an aircraft equipped with a Traffic Alert and Collision Avoidance System (TCAS).9 10 However, instances where removal of the glider exception from § 91.215 help prevent a glider NMAC due to increased air traffic controller awareness are assumed negligible overall, because the operating areas for gliders are often in places with little or no radar coverage. Furthermore, because gliders can maneuver rapidly, glider flight paths are difficult for the Air Traffic Control (ATC) automation system to accurately project. Over the 10-year period reviewed, of the 50 reported NMACs involving a glider and another aircraft type, 7 involved a glider and part 121 or 135 air carriers required to have TCAS. Using this analysis, removal of the glider exception from § 91.215 has the potential to reduce the NMAC occurrences by about 0.70 occurrences per year, or about 2 NMACs every 3 years (0.38% of all reported NMACs per year over that period).

    9 This assumes all gliders are equipped with a transponder.

    10 TCAS provides two types of advisories, a Traffic Advisory (TA) and a Resolution Advisory (RA). TCAS can provide both types of advisories using another aircraft's transponder signal. A TA provides an aural alert “TRAFFIC, TRAFFIC” to the flight crew and places the other aircraft on a cockpit display showing the other aircraft's position, altitude and movement relative to the TCAS-equipped aircraft. TCAS also computes the time to closest point of approach between the two aircraft. If this drops below a certain computed threshold, TCAS then provides a RA, which consists of aural commands and instrument cues to maneuver the aircraft vertically to avoid the threat.

    Assuming all of these NMACs would occur between gliders and air carrier aircraft,11 this would represent an incremental NMAC hazard of approximately 3.8 × 10−8/flight hour to the air carrier aircraft, based on air carrier flight hour data for years 2010-2014 published on the NTSB's Web site. This rate of occurrence is within the acceptable hazard level guidelines for a Hazardous failure condition (not greater than the order of 1 × 10−7/flight hour) according to the FAA System Safety Handbook, Appendix B.12

    11 Air carrier aircraft are the fleet segment of greatest safety concern to the FAA for this contemplated rulemaking. These aircraft are required by regulation to be TCAS-equipped.

    12 Appendix B of the FAA System Safety Handbook defines a hazardous failure condition as one that reduces the capability of the system or the operator ability to cope with adverse conditions to the extent that there would be: Large reduction in safety margin or functional capability; Crew physical distress/excessive workload such that operators cannot be relied upon to perform required tasks accurately or completely; Serious or fatal injury to small number of occupants of aircraft (except operators); or Fatal injury to ground personnel and/or general public.

    Therefore, based on the nationwide rate of occurrence, safety risk data does not support a rule requiring glider operators to install a transponder device at this time. Furthermore, the number of gliders voluntarily equipping with collision avoidance systems has increased steadily. Per the General Aviation and Part 135 Activity Surveys, the number of gliders equipped with a transponder device has gone from 14% in 2006, to 24.3% in 2014, the last year this data was available.13

    13 Number of active gliders with transponders: 2014 GA Survey, Avionics Tables, Table AV.6. https://www.faa.gov/data_research/aviation_data_statistics/general_aviation/.

    Locally in the airspace surrounding Reno, Nevada, the NTSB noted four TCAS Resolution Advisory (RA) events in the 30 days prior to the accident, each between a glider and a TCAS-equipped transport category aircraft operated under 14 CFR part 121.14 For these RAs to occur, the glider involved in each RA would have to be flying with an operable transponder (turned on).

    14 A-08-10 through 13, Safety Recommendations. National Transportation Safety Board, Washington, DC 20594, March 31, 2008. A copy of this letter is in the docket at www.regulations.gov, docket no. FAA-2015-2147.

    Although this data supports the value of transponders in avoiding collisions, since the accident, the FAA and local glider community have also taken several measures to mitigate the risk of midair collisions within and around Reno, NV. First, advisory information on the heavy glider activity unique to the local area was published in official FAA flight information publications including the Chart Supplement, Special Notices, and Standard Terminal Arrival Routes (STARs) for Reno/Tahoe International Airport after the event. Second, on October 29, 2010, a Letter of Agreement (LOA) was signed between representatives for the local glider community and ATC facilities having control over the airspace. The LOA establishes an area and procedures for glider operations within positive controlled airspace in the Reno area. By establishing this area and these procedures, the LOA enhances airspace awareness and communication among the Oakland Air Route Traffic Control Center, Northern California Terminal Radar Approach Control, and the Pacific Soaring Council. Additionally, the LOA outlines entry and exit procedures into the operating areas and identifies pilot responsibilities to increase communication and situational awareness in the Reno area.15

    15 The LOA is posted in the docket at www.regulations.gov, docket no. FAA-2015-2147.

    Finally, the local glider community has undertaken a successful education campaign to prevent further accidents. According to the SSA, “Since the 2006 accident, the local glider community that flies near RNO has undertaken successfully to educate pilots on collision avoidance and to encourage the voluntary use of either FLARM or transponders. As a result of these voluntary efforts, the official ASRS database includes no new incidents with gliders not equipped with transponders in the RNO or MEV [Minden-Tahoe Airport] areas in [excepted] airspace since the release some 7 years ago of the NTSB report on the 2006 incident.” 16

    16 SSA comment letter posted in the docket at www.regulations.gov, docket no. FAA-2015-2147.

    The SSA, EAA, and several individual commenters opposing transponder equipage, noted that the glider involved in the 2006 Reno accident was equipped with a transponder, but at the time of the accident, the pilot operated the glider with the transponder turned off.17 The FAA acknowledges that in the 2006 accident, if the glider transponder were turned on, the Hawker aircraft would have received TCAS advisories.

    17 14 CFR 91.215(c) states: While in the airspace as specified in paragraph (b) of this section or in all controlled airspace, each person operating an aircraft equipped with an operable ATC transponder maintained in accordance with § 91.413 of this part shall operate the transponder, including Mode C equipment if installed, and shall reply on the appropriate code or as assigned by ATC. This collision occurred at approximately 16,000 feet MSL in Class E airspace (which extends upward from 14,500 feet MSL to flight level 180 throughout the National Airspace System).

    2. Estimating Glider Transponder Cost From Removal of Glider Exception

    Approximately 138 commenters discussed the cost of requiring gliders to equip with transponders.18 Of those 138 commenters discussing cost, there were just 20 comments that could be characterized as in favor of requiring gliders to equip with transponders to some degree.

    18 Most comments addressed the cost of transponder equipage. A few comments addressed the cost to install other equipment such as ADS-B, TABS, and FLARM. The FAA sought comment on these technologies in the ANPRM. These alternatives and others are discussed later in this notice.

    Three commenters stated that transponders were inexpensive, but as shown below these commenters underestimated the cost of glider transponders as “in the few hundred dollar range” or “less than $2000” and/or ignored the cost of installation or assumed installation was easy. They did not address the concern that about half the glider population does not have an electrical system, which significantly increases the cost of transponder installation. These commenters were contradicted by more than 30 commenters who provided specific cost estimates for glider transponders and installation costs. Another commenter, in favor of removing the glider exception because he believed that the safety benefits justified the costs, conceded that transponders “are indeed costly.”

    The FAA estimates the cost of requiring gliders to equip with transponders to be about $5,000 per glider and more than $7 million for the glider fleet. Owing to a lack of reliable data, the glider (and fleet) cost estimates do not take into account the possible significant cost of instrument panel modification. There may also be significant additional cost for older gliders that no longer have manufacturer support because they may require a FAA Form 337 (Major Repair and Alteration) approval if there is no prior approval (Supplemental Type Certificate (STC) or other previously approved installation).

    The fleet estimate assumes that (1) all active glider operators will want to operate in the currently excepted airspace and (2) the 990 inactive gliders (total glider population of 2781—1791 active gliders) in the fleet will deregister upon rule implementation.19 The $7 million fleet figure would be an underestimation to the extent these two assumptions are incorrect. Details of the estimates of cost per glider and glider fleet cost are shown in Table 1.

    19 Total number of gliders and number of active gliders: 2014 GA Survey, Table 2.1.

    Table 1—Glider Transponder Unit Costs Item Cost Sources/notes Transponder $2,339 Cost based on the Trig TT21 as it appears to be the most popular glider transponder. Cabling 146 Aircraftspruce.com: Trig TT21 including custom harness—$2485. Antenna 169 Cumulus-Soaring.com: RAMI AV-74-1 Blade Style Transponder or DME Antenna: “. . . like the AV-74—but with longer mounting studs—which is nice when trying to mount it through a glider fuselage.” Battery charger 25 Total Nonrecurring hardware 2,679 Installation 1,300 Average of 32 ANPRM commenter estimates. Total Nonrecurring Cost 3,979 Batteries (every 2.5 years) 600 Battery choice based on comment by Philadelphia Glider Council: “. . . one [LiFePO4]18AH or two-three 9 Ahs generally sufficient for 10 hrs of operation.” CumulusSoaring.com: Bioenno Power BLF-1209 LiFePo4 Battery 12V, 9AHr $100, charger $25. Or BLF-1220 20AHr $205, charger $30. Duration based on ANPRM comments. Biannual inspection 800 $200 per inspection. Based on ANPRM comments. Total Recurring Costs 1,400

    The nonrecurring and recurring unit costs required to estimate the cost of a rule change eliminating the glider transponder exception are shown in Table 1.

    The FAA estimates the costs of such a rule change over a ten-year period for the existing U.S. glider fleet. This estimation is shown in Table 2.20 The cost of a rule change for new production of existing glider models and new certifications is not estimated owing to a lack of the necessary forecasts.

    20 The estimation takes into account an additional nonrecurring cost not shown in Table 1 of $400 for gliders without an electrical system.

    Table 2—Ten-Year Cost of Removing Glider Transponder Exception Year Item costs Description Non-recurring costs PV recurring costs @7% 21 0 $3,979 Hardware & Installation $3,979 1 2 200 Bi-annual Inspection $175 2.5 200 Battery Replacement 169 3 4 200 Bi-annual Inspection 153 5 200 Battery Replacement 143 6 200 Bi-annual Inspection 133 7 7.5 200 Battery Replacement 120 8 200 Bi-annual Inspection 116 9 10 Totals 3,979 1,009

    21 A discount rate of 7 percent is recommended by Office of Management & Budget, Circular A-94, “Guidelines and Discount Rates for Benefit-Cost Analysis of Federal Programs,” October 29, 1992, p. 8.

    22 Number of active gliders with electrical systems gliders: 2014 GA Survey, Avionics Tables, Table AV.1. https://www.faa.gov/data_research/aviation_data_statistics/general_aviation/.

    23 Number of active gliders with transponders: 2014 GA Survey, Avionics Tables, Table AV.6. https://www.faa.gov/data_research/aviation_data_statistics/general_aviation/.

    Total number of active gliders 1791 Cost/glider Total cost Gliders with electrical systems 22 699 Gliders with transponders 23 461 Gliders without electrical systems 1092 400 436,800 Gliders without transponders 1330 4,988 6,633,798 Cost of rule removing glider exception 7,070,598 Note: Due to rounding, details may not add up to totals or multiply to products.

    Based on the risk reduction data discussed in the previous section and the estimated costs of equipage listed in this section, the FAA finds that the degree of risk reduction that could be expected by requiring transponder equipage for gliders does not justify the cost of requiring such equipage.

    3. Alternatives to Transponders

    Several commenters called for “low cost” and “affordable” transponders (such as a portable transponder) and ADS-B, TABS, or FLARM equipment. The NTSB noted the FAA published a final rule on May 28, 2010, that added requirements for ADS-B Out equipage that, if combined with transponder usage, would result in increased traffic awareness and collision avoidance. The NTSB also commented in response to this ANPRM that TABS may be an acceptable alternative as it is detectable by both TCAS and ADS-B-In equipped aircraft.

    Since the 2006 accident, technologies have developed and alternatives are available that have the potential to mitigate risk, such as TABS, FLARM, ADS-B, local LOA with ATC facilities, and ongoing outreach and education. Of the technological solutions identified here, the ones that offer the best potential to avoid collision with TCAS-equipped aircraft (besides transponder equipage) are TABS or a rule-compliant ADS-B Out system, because those systems make the glider visible to TCAS-equipped aircraft, ATC or both.

    The TABS standard provides for a reduction in the transmission rate and allows for a “non-aviation grade” GPS engine, in order to drive unit cost down while still maintaining an acceptable level of service to be considered a client in the NAS, where collision avoidance and ADS-B systems coexist. There are currently no TSO authorization holders for TABS equipment. However, we are aware that certain manufacturers currently have TABS systems in development.

    Some commenters recommended that the FAA allow use of portable transponders, stating they were lower cost than fixed transponder installations and relatively affordable. While portable transponders may meet the TSO performance requirements, they are not approved for use unless they are actually installed in the aircraft. A key reason for this is placement of the transponder antenna in the aircraft. If the transponder antenna is not placed correctly, the aircraft may not be electronically detectable to other aircraft or ATC.

    Other commenters recommended that the FAA encourage equipage of FLARM systems. In this regard, the FAA notes that a variant of FLARM, known as PowerFLARM, will make a transponder or ADS-B Out equipped aircraft detectable to the PowerFLARM-equipped aircraft (such as a glider). However, a glider that is equipped with any version of FLARM will not be electronically detectable to the other aircraft unless both aircraft are FLARM equipped. In view of these factors, the FAA concludes that FLARM systems may provide a safety benefit (particularly for avoidance of collisions between gliders, and for PowerFLARM equipped gliders, some benefit for avoidance of collisions with powered aircraft). However, the FAA does not view FLARM (including PowerFLARM) as the most effective system to support collision avoidance with powered aircraft since a FLARM system may not make the glider detectable to the aircraft that must give way. Transponders, TABS, and ADS-B Out offer better protection against collisions with powered aircraft because those systems aid visual acquisition of the glider by the powered aircraft flightcrew, consistent with right of way rules.24

    24 Section 91.113(d)(2) states that “A glider has the right of way over powered parachute, weight-shift-aircraft, airplane, or rotorcraft.”

    The FAA will continue to consider surveillance system alternatives for gliders for their feasibility and potential to improve safety.

    4. Other Comments

    Several commenters were in favor of removing the current glider exception for certain high-density airspace areas. One commenter, otherwise strongly in favor of removing the glider exception, suggested an exception for gliders involved in training below 5,000 feet above ground level (AGL). The FAA has determined not to propose any changes to the rules for specific airspace areas because the accident and incident history cited in the NTSB recommendation has occurred predominantly around one specific airspace area, Reno, NV. The FAA has determined that the post accident mitigations for the Reno area discussed previously in this notice mitigate the risk for that specific airspace.

    Another commenter stated, “the FAA should make clear that installing a transponder, encoder, antenna, an extra battery or batteries and possible solar panels are all considered `minor modifications' which can be signed off by the installing technician based on his judgment.” This commenter and several others, in opposition of the removal of the glider exception, also called for exceptions for older gliders. The FAA finds that rulemaking is not necessary at this time for any gliders, but points to current guidance available to assist in installation and approval of transponder systems in gliders and sailplanes for operators wishing to voluntarily equip.25

    25 Information for Operators (InFO) 09009, Installation and Approval of Transponder Systems in Gliders/Sailplanes, dated June 10, 2009.

    The AAJ listed glider color, construction materials, and slender profiles as contributing factors to lack of pilot visibility or radar detection and further identified Instrument Flight Rule congested areas as concerns of undeniable risk, especially the parameters of Class B airspace. These sentiments were largely shared amongst both adverse and favorable commenters, offering similar solutions or variations thereof. The FAA has discussed its determination regarding specific airspace areas above. With regard to the other comments identified here, the FAA's decision in this notice includes consideration of those comments.

    Reason for Withdrawal

    After consideration of all comments received, the FAA is withdrawing Notice No. 15-05. The FAA finds that the high cost of transponder equipage and the limited safety benefit that is likely to result from requiring such equipage do not support rulemaking at this time. Additionally, as discussed above, the FAA has determined that a proposal to require gliders to equip with “low-cost” alternatives to transponders is not supportable at this time.

    NTSB safety recommendations, resulting from the 2006 midair collision with a glider, indicated that although the glider was equipped with a transponder, the transponder was turned off. After further analysis of safety-related statistics over a 10-year period (August 2005-August 2015) the ASRS database reflects 1841 reported NMAC for all airspace areas. The FAA found data that indicates that removal of the glider exception from § 91.215 would have the potential to reduce the NMAC occurrences by about 0.70 occurrences per year, or about 2 NMACs every 3 years (0.38% of all reported NMACs per year over that period).

    Conclusion

    When further testing, research, and conclusive data is available that reflect alternative mitigations, a broader, more harmonized proposal may better serve the public interest. Withdrawal of Notice No. 15-05 does not preclude the FAA from issuing another notice on the subject matter in the future or committing the agency to any future course of action. The agency will make any necessary changes to the regulations through a notice of proposed rulemaking (NPRM) with the opportunity for public comment.

    Although the FAA has determined that a regulatory course of action is not warranted at this time, the FAA will continue to work with local glider communities, encourage the voluntary equipage of transponders in gliders and encourage the use of TABS. The FAA continues to recommend that all glider aircraft owners equip their gliders with a transponder meeting the requirements of § 91.215(a), a rule-compliant ADS-B Out system, or a TABS device. In consideration of the above factors, the FAA withdraws Notice No. 15-05, published in 80 FR 34346, on June 16, 2015.

    Issued under authority provided by 49 U.S.C. 106(f), 44701(a), and 40103 in Washington, DC, on December 16, 2016. Gary A. Norek, Deputy Director, Airspace Services.
    [FR Doc. 2016-30910 Filed 12-22-16; 8:45 am] BILLING CODE 4910-13-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0373; FRL-9957-19-Region 3] Air Plan Approval; WV; Infrastructure Requirements for the 2012 Fine Particulate Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision submittal from the State of West Virginia pursuant to the Clean Air Act (CAA). Whenever new or revised national ambient air quality standards (NAAQS) are promulgated, the CAA requires states to submit a plan for the implementation, maintenance, and enforcement of such NAAQS. The plan is required to address basic program elements, including, but not limited to, regulatory structure, monitoring, modeling, legal authority, and adequate resources necessary to assure attainment and maintenance of the standards. These elements are referred to as infrastructure requirements. West Virginia has made a submittal addressing the infrastructure requirements for the 2012 fine particulate matter (PM2.5) NAAQS. This action proposes to approve portions of this submittal.

    DATES:

    Written comments must be received on or before January 23, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0373 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, 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. 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:

    Ellen Schmitt, (215) 814-5787, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    On November 17, 2015, the State of West Virginia through the West Virginia Department of Environmental Protection (WVDEP) submitted a revision to its SIP to satisfy the requirements of section 110(a)(2) of the CAA for the 2012 PM2.5 NAAQS.

    I. Background

    On July 18, 1997, EPA promulgated a new 24-hour and a new annual NAAQS for PM2.5 (62 FR 38652). On October 17, 2006, EPA revised the standards for PM2.5, tightening the 24-hour PM2.5 standard from 65 micrograms per cubic meter (µg/m3) to 35 µg/m3, and retaining the annual PM2.5 standard at 15 µg/m3 (71 FR 61144). Subsequently, on December 14, 2012, EPA revised the level of the health based (primary) annual PM2.5 standard to 12 µg/m3. See 78 FR 3086 (January 15, 2013).1

    1 In EPA's 2012 PM2.5 NAAQS revision, EPA left unchanged the existing welfare (secondary) standards for PM2.5 to address PM related effects such as visibility impairment, ecological effects, damage to materials and climate impacts. This includes an annual secondary standard of 15 μg/m3 and a 24-hour standard of 35 μg/m3.

    Pursuant to section 110(a)(1) of the CAA, states are required to submit SIP submissions meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the NAAQS. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP submission for a new or revised NAAQS affect the content of the submission. The content of such SIP submission may also vary depending upon what provisions the state's existing SIP already contains.

    More specifically, section 110(a)(1) provides the procedural and timing requirements for SIP submissions. Section 110(a)(2) lists specific elements that states must meet for infrastructure SIP requirements related to a newly established or revised NAAQS. As mentioned earlier, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the NAAQS.

    II. Summary of State Submittal

    On November 17, 2015, West Virginia provided a submittal to satisfy section 110(a)(2) requirements of the CAA for the 2012 PM2.5 NAAQS, which is the subject of this proposed rulemaking. This submittal addressed the following infrastructure elements or portions thereof, which EPA is proposing to approve: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA. A detailed summary of EPA's review and rationale for approving West Virginia's submittal may be found in the Technical Support Document (TSD) for this rulemaking action which is available on line at www.regulations.gov, Docket ID Number EPA-R03-OAR-2016-0373. This rulemaking action does not include any proposed action on section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) of the CAA, and will be addressed in a separate process.

    At this time, EPA is not proposing action on section 110(a)(2)(D)(i)(I) regarding the interstate transport of emissions, nor is the Agency proposing action on section 110(a)(2)(D)(i)(II) relating to visibility protection. EPA intends to take later separate action on these portions of West Virginia's submittal.

    III. Proposed Action

    EPA is proposing to approve the following elements or portions thereof of West Virginia's November 17, 2015 SIP revision: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA. West Virginia's SIP revision provides the basic program elements specified in section 110(a)(2) of the CAA necessary to implement, maintain, and enforce the 2012 PM2.5 NAAQS. This proposed rulemaking action does not include action on section 110(a)(2)(I) which pertains to the nonattainment planning requirements of part D, title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) of the CAA, and will be addressed in a separate process.

    EPA will take later separate action on section (D)(i)(I) (interstate transport of emissions) and on section (D)(i)(II) (visibility protection) for the 2012 PM2.5 NAAQS. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

    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 CAA 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 CAA. Accordingly, this action merely proposes to approve 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 Order 12866 (58 FR 51735, October 4, 1993);

    • 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 CAA; 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, this proposed rule, pertaining to West Virginia's section 110(a)(2) infrastructure requirements for the 2012 PM2.5 NAAQS, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: December 1, 2016. Shawn M. Garvin, Regional Administrator, Region III.
    [FR Doc. 2016-30882 Filed 12-22-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R04-OAR-2016-0583; FRL-9957-32-Region 4] Air Plan Approval; Air Plan Approval and Air Quality Designation; GA; Redesignation of the Atlanta, Georgia 2008 8-Hour Ozone Nonattainment Area to Attainment AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    On July 18, 2016, the State of Georgia, through the Georgia Environmental Protection Division (GA EPD) of the Department of Natural Resources, submitted a request for the Environmental Protection Agency (EPA) to redesignate the Atlanta, Georgia 2008 8-hour ozone nonattainment area (hereafter referred to as the “Atlanta Area” or “Area”) to attainment for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS) and to approve a State Implementation Plan (SIP) revision containing a maintenance plan for the Area. EPA is proposing to approve the State's plan for maintaining attainment of the 2008 8-hour ozone standard in the Area, including the motor vehicle emission budgets (MVEBs) for nitrogen oxides (NOX) and volatile organic compounds (VOC) for the years 2014 and 2030 for the Area, and incorporate it into the SIP, and to redesignate the Area to attainment for the 2008 8-hour ozone NAAQS. EPA is also notifying the public of the status of EPA's adequacy determination for the MVEBs for the Area.

    DATES:

    Comments must be received on or before January 23, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-OAR-2016-0583 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. 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. 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, 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:

    Jane Spann, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Spann can be reached by phone at (404) 562-9029 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. What are the actions EPA is proposing to take? II. What is the background for EPA's proposed actions? III. What are the criteria for redesignation? IV. Why is EPA proposing these actions? V. What is EPA's analysis of the redesignation request and July 18, 2016, SIP submission? VI. What is EPA's analysis of Georgia's proposed NOX and VOC MVEBs for the Atlanta Area? VII. What is the Status of EPA's adequacy determination for the proposed NOX and VOC MVEBs the Atlanta area? VIII. What is the effect of EPA's proposed actions? IX. Proposed Actions X. Statutory and Executive Order Reviews I. What are the actions EPA is proposing to take?

    EPA is proposing to take the following separate but related actions: (1) To approve Georgia's plan for maintaining the 2008 8-hour ozone NAAQS (maintenance plan), including the associated MVEBs for the Atlanta Area, and incorporate it into the SIP, and (2) to redesignate the Atlanta Area to attainment for the 2008 8-hour ozone NAAQS. EPA is also notifying the public of the status of EPA's adequacy determination for the MVEBs for the Atlanta Area. The Atlanta Area consists of Bartow, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Newton, Paulding and Rockdale Counties in Georgia. These proposed actions are summarized below and described in greater detail throughout this notice of proposed rulemaking.

    EPA is proposing to approve Georgia's maintenance plan for the Atlanta Area as meeting the requirements of section 175A (such approval being one of the CAA criteria for redesignation to attainment status) and incorporate it into the SIP. The maintenance plan is designed to keep the Atlanta Area in attainment of the 2008 8-hour ozone NAAQS through 2030. The maintenance plan includes 2014 and 2030 MVEBs for NOX and VOC for the Atlanta Area for transportation conformity purposes. EPA is proposing to approve these MVEBs and incorporate them into the SIP.

    EPA also proposes to determine that the Atlanta Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Accordingly, in this action, EPA is proposing to approve a request to change the legal designation of Bartow, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Newton, Paulding and Rockdale Counties in Georgia, as found at 40 CFR part 81, from nonattainment to attainment for the 2008 8-hour ozone NAAQS.

    EPA is also notifying the public of the status of EPA's adequacy process MVEBs for the Atlanta Area. The Adequacy comment period began on September 2, 2016, with EPA's posting of the availability of Georgia's submissions on EPA's Adequacy Web site (https://www.epa.gov/state-and-local-transportation/state-implementation-plans-sip-submissions-currently-under-epa). The Adequacy comment period for these MVEBs closed on October 3, 2016. No comments, adverse or otherwise, were received during the Adequacy comment period. Please see section VII of this proposed rulemaking for further explanation of this process and for more details on the MVEBs.

    In summary, this notice of proposed rulemaking is in response to Georgia's July 18, 2016, redesignation request and associated SIP submission that address the specific issues summarized above and the necessary elements described in section 107(d)(3)(E) of the CAA for redesignation of the Atlanta Area to attainment for the 2008 8-hour ozone NAAQS.

    II. What is the background for EPA's proposed actions?

    On March 12, 2008, EPA revised both the primary and secondary NAAQS for ozone to a level of 0.075 parts per million (ppm) to provide increased protection of public health and the environment. See 73 FR 16436 (March 27, 2008). The 2008 ozone NAAQS retains the same general form and averaging time as the 0.08 ppm NAAQS set in 1997, but is set at a more protective level. Under EPA's regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.075 ppm. See 40 CFR 50.15.

    Effective July 20, 2012, EPA designated any area that was violating the 2008 8-hour ozone NAAQS based on the three most recent years (2008-2010) of air monitoring data as a nonattainment area. See 77 FR 30088 (May 21, 2012). The Atlanta Area was designated as a marginal ozone nonattainment area. See 40 CFR 81.311. Areas that were designated as marginal ozone nonattainment areas were required to attain the 2008 8-hour ozone NAAQS no later than July 20, 2015, based on 2012-2014 monitoring data. The Atlanta Area did not attain the 2008 8-hour ozone NAAQS by July 20, 2015, and therefore on May 4, 2016, EPA published a final rule reclassifying the Atlanta Area from a marginal nonattainment area to a moderate nonattainment area for the 2008 8-hour ozone standard. See 81 FR 26697 (May 4, 2016). Moderate areas are required to attain the 2008 8-hour ozone NAAQS no later than July 20, 2018, six years after the effective date of the initial nonattainment designations. See 40 CFR 51.1103.

    On July 14, 2016, EPA determined that the Atlanta Area attained the 2008 8-hour ozone NAAQS based on complete, quality-assured, and certified ozone monitoring data from monitoring stations in the Atlanta Area for the 2008 8-hour ozone NAAQS for 2013 through 2015. See 81 FR 45419. Under the provisions of EPA's ozone implementation rule for the 2008 8-hour ozone NAAQS (40 CFR part 51, subpart AA), if EPA issues a determination that an area is attaining the relevant standard, also known as a Clean Data Determination, the area's obligations to submit an attainment demonstration and associated reasonably available control measures (RACM), reasonable further progress plan (RFP), contingency measures, and other planning SIPs related to attainment of the 2008 8-hour ozone NAAQS are suspended until EPA: (i) Redesignates the area to attainment for the standard or approves a redesignation substitute, at which time those requirements no longer apply; or (ii) EPA determines that the area has violated the standard, at which time the area is again required to submit such plans. See 40 CFR 51.1118. While these requirements are suspended, EPA is not precluded from acting upon these elements at any time if submitted to EPA for review and approval.

    An attainment determination is not equivalent to a redesignation under section 107(d)(3) of the CAA. Additionally, the determination of attainment is separate from, and does not influence or otherwise affect, any future designation determination or requirements for the Atlanta Area based on any new or revised ozone NAAQS, and the determination of attainment remains in effect regardless of whether EPA designates this Area as a nonattainment area for purposes of any new or revised ozone NAAQS.

    III. What are the criteria for redesignation?

    The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation providing that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and (5) the state containing such area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.

    On April 16, 1992, EPA provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:

    1. “Ozone and Carbon Monoxide Design Value Calculations,” Memorandum from Bill Laxton, Director, Technical Support Division, June 18, 1990;

    2. “Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992;

    3. “Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992;

    4. “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (hereinafter referred to as the “Calcagni Memorandum”);

    5. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992;

    6. “Technical Support Documents (TSDs) for Redesignation of Ozone and Carbon Monoxide (CO) Nonattainment Areas,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;

    7. “State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993 (hereinafter referred to as the “Shapiro Memorandum”);

    8. “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, November 30, 1993;

    9. “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994 (hereinafter referred to as the “Nichols Memorandum”); and

    10. “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995.

    IV. Why is EPA proposing these actions?

    On July 18, 2016, Georgia requested that EPA redesignate the Atlanta Area to attainment for the 2008 8-hour ozone NAAQS and approve the associated SIP revision submitted on the same date containing a maintenance plan for the Area. EPA's evaluation indicates that the Atlanta Area meets the requirements for redesignation as set forth in CAA section 107(d)(3)(E), including the maintenance plan requirements under CAA section 175A and associated MVEBs. As a result of these proposed findings, EPA is proposing to take the actions summarized in section I of this notice.

    V. What is EPA's analysis of the redesignation request and July 18, 2016, SIP submission?

    As stated above, in accordance with the CAA, EPA proposes to approve the 2008 8-hour ozone NAAQS maintenance plan, including the associated MVEBs, and incorporate it into the Georgia SIP; and redesignate the Atlanta Area to attainment for the 2008 8-hour ozone NAAQS. The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs of this section.

    Criteria (1)—The Atlanta GA Area Has Attained the 2008 8-Hour Ozone NAAQS

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS. See CAA section 107(d)(3)(E)(i). For ozone, an area may be considered to be attaining the 2008 8-hour ozone NAAQS if it meets the 2008 8-hour ozone NAAQS, as determined in accordance with 40 CFR 50.15 and Appendix P of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain the NAAQS, the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area over each year must not exceed 0.075 ppm. Based on the data handling and reporting convention described in 40 CFR part 50, Appendix P, the NAAQS are attained if the design value is 0.075 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in EPA's Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

    On July 14, 2016, EPA determined that the Atlanta Area attained the 2008 8-hour ozone NAAQS. See 81 FR 45419. In that action, EPA reviewed complete, quality-assured, and certified ozone monitoring data from monitoring stations in the Atlanta Area for the 2008 8-hour ozone NAAQS for 2013 through 2015 and determined that the design values for each monitor in the Area are less than the standard of 0.075 ppm for that time period. The fourth-highest 8-hour ozone values at each monitor for 2013, 2014, and 2015 and the 3-year averages of these values (i.e., design values), are summarized in Table 2, below.

    Table 2—2013-2015 Design Value Concentrations for the Atlanta Area [ppm] Location (county) Monitoring station 4th Highest 8-hour ozone value 2013 2014 2015 3-Year
  • design
  • values
  • 2013-2015
    Cobb GA National Guard, McCollum Pkwy (13-067-0003) 0.067 0.063 0.066 0.066 Coweta University of W. Georgia at Newnan (13-077-0002) 0.053 0.067 0.066 0.062 DeKalb 2390-B Wildcat Road Decatur (13-089-0002) 0.062 0.070 0.071 0.067 Douglas Douglas Co. Water Auth. W. Strickland St. (13-097-0004) 0.063 0.065 0.070 0.066 Gwinnett Gwinnett Tech, 5150 Sugarloaf Pkwy. (13-135-0002) 0.069 0.068 0.071 0.069 Henry Henry County Extension Office (13-151-0002) 0.070 0.075 0.070 0.071 Paulding Yorkville, King Farm (13-223-0003) 0.062 0.059 0.065 0.062 Rockdale Conyers Monastery, 2625 GA Hwy. 212 (13-247-0001) 0.071 0.079 0.068 0.072 Fulton Confederate Ave., Atlanta (13-121-0055) 0.069 0.073 0.077 0.073

    The 3-year design value for 2013-2015 for the Atlanta Area is 0.073 ppm,1 which meets the NAAQS.

    1 The design value for an area is the highest 3-year average of the annual fourth-highest daily maximum 8-hour concentration recorded at any monitor in the area.

    For this proposed action, EPA has reviewed 2016 preliminary monitoring data for the Area and proposes to find that the preliminary data does not indicate a violation of the NAAQS.2 EPA will not take final action to approve the redesignation if the 3-year design value exceeds the NAAQS prior to EPA finalizing the redesignation. As discussed in more detail below, Georgia has committed to continue monitoring in this Area in accordance with 40 CFR part 58.

    2 This preliminary data is available at EPA's air data Web site: http://aqsdr1.epa.gov/aqsweb/aqstmp/airdata/.

    Criteria (2)—Georgia Has a Fully Approved SIP Under Section 110(k) for the Atlanta Area; and Criteria (5)—Georgia Has Met All Applicable Requirements Under Section 110 and Part D of Title I of the CAA

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that Georgia has met all applicable SIP requirements for the Atlanta Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that Georgia has met all applicable SIP requirements for purposes of redesignation under part D of title I of the CAA in accordance with section 107(d)(3)(E)(v) and proposes to determine that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these proposed determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were due prior to submittal of the complete redesignation request.

    a. The Atlanta Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA

    General SIP requirements. General SIP elements and requirements are delineated in section 110(a)(2) of title I, part A of the CAA. These requirements include, but are not limited to, the following: Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)) and provisions for the implementation of part D requirements (NSR permit programs); provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development.

    Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation.

    In addition, EPA believes other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (i.e., for redesignations) of conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 2008); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19, 2001).

    Title I, Part D, applicable SIP requirements. Section 172(c) of the CAA sets forth the basic requirements of attainment plans for nonattainment areas that are required to submit them pursuant to section 172(b). Subpart 2 of part D, which includes section 182 of the CAA, establishes specific requirements for ozone nonattainment areas depending on the area's nonattainment classification. As provided in Subpart 2, a marginal ozone nonattainment area must submit an emissions inventory that complies with section 172(c)(3), but the specific requirements of section 182(a) apply in lieu of the demonstration of attainment (and contingency measures) required by section 172(c). See 42 U.S.C. 7511a(a). A moderate area must meet the marginal area requirements of section 182(a) and additional requirements specific to moderate (and higher) areas under section 182(b). A thorough discussion of the requirements contained in sections 172(c) and 182 can be found in the General Preamble for Implementation of Title I (57 FR 13498).

    Under its longstanding interpretation of the CAA, EPA has interpreted section 107(d)(3)(E) to mean, as a threshold matter, that the part D provisions which are “applicable” and which must be approved in order for EPA to redesignate an area include only those which came due prior to a state's submittal of a complete redesignation request. See Calcagni Memorandum. See also Shapiro Memorandum; Final Redesignation of Detroit-Ann Arbor, (60 FR 12459, 12465-66, March 7, 1995); Final Redesignation of St. Louis, Missouri, (68 FR 25418, 25424-27, May 12, 2003); Sierra Club v. EPA, 375 F.3d 537, 541 (7th Cir. 2004) (upholding EPA's redesignation rulemaking applying this interpretation and expressly rejecting Sierra Club's view that the meaning of “applicable” under the statute is “`whatever should have been in the plan at the time of attainment' rather than whatever actually was in the plan and already implemented or due at the time of attainment'”).3 For the Atlanta Area, no section 182(b) Part D moderate nonattainment area requirements for the 2008 8-hour ozone standard were due at the time that Georgia submitted its redesignation request on July 18, 2016; therefore these requirements are not applicable for the purposes of redesignation.4 In addition, as discussed below, several of the Part D requirements under 182(a) and 182(b) are otherwise not applicable for the purposes of redesignation and several of the requirements have already been satisfied by the State.

    3 Applicable requirements of the CAA that come due subsequent to the area's submittal of a complete redesignation request remain applicable until a redesignation is approved, but are not required as a prerequisite to redesignation. See Calcagni Memorandum; CAA section 175A(c).

    Section 182(a) Requirements. Section 182(a)(1) requires states to submit a comprehensive, accurate, and current inventory of actual emissions from sources of VOC and NOX emitted within the boundaries of the ozone nonattainment area. This inventory submission was due on July 20, 2015, for the Atlanta Area. Georgia provided an emissions inventory for the Area to EPA in a February 6, 2015, SIP submission, and EPA approved the emissions inventory in an action published on August 11, 2015. See 80 FR 48036.

    Under section 182(a)(2)(A), states with ozone nonattainment areas that were designated prior to the enactment of the 1990 CAA amendments were required to submit, within six months of classification, all rules and corrections to existing VOC reasonably available control technology (RACT) rules that were required under section 172(b)(3) of the CAA (and related guidance) prior to the 1990 CAA amendments. The Area is not subject to the section 182(a)(2) RACT “fix up” requirement for the 2008 ozone NAAQS because it was designated as nonattainment for this standard after the enactment of the 1990 CAA amendments. Furthermore, the State complied with this requirement under the 1-hour ozone NAAQS. See 57 FR 46780 (October 13, 1992).

    Section 182(a)(2)(B) requires each state with a marginal or higher ozone nonattainment area classification that implemented, or was required to implement, an inspection and maintenance (I/M) program prior to the 1990 CAA amendments to submit a SIP revision providing for an I/M program no less stringent than that required prior to the 1990 amendments or already in the SIP at the time of the amendments, whichever is more stringent. The Atlanta Area is not subject to the section 182(a)(2)(B) requirement because the Area was designated as nonattainment for the 2008 8-hour ozone standard after the enactment of the 1990 CAA amendments. As discussed below in the section addressing section 182(b) requirements, Georgia has an I/M program that meets its past I/M obligations under section 182(c)(3) for its severe classification under the 1990 1-hour ozone NAAQS.

    Regarding the permitting and offset requirements of section 182(a)(2)(C) and section 182(a)(4), Georgia currently has a fully approved part D NSR program in place. However, EPA has determined that areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR, because PSD requirements will apply after redesignation. A more detailed rationale for this view is described in the Nichols Memorandum. Georgia's PSD program will become applicable in the Atlanta Area upon redesignation to attainment.

    Section 182(a)(3) requires states to submit periodic inventories and emissions statements. Section 182(a)(3)(A) requires states to submit a periodic inventory every three years. As discussed below in the section of this notice titled Verification of Continued Attainment, the State will continue to update its emissions inventory at least once every three years. Under section 182(a)(3)(B), each state with an ozone nonattainment area must submit a SIP revision requiring emissions statements to be submitted to the state by certain sources within that nonattainment area. Georgia provided a SIP revision to EPA on February 6, 2015, addressing the section 182(a)(3)(B) emissions statements requirement, and on August 11, 2015, EPA published a direct final rule approving this SIP revision. See 80 FR 48036 (August 11, 2015).

    Section 182(b) Requirements. Section 182(b) of the CAA, found in subpart 2 of part D, establishes additional requirements for moderate (and higher) ozone nonattainment areas. As noted above, no section 182(b) Part D moderate nonattainment area requirements for the 2008 8-hour ozone standard were due at the time that Georgia submitted its redesignation request on July 18, 2016; therefore, these requirements are not applicable for the purposes of redesignation.

    The RFP plan requirements under section 182(b)(1) are defined as progress that must be made toward attainment for the 2008 8-hour ozone NAAQS. These requirements are not relevant for purposes of redesignation because EPA has determined that the Atlanta Area attained of the 2008 8-hour ozone NAAQS. See 57 FR 13564.

    Section 182(b)(2) of the CAA requires states with areas designated as moderate (or higher) nonattainment areas for the ozone NAAQS to submit a SIP revision to require RACT for all major VOC and NOX sources and for each category of VOC sources in the Area covered by a Control Techniques Guidelines (CTG) document. The CTGs established by EPA are guidance to the states and provide recommendations only. A state can develop its own strategy for what constitutes RACT for the various CTG categories, and EPA will review that strategy in the context of the SIP process and determine whether it meets the RACT requirements of the CAA and its implementing regulations. If no major sources of VOC or NOX emissions (which should be considered separately) or no sources in a particular source category exist in an applicable nonattainment area, a state may submit a negative declaration for that category. In the past, Georgia has met previous RACT requirements. EPA approved Georgia's RACT submittals, for the 1997 ozone NAAQS, on September 28, 2012. See 77 FR 59554.

    The section 182(b)(3) gasoline vapor recovery requirements once applied in all moderate (and higher) ozone nonattainment areas. However, under section 202(a)(6) of the CAA the requirements of section 182(b)(3) no longer apply in moderate ozone nonattainment areas because EPA promulgated onboard refueling vapor recovery standards on April 6, 1994. See 59 FR 16262; 40 CFR parts 86, 88, and 600.

    Section 182(b)(4) of the CAA requires states with areas designated as moderate (or higher) nonattainment for the ozone NAAQS to submit SIPs requiring inspection and maintenance of vehicles (I/M). In 1991, EPA classified a 13-county area in and around the Atlanta, Georgia, metropolitan area as a serious ozone nonattainment area for the 1990 1-hour ozone NAAQS, triggering the requirement for the State to establish an enhanced I/M program for this 13-county area.5 EPA fully approved this program into the SIP in January 2000. See 65 FR 4133 (January 26, 2000).

    5 On November 6, 1991, EPA designated and classified the following counties in and around the Atlanta, Georgia, metropolitan area as a serious ozone nonattainment area for the 1-hour ozone NAAQS: Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, and Rockdale. See 56 FR 56694.

    Section 182(b)(5) of the CAA requires that for purposes of satisfying the general emission offset requirement, the ratio of total emission reductions to total increase emissions shall be at least 1.15 to 1. Georgia currently requires these offsets in its SIP-approved state regulations, Georgia Rule 391-3-1-.03(8)(c)(13) and (14).

    Section 176 Conformity Requirements. Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded, or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with federal conformity regulations relating to consultation, enforcement, and enforceability that EPA promulgated pursuant to its authority under the CAA.

    EPA interprets the conformity SIP requirements 6 as not applying for purposes of evaluating a redesignation request under section 107(d) because state conformity rules are still required after redesignation and federal conformity rules apply where state rules have not been approved. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) (upholding this interpretation); see also 60 FR 62748 (December 7, 1995) (redesignation of Tampa, Florida). Nonetheless, Georgia has an approved conformity SIP for the Atlanta Area. See 77 FR 35866 (June 15, 2012).

    6 CAA section 176(c)(4)(E) requires states to submit revisions to their SIPs to reflect certain federal criteria and procedures for determining transportation conformity. Transportation conformity SIPs are different from the MVEBs that are established in control strategy SIPs and maintenance plans.

    Thus, for the reasons discussed above, EPA proposes that the Atlanta Area has satisfied all applicable requirements for purposes of redesignation under section 110 and part D of title I of the CAA.

    b. The Atlanta Area Has a Fully Approved Applicable SIP Under Section 110(k) of the CAA

    EPA has fully approved the applicable Georgia SIP for the Atlanta Area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (see Calcagni Memorandum at p. 3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-90 (6th Cir. 1998); Wall, 265 F.3d 426) plus any additional measures it may approve in conjunction with a redesignation action (see 68 FR 25426 (May 12, 2003) and citations therein). Georgia has adopted and submitted, and EPA has fully approved at various times, provisions addressing various SIP elements applicable for the ozone NAAQS. See 80 FR 61109 (October 9, 2015) and 81 FR 65899 (September 26, 2016).

    As discussed above, EPA believes that the section 110 elements that are neither connected with nonattainment plan submissions, nor linked to an area's nonattainment status, are not applicable requirements for purposes of redesignation and believes that Georgia has met all part D requirements applicable for purposes of this redesignation.

    Criteria (3)—The Air Quality Improvement in the Atlanta Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, applicable federal air pollution control regulations, and other permanent and enforceable reductions. See CAA section 107(d)(3)(E)(iii). EPA has preliminarily determined that Georgia has demonstrated that the observed air quality improvement in the Atlanta Area is due to permanent and enforceable reductions in emissions resulting from federal measures and from state measures adopted into the SIP and is not the result of unusually favorable weather conditions.7

    7 Georgia provided average temperature and precipitation data for May through September in Atlanta, Georgia, from 1930 through 2015. Based on this information, the average temperature and precipitation in 2013 fluctuates around the average meteorological conditions; the years 2014 and 2015 were hotter than the 1930-2000 average temperature; and precipitation in 2014 was less than the the 1930-2000 average. See section 2.3 of the State's redesignation request and SIP revision for further meteorological information.

    State measures adopted into the SIP and federal measures enacted in recent years have resulted in permanent emission reductions. The SIP-approved state measures, some of which implement federal requirements, that have been implemented to date and identified by Georgia include: Georgia Rule 391-3-1-.02(2)(yy)—Emissions of Nitrogen Oxides; Georgia Rule 391-3-1-.02(2)(jjj)—NOX from EGUs; Georgia Rule 391-3-1-.02(2)(lll)—NOX from Fuel Burning Equipment; Georgia Rule 391-3-1-.02(2)(nnn)—NOX from Stationary Gas Turbines; Georgia Rule 391-3-1-.02(2)(rrr)—NOX from Small Fuel Burning Equipment; and Georgia Rule Chapter 391-3-20—Enhanced Inspection and Maintenance.

    Georgia Rule 391-3-1-.02(2) contains provisions that target emission reductions necessary for ozone reduction. Those provisions that are approved into the federally-approved SIP and are therefore federally enforceable include:

    Rule 391-3-1-.02(2)(yy)—this rule requires a case-by-case RACT determination for sources of NOX emissions with the potential to emit more than 25 tons of NOX per year in Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, and Rockdale counties and for sources that have the potential to emit more than 100 tons of NOX per year in Barrow, Bartow, Carroll, Hall, Newton, Spalding, and Walton counties.

    Rule 391-3-1-.02(2)(jjj)—this rule regulates NOX emissions from coal-fired external combustion devices that generate steam for electricity generation. This rule established a NOX emission standard of 0.13 pounds per million British Thermal Unit (lb/MMBtu) from May 1 through September 30 (starting in 2003) averaged across affected sources in Bartow, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Floyd, Forsyth, Fulton, Gwinnett, Heard, Henry, Paulding, and Rockdale counties.

    Rule 391-3-1-.02(2)(lll)—this rule applies to fuel-burning equipment with maximum design heat input capacities greater than or equal to 10 million British Thermal Units per hour (MMBtu/hr) and less than or equal to 250 MMBtu/hr in 45 counties, including the counties in the Atlanta Area. It established a compliance date for the ozone standard beginning on May 1, 2000, and it affects all fuel burning equipment installed from that date forward. This rule also affects future possible emissions for new or modified sources by requiring the operation of equipment during the control season to meet emission limits based on the use of natural gas.

    Rule 391-3-1-.02(2)(nnn)—this rule establishes ozone season NOX emissions limits for stationary gas turbines greater than 25 MW in 45 counties in and around the Atlanta Area. This rule requires combustion turbines permitted on or after April 1, 2000, to emit no more than 6 ppm NOX at 15 percent oxygen during the period of May 1 through September 30 of each year. This period falls within the broader ozone season.

    Rule 391-3-1-.02(2)(rrr)—this is a RACT rule for small fuel-burning equipment. It requires that, in order to reduce NOX, an annual tune-up and the burning of natural gas, liquefied petroleum gas, or propane be conducted on individual fuel burning equipment in the Atlanta Area that is not subject to Rule 391-3-1-.02(2)(jjj) or 391-3-1-.02(2)(lll), during ozone season. This includes individual fuel-burning equipment located at facilities in Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, or Rockdale County with NOX emissions exceeding 25 tons per year and at facilities in Barrow, Bartow, Carroll, Hall, Newton, Spalding or Walton County with NOX emissions exceeding 100 tons per year; the individual fuel-burning equipment has potential emissions of NOX equal to or exceeding 1 ton per year; and the individual fuel-burning equipment either has a maximum design heat input capacity of less than 100 million BTU per hour or less than 10 million BTU per hour, depending on when it was installed.

    Rule Chapter 391-3-20—Enhanced Inspection and Maintenance (Vehicle Emissions I/M Program)—As discussed above, EPA fully approved the State's enhanced I/M program and adopted it into the SIP in January 2000. See 65 FR 4133 (January 26, 2000). The program applies to Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, and Rockdale counties, all of which are located in the Atlanta Area.

    Federal measures enacted in recent years have also resulted in permanent emission reductions in the Atlanta Area. The federal measures that have been implemented include the following:

    Clean Air Interstate Rule (CAIR)/Cross-State Air Pollution Rule (CSAPR). CAIR created regional cap-and-trade programs to reduce SO2 and NOX emissions in 28 eastern states, including Georgia, that contributed to downwind nonattainment and maintenance of the 1997 8-hour ozone NAAQS and the 1997 PM2.5 NAAQS. See 70 FR 25162 (May 12, 2005). In 2008, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) initially vacated CAIR in North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to EPA without vacatur in North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008) to preserve the environmental benefits provided by CAIR. On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated CSAPR to replace CAIR and thus to address the interstate transport of emissions contributing to nonattainment and interfering with maintenance of the two air quality standards covered by CAIR as well as the 2006 PM2.5 NAAQS. CSAPR requires substantial reductions of SO2 and NOX emissions from electric generating units (EGUs) in 28 states in the Eastern United States.

    Numerous parties filed petitions for review of CSAPR, and on August 21, 2012, the D.C. Circuit vacated and remanded CSAPR to EPA. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The United States Supreme Court reversed the D.C. Circuit's decision on April 29, 2014, and remanded the case to the D.C. Circuit to resolve remaining issues in accordance with the high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most respects, but invalidated without vacating some of the Phase 2 SO2 and ozone-season NOX CSAPR budgets as to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015).8 This litigation ultimately delayed implementation of CSAPR for three years, from January 1, 2012, when CSAPR's cap-and-trade programs were originally scheduled to replace the CAIR cap-and-trade programs, to January 1, 2015. Thus, the rule's Phase 2 budgets were originally promulgated to begin on January 1, 2014, and are now scheduled to begin on January 1, 2017.

    8 The remanded budgets include the Phase 2 sulfur dioxide (SO2) budgets for Georgia. On May 26, 2016, Georgia submitted a commitment letter to provide a SIP revision that adopts provisions for participation in the CSAPR annual NOX and annual SO2 trading programs, including annual NOX and annual SO2 budgets that are at least as stringent as the budgets codified for Georgia at 40 CFR 97.710(a) (SO2 Group 2 trading budgets) and 40 CFR 97.410(a) (NOX Annual trading budgets). This commitment letter formed the basis for EPA's conditional approval of the visibility transport element of several infrastructure SIP submittals from the State. See 81 FR 65899 (September 26, 2016). SO2 is not an ozone precursor; therefore, SO2 reductions under CSAPR do not impact ozone air quality.

    On September 17, 2016, EPA finalized an update to the CSAPR ozone season program. See 81 FR 74504 (October 26, 2016). The update addresses summertime transport of ozone pollution in the eastern United States that crosses state lines to help downwind states and communities meet and maintain the 2008 8-hour ozone NAAQS and addresses the remanded Phase 2 ozone season NOX budgets. The update withdraws these remanded NOX budgets, sets new Phase 2 CSAPR ozone season NOX emissions budgets for eight of the eleven states with remanded budgets, and removes the other three states from the CSAPR ozone season NOX trading program.9

    9See 81 FR 74504 for further discussion. Georgia has an ongoing original CSAPR NOX ozone season FIP requirement with respect to the 1997 ozone NAAQS, but EPA has found that is does not contribute to interstate transport with respect to the 2008 ozone NAAQS. EPA did not reopen comment on Georgia's interstate transport obligation with respect to the 1997 ozone NAAQS in the rulemaking for the CSAPR update rule, so Georgia's original CSAPR NOX ozone season requirements (including its emission budget) continue unchanged. See 81 FR 74506. The air quality modeling for the CSAPR update rule did not identify the Atlanta Area as an attainment or maintenance receptor for the 2008 8-hour ozone NAAQS. See https://www3.epa.gov/airmarkets/CSAPRU/AQ%20Modeling%20TSD%20Final%20CSAPR%20Update.pdf.

    Tier 2 vehicle and fuel standards. Implementation began in 2004 and as newer, cleaner cars enter the national fleet, these standards continue to significantly reduce NOX emissions.10 The standards require all passenger vehicles in any manufacturer's fleet to meet an average standard of 0.07 grams of NOX per mile. Additionally, in January 2006, the sulfur content of gasoline was required to be on average 30 ppm which assists in lowering the NOX emissions. EPA expects that these standards will reduce NOX emissions from vehicles by approximately 74 percent by 2030, translating to nearly 3 million tons annually by 2030.11

    10 Georgia also identified Tier 3 Motor Vehicle Emissions and Fuel Standards as a federal measure. EPA issued this rule in April 28, 2014, which applies to light duty passenger cars and trucks. EPA promulgated this rule to reduce air pollution from new passenger cars and trucks beginning in 2017. Tier 3 emission standards will lower sulfur content of gasoline and lower the emissions standards.

    11 EPA, Regulatory Announcement, EPA420-F-99-051 (December 1999), available at: http://www.epa.gov/tier2/documents/f99051.pdf.

    Large non-road diesel engines rule. This rule was promulgated in 2004 and was phased in between 2008 through 2014. This rule reduces the sulfur content in the nonroad diesel fuel and reduces NOX, VOC, particulate matter, and carbon monoxide emissions. This rule applies to diesel engines and fuel used in industries such as construction, agriculture, and mining. It is estimated that compliance with this rule will cut NOX emissions from non-road diesel engines by up to 90 percent nationwide.

    Medium and Heavy-Duty Vehicle Fuel Consumption and GHG Standards. These standards have and will continue to reduce greenhouse gas emissions and increase fuel efficiency for model year 2014 through 2018 semi-trucks, heavy-duty pickup trucks and vans, and vocational vehicles. These standards require on-road vehicles to achieve a 7 percent to 20 percent reduction in CO2 emissions and fuel consumption by 2018. The decrease in fuel consumption will result in a 7 percent to 20 percent decrease in NOX emissions.

    Heavy-duty gasoline and diesel highway vehicle standards. EPA issued this rule in January 2001 (66 FR 5002). This rule includes standards limiting the sulfur content of diesel fuel, which went into effect in 2004. A second phase took effect in 2007, which further reduced the highway diesel fuel sulfur content to 15 ppm, leading to additional reductions in combustion NOX and VOC emissions. EPA expects that this rule will achieve a 95 percent reduction in NOX emissions from diesel trucks and buses and will reduce NOX emissions by 2.6 million tons by 2030 when the heavy-duty vehicle fleet is completely replaced with newer heavy-duty vehicles that comply with these emission standards.12

    12 66 FR 5002, 5012 (January 18, 2001).

    Nonroad spark-ignition engines and recreational engines standards. The nonroad spark-ignition and recreational engine standards, effective in July 2003, regulate NOX, hydrocarbons, and carbon monoxide from groups of previously unregulated nonroad engines. These engine standards apply to large spark-ignition engines (e.g., forklifts and airport ground service equipment), recreational vehicles (e.g., off-highway motorcycles and all-terrain-vehicles), and recreational marine diesel engines sold in the United States and imported after the effective date of these standards. When all of the nonroad spark-ignition and recreational engine standards are fully implemented, an overall 72 percent reduction in hydrocarbons, 80 percent reduction in NOX, and 56 percent reduction in carbon monoxide emissions are expected by 2020. These controls reduce ambient concentrations of ozone, carbon monoxide, and fine particulate matter.

    National program for greenhouse gas (GHG) emissions and fuel economy standards. The federal GHG and fuel economy standards apply to light-duty cars and trucks in model years 2012-2016 (phase 1) and 2017-2025 (phase 2). The final standards are projected to result in an average industry fleet-wide level of 163 grams/mile of carbon dioxide which is equivalent to 54.5 miles per gallon if achieved exclusively through fuel economy improvements. The fuel economy standards result in less fuel being consumed, and therefore less NOX emissions released.

    Boiler and Reciprocating Internal Combustion Engine (RICE) National Emissions Standards for Hazardous Air Pollutants (NESHAP). The NESHAP for industrial, commercial, and institutional boilers and the NESHAP for RICE are projected to reduce VOC emissions. The former applies to boiler and process heaters located at major sources of hazardous air pollutants (HAPs) that burn natural gas, fuel oil, coal, biomass, refinery gas, or other gas and had a compliance deadline of January 31, 2016. The latter applies to existing, new, or reconstructed stationary RICE located at major or area sources of HAPs, excluding stationary RICE being tested at a stationary RICE test cell, and has various compliance dates from August 16, 2004, to October 19, 2013, depending on the type of source.

    Utility Mercury Air Toxics Standards (MATS) and New Source Performance Standards (NSPS). The MATS for coal and oil-fired electric generation units (EGU) and the NSPS for fossil-fuel-fired electric utility steam generating units were published on February 16, 2012 (77 FR 9304). The purpose is to reduce mercury and other toxic air pollutant emissions from coal and oil-fired EGUs, 25 megawatts or more, that generate electricity for sale and distribution through the national electric grid to the public. The NSPS has revised emission standards for NOX, SO2, and particulate matter (PM) that apply to new coal and oil-fired power plants. The MATS compliance date for existing sources was April 16, 2015. However, all coal fired EGUs in Georgia received a one-year compliance extension. MATS rule is expected to reduce NOX and SO2 emissions as well as emissions of mercury and other air toxics.

    EPA proposes to find that the improvements in air quality in the Atlanta Area are due to real, permanent and enforceable reductions in NOX and VOC emissions resulting from the federal and SIP-approved state measures discussed above.

    Criteria (4)—The Atlanta Area Has a Fully Approved Maintenance Plan Pursuant to Section 175A of the CAA

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA (CAA section 107(d)(3)(E)(iv)). In conjunction with its request to redesignate the Atlanta Area to attainment for the 2008 8-hour ozone NAAQS, Georgia submitted a SIP revision to provide for the maintenance of the 2008 8-hour ozone NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA has made the preliminary determination that this maintenance plan meets the requirements for approval under section 175A of the CAA.

    a. What is required in a maintenance plan?

    Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for the remainder of the 20-year period following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future 2008 8-hour ozone violations. The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. As is discussed more fully below, EPA has preliminarily determined that Georgia's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the Georgia SIP.

    b. Attainment Emissions Inventory

    As discussed above, EPA has determined that the Atlanta Area attained the 2008 8-hour ozone NAAQS based on quality-assured monitoring data for the 3-year period from 2013-2015. See 81 FR 45419. Georgia selected 2014 as the base year (i.e., attainment emissions inventory year) for developing a comprehensive emissions inventory for NOX and VOC, for which projected emissions could be developed for 2018, 2022, and 2026. The attainment inventory identifies a level of emissions in the Area that is sufficient to attain the 2008 8-hour ozone NAAQS. Georgia began development of the attainment inventory by first generating a baseline emissions inventory for the Area. The 2014 base year emissions were projected to 2030 for EGU point sources, non-EGU point sources, area sources, fires (both agricultural burning and land clearing, and wildfire and prescribed burning), non-road mobile sources, and on-road mobile sources. The State projected summer day emission inventories using projected rates of growth in population, traffic, economic activity, and other parameters. In addition to comparing the final year of the plan (2030) to the base year (2014), Georgia compared interim years to the baseline to demonstrate that these years are also expected to show continued maintenance of the 2008 8-hour ozone standard.

    The emissions inventory is composed of four major types of sources: Point, non-point, on-road mobile, and non-road mobile. Complete descriptions of how the State developed these inventories are located in Appendix A of the July 18, 2016, SIP submittal.

    Point Sources

    Georgia provided point source emissions for EGU and non-EGU stationary sources with emissions equal to or exceeding 25 tons per year of VOC or NOX in Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, and Rockdale counties, and equal to or exceeding 100 tons per year of VOC or NOX in Bartow and Newton counties.

    EGU point source emissions for the three power plants in the Area (Plant Bowen, Plant McDonough/Atkinson, and Plant Yates) are tabulated from data collected from Georgia Power during the 2014 emission data collection process.13 Georgia projected 2030 NOX and VOC emissions for two of the EGUs, Plant Bowen and Plant McDonough/Atkinson, from 2014 emissions using growth factors based on fuel consumption. At Plant Yates, five units were retired in 2015 and two units were converted from coal to natural gas boilers in 2015, and in the future, this facility is planned to be run as a peaking unit with a capacity factor of approximately 25 percent. Therefore, Georgia projected 2030 NOX emissions using the plant's projected usage, a nominal heat rate of 12 MMBtu/MWh, and the measured NOX emission rates after it was converted to natural gas. Georgia projected 2030 VOC emissions at the plant using maximum measured emission rates for May and June of 2015.

    13 Georgia's emission data collection process is discussed at http://epd.georgia.gov/air/emissions-inventory-system-eis.

    For non-EGU emissions, Georgia calculated summer day emissions for the 2014 and 2030 inventories using 2014 NOX and VOC emissions submitted by facilities during the 2014 GA EPD emission data collection process. The basis for Georgia's no-growth assumption for non-EGU point source emissions from 2014-2030 is discussed in the SIP submittal.

    Non-Point Sources

    GA EPD based its 2014 area source emissions on its 2014 Air Emissions Reporting Requirements (AERR) submittal.14 15 For certain area source sectors, GA EPD used EPA draft 2014 emission estimates 16 and for other source sectors for which EPA does not have draft 2014 estimates, GA EPD estimated 2014 area emissions using the average of 2011 and 2017 emissions from EPA's 2011 emissions modeling platform v6.2.17 GA EPD multiplied 2014 area source emissions with growth factors to estimate 2030 area source emissions. These growth factors were calculated using 2011, 2017, and 2025 emissions in EPA's 2011 modeling platform v6.2.

    14 The area source inventory was developed with the February 16, 2016, draft National Emissions Inventory for 2014 (2014 NEI) for all available source categories. Georgia EPD provided estimates for remaining area source categories not yet included in the draft 2014 NEI, which served as the basis for Georgia's required submittal for NEI development. The 2014 NEI is discussed further at https://www.epa.gov/air-emissions-inventories/2014-national-emissions-inventory-nei-documentation.

    15 EPA's AERR, set forth at Subpart A to 40 CFR part 51, specifies that a state must submit triennial reports of annual (12-month) emissions for all sources and every-year reports of annual emissions of criteria air pollutants and their precursors for all major sources as well as annual emissions reporting from certain larger sources, as outlined in Appendix A to Subpart A. These submittals serve to help develop the national emissions inventory that EPA compiles and publishes triennially. The AERR includes specific reporting thresholds for point sources in attainment and nonattainment areas allows for general estimates for non-point sources.

    16https://www.epa.gov/air-emissions-inventories/2014-national-emissions-inventory-nei-documentation.

    17 Information regarding the 2011 emissions modeling platform v6.2 is located at https://www.epa.gov/air-emissions-modeling/2011-version-6-air-emissions-modeling-platforms.

    GA EPD developed 2014 agricultural burning and land clearing emissions using 2014 burning records from the Georgia Forestry Commission (GFC) and EPA agricultural burning emission factors.18 GA EPD used 2014 burning records from GFC and military bases to determine 2014 wildfire and prescribed burning emissions. GA EPD assumed that emissions from agricultural burning, land clearing, wildfire, and prescribed burning remained constant from 2014-2030.

    18 These emissions factors are available at https://www.epa.gov/air-emissions-inventories/2014-national-emissions-inventory-nei-documentation.

    On-Road Sources

    The Atlanta Regional Commission developed 2014 and 2030 on-road mobile source emissions using EPA's MOVES2014a mobile source emissions model. GA EPD used best available local data for model inputs such as vehicle population, vehicle miles traveled (VMT), road type distribution, average speed distribution, starts, ramp fractions, age distributions, I/M inputs, and fuel properties. The model was run separately for two different groups of nonattainment counties because of differences in I/M program and Stage II refueling requirements. The first group consisted of the following 13 counties with Stage II refueling in place through 2015 19 and I/M programs: Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, and Rockdale. The second group consisted of the following counties without I/M programs or Stage II refueling: Bartow and Newton.

    19 As discussed above, Stage II controls are no longer required because EPA promulgated onboard refueling vapor recovery standards on April 6, 1994. See 59 FR 16262; 40 CFR parts 86, 88, and 600. On January 22, 2015, Georgia submitted a SIP revision to remove Stage II requirements from their SIP, and EPA approved this revision on September 25, 2015. See 80 FR 57729.

    Non-Road Sources

    Some non-road mobile emissions in the U.S. are from the non-road equipment segment (i.e., agricultural equipment, construction equipment, lawn and garden equipment, and recreational vehicles, such as boats and jet-skis). Georgia calculated 2014 and 2030 emissions from non-road sources other than marine, aircraft, and locomotives using the NONROAD portion of EPA's MOVES2014a model.20 MOVES2014a defaults were used with 2014 meteorological data based on Atlanta Hartsfield Jackson International Airport meteorological data. Fuel properties reflected the current Georgia gasoline.21

    20 Georgia used the version of MOVES2014a released by EPA on November 4, 2015. More information on the MOVES2014a model is available at https://www.epa.gov/moves/moves2014a-latest-version-motor-vehicle-emission-simulator-moves.

    21 Many of the counties in the Atlanta Area must use gasoline with a reduced Reid Vapor Pressure (RVP) of 7.8 pounds per square inch during some of the summer months. This reduced RVP reduces VOC emissions. For further information on RVP, see https://www.epa.gov/gasoline-standards/gasoline-reid-vapor-pressure.

    For 2014 locomotive emissions, Georgia used 2011 emissions obtained from 2011 emissions modeling platform v6.2 22 because locomotive fuel consumption changed little from 2011 to 2014. Georgia projected 2030 locomotive emissions from 2014 emissions using growth and control factors. Summer day and annual emissions for 2014 and 2030 from aircraft at Atlanta Hartsfield Jackson International Airport were provided by KB Environmental Sciences on behalf of the City of Atlanta Department of Aviation and included in Appendix A-9 of the SIP submittal. Other aircraft emissions were projected from the 2011 emissions modeling platform v6.2 for 2014 and were projected for 2030 using growth factors. These growth factors were based on landing and take-off operation projections available from the Federal Aviation Administration's Terminal Area Forecasts. Growth rates for military aircraft stayed at 2011 levels. Georgia did not include marine emissions in the inventory because no commercial marine vessels operate in the Atlanta Area.

    22https://www.epa.gov/air-emissions-modeling/2011-version-6-air-emissions-modeling-platforms.

    The 2014 base year inventory for the Area, as well as the projected inventories for other years, were developed consistent with EPA guidance and are summarized in Tables 2 through 6 of the following subsection discussing the maintenance demonstration.

    c. Maintenance Demonstration

    The maintenance plan associated with the redesignation request includes a maintenance demonstration that:

    (i) Shows compliance with and maintenance of the 2008 8-hour ozone NAAQS by providing information to support the demonstration that current and future emissions of NOX and VOC remain at or below 2014 emissions levels.

    (ii) Uses 2014 as the attainment year and includes future emissions inventory projections for 2018, 2022, 2026, and 2030. The 2022 emissions were calculated by linear interpolation between 2014 and 2030; 2018 emissions were calculated by linear interpolation between 2014 and 2022; and 2026 emissions were calculated by linear interpolation between 2022 and 2030.

    (iii) Identifies an “out year” at least 10 years after the time necessary for EPA to review and approve the maintenance plan. Per 40 CFR part 93, NOX and VOC MVEBs were established for the last year (2030) of the maintenance plan as well as for an interim year 2014 (see section VI below).

    (iv) Provides actual (2014) and projected emissions inventories, in tons per summer day (tpsd), for the Atlanta Area, as shown in Tables 3 and 4, below.

    Table 3—Actual and Projected Average Summer Day NOX Emissions for the Atlanta Area [Tons per summer day (tpsd)] Sector 2014 2018 2022 2026 2030 Point 31.36 31.11 30.85 30.60 30.34 Non-point 4.88 4.93 4.97 5.02 5.06 Non-road 76.69 69.99 63.29 56.59 49.89 On-road 170.15 137.01 103.86 70.72 37.57 Total 283.09 243.03 202.98 162.92 122.86 Table 4—Actual and Projected Average Summer Day VOC Emissions for the Atlanta Area [tpsd] Sector 2014 2018 2022 2026 2030 Point 11.24 11.25 11.26 11.27 11.28 Non-point 119.89 118.52 117.16 115.79 114.42 Non-road 53.38 53.11 52.83 52.56 52.28 On-road 81.76 69.49 57.22 44.94 32.67 Total 266.25 252.35 238.45 224.54 210.64

    Tables 3 and 4 summarize the 2014 and future projected emissions of NOX and VOC in the Atlanta Area. In situations where local emissions are the primary contributor to nonattainment, such as the Atlanta Area, if the future projected emissions in the nonattainment area remain at or below the baseline emissions in the nonattainment area, then the related ambient air quality standard should not be exceeded in the future. Georgia has projected emissions as described previously and determined that emissions in the Atlanta Area will remain below those in the attainment year inventory for the duration of the maintenance plan.

    As discussed in section VI of this proposed rulemaking, below, a safety margin is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. Georgia selected 2014 as the attainment emissions inventory year for the Atlanta Area and calculated safety margins for 2030 as shown in Table 5, below.

    Table 5—Safety Margins for the Atlanta Area Year VOC (tpd) NOX
  • (tpd)
  • 2030 55.61 160.23

    The State has decided to allocate a portion of the available safety margin to the 2030 MVEBs to allow for, among other things, unanticipated growth in VMT and changes and uncertainty in vehicle mix assumptions that will influence the emission estimations. Georgia has allocated 20.43 tpd (34.76 percent) of the available NOX safety margin to the 2030 NOX MVEB and 19.33 tpd (12.75 percent) of the available VOC safety margin to the 2030 VOC MVEB. After allocation of the available safety margin, the remaining safety margin is 139.80 tpd for NOX and 36.28 tpd for VOC. This allocation and the resulting available safety margin for the Atlanta Area are discussed further in section VI of this proposed rulemaking along with the MVEBs to be used for transportation conformity proposes.

    d. Monitoring Network

    There currently are nine monitors measuring ozone in the Atlanta Area. Georgia will continue to operate the monitors in the Atlanta Area in compliance with 40 CFR part 58 and has thus addressed the requirement for monitoring. EPA approved Georgia's monitoring plan on October 13, 2015.

    e. Verification of Continued Attainment

    Georgia, through the GA EPD, has the legal authority to enforce and implement the maintenance plan for the Area. This includes the authority to adopt, implement, and enforce any subsequent emissions control contingency measures determined to be necessary to correct future ozone attainment problems.

    Additionally, under the AERR, GA EPD is required to develop a comprehensive, annual, statewide emissions inventory every three years that is due twelve to eighteen months after the completion of the inventory year. EPD will update the AERR inventory every three years and will use the updated emissions inventory to track progress of the maintenance plan.

    f. Contingency Measures in the Maintenance Plan

    Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation, and a time limit for action by the state. A state should also identify specific indicators to be used to determine when the contingency measures need to be implemented. The maintenance plan must include a requirement that a state will implement all measures with respect to control of the pollutant that were contained in the SIP before redesignation of the area to attainment in accordance with section 175A(d).

    In the July 18, 2016, submittal, Georgia commits to continuing existing programs and commits to use emission inventory and air quality monitoring data as indicators to determine whether contingency measures will be implemented. The contingency plan included in the maintenance plan includes a two-tiered triggering mechanism to determine when contingency measures are needed and a process of developing and implementing appropriate control measures.

    A Tier 1 trigger will apply where a violation of the 2008 8-hour standard has not occurred, but where the State finds monitored ozone concentrations indicating that a violation may be imminent. The Tier 1 trigger date will be 60 days after the State observes a 4th highest value of 0.076 ppm or greater at a single monitor for which the previous ozone season had a 4th highest value of 0.076 ppm or greater. If Tier 1 is triggered, Georgia will develop a plan identifying additional voluntary measures to be implemented to remedy the situation that may include the following measures or any other measure deemed appropriate and effective at the time the selection is made: Clean Air Force Campaign Strategies; additional Georgia Department of Transportation marketing campaigns; implementation of diesel retrofit programs, including incentives for performing retrofits for fleet vehicle operations; alternative fuel programs for fleet vehicle operations; gas can and lawnmower replacement programs; or voluntary engine idling reduction programs.23 If the 4th highest exceedance occurs early in the ozone season, GA EPD will work with entities identified in the plan to determine if measures can be implemented during the current season, otherwise, GA EPD will implement the plan for the following ozone season. No later than May 1 of the year following the trigger, GA EPD will complete analyses to begin adoption of necessary rules for ensuring attainment and maintenance of the 2008 8-hour ozone NAAQS that would become state effective by the following year.

    23 If the State adopts a voluntary emission reduction measure as a contingency measure necessary to attain or maintain the NAAQS, EPA will evaluate approvability in accordance with relevant Agency guidance regarding the incorporation of voluntary measures into SIPs. See, e.g., Memorandum from Richard D. Wilson, Acting Administrator for Air and Radiation, to EPA Regional Administrators re: Guidance on Incorporating Voluntary Mobile Source Emission Reduction Programs in State Implementation Plans (SIPs) (October 24, 1997); EPA, Office of Air and Radiation, Incorporating Emerging and Voluntary Measures in a State Implementation Plan (SIP) (September 2004).

    A Tier II trigger occurs when the periodic emissions inventory updates (AERR) reveal excessive or unanticipated growth greater than 10 percent in NOX or VOC emissions over the attainment or intermediate emissions inventories for the Area or when there is a quality assured design value equal to or greater than 0.076 ppm at a monitor in the Area, which is a violation of the 2008 Ozone NAAQS. The trigger date will be 60 days from the date that Georgia observes a 4th highest value that, when averaged with the two previous ozone seasons' 4th highest values, results in a three-year average equal to or greater than 0.076 ppm. If a Tier II trigger occurs, Georgia will conduct a comprehensive analysis and, as expeditiously as practicable but no later than 24 months of the trigger, will implement at least one contingency measure. In order for more time to be allowed, Georgia must submit to EPA a demonstration that more time is needed and EPA must approve such demonstration.

    If the comprehensive analysis determines that emissions from the Area are contributing to the trigger condition, GA EPD will evaluate those measures as specified in CAA section 172 for control options as well as other available measures. If a new measure/control is already promulgated and scheduled to be implemented at the federal or state level, and that measure/control is determined to be adequate, the State may conclude that additional local controls may be unnecessary. Under Section 175A(d), the minimum requirement for contingency measures is the implementation of all measures that were contained in the SIP before the redesignation. Currently all such measures are in effect for the Atlanta Area; however, an evaluation of those measures, such as RACT, can be performed to determine if those measures are adequate or up-to-date. In addition to these measures, contingency measure(s) will be selected from the following types of measures or from any other measure deemed appropriate and effective at the time the selection is made:

    • RACM for sources of VOC and NOX;

    • RACT for point sources of VOC and NOX, specifically the adoption of new and revised RACT rules based on Groups II, III, and IV CTGs;

    • Expansion of RACM/RACT to area(s) of transport within the State;

    • Other measures deemed appropriate at the time as a result of advances in control technologies; and

    • Additional NOX reduction measures yet to be identified.

    EPA preliminarily concludes that the maintenance plan adequately addresses the five basic components of a maintenance plan: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. Therefore, EPA proposes to find that the maintenance plan SIP revision submitted by Georgia for the Area meets the requirements of section 175A of the CAA and is approvable.

    VI. What is EPA's analysis of Georgia's proposed NOX and VOC MVEBs for the area?

    Under section 176(c) of the CAA, new transportation plans, programs, and projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the state's air quality plan that addresses pollution from cars and trucks. Conformity to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS or any interim milestones. If a transportation plan does not conform, most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP. The regional emissions analysis is one, but not the only, requirement for implementing transportation conformity. Transportation conformity is a requirement for nonattainment and maintenance areas. Maintenance areas are areas that were previously nonattainment for a particular NAAQS but have since been redesignated to attainment with an approved maintenance plan for that NAAQS.

    Under the CAA, states are required to submit, at various times, control strategy SIPs and maintenance plans for nonattainment areas. These control strategy SIPs (including RFP and attainment demonstration requirements) and maintenance plans create MVEBs for criteria pollutants and/or their precursors to address pollution from cars and trucks. Per 40 CFR part 93, a MVEB must be established for the last year of the maintenance plan. A state may adopt MVEBs for other years as well. The MVEB is the portion of the total allowable emissions in the maintenance demonstration that is allocated to highway and transit vehicle use and emissions. See 40 CFR 93.101. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, Transportation Conformity Rule (58 FR 62188). The preamble also describes how to establish the MVEB in the SIP and how to revise the MVEB.

    After interagency consultation with the transportation partners for the Atlanta Area, Georgia has developed MVEBs for NOX and VOC for the Area. Georgia developed these MVEBs for the last year of its maintenance plan (2030) and for the interim year of 2014. Because the interim MVEB year of 2014 is also the base year for the maintenance plan inventory, there is no safety margin; therefore, no adjustments were made to the MVEBs for 2014. The 2030 MVEBs reflect the total projected on-road emissions for 2030, plus an allocation from the available NOX and VOC safety margins. Under 40 CFR 93.101, the term “safety margin” is the difference between the attainment level (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The safety margin can be allocated to the transportation sector; however, the total emissions must remain below the attainment level. The NOX and VOC MVEBs and allocation from the safety margin were developed in consultation with the transportation partners and were added to account for uncertainties in population growth, changes in model vehicle miles traveled, and new emission factor models. The NOX and VOC MVEBs for the Area are identified in Table 6, below.

    Table 6—Atlanta Area NOX and VOC MVEBs [tpd] 2014 2030 NOX On-Road Emissions 170.15 37.57 NOX Safety Margin Allocated to MVEB 20.43 NOX MVEB 170.15 58 VOC On-Road Emissions 81.76 32.67 VOC Safety Margin Allocated to MVEB 19.33 VOC MVEB 81.76 52

    Georgia has chosen to allocate a portion of the available safety margin to the 2030 NOX and VOC MVEBs for the Area based on the worst-case 2030 daily motor vehicle emissions projection. The worst-case projection for NOX is 54 percent (20.43 tpd) above the projected 2030 NOX on-road emissions and the worst-case projection for VOC is 59 percent (19.33 tpd) above the 2030 VOC on-road emissions. Georgia therefore allocated 20.43 tpd of the NOX safety margin to the 2030 NOX MVEB and 19.33 tpd of the VOC safety margin to the 2030 VOC MVEB. The remaining safety margins for 2030 are 139.80 tpd and 36.28 tpd NOX and VOC, respectively.

    Through this rulemaking, EPA is proposing to approve the MVEBs for NOX and VOC for years 2014 and 2030 for the Area because EPA has preliminarily determined that the Area maintains the 2008 8-hour ozone NAAQS with the emissions at the levels of the budgets. If the MVEBs for the Area are approved or found adequate (whichever is completed first), they must be used for future conformity determinations.

    VII. What is the status of EPA's adequacy determination for the proposed NOX and VOC MVEBs the Atlanta area?

    When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA may affirmatively find the MVEB contained therein adequate for use in determining transportation conformity. Once EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, that MVEB must be used by state and federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA.

    EPA's substantive criteria for determining adequacy of a MVEB are set out in 40 CFR 93.118(e)(4). The process for determining adequacy consists of three basic steps: public notification of a SIP submission, a public comment period, and EPA's adequacy determination. This process for determining the adequacy of submitted MVEBs for transportation conformity purposes was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” EPA adopted regulations to codify the adequacy process in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change,” on July 1, 2004 (69 FR 40004). Additional information on the adequacy process for transportation conformity purposes is available in the proposed rule entitled, “Transportation Conformity Rule Amendments: Response to Court Decision and Additional Rule Changes,” 68 FR 38974, 38984 (June 30, 2003).

    As discussed earlier, Georgia's maintenance plan includes NOX and VOC MVEBs for the Atlanta Area for interim year 2014 and 2030, the last year of the maintenance plan. EPA reviewed the NOX and VOC MVEBs through the adequacy process described in Section I.

    EPA intends to make its determination on the adequacy of the 2014 and 2030 MVEBs for the Area for transportation conformity purposes in the near future by completing the adequacy process that was started on September 2, 2016. If EPA finds the 2014 and 2030 MVEBs adequate or approves them, the new MVEBs for NOX and VOC must be used for future transportation conformity determinations. For required regional emissions analysis years that involve 2014 through 2029, the 2014 MVEBs will be used, and for years 2030 and beyond, the applicable budgets will be the new 2030 MVEBs established in the maintenance plan.

    VIII. What is the effect of EPA's proposed actions?

    EPA's proposed actions establish the basis upon which EPA may take final action on the issues being proposed for approval. Approval of Georgia's redesignation request would change the legal designation of Bartow, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Newton, Paulding and Rockdale Counties, in the Atlanta Area, found at 40 CFR part 81, from nonattainment to attainment for the 2008 8-hour ozone NAAQS. Approval of Georgia's associated SIP revision would also incorporate a plan for maintaining the 2008 8-hour ozone NAAQS in the Area through 2030 into the Georgia SIP. The maintenance plan establishes NOX and VOC MVEBs for 2014 and 2030 for the Area and includes contingency measures to remedy any future violations of the 2008 8-hour ozone NAAQS and procedures for evaluating potential violations.

    IX. Proposed Actions

    EPA is proposing to: (1) Approve the maintenance plan for the Atlanta Area, including the NOX and VOC MVEBs for 2014 and 2030, and incorporate it into the Georgia SIP, and (2) approve Georgia's redesignation request for the 2008 8-hour ozone NAAQS for the Area. Further, as part of this proposed action, EPA is also describing the status of its adequacy determination for the NOX and VOC MVEBs for 2014 and 2030 in accordance with 40 CFR 93.118(f)(1). Within 24 months from the effective date of EPA's adequacy determination for the MVEBs or the effective date for the final rule for this action, whichever is earlier, the transportation partners will need to demonstrate conformity to the new NOX and VOC MVEBs pursuant to 40 CFR 93.104(e)(3).

    If finalized, approval of the redesignation request would change the official designation of Bartow, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Newton, Paulding and Rockdale Counties, in Georgia for the 2008 8-hour ozone NAAQS from nonattainment to attainment, as found at 40 CFR part 81.

    X. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 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 CAA. Accordingly, these proposed actions merely propose to approve state law as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law. For these reasons, these proposed actions:

    • Are not significant regulatory actions 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);

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

    • are 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.);

    • do 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);

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

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

    • are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • are 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 CAA; and

    • will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).

    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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects 40 CFR Part 52

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

    40 CFR Part 81

    Environmental protection, Air pollution control, National parks, Wilderness areas.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: December 13, 2016. Heather McTeer Toney, Regional Administrator, Region 4.
    [FR Doc. 2016-30879 Filed 12-22-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-SFUND-1989-0009; FRL-9957-30-Region 3] National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the North Penn Area 6 Superfund Site AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule; Notice of intent for partial deletion of the North Penn Area 6 Superfund Site from the National Priorities List.

    SUMMARY:

    The Environmental Protection Agency (EPA) Region III is issuing a Notice of Intent to Delete a portion of the North Penn Area 6 Superfund Site (Site) located in Lansdale Borough, Montgomery County, Pennsylvania, from the National Priorities List (NPL). The proposed deletion affects approximately 6.5 acres at 135 East Hancock Street (the “Administrative Parcel”), and EPA requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is found at Appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the Commonwealth of Pennsylvania, through the Pennsylvania Department of Environmental Protection (PADEP), have determined that all appropriate response actions under CERCLA, other than five-year reviews, have been completed at the Administrative Parcel. However, this partial deletion does not preclude future actions at the Administrative Parcel under Superfund.

    This partial deletion pertains only to the soils and groundwater of the approximately 6.5 acre Administrative Parcel portion of the Site. The other portions of the Site will remain on the NPL, and are not being considered for deletion as part of this action.

    DATES:

    Comments must be received by January 23, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-1989-0009, by mail to Huu Ngo (3HS21), U.S. Environmental Protection Agency, 1650 Arch Street, Philadelphia, PA 19103-2029. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the ADDRESSES section of the direct final rule located in the “Rules and Regulations” section of this Federal Register.

    FOR FURTHER INFORMATION CONTACT:

    Huu Ngo, Remedial Project Manager (3HS21), U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103-2029; (215) 814-3187; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    In the “Rules and Regulations” Section of today's Federal Register, we are publishing a direct final Notice of Partial Deletion of the Administrative Parcel of the North Penn Area 6 Superfund Site without prior Notice of Intent for Partial Deletion because EPA views this as a noncontroversial revision and anticipates no adverse comment. We have explained our reasons for this partial deletion in the preamble to the direct final Notice of Partial Deletion, and those reasons are incorporated herein. If we receive no adverse comment(s) on this partial deletion action, we will not take further action on this Notice of Intent for Partial Deletion. If we receive adverse comment(s), we will withdraw the direct final Notice of Partial Deletion and it will not take effect. We will, as appropriate, address all public comments in a subsequent final Notice of Partial Deletion based on this Notice of Intent for Partial Deletion. We will not institute a second comment period on this Notice of Intent for Partial Deletion. Any parties interested in commenting must do so at this time.

    For additional information, see the direct final Notice of Partial Deletion, which is located in the “Rules” section of this Federal Register.

    List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

    Authority:

    33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.

    Dated: December 5, 2016. Cecil Rodrigues, Acting Regional Administrator, Region III.
    [FR Doc. 2016-31016 Filed 12-22-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 10 and 11 [WC Docket No. 10-90, CC Docket No. 01-92; Report No. 3062] Petition for Reconsideration of Action in Rulemaking Proceeding AGENCY:

    Federal Communications Commission.

    ACTION:

    Petition for reconsideration.

    SUMMARY:

    A Petition for Reconsideration (Petition) has been filed in the Commission's rulemaking proceeding by Russell M. Blau, on behalf of Smart City Telecommunications LLP.

    DATES:

    Oppositions to the Petition must be filed on or before January 9, 2017. Replies to an opposition must be filed on or before January 17, 2017.

    ADDRESSES:

    Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.

    FOR FURTHER INFORMATION CONTACT:

    Victoria Goldberg, Wireline Competition Bureau, phone: (202) 418-7353; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's document, Report No. 3062, released December 13, 2016. The full text of the Petition is available for viewing and copying at the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It also may be accessed online via the Commission's Electronic Comment Filing System at: https://www.fcc.gov/ecfs/. The Commission will not send a copy of this document pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), because this document does not have an impact on any rules of particular applicability.

    Subject: In the Matter of Connect America Fund; In the Matter of Developing a Unified Intercarrier Compensation Regime; Petitions for Waiver of § 51.917 of the Commission's Rules, FCC 16-140, released October 20, 2016, in WC Docket No. 10-90 and CC Docket No. 01-92.

    Number of Petitions Filed: 1

    Federal Communications Commission. Marlene H. Dortch, Secretary.
    [FR Doc. 2016-30763 Filed 12-22-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R1-ES-2016-0102; FXES11130900000 167 FF09E42000] RIN 1018-BB74 Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of the Oregon Silverspot Butterfly in Northwestern Oregon AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service or USFWS), with the support of the State of Oregon Parks and Recreation Department (OPRD), propose to establish a nonessential experimental population (NEP) of the Oregon silverspot butterfly (Speyeria zerene hippolyta), a threatened species, under the authority of section 10(j) of the Endangered Species Act of 1973, as amended (Act). This proposed rule provides a plan for reintroducing the Oregon silverspot butterfly into portions of the subspecies' historical range at two sites in northwestern Oregon: Saddle Mountain State Natural Area (SNA) in Clatsop County, and Nestucca Bay National Wildlife Refuge (NWR) in Tillamook County. It would also provide for allowable legal incidental taking of the Oregon silverspot butterfly within the defined NEP areas. The best available data indicate that reintroduction of the Oregon silverspot butterfly to Saddle Mountain SNA and Nestucca Bay NWR is biologically feasible and would promote the conservation of the subspecies.

    DATES:

    We will accept comments received or postmarked on or before February 21, 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 February 6, 2017.

    ADDRESSES:

    Written comments: You may submit comments by one of the following methods:

    Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter Docket No. FWS-R1-ES-2016-0102, which is the docket number for this rulemaking. Then, click 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 box next to Proposed Rules to locate this document. You may submit a comment by clicking on “Comment Now!”

    By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R1-ES-2016-0102, Division of Policy, Performance, and Management Programs, U.S. Fish and Wildlife Service, MS; BPHC; 5275 Leesburg Pike; Falls Church, VA 22041-3803.

    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 is available on http://www.regulations.gov under Docket No. FWS-R1-ES-2016-0102. In addition, the supporting file for this proposed rule will be available for public inspection, by appointment, during normal business hours, at the Newport Field Office, 2127 SE Marine Science Drive, Newport, OR 97365; telephone 541-867-4558. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339.

    FOR FURTHER INFORMATION CONTACT:

    Laura Todd, Field Supervisor, 541-867-4558. Persons who use a TDD may call the Federal Relay Service (FRS) at 1-800-877-8339. Direct all questions or requests for additional information to: OREGON SILVERSPOT BUTTERFLY QUESTIONS, U.S. Fish and Wildlife Service, Newport Field Office, 2127 SE Marine Science Drive, Newport, OR 97365.

    SUPPLEMENTARY INFORMATION:

    Public Comments

    We want any final rule resulting from this proposal to be as 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.

    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 some of the supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov. All comments and materials we receive, as well as all supporting documentation, will be available by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Newport Field Office (see FOR FURTHER INFORMATION CONTACT).

    We particularly seek comments regarding:

    • Any possible adverse effects on Oregon silverspot butterfly populations as a result of removal of individuals for the purposes of captive rearing and reintroduction of their offspring elsewhere;

    • The likelihood that the proposed NEP will become established and survive in the foreseeable future;

    • The relative effects that establishment of the NEP will have on the recovery of the subspecies; and

    • The extent to which the reintroduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the proposed NEP areas.

    Peer Review

    In accordance with our Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities, which was published on July 1, 1994 (59 FR 34270), and a recent internal memorandum clarifying the Service's interpretation and implementation of that policy (USFWS 2016), we will seek the expert opinion of at least three appropriate independent specialists regarding scientific data and interpretations contained in this proposed rule. We will send copies of this proposed rule to the peer reviewers immediately following publication in the Federal Register. The purpose of such review is to ensure that our decisions are based on scientifically sound data, assumptions, and analysis. Accordingly, the final decision may differ from this proposal.

    Background Statutory and Regulatory Framework

    We listed the Oregon silverspot butterfly as a threatened species under the Act (16 U.S.C. 1531 et seq.) on October 15, 1980 (45 FR 44935; July 2, 1980). We designated critical habitat for the subspecies at the time of listing (45 FR 44935; July 2, 1980).

    Species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 of the Act and the requirements of section 7 of the Act. Section 9 of the Act, among other things, prohibits the take of endangered wildlife. “Take” is defined by the Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. Our regulations (50 CFR 17.31) generally extend the prohibition of take to threatened wildlife species. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitat. It mandates that all Federal agencies use their existing authorities to further the purposes of the Act by carrying out programs for the conservation of listed species. It also states that Federal agencies must, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the Act does not affect activities undertaken on private land unless they are authorized, funded, or carried out by a Federal agency.

    The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included the addition of section 10(j), which allows for the designation of reintroduced populations of listed species as “experimental populations.” The provisions of section 10(j) were enacted to ameliorate concerns that reintroduced populations would negatively impact landowners and other private parties, by giving the Secretary greater regulatory flexibility and discretion in managing the reintroduction of listed species to encourage recovery in collaboration with partners, especially private landowners. Under section 10(j) of the Act and our regulations at 50 CFR 17.81, the Service may designate as an experimental population an endangered or threatened species that has been or will be released into suitable natural habitat outside the species' current natural range (but within its probable historical range, absent a finding by the Director of the Service in the extreme case that the primary habitat of the species has been unsuitably and irreversibly altered or destroyed).

    As discussed below (see Relationship of the NEP to Recovery Efforts), we are considering the reintroduction of the Oregon silverspot butterfly into areas of suitable habitat within its historical range for the purpose of restoring populations to meet recovery goals. Oregon silverspot butterfly populations have been reduced from at least 20 formerly known locations to only 5, thus reintroductions are important to achieve biological redundancy in populations and to broaden the distribution of populations within the geographic range of the subspecies. The restoration of multiple populations of Oregon silverspot butterfly distributed across its range is one of the recovery criteria identified for the subspecies (USFWS 2001, pp. 39-41).

    When we establish experimental populations under section 10(j) of the Act, we must determine whether such a population is essential or nonessential to the continued existence of the species. This determination is based solely on the best scientific and commercial data available. Our regulations (50 CFR 17.80(b)) state that an experimental population is considered essential if its loss would be likely to appreciably reduce the likelihood of survival of that species in the wild. All other populations are considered nonessential. We find the proposed experimental population to be nonessential for the following reasons: (1) Oregon silverspot butterflies are currently found at five locations, from the central Oregon coast to northern California (see Biological Information, below); (2) There are ongoing management efforts, including captive rearing and release, to maintain or expand Oregon silverspot butterfly populations at these five locations (VanBuskirk 2010, entire; USFWS 2012, entire); (3) The experimental population will not provide demographic support to the wild populations (see Location and Boundaries of the NEP, below); (4) The experimental population will not possess any unique genetic or adaptive traits that differ from those in the wild populations because it will be established using donor stock from extant wild populations of Oregon silverspot butterflies (see Donor Stock Assessment and Effects on Donor Populations, below); and (5) loss of the experimental population will not preclude other recovery options, including future efforts to reestablish Oregon silverspot butterfly populations elsewhere. Therefore, we are proposing to designate a nonessential experimental population (NEP) of Oregon silverspot butterfly at two sites in northwest Oregon.

    With the NEP designation, the relevant population is treated as if it were listed as a threatened species for the purposes of establishing protective regulations, regardless of the species' designation elsewhere in its range. This approach allows us to develop tailored take prohibitions that are necessary and advisable to provide for the conservation of the species. In these situations, the general regulations that extend most section 9 prohibitions to threatened species do not apply to that species. The protective regulations adopted for an experimental population in a section 10(j) rule contain the applicable prohibitions and exceptions for that population. These section 9 prohibitions and exceptions apply on all lands within the NEP.

    For the purposes of section 7 of the Act, which addresses Federal cooperation, we treat an NEP as a threatened species when the NEP is located within a National Wildlife Refuge or unit of the National Park Service, and Federal agency conservation requirements under section 7(a)(1) and the Federal agency consultation requirements of section 7(a)(2) of the Act apply. Section 7(a)(1) of the Act requires all Federal agencies to use their authorities to carry out programs for the conservation of listed species. Section 7(a)(2) requires that Federal agencies, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or adversely modify its critical habitat. When NEPs are located outside a National Wildlife Refuge or National Park Service unit, then, for the purposes of section 7, we treat the population as proposed for listing and only section 7(a)(1) and section 7(a)(4) of the Act apply. In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. The results of a conference are in the form of conservation recommendations that are optional to the agencies carrying out, funding, or authorizing activities. If finalized, the NEP area within Nestucca Bay NWR will still be subject to the provisions of section 7(a)(2), and intra-agency consultation would be required on the refuge. Section 7(a)(2) consultation would not be required outside of the refuge.

    Before authorizing the release as an experimental population (including eggs, propagules, or individuals) of an endangered or threatened species, and before authorizing any necessary transportation to conduct the release, the Service must find, by regulation, that such release will further the conservation of the species. In making such a finding, the Service uses the best scientific and commercial data available to consider the following factors (see 49 FR 33893; August 27, 1984): (1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere (see Donor Stock Assessment and Effects on Donor Populations, below); (2) the likelihood that any such experimental population will become established and survive in the foreseeable future (see Likelihood of Population Establishment and Survival, below); (3) the relative effects that establishment of an experimental population will have on the recovery of the species (see Relationship of the NEP to Recovery Efforts, below); and (4) the extent to which the introduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area (see Extent to Which the Reintroduced Population May Be Affected by Land Management Within the Proposed NEP, below).

    Furthermore, as set forth at 50 CFR 17.81(c), all regulations designating experimental populations under section 10(j) must provide: (1) Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location, actual or anticipated migration, number of specimens released or to be released, and other criteria appropriate to identify the experimental population(s) (see Location and Boundaries of the NEP, below); (2) a finding, based solely on the best scientific and commercial data available, and the supporting factual basis, on whether the experimental population is, or is not, essential to the continued existence of the species in the wild (see discussion in this section, above); (3) management restrictions, protective measures, or other special management concerns of that population, which may include but are not limited to, measures to isolate and/or contain the experimental population designated in the regulation from natural populations (see Extent to Which the Reintroduced Population May Be Affected by Land Management Within the Proposed NEP, below); and (4) a process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species (see Reintroduction Effectiveness Monitoring and Donor Population Monitoring, below).

    Under 50 CFR 17.81(d), the Service must consult with appropriate State fish and wildlife agencies, local governmental entities, affected Federal agencies, and affected private landowners in developing and implementing experimental population rules. To the maximum extent practicable, section 10(j) rules represent an agreement between the Service, the affected State and Federal agencies, and persons holding any interest in land which may be affected by the establishment of an experimental population.

    Section 10(j)(2)(C)(ii) of the Act states that critical habitat shall not be designated for any experimental population that is determined to be nonessential. Accordingly, we cannot designate critical habitat in areas where we establish an NEP.

    Biological Information

    The Oregon silverspot butterfly is a small, darkly marked coastal subspecies of the Zerene fritillary, a widespread butterfly species in montane western North America (USFWS 2001, p. 1). Historically, the Oregon silverspot butterfly was documented at 20 locations, from the border of northern California to the southern coast of Washington (McCorkle et al. 1980, p. 7). Its current distribution is limited to five locations, one near Lake Earl, along the coast of Del Norte County, California; two on the central Oregon coast in Lane County, Oregon; and two in Tillamook County, Oregon. With the exception of the two populations on the central Oregon coast that are only about 5 miles (mi) (8 kilometers (km)) apart, all remaining populations are geographically isolated from one another (USFWS 2001, pp. 8-10).

    The Oregon silverspot butterfly has a 1-year life cycle which begins when female adults lay eggs on or near early blue violets (Viola adunca) during their flight period from mid-August through September. The eggs hatch within 10 days. The tiny first-instar caterpillars eat their eggshells and then go into diapause, a hibernation-like state, until late spring the following year when violets begin growing. Caterpillars are cryptic in habits and feed on early blue violets and a few other Viola species until pupation in the summer. Adult emergence starts in July and extends into September.

    The Oregon silverspot butterfly occupies three types of grassland habitat: marine terrace and coastal headland meadows, stabilized dunes, and montane grasslands. Key resources needed by the Oregon silverspot butterfly in all of these habitats include: (1) The early blue violet, which is the primary host plant for Oregon silverspot caterpillars; (2) a variety of nectar plants that bloom during the butterfly flight period, including, but not limited to, yarrow (Achillea millefolium), pearly everlasting (Anaphalis margaritacea), Pacific aster (Symphyotrichum chilense), Canada goldenrod (Solidago canadensis), tansy ragwort (Senecio jacobaea), and edible thistle (Cirsium edule); (3) grasses and forbs in which the larvae find shelter; and (4) trees surrounding occupied meadows, which provide shelter for adult butterflies (45 FR 44935, July 2, 1980, p. 44939; USFWS 2001, p. 12). Historically, habitats with these key resources were likely widely distributed along the Oregon and Washington coasts (Hammond and McCorkle 1983, p. 222). Loss of habitat and key resources occurred as a result of human development and due to ecological succession and invasion of shrubs, trees, and tall introduced grasses which crowd-out the subspecies' host plants and nectar resources (Hammond and McCorkle 1983, p. 222). Loss of habitat was the primary threat to the subspecies identified in our 2001 Revised Recovery Plan for the Oregon Silverspot Butterfly (USFWS 2001, entire). More recently, during a periodic review of the subspecies' status, we identified the reduced size, number, and isolation of Oregon silverspot butterfly populations as additional severe and imminent threats to the subspecies (USFWS 2012, pp. 24-25).

    Additional information on the biology, habitat, and life history of the butterfly can be found in our Revised Recovery Plan for the Oregon Silverspot Butterfly (Speyeria zerene hippolyta) (USFWS 2001, pp. 11-19), which is available online at http://www.regulations.gov under Docket No. FWS-R1-ES-2016-0102 or by contacting the person listed under FOR FURTHER INFORMATION CONTACT, above.

    Relationship of the NEP to Recovery Efforts

    We are proposing to establish an NEP to promote the conservation and recovery of the Oregon silverspot butterfly. The recovery strategy for the Oregon silverspot butterfly, as detailed in our 2001 revised recovery plan, is to protect and manage habitat, and to augment and restore populations (USFWS 2001, pp. 39-41). Recovery criteria for the Oregon silverspot butterfly are (USFWS 2001, p. 42):

    1. At least two viable Oregon silverspot butterfly populations exist in protected habitat in each of the following areas: Coastal Mountains, Cascade Head, and Central coast in Oregon; and Del Norte County in California; and at least one viable Oregon silverspot butterfly population exists in protected habitat in each of the following areas: Long Beach Peninsula, Washington, and Clatsop Plains, Oregon. This includes the development of comprehensive management plans.

    2. Habitats are managed long term to maintain native, early successional grassland communities. Habitat management maintains and enhances early blue violet abundance, provides a minimum of five native nectar species dispersed abundantly throughout the habitat and flowering throughout the entire flight-period, and reduces the abundance of invasive, nonnative plant species.

    3. Managed habitat at each population site supports a minimum viable population of 200 to 500 butterflies for at least 10 years.

    The reintroduction of Oregon silverspot butterflies within the proposed NEP would help address the limited number of populations and the subspecies' diminished geographic range. In addition, it is likely to contribute to meeting recovery criteria, as both proposed NEP areas have the biological attributes to support a viable butterfly population of butterflies and will be managed consistent with the subspecies' biological needs.

    Location and Boundaries of the NEP

    Section 10(j) of the Act requires that an experimental population be geographically separate from other populations of the same species. We identified the boundary of the proposed NEP as those Public Land Survey System sections intersecting with a 4.25-mi (6.8-km) radius around the proposed release locations. This boundary was selected to encompass all likely movements of Oregon silverspot butterflies away from the release areas while maintaining geographic separation from existing populations. This 4.25-mi (6.8-km) radius is greater than the longest known flight distance of the Oregon silverspot butterfly (4.1 mi (6.6 km)) (VanBuskirk and Pickering 1999, pp. 3-4, Appendix 1). Although this flight distance had previously been reported as “5 miles” (VanBuskirk and Pickering 1999, p. 4; USFWS 2010, p. 10), a more precise measurement using the locations where the individual butterfly in question was marked and recaptured (rather than the general distance between the populations) resulted in a distance of 4.1 mi (6.8 km). The proposed NEP areas are geographically isolated from existing Oregon silverspot butterfly populations by a sufficient distance to preclude significant contact between populations. There is an extremely small potential that butterflies dispersing 4.1 mi (6.8 km) from the proposed release site on Nestucca Bay NWR may interact with butterflies dispersing 4.1 mi (6.8 km) from Cascade Head, because these locations are 8 mi (13 km) apart. Nevertheless, the likelihood of butterflies from these two sites interbreeding is remote because of the distance between the sites and the fact that there is little or no suitable habitat with appropriate larval host plants and adult nectar sources between Nestucca Bay NWR and Cascade Head. Even if butterflies dispersed and were present within the same area, we do not believe the occasional presence of a few individual butterflies meets a minimal biological definition of a population. Based on definitions of “population” used in other experimental population rules (e.g., 59 FR 60252, November 22, 1994; 71 FR 42298, July 26, 2006), we believe that a determination that a population is not geographically separate from the proposed NEP area would require the presence of sufficient suitable habitat in the intervening area to support successfully reproducing Oregon silverspot butterflies over multiple years. Because there is little to no suitable habitat between Nestucca Bay NWR and Cascade Head, we conclude this is unlikely to happen. Biologically, the term “population” is not normally applied to dispersing individuals, and any individual butterflies would be considered emigrants from the Cascade Head population. Finally, a few butterflies would not be considered a self-sustaining population. Self-sustaining populations need a sufficient number of individuals to avoid inbreeding depression and occurrences of chance local extinction; a general rule of thumb is that the effective population size needs to be at least 50 to reduce the likelihood of extinction in the short term because of harmful effects of inbreeding depression on demographic rates, and at least 500 to retain sufficient genetic variation to allow for future adaptive change (Jamieson and Allendorf 2014, p. 578).

    Saddle Mountain State Natural Area

    Saddle Mountain SNA, managed by OPRD, is located in central Clatsop County, in northwest Oregon. Saddle Mountain was historically occupied by the Oregon silverspot butterfly, which was last documented at this site in 1973 (McCorkle et al. 1980, p. 8). Butterfly surveys in 1980 and more recent surveys during the butterfly flight period—in 2003, 2006, and 2010—did not document the species at Saddle Mountain (Mike Patterson, pers. comm. 2016), and the population there is presumed to be extirpated (VanBuskirk 2010, p. 27). The nearest extant Oregon silverspot butterfly population is 50 miles (80 km) south at Mount Hebo.

    Saddle Mountain SNA is a 3,225-acre (ac) (1,305-hectare (ha)) park known for its unique botanical community, which thrives on the thin rocky soils, with few invasive weeds. Habitat suitable for the Oregon silverspot butterfly consists of approximately 60 ac (24 ha) of meadows on the slopes of Saddle Mountain near its upper peaks at 3,288 feet (ft) (1,002 meters (m)) above sea-level. Based on recent plant surveys (OPRD 2012, p. 2), the proposed release site contains high-quality butterfly habitat with sufficient densities of the requisite species (Viola adunca and native nectar plants) to support an Oregon silverspot butterfly population (USFWS 2001, pp. 13-14). Habitat quality has been maintained through natural processes including vertical drainage patterns associated with steep ridges, thin rocky soils, elevation, and winter snow cover within the forb rich Roemer fescue (Festuca roemeri) montane grassland community (ONHIC 2004, p. 2). In a letter to the Service dated October 15, 2011, and a follow-up letter dated February 12, 2016, OPRD expressed their desire to have an NEP of Oregon silverspot butterfly and to return this native pollinator to the ecosystem (OPRD in litt., 2011; OPRD in litt., 2016).

    The Saddle Mountain NEP area is centered on the coastal prairie habitat on top of Saddle Mountain, where we are proposing to reintroduce the Oregon silverspot butterfly. The proposed NEP encompasses all the Public Land Survey System sections that intersect with a 4.25-mi (6.8-km) radius around the proposed release area. The subspecies is territorial within habitat areas, and the reintroduced butterflies are expected to stay in or near meadows on top of Saddle Mountain, which have an abundance of the plant species they need to survive. The proposed Saddle Mountain butterfly population will be released into permanently protected suitable habitat. We are proposing to reintroduce the Oregon silverspot butterfly as an NEP in this area to address OPRD's concerns regarding potential impacts to park management activities, such as trail maintenance, and potential opposition from surrounding landowners to the reintroduction of a federally listed species without an NEP. Surrounding land cover is primarily forest (OPRD 2014, pers. comm.) and is not suitable Oregon silverspot butterfly habitat; therefore, we do not expect butterflies to use areas outside of Saddle Mountain SNA.

    Nestucca Bay National Wildlife Refuge

    The Nestucca Bay NWR, managed by the Service, is located in the southwest corner of Tillamook County, along the northern Oregon coast. Although the Oregon silverspot butterfly was never documented at this site, it is within the historical range of the subspecies along the coast, and a small amount of remnant coastal prairie occurred on the site prior to commencement of restoration efforts in 2011. Therefore, it is reasonable to assume that the Oregon silverspot butterfly once inhabited the area, but no surveys were conducted to document its presence. Currently occupied Oregon silverspot butterfly sites nearest to the proposed NEP area are 10 mi (16 km) to the east at Mount Hebo and 8 mi (13 km) south at Cascade Head, with little or no suitable habitat in between. There are currently no known extant Oregon silverspot butterfly populations to the north of the proposed release site, but the subspecies was historically documented near Cape Meares, 20 mi (32 km) to the north of Nestucca Bay NWR, where it was last observed in 1968 (McCorkle et al. 1980, p. 7).

    The Nestucca Bay National Wildlife Refuge Comprehensive Conservation Plan includes a goal to promote the recovery of the Oregon silverspot butterfly by establishing an NEP on the refuge (USFWS 2013, p. 2-4). The approximately 1,203-ac (487-ha) refuge has 25 to 30 ac (10 to 12 ha) of coastal prairie habitat in varying stages of restoration, including the conversion of degraded grasslands on the Cannery Hill Unit from nonnative pasture grasses to native coastal grasses and forbs with an emphasis on the plant species and structure required to support the Oregon silverspot butterfly. Since 2011, invasive weed abundance has been minimized, and thousands of violet and nectar plants have been planted to enhance and restore the coastal prairie ecosystem. Funding acquired by the refuge in 2015 is now being used to complete habitat restoration on the remaining acreage prior to the release of Oregon silverspot butterflies.

    The NEP area is centered on coastal prairie habitat on the Cannery Hill Unit of the refuge, where we are proposing to release Oregon silverspot butterflies. The proposed NEP encompasses all Public Land Survey System sections that intersect with a 4.25-mi (6.8-km) radius around the proposed release area. We propose to release Oregon silverspot butterflies into permanently protected suitable habitat at Nestucca Bay NWR, which will be managed to provide the plant community needed for the butterfly to become established and to support a population. We are proposing to reintroduce the Oregon silverspot butterfly as an NEP in this area to address adjacent landowner concerns regarding the impact a federally listed species might have on the sale or development of their property. As little or no suitable habitat is currently available on adjacent properties, and Oregon silverspot butterflies are territorial and non-migratory, we consider the likelihood of butterflies moving on to these adjacent lands to be low. Despite a few adjacent properties that Oregon silverspot butterflies might occasionally move through, the primary surrounding land cover is agriculture and forest (USFWS 2013, p. 4-3), which are not suitable habitat for the subspecies; therefore, occurrence of Oregon silverspot butterflies in surrounding areas, if any, is expected to be limited.

    Likelihood of Population Establishment and Survival

    The best available scientific data indicate that the reintroduction of Oregon silverspot butterflies into suitable habitat is biologically feasible and would promote the conservation of the species. Oregon silverspot butterfly population augmentations have been conducted on the central Oregon coast from 2000 through 2015 (USFWS 2012, p. 10; Engelmeyer 2015, p. 4). Based on the knowledge gained from these efforts, we anticipate the proposed NEP areas would become successfully established. Butterflies would be released into high-quality habitat in sufficient amounts to support large butterfly populations, and no unaddressed threats to the species are known to exist at these sites.

    The coastal headland meadows of the Nestucca Bay NWR are being restored with the specific intent of providing high densities of the plant species needed by the Oregon silverspot butterfly. Ongoing habitat enhancement and management will maintain suitable habitat and minimize the abundance and distribution of invasive, nonnative plant species, which degrade habitat quality. The Nestucca Bay NWR has committed to the management required to restore and maintain suitable habitat specifically for a population of the Oregon silverspot butterfly. The upper meadows of the Saddle Mountain SNA have an abundance of the key resources, including an intact plant community with an abundance of plants needed to support the Oregon silverspot butterfly. Habitat quality has been maintained through natural processes, including vertical drainage patterns associated with steep ridges, thin rocky soils, elevation, and winter snow cover within the forb rich Roemer fescue montane grassland community (ONHIC 2004, p. 2). The habitat at Saddle Mountain is self-sustaining, does not require active management (see Addressing Causes of Extirpation, below), and is adequately protected. Additionally, within both proposed NEP areas, large trees surrounding the meadows would provide needed cover for sheltering Oregon silverspot butterflies.

    Based on all of these considerations, we anticipate that reintroduced Oregon silverspot butterflies are likely to become established and persist at Nestucca Bay NWR and Saddle Mountain SNA.

    Addressing Causes of Extirpation

    The largest threat to Oregon silverspot butterfly populations is a lack of suitable habitat. Without regular disturbance, coastal prairie habitat is vulnerable to plant community succession, resulting in loss of prairie habitat to brush and tree invasion. Invasive, nonnative plants also play a significant role in the degradation of habitat quality and quantity for this butterfly.

    The reasons for the extirpation of the original population of Oregon silverspot butterflies on Saddle Mountain between 1973 and 1980 are unknown. The habitat on top of Saddle Mountain is currently suitable for supporting a population of the butterfly. The grassland habitat at this location has been self-sustaining likely due to the 3,000-ft (914-m) elevation, thin rocky soil type, steep slopes, primarily native composition of the plant community, and lack of human disturbance to the ecosystem. The Saddle Mountain SNA, protected as a special botanical area, has an annual day-use rate of 68,928 visitors per year. OPRD maintains a trail, accessible only by foot, which leads to the top of the mountain. The extremely steep grade on either side of the trail discourages visitors from straying off trail and into the adjacent meadow areas. Park rules do not allow collection of plants or animals (OPRD 2010). Continuance of this management regime is expected to protect the reintroduced population and contribute to its successful establishment. We acknowledge there is some uncertainty regarding population establishment and long-term viability at this site given that we have not identified the original cause of local extirpation. Nevertheless, this site has been identified as one of the most promising for a reintroduction effort given the lack of identifiable threats, density of host plants, and overall quality of habitat (VanBuskirk 2010, p. 27).

    The Nestucca Bay NWR will address habitat threats by monitoring and maintaining habitat quality for the benefit of the Oregon silverspot butterfly, in accordance with the Nestucca Bay National Wildlife Refuge Comprehensive Conservation Plan, which sets specific targets for abundance of violet and nectar species. All management actions taken in the vicinity of the reintroduced population will defer to the habitat needs of the butterfly (USFWS 2013, pp. 4-37-4-43). As described above, the Nestucca Bay NWR is actively working to restore habitat specifically for the benefit of the Oregon silverspot butterfly in anticipation of a potential reintroduction. Restoration efforts have proven successful in establishing high-quality habitat that is likely to support all life stages of the subspecies. Nestucca Bay NWR's demonstrated commitment to reestablishing and maintaining high-quality habitat suitable for the Oregon silverspot butterfly is expected to contribute to the successful establishment of the proposed NEP at this site.

    Release Procedures

    We propose to use captive-reared butterflies to populate the NEP areas using proven release methods developed by the Oregon silverspot butterfly population augmentation program from 2000 to 2015 (USFWS 2012, p. 10; Engelmeyer 2015, p. 2). We will release captive-reared caterpillars or pupae of wild female butterflies into suitable habitat within the proposed NEP areas, following the guidance in the Captive Propagation and Reintroduction Plan for the Oregon Silverspot Butterfly (VanBuskirk 2010, entire). We will determine the number of individuals to release based on the number of available healthy offspring and the amount of suitable habitat available, with violet densities as the primary measure of habitat suitability. The ultimate goal is the establishment of self-sustaining populations of between 200 to 500 butterflies for 10 years at each proposed NEP area, similar to the recovery criteria for the other habitat conservation areas.

    Based on guidance from the Captive Propagation and Reintroduction Plan for the Oregon Silverspot Butterfly (VanBuskirk 2010, entire), we propose to establish populations in each NEP area from offspring of at least 50 mated females. Because the number of female butterflies available for collection for the captive-rearing program is limited to 5 percent of the donor population per year, it may be necessary to release caterpillars or pupae incrementally over a period of a few years. We will use annual butterfly counts during the flight period to monitor population establishment success. Butterfly survey methods used at the occupied sites (Pollard 1977, p. 116; Pickering 1992, p. 3) will also be used to assess population establishment success in the proposed NEP areas.

    Donor Stock Assessment and Effects on Donor Populations

    Individual Oregon silverspot butterflies used to establish populations at both proposed NEP areas will most likely come from the offspring of the Mount Hebo population. Additional genetic research on the subspecies is in progress and may suggest that butterflies from other populations should be included in the captive-rearing program to enhance genetic diversity. If populations other than the Mount Hebo population are used as donor stock, we will evaluate the impact of taking females from those populations on the survival and recovery of the subspecies prior to issuing a recovery permit for such take.

    The Mount Hebo Oregon silverspot butterfly population has historically been the largest and most stable population, averaging an annual index count of 1,457 butterflies per year between 2000 to 2014 (USFWS 2012, p. 10; Patterson 2014, p. 11); therefore, it is the least likely to be impacted by the removal of up to 5 percent of the population. Demographic modeling indicates that the optimal strategy for captive rearing of Oregon silverspot butterflies to increase the probability of persistence is to take females from larger donor populations (Crone et al. 2007, p. 108). Regional persistence can be increased with captive rearing, with negligible effects on the donor population (Crone et al. 2007, pp. 107-108). Measurable increases in regional persistence are predicted when one assumes each donor female produces four adult butterflies for release to the wild (i.e., four adults/female). In reality, the number of adult butterflies produced per female captured from the donor population has been much higher in recent years. For example, during 2007-2009, between 24 and 29 females were captured, producing between 875 and 2,391 adults for release (31-83 adults/female) (VanBuskirk 2010, p. 12). In 2015, 14 females produced 815 adults for release (58 adults/female) (Engelmeyer 2015, p. 5). These rates of production far exceed what is needed to have a positive impact on regional persistence, even if all the females were removed from small donor populations (see Crone et al. 2007, p. 109). As an additional protective measure, we will release some caterpillars and pupae from the captive-rearing program back into the donor population each year, concurrent with the reintroductions to the proposed NEP areas. This will further minimize any potential effects from the removal of a small number of adult females in the prior year.

    The Mount Hebo population occurs in an environment similar to the proposed Saddle Mountain NEP area (i.e., similar elevation, native plant community, and distance from the coast). Therefore, offspring of butterflies from Mount Hebo will likely be well-adapted to the environment in the meadows on top of Saddle Mountain. The Mount Hebo population may also serve as the best donor population for the proposed Nestucca Bay NEP area because it is genetically most similar to the existing population closest to the refuge (i.e., the Cascade Head population) (VanBuskirk 2000, p. 27; McHugh et al. 2013, p. 8). We will consider all new scientific information when making annual decisions on an appropriate donor population; therefore, it is possible that we will use donor populations other than Mount Hebo.

    The Captive Propagation and Reintroduction Plan for the Oregon Silverspot Butterfly (VanBuskirk 2010, entire) contains further information on the captive rearing program, release procedures, genetic considerations, population dynamics, effects of releases on population viability of the Oregon silverspot butterfly, and the potential for reintroduction to Saddle Mountain SNA and Nestucca Bay NWR (copies of this document are available online at http://www.regulations.gov under Docket No. FWS-R1-ES-2016-0102 or by contacting the person listed under FOR FURTHER INFORMATION CONTACT, above).

    Legal Status of Reintroduced Populations

    Based on the current legal and biological status of the subspecies and the need for management flexibility, and in accordance with section 10(j) of the Act, we propose to designate all Oregon silverspot butterflies released within the boundaries of the NEP areas as members of the NEP. Such designation allows us to establish special protective regulations for management of Oregon silverspot butterflies.

    With the experimental population designation, the relevant population is treated as threatened for purposes of section 9 of the Act, regardless of the species' designation elsewhere in its range. Treating the experimental population as threatened allows us the discretion to devise management programs and specific regulations for such a population. Section 4(d) of the Act allows us to adopt any regulations that are necessary and advisable to provide for the conservation of a threatened species. When designating an experimental population, the general regulations that extend most section 9 prohibitions to threatened species do not apply to that species, and the section 10(j) rule contains the prohibitions and exemptions necessary and advisable to conserve that species.

    The 10(j) rule would further the conservation of the subspecies by facilitating its reintroduction into two areas of suitable habitat within its historical range. The rule would provide assurances to landowners and development interests that the reintroduction of Oregon silverspot butterflies will not interfere with natural resource developments or with human activities (although the Act's section 7(a)(2) consultation requirements would still apply on Nestucca Bay NWR). Without such assurances, some landowners and developers, as well as the State, would object to the reintroduction of Oregon silverspot butterflies to these two areas. Except as provided for under sections 10(a)(1)(A) and 10(e) of the Act, or as described in this proposed NEP rule, take of any member of the Oregon silverspot butterfly NEP will be prohibited under the Act.

    Extent to Which the Reintroduced Population May Be Affected by Land Management Within the Proposed NEP

    We conclude that the effects of Federal, State, or private actions and activities will not pose a threat to Oregon silverspot butterfly establishment and persistence at Saddle Mountain SNA or the Nestucca Bay NWR because the best information, including activities currently occurring in Oregon silverspot butterfly populations range wide, indicates that activities currently occurring, or likely to occur, at prospective reintroduction sites within proposed NEP areas are compatible with the species' recovery. The reintroduced Oregon silverspot butterfly populations would be managed by OPRD and the Service, and would be protected from major development activities through the following mechanisms:

    (1) Development activities and timber harvests are not expected to occur in the Saddle Mountain SNA, which is protected as a special botanical area. Trail maintenance and other park maintenance activities would continue to occur within the proposed NEP area, but are expected to have minimal impact on the butterfly meadow habitat areas due to the terrain and steepness of the slopes. Because of the rugged nature of the area, and also to protect the important botanical resources at this site, maintenance activities in this area are generally limited to trail maintenance by hand crews, with minimal impacts on the meadow areas. Additionally, the proposed Oregon silverspot butterfly NEP area at Saddle Mountain SNA would be protected by the Oregon State regulations prohibiting collection of animals on State lands (Oregon Administrative Rule (OAR) 736-010-0055(2)(d)). Private timberlands surrounding the SNA do not contain suitable butterfly habitat, and therefore activities on adjacent lands are not expected to impact the butterfly.

    (2) In accordance with the Nestucca Bay NWR Comprehensive Conservation Plan, all refuge management actions taken in the vicinity of the reintroduced population will defer to the habitat needs of the butterfly (USFWS 2013, pp. 4-37-4-43). In addition, the refuge must complete section 7(a)(2) consultation on all actions that may affect the butterfly. Oregon silverspot butterflies may occasionally visit or fly within adjacent properties near the proposed NEP area, which may be subject to future development. However, given the lack of suitable habitat for this subspecies on adjacent properties, as well as the butterfly's territorial and non-migratory nature, we consider negative impacts to the Oregon silverspot butterfly from development on adjacent sites to be unlikely, as there is little likelihood of individuals moving to these sites.

    Management issues related to the proposed Oregon silverspot butterfly NEP that have been considered include:

    (a) Incidental Take: The regulations implementing the Act define “incidental take” as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity (50 CFR 17.3), such as agricultural activities and other rural development, and other activities that are in accordance with Federal, Tribal, State, and local laws and regulations. Experimental population rules contain specific prohibitions and exceptions regarding the taking of individual animals. If we adopt this 10(j) rule as proposed, take of the Oregon silverspot butterfly anywhere within the NEP areas would not be prohibited, provided that the take is unintentional, not due to negligent conduct, and is in accordance with this 10(j) rule; however, the section 7(a)(2) consultation requirement still applies on refuge lands. We expect levels of incidental take to be low because the reintroduction is compatible with ongoing activities and anticipated future actions in the proposed NEP areas.

    (b) Special handling: In accordance with 50 CFR 17.32, any person with a valid permit issued by the Service may take the Oregon silverspot butterfly for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act. Additionally, any employee or agent of the Service, any other Federal land management agency, or a State conservation agency, who is designated by the agency for such purposes, may, when acting in the course of official duties, take an Oregon silverspot butterfly in the wild in the NEP area without a permit if such action is necessary for scientific purposes, to aid a law enforcement investigation, to euthanize an injured individual, to dispose of or salvage a dead individual for scientific purposes, or to relocate an Oregon silverspot butterfly to avoid conflict with human activities, to improve Oregon silverspot butterfly survival and recovery prospects or for genetic purposes, to move individuals into captivity or from one population in the NEP to the other, or to retrieve an Oregon silverspot butterfly that has moved outside the NEP area. Non-Service or other non-authorized personnel would need a permit from the Service for these activities.

    (c) Coordination with landowners and land managers: We have coordinated with landowners likely to be affected by the proposed reintroduction. During this coordination we identified issues and concerns associated with reintroducing Oregon silverspot butterflies in the absence of an NEP designation. We also discussed the possibility of NEP designation. Affected State agencies, landowners, and land managers have either indicated support for, or no opposition to, the proposed NEP if a 10(j) rule is promulgated to allow incidental take of Oregon silverspot butterflies.

    (d) Public awareness and cooperation: The proposed NEP designation is necessary to secure needed cooperation of the States, landowners, agencies, and other interests in the affected area. If this proposed rule is adopted, we will work with our partners to continue public outreach on our effort to restore Oregon silverspot butterflies to parts of their historical range and the importance of these restoration efforts to the overall recovery of the subspecies.

    (e) Potential impacts to other federally listed species: No federally listed species occur in the proposed NEP areas that would be affected by the reintroductions.

    (f) Monitoring and evaluation: Annual monitoring would be performed by qualified personnel with the cooperation of the OPRD Saddle Mountain SNA and Nestucca Bay NWR. Oregon silverspot butterflies would be counted on designated survey transects or public trails. We do not anticipate that surveys would disrupt or hamper public use and would likely be perceived by the public as normal activities in the context of a natural area.

    Reintroduction Effectiveness Monitoring

    Oregon silverspot butterfly surveys would be conducted annually within Oregon silverspot butterfly habitat at Nestucca Bay NWR and Saddle Mountain SNA using a modified Pollard walk methodology (Pickering et al. 1992, p. 7). This survey method is currently used at all occupied Oregon silverspot butterfly sites. The surveys would be conducted weekly during the butterfly flight period, July through September, on designated survey transects or public trails. The surveys produce an index of Oregon silverspot butterfly relative abundance that would be used to assess annual population trends to provide information on reintroduction effectiveness. We would prepare annual progress reports. Reintroduction efforts would be fully evaluated after 5 years to determine whether to continue or terminate the reintroduction efforts.

    Donor Population Monitoring

    We would conduct annual Oregon silverspot butterfly surveys within the populations where donor stock is obtained using a modified Pollard walk methodology (Pickering et al. 1992, p. 7). Our annual monitoring would be used to adaptively manage the captive rearing program to insure that the removal of donor stock would not jeopardize the continued existence of the population or the species as a whole.

    Monitoring Impacts to Other Listed Species

    We do not anticipate impacts to other listed species by the proposed reintroduction of the Oregon silverspot butterfly.

    Findings

    Based on the above information, and using the best scientific and commercial data available (in accordance with 50 CFR 17.81), we find that reintroducing the Oregon silverspot butterfly into the Saddle Mountain SNA and the Nestucca Bay NWR and the associated protective measures and management practices under this proposed rulemaking would further the conservation of the subspecies. The nonessential experimental population status is appropriate for the reintroduction areas because we have determined that these populations are not essential to the continued existence of the subspecies in the wild.

    Required Determinations Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is not significant.

    Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 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 proposed rule in a manner consistent with these requirements.

    Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 60 et seq.), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We are certifying that this rule will not have a significant economic effect on a substantial number of small entities. The following discussion explains our rationale.

    The area that would be affected if this proposed rule is adopted includes the release areas at Saddle Mountain SNA and Nestucca Bay NWR and adjacent areas into which individual Oregon silverspot butterflies may disperse. Because of the regulatory flexibility for Federal agency actions provided by the proposed NEP designation and the exemption for incidental take in the rule, we do not expect this rule to have significant effects on any activities within Federal, State, or private lands within the proposed NEP. In regard to section 7(a)(2) of the Act, the population would be treated as proposed for listing, and Federal action agencies are not required to consult on their activities, except on National Wildlife Refuge and National Park land where the subspecies is managed as a threatened species. Section 7(a)(4) of the Act requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a proposed species. However, because the proposed NEP is, by definition, not essential to the survival of the species, conferring will likely never be required for the Oregon silverspot butterfly populations within the NEP areas. Furthermore, the results of a conference are advisory in nature and do not restrict agencies from carrying out, funding, or authorizing activities. In addition, section 7(a)(1) of the Act requires Federal agencies to use their authorities to carry out programs to further the conservation of listed species, which would apply on any lands within the NEP areas. Within the boundaries of the Nestucca Bay NWR, the subspecies would be treated as a threatened species for the purposes of section 7(a)(2) of the Act. As a result, and in accordance with these regulations, some modifications to proposed Federal actions within Nestucca Bay NWR may occur to benefit the Oregon silverspot butterfly, but we do not expect projects to be substantially modified because these lands are already being administered in a manner that is compatible with Oregon silverspot butterfly recovery.

    If adopted, this proposal would broadly authorize incidental take of the Oregon silverspot butterfly within the NEP areas. The regulations implementing the Act define “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity such as, agricultural activities and other rural development, camping, hiking, hunting, vehicle use of roads and highways, and other activities in the NEP areas that are in accordance with Federal, Tribal, State, and local laws and regulations. Intentional take for purposes other than authorized data collection or recovery purposes would not be authorized. Intentional take for research or recovery purposes would require a section 10(a)(1)(A) recovery permit under the Act.

    The principal activities on private property near the proposed NEP areas are timber production, agriculture, and activities associated with private residences. We believe the presence of the Oregon silverspot butterfly would not affect the use of lands for these purposes because there would be no new or additional economic or regulatory restrictions imposed upon States, non-Federal entities, or private landowners due to the presence of the Oregon silverspot butterfly, and Federal agencies would only have to comply with sections 7(a)(1) and 7(a)(4) of the Act in these areas, except on Nestucca Bay NWR lands where section 7(a)(2) of the Act would apply. Therefore, this rulemaking is not expected to have any significant adverse impacts to activities on private lands within the proposed NEP areas.

    Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):

    (1) If adopted, this proposal would not “significantly or uniquely” affect small governments. We have determined and certify under the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this proposed rulemaking would not impose a cost of $100 million or more in any given year on local or State governments or private entities. A Small Government Agency Plan is not required. As explained above, small governments would not be affected because the proposed NEP designation would not place additional requirements on any city, county, or other local municipalities.

    (2) This proposed rule would not produce a Federal mandate of $100 million or greater in any year (i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act). The proposed NEP area designations for the Oregon silverspot butterfly would not impose any additional management or protection requirements on the States or other entities.

    Takings (E.O. 12630)

    In accordance with Executive Order 12630, the proposed rule does not have significant takings implications. This rule would allow for the take of reintroduced Oregon silverspot butterflies when such take is incidental to an otherwise legal activity, such as recreation (e.g., hiking, birdwatching), forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and regulations. Therefore, we do not believe that the proposed NEP would conflict with existing or proposed human activities.

    A takings implication assessment is not required because this rule (1) will not effectively compel a property owner to suffer a physical invasion of property, and (2) will not deny all economically beneficial or productive use of the land or aquatic resources. This rule would substantially advance a legitimate government interest (conservation and recovery of a listed species) and would not present a barrier to all reasonable and expected beneficial use of private property.

    Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered whether this proposed rule has significant Federalism effects and have determined that a federalism summary impact statement is not required. This proposed rule 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. In keeping with Department of the Interior policy, we requested information from and coordinated development of this proposed rule with the affected resource agencies in Oregon. Achieving the recovery goals for this subspecies would contribute to its eventual delisting and its return to State management. No intrusion on State policy or administration is expected; roles or responsibilities of Federal or State governments would not change; and fiscal capacity would not be substantially directly affected. The proposed rule would maintain the existing relationship between the State and the Federal Government, and is being undertaken in coordination with the State of Oregon. Therefore, this rule does not have significant Federalism effects or implications to warrant the preparation of a federalism summary impact statement under the provisions of Executive Order 13132.

    Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule would not unduly burden the judicial system and would meet the requirements of sections (3)(a) and (3)(b)(2) of the Order.

    Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), require that Federal agencies obtain approval from OMB before collecting information from the public. This proposed rule does not contain any new information collections that require approval. We may not collect or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    National Environmental Policy Act

    The reintroduction of native species into suitable habitat within their historical or established range is categorically excluded from NEPA documentation requirements consistent with the Department of Interior's Department Manual (516 DM 8.5B(6)).

    Government-to-Government Relationship With Tribes

    In accordance with the presidential memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951; May 4, 1994), Executive Order 13175 (65 FR 67249; November 9, 2000), and the Department of the Interior Manual Chapter 512 DM 2, we have considered possible effects on federally recognized Indian tribes and have determined that there are no tribal lands affected by this proposed rule.

    Energy Supply, Distribution, or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, or use. Because this action is not a significant energy action, no Statement of Energy Effects is required.

    Clarity of This Rule (E.O. 12866)

    We are required by E.O. 12866, E.O. 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 comment should be as specific as possible. For example, you should tell us the numbers of the sections and paragraphs that are unclearly written, which sections or sentences are too long, or the sections where you feel lists and tables would be useful.

    References Cited

    A complete list of all references cited in this final rule is available at http://www.regulations.gov at Docket No. FWS-R1-ES-2016-0102 or upon request from the Newport Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this proposed rule are staff members of the Service's Newport Field Office (see FOR FURTHER INFORMATION CONTACT).

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and record keeping 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 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.

    2. Amend § 17.11(h) by revising the entry for “Butterfly, Oregon silverspot” under INSECTS in the List of Endangered and Threatened Wildlife to read as follows:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules *         *         *         *         *         *         * Insects *         *         *         *         *         *         * Butterfly, Oregon silverspot Speyeria zerene hippolyta Wherever found, except where listed as an experimental population T 45 FR 44935; 7/2/1980,
  • 50 CFR 17.95(i) CH.
  • Butterfly, Oregon silverspot Speyeria zerene hippolyta U.S.A. (OR—specified portions of Clatsop and Tillamook Counties; see § 17.85(d)) XN [Federal Register citation of the final rule] *         *         *         *         *         *         *
    3. Amend § 17.85 by adding paragraph (d) to read as follows:
    § 17.85 Special rules—invertebrates.

    (d) Oregon Silverspot Butterfly (Speyeria zerene hippolyta).

    (1) Where is the Oregon silverspot butterfly designated as a nonessential experimental population (NEP)? (i) The NEP areas for the Oregon silverspot butterfly are within the subspecies' historical range in Tillamook and Clatsop Counties, Oregon. The boundary of the NEP includes those Public Land Survey System sections intersecting with a 4.25-mile (6.8-kilometer) radius around the release locations. This boundary was selected to encompass all likely movements of Oregon silverspot butterflies away from the release areas while maintaining geographic separation from existing populations.

    (A) The Nestucca Bay NEP area, centered on the coastal prairie habitat on the Cannery Hill Unit of the Nestucca Bay National Wildlife Refuge (Nestucca Bay NEP area), includes Township 4 South, Range 10 West, Sections 15 through 36; Township 4 South, Range 11 West, Sections 13, 24, 25, and 36; Township 5 South, Range 10 West, Sections 2 through 11, 14 through 23, 27 through 30; and Township 5 South, Range 11 West, Sections 12, 13, 24, and 25.

    (B) The Saddle Mountain NEP area, centered on the coastal prairie habitat on top of Saddle Mountain State Natural Area (Saddle Mountain NEP area), includes Township 6 North, Range 7 West, Sections 7, 17 through 20, 29 through 32; Township 6 North, Range 8 West, Sections 1 through 36; Township 6 North, Range 9 West, Sections 1, 11 through 14, 23 through 26, 35, and 36; Township 5 North, Range 7 West, Sections 5 through 8, 17, 18, and 19; Township 5 North, Range 8 West, Sections 1 through 24; and Township 5 North, Range 9 West, Sections 1, 2, 3, 11, 12, 13, and 14.

    (ii) The nearest known extant population to the Nestucca Bay NEP area is 8 miles (13 kilometers) to the south, beyond the longest known flight distance of the butterfly (4.1 miles (6.6 kilometers)) and with little or no suitable habitat between them. The nearest known extant population to the Saddle Mountain NEP area is 50 miles (80 kilometers) to the south, well beyond the longest known flight distance of the butterfly (4.1 miles (6.6 kilometers)). Given its habitat requirements, movement patterns, and distance from extant populations, the NEP is wholly separate from extant populations and we do not expect the reintroduced Oregon silverspot butterflies to become established outside the NEP areas. Oregon silverspot butterflies outside of the NEP boundaries will assume the status of Oregon silverspot butterflies within the geographic area in which they are found.

    (iii) We will not change the NEP designations to “essential experimental,” “threatened,” or “endangered” within the NEP areas without engaging in notice-and-comment rulemaking. Additionally, we will not designate critical habitat for this NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).

    (2) What take of the Oregon silverspot butterfly is allowed in the NEP areas?

    (i) Oregon silverspot butterflies may be taken within the NEP area, provided that such take is not willful, knowing, or due to negligence, and is incidental to carrying out an otherwise lawful activity, such as agriculture, forestry and wildlife management, land development, recreation, and other activities that are in accordance with Federal, State, Tribal, and local laws and regulations.

    (ii) Any person with a valid permit issued by the Service under 50 CFR 17.32 may take the Oregon silverspot butterfly for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act. Additionally, any employee or agent of the Service, any other Federal land management agency, or a State conservation agency, who is designated by the agency for such purposes, may, when acting in the course of official duties, may take an Oregon silverspot butterfly in the wild in the NEP area if such action is necessary:

    (A) For scientific purposes;

    (B) To relocate Oregon silverspot butterflies to avoid conflict with human activities;

    (C) To relocate Oregon silverspot butterflies within the NEP area to improve Oregon silverspot butterfly survival and recovery prospects or for genetic purposes;

    (D) To relocate Oregon silverspot butterflies from one population in the NEP into another in the NEP, or into captivity;

    (E) To euthanize an injured Oregon silverspot butterfly;

    (F) To dispose of a dead Oregon silverspot butterfly, or salvage a dead Oregon silverspot butterfly for scientific purposes;

    (G) To relocate an Oregon silverspot butterfly that has moved outside the NEP area back into the NEP area; or

    (H) To aid in law enforcement investigations involving the Oregon silverspot butterfly.

    (3) What take of Oregon silverspot butterfly is not allowed in the NEP area?

    (i) Except as expressly allowed in paragraph (d)(2) of this section, all of the provisions of 50 CFR 17.31(a) and (b) apply to the Oregon silverspot butterfly in areas identified in paragraph (d)(1) of this section.

    (ii) A person may not possess, sell, deliver, carry, transport, ship, import, or export by any means, Oregon silverspot butterflies, or parts thereof, that are taken or possessed in a manner not expressly allowed in paragraph (d)(2) of this section or in violation of applicable State fish and wildlife laws or regulations or the Act.

    (iii) Any manner of take not described under paragraph (d)(2) of this section is prohibited in the NEP areas.

    (iv) A person may not attempt to commit, solicit another to commit, or cause to be committed any take of the Oregon silverspot butterfly, except as expressly allowed in paragraph (d)(2) of this section.

    (4) How will the effectiveness of these reintroductions be monitored? We will monitor populations annually for trends in abundance in cooperation with partners and prepare annual progress reports. We will fully evaluate reintroduction efforts after 5 years to determine whether to continue or terminate the reintroduction efforts.

    (5) Maps of the NEP areas for the Oregon silverspot butterfly in Northwest Oregon.

    (i) Note: Map of the Oregon silverspot butterfly NEP follows:

    EP23DE16.000

    (ii) Note: Map of Nestucca Bay NEP area for the Oregon silverspot butterfly follows:

    EP23DE16.001

    (iii) Note: Map of Saddle Mountain NEP area for the Oregon silverspot butterfly follows:

    EP23DE16.002
    Dated: December 19, 2016. Michael J. Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
    [FR Doc. 2016-30817 Filed 12-22-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 RIN 0648-XF093 New England 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 New England Fishery Management Council (Council) is scheduling a public meeting of its Herring Advisory Panel on Tuesday, January 10, 2017, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Tuesday, January 10, 2017, at 10 a.m., to view the agenda see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The meeting will be held at the Four Points by Sheraton, 1 Audubon Road, Wakefield, MA 01880: (781) 245-9300.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION:

    Agenda

    The Advisory Panel will review alternatives and analyses prepared for Framework Adjustment 5 to the Atlantic Herring Fishery Management Plan (FMP), an action considering modification of accountability measures (AMs) that trigger if the sub-ACL of Georges Bank haddock is exceeded by the midwater trawl herring fishery. The panel may recommend preferred alternatives for the Committee to consider for final action. The panel will also review preliminary outcomes from the recent workshop held in December, on Management Strategy Evaluation of Atlantic Herring Acceptable Biological Catch control rules being considered in Amendment 8 to the Atlantic Herring FMP. The panel may recommend a range of alternatives for the Committee to consider including in Amendment 8 related to harvest control rule alternatives. The panel will review public comments on the herring related measures being considered in the Omnibus Industry Funded Monitoring (IFM) Amendment. The panel may recommend preferred alternatives for the Committee to consider. Address other business, as necessary.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at 978-465-0492, at least 5 days prior to the meeting.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: December 19, 2016. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-30821 Filed 12-22-16; 8:45 am] BILLING CODE 3510-22-P
    81 247 Friday, December 23, 2016 Notices ADMINISTRATIVE CONFERENCE OF THE UNITED STATES Adoption of Recommendations AGENCY:

    Administrative Conference of the United States.

    ACTION:

    Notice.

    SUMMARY:

    The Administrative Conference of the United States adopted four recommendations at its Sixty-sixth Plenary Session. The appended recommendations address: Special Procedural Rules for Social Security Litigation; Evidentiary Hearings Not Required by the Administrative Procedure Act; The Use of Ombuds in Federal Agencies; and Self-Represented Parties in Administrative Proceedings.

    FOR FURTHER INFORMATION CONTACT:

    For Recommendation 2016-3, Daniel Sheffner; for Recommendation 2016-4, Amber Williams; for Recommendation 2016-5, David Pritzker; and for Recommendation 2016-6, Connie Vogelmann. For all of these actions the address and telephone number are: Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW., Washington, DC 20036; Telephone 202-480-2080.

    SUPPLEMENTARY INFORMATION:

    The Administrative Conference Act, 5 U.S.C. 591-596, established the Administrative Conference of the United States. The Conference studies the efficiency, adequacy, and fairness of the administrative procedures used by Federal agencies and makes recommendations to agencies, the President, Congress, and the Judicial Conference of the United States for procedural improvements (5 U.S.C. 594(1)). For further information about the Conference and its activities, see www.acus.gov. At its Sixty-sixth Plenary Session, held December 13 and 14, 2016, the Assembly of the Conference adopted four recommendations.

    Recommendation 2016-3, Special Procedural Rules for Social Security Litigation in District Court. This recommendation encourages the Judicial Conference of the United States to develop a uniform set of procedural rules for cases under the Social Security Act in which an individual seeks district court review of a final administrative decision of the Commissioner of Social Security pursuant to 42 U.S.C. 405(g). It also highlights areas in which such rules should be adopted and sets forth criteria for the promulgation of additional rules.

    Recommendation 2016-4, Evidentiary Hearings Not Required by the Administrative Procedure Act. This recommendation offers best practices to agencies for structuring evidentiary hearings that are not required by the Administrative Procedure Act. It suggests ways to ensure the integrity of the decisionmaking process; sets forth recommended pre-hearing, hearing, and post-hearing practices; and urges agencies to describe their practices in a publicly accessible document and seek periodic feedback on those practices.

    Recommendation 2016-5, The Use of Ombuds in Federal Agencies. This recommendation takes account of the broad array of federal agency ombuds offices that have been established since the Administrative Conference's adoption in 1990 of Recommendation 90-2 on the same subject, https://www.acus.gov/recommendation/ombudsman-federal-agencies. The new recommendation continues to urge both agencies and Congress to consider creating additional ombuds offices that provide an opportunity for individuals to raise issues confidentially and receive assistance in resolving them without fear of retribution. The recommendation emphasizes the importance of adherence to the three core standards of independence, confidentiality, and impartiality, and identifies best practices for the operation, staffing, and evaluation of federal agency ombuds offices.

    Recommendation 2016-6, Self-Represented Parties in Administrative Proceedings. This recommendation offers best practices for agencies dealing with self-represented parties in administrative proceedings. Recommendations include the use of triage and diagnostic tools, development of a continuum of services to aid parties, and re-evaluation and simplification of existing administrative proceedings, where possible. The project builds on the activity of a working group on Self-Represented Parties in Administrative Hearings that is co-led by the Administrative Conference and the Department of Justice's Office for Access to Justice.

    The Appendix below sets forth the full texts of these four recommendations. The Conference will transmit them to affected agencies, Congress, and the Judicial Conference of the United States. The recommendations are not binding, so the entities to which they are addressed will make decisions on their implementation.

    The Conference based these recommendations on research reports that are posted at: https://www.acus.gov/66thPlenary.

    Dated: December 20, 2016. Shawne C. McGibbon, General Counsel. APPENDIX—RECOMMENDATIONS OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES Administrative Conference Recommendation 2016-3 Special Procedural Rules for Social Security Litigation in District Court Adopted December 13, 2016

    The Administrative Conference recommends that the Judicial Conference of the United States develop special procedural rules for cases under the Social Security Act 1 in which an individual seeks district court review of a final administrative decision of the Commissioner of Social Security pursuant to 42 U.S.C. 405(g). The Rules Enabling Act delegates authority to the United States Supreme Court (acting initially through the Judicial Conference) to prescribe procedural rules for the lower federal courts.2 The Act does not require that procedural rules be trans-substantive (that is, be the same for all types of cases), although the Federal Rules of Civil Procedure (Federal Rules) have generally been so drafted. Rule 81 of the Federal Rules excepts certain specialized proceedings from the Rules' general procedural governing scheme.3 In the case of social security litigation in the federal courts, several factors warrant an additional set of exceptions. These factors include the extraordinary volume of social security litigation, the Federal Rules' failure to account for numerous procedural issues that arise due to the appellate nature of the litigation, and the costs imposed on parties by the various local rules fashioned to fill those procedural gaps.4

    1 42 U.S.C. 301 et seq. (2012).

    2See 28 U.S.C. 2072(a) (2012).

    3Fed. R. Civ. P. 81(a); see also Fed. R. Civ. P. 71.1-73 (“Special Proceedings”).

    4 This recommendation is based on a portion of the extensive report prepared for the Administrative Conference by its independent consultants, Jonah Gelbach of the University of Pennsylvania Law School and David Marcus of the University of Arizona Rogers College of Law. See Jonah Gelbach & David Marcus, A Study of Social Security Litigation in the Federal Courts 127-42, 148-59 (July 28, 2016) (report to the Admin. Conf. of the U.S.).

    * * *

    The Social Security Administration (SSA) administers the Social Security Disability Insurance program and the Supplemental Security Income program, two of the largest disability programs in the United States. An individual who fails to obtain disability benefits under either of these programs, after proceeding through SSA's extensive administrative adjudication system, may appeal the agency's decision to a federal district court.5 In reviewing SSA's decision, the district court's inquiry is typically based on the administrative record developed by the agency.

    5 42 U.S.C. 405(g) (2012).

    District courts face exceptional challenges in social security litigation. Although institutionally oriented towards resolving cases in which they serve as the initial adjudicators, the federal district courts act as appellate tribunals in their review of disability decisions. That fact alone does not make these cases unique; appeals of agency actions generally go to district courts unless a statute expressly provides for direct review of an agency's actions by a court of appeals.6 However, social security appeals comprise approximately seven percent of district courts' dockets, generating substantially more litigation for district courts than any other type of appeal from a federal administrative agency. The high volume of social security cases in the federal courts is in no small part a result of the enormous magnitude of the social security disability program. The program, which is administered nationally, annually receives millions of applications for benefits. The magnitude of this judicial caseload suggests that a specialized approach in this area could bring about economies of scale that probably could not be achieved in other subject areas.

    6See Watts v. Sec. & Exch. Comm'n, 482 F.3d 501, 505 (D.C. Cir. 2007).

    The Federal Rules were designed for cases litigated in the first instance, not for those reviewing, on an appellate basis, agency adjudicative decisions. Consequently, the Federal Rules fail to account for a variety of procedural issues that arise when a disability case is appealed to district court. For example, the Rules require the parties to file a complaint and an answer. Because a social security case is in substance an appellate proceeding, the case could more sensibly be initiated through a simple document akin to a notice of appeal or a petition for review. Moreover, although 42 U.S.C. 405(g) provides that the certified record should be filed as “part of” the government's answer, there is no functional need at that stage for the government to file anything more than the record. In addition, the lack of congruence between the structure of the Rules and the nature of the proceeding has led to uncertainty about the type of motions that litigants should file in order to get their cases resolved on the merits. In some districts, for instance, the agency files the certified transcript of administrative proceedings instead of an answer, whereas other districts require the agency to file an answer. In still other districts, claimants must file motions for summary judgment to have their case adjudicated on the merits,7 whereas such motions are considered “not appropriate” in others.8

    7See, e.g., E.D. Mo. L.R. 56-9.02; Order Setting Schedule, Donvan-Terris v. Colvin, Civ. No. 14-5125 (E.D. Wash. April 8, 2015); E.D. Mo. L.R. 56-9.02.

    8See, e.g., S.D. Iowa Local R. 56(i).

    Social security disability litigation is not the only type of specialized litigation district courts regularly review in an appellate capacity. District courts entertain an equivalent number of habeas corpus petitions,9 as well as numerous appeals from bankruptcy courts. But habeas and bankruptcy appeals are governed by specially crafted, national rules that address those cases' specific issues.10 No particularized set of rules, however, accounts for the procedural gaps left by the Federal Rules in social security appeals.

    9 During the twelve months that ended on September 30, 2014, the district courts received 19,185 “general” habeas corpus petitions and 19,146 social security appeals. Table C-2A, U.S. District Courts-Civil Cases Commenced, by Nature of the Suit, During the 12-Month Periods Ending September 30, 2009 Through 2014, at 3-4.

    10See R. Governing § 2254 Cases U.S. Dist. Cts. 1-12; Fed. R. Bankr. P. 1001-9037.

    When specialized litigation with unique procedural needs lacks a tailored set of national procedural rules for its governance, districts and even individual judges have to craft their own. This is precisely what has happened with social security litigation. The Federal Rules do exempt disability cases from the initial disclosure requirements of Rule 26, and limit electronic access of nonparties to filings in social security cases,11 but, otherwise, they include no specialized procedures. As a result, numerous local rules, district-wide orders, and individual case management orders, addressing a multitude of issues at every stage in a social security case, have proliferated. Whether the agency must answer a complaint, what sort of merits briefs the parties are required to file, whether oral arguments are held, and the answers to a host of other questions differ considerably from district to district and, sometimes, judge to judge. Such local variations have not burgeoned in other subject areas in which district courts serve as appellate tribunals; this fact reflects the district courts' own recognition that social security cases pose distinctive challenges.

    11 Fed. R. Civ. P. 26(a)(1)(B)(i); Fed. R. Civ. P. 5.2(c).

    Many of the local rules and orders fashioned to fill the procedural gaps left by the Federal Rules generate inefficiencies and impose costs on claimants and SSA. For example, simultaneous briefing—the practice in some districts that requires both parties to file cross motions for resolution of the merits and to respond to each other's briefs in simultaneously filed responses—effectively doubles the number of briefs the parties must file. Some judges employ a related practice whereby the agency is required to file the opening brief.12 Because social security complaints are generally form complaints containing little specificity, courts that employ this practice (known as “affirmative briefing”) essentially reverse the positions of the parties, leaving to the agency the task of defining the issues on appeal. The questionable nature of some of these local variations may be attributable in part to the fact that they can be imposed without observance of procedures that would assure sufficient deliberation and opportunities for public feedback. Proposed amendments to the Federal Rules must go through several steps, each of which requires public input. So-called “general orders” and judge-specific orders, on the other hand, can be issued by a district or individual judge with very little process.

    12See, e.g., Standing Order Gov. Dev. of Soc. Sec. Cases Assigned to Judge Conrad (W.D. Va. Jan. 1, 2005); Briefing Schedule, Barnes v. Colvin, Civ. No 14-482 (S.D. Tex. Sept. 3, 2014), at 1-2.

    The disability program is a national program that is intended to be administered in a uniform fashion, yet procedural localism raises the possibility that like cases will not be treated alike. Burdensome procedures adopted by some districts or judges, such as simultaneous briefing schedules, can increase delays and litigation costs for some claimants, while leaving other similarly situated claimants free from bearing those costs. Further, many of the attorneys who litigate social security cases—agency lawyers and claimants' representatives alike—maintain regional or even national practices. Localism, however, makes it difficult for those lawyers to economize their resources by, for instance, forcing them to refashion even successful arguments in order to fit several different courts' unique page-limits or formatting requirements.

    Procedural variation can thus impose a substantial burden on SSA as it attempts to administer a national program and can result in arbitrary delays and uneven costs for disability claimants appealing benefit denials. SSA and claimants would benefit from a set of uniform rules that recognize the appellate nature of disability cases. Indeed, several districts already treat disability cases as appeals.13 Many of these districts provide, for example, for the use of merits briefs instead of motions or for the filing of the certified administrative record in lieu of an answer.

    13See, e.g., General Order 05-15, In re Soc. Sec. Cases, Actions Seeking Rev. of the Comm'r of Soc. Sec.'s Final Dec. Denying an App. for Benefits (W.D. Wash. June 1, 2015); Standing Order, In re Actions Seek. Rev. of the Comm'r of Soc. Sec.'s Final Decs. Denying Soc. Sec. Benefits (W.D. NY Sept. 5, 2013); Standing Order for Disp. of Soc. Sec. App. (W.D. La. Sept. 2, 1994); E.D. Mo. L.R. 9.02; D. Ariz. L.R. 16.1; N.D. Oh. L.R. 16.3.1.

    The Supreme Court has recognized that the exercise of rulemaking power to craft specialized procedural rules for particular areas of litigation can be appropriate under the Rules Enabling Act.14 Yet, in recommending the creation of special procedural rules for social security disability and related litigation, the Administrative Conference is cognizant that the Judicial Conference has in the past been hesitant about amending the Federal Rules to incorporate provisions pertaining to particular substantive areas of the law. That hesitation has been driven, at least in part, by reluctance to recommend changes that would give rise to the appearance, or even the reality, of using the Federal Rules to advance substantive ends, such as heightened pleading standards that would disfavor litigants in particular subject areas. The proposals offered herein have very different purposes. Indeed, the Administrative Conference believes that rules promulgated pursuant to this recommendation should not favor one class of litigants over another or otherwise bear on substantive rights. Instead, this recommendation endorses the adoption of rules that would promote efficiency and uniformity in the procedural management of social security disability and related litigation, to the benefit of both claimants and the agency.15 Such a commitment to neutrality would also serve to dampen any apprehensions that the proposed rules would violate the Rules Enabling Act's proscription of rules that would “abridge, enlarge, or modify any substantive right.” 16 Rules consistent with these criteria could potentially address a variety of topics, including setting appropriate deadlines for filing petitions for attorneys' fees, or establishing judicial extension practices, or perhaps authorizing the use of telephone, videoconference, or other telecommunication technologies. In developing such rules, the Judicial Conference may wish to consult existing appellate procedural schemes, such as the Federal Rules of Appellate Procedure and the Rules of Practice and Procedure of the United States Court of Appeals for Veterans Claims.

    14See Harris v. Nelson, 394 U.S. 286, 300 n.7 (1969) (inviting the Advisory Committee on Civil Rules to draft procedural rules for habeas corpus litigation).

    15 This recommendation is the latest in a line of Conference recommendations focused on improving the procedures used in social security cases. See, e.g., Recommendation 90-4, Social Security Disability Program Appeals Process: Supplementary Recommendation, 55 FR 34,213 (June 8, 1990); Recommendation 87-7, A New Role for the Social Security Appeals Council, 52 FR 49,143 (Dec. 30, 1987); Recommendation 78-2, Procedures for Determining Social Security Disability Claims, 43 FR 27,508 (June 26, 1978).

    16 28 U.S.C. 2072(b) (2012).

    The Administrative Conference believes that a special set of procedural rules could bring much needed uniformity to social security disability and related litigation. In routine cases, page limits, deadlines, briefing schedules, and other procedural requirements should be uniform to ensure effective procedural management. At the same time, the new rules should be drafted to displace the Federal Rules only to the extent that the distinctive nature of social security litigation justifies such separate treatment.17 In this way, the drafters can avoid the promulgation of a special procedural regime that sacrifices flexibility and efficiency for uniformity in certain cases.

    17See Fed. R. Civ. P. 81(a)(6) (“[The Federal Rules], to the extent applicable, govern proceedings under [certain designated] laws, except as those laws provide other procedures.”).

    The research that served as the foundation for this report focused on social security disability litigation commenced under 42 U.S.C. 405(g). Section 405(g) also authorizes district court review of SSA old age and survivors benefits decisions, as well as other actions related to benefits. Because such non-disability appeals do not differ procedurally from disability cases in any meaningful way,18 it is the Conference's belief that this recommendation should apply, subject to the exceptions discussed below, to all cases under the Social Security Act in which an individual seeks district court review of a final administrative decision of the Commissioner of Social Security pursuant to 42 U.S.C. 405(g).

    18 Further, they only constitute about four percent of total social security cases appealed to district courts annually. See Table C-2A, U.S. District Courts-Civil Cases Commenced, by Nature of the Suit, During the 12-Month Periods Ending September 30, 2009 Through 2014, at 4.

    The Conference recognizes that some cases might be brought under § 405(g) that would fall outside the rationale for the proposed new rules. This could include class actions and other broad challenges to program administration, such as challenges to the constitutionality or validity of statutory and regulatory requirements, or similar broad challenges to agency policies and procedures. In these cases, the usual deadlines and page limits could be too confining. By citing these examples, the Conference does not intend to preclude other exclusions. The task of precisely defining the cases covered by any new rules would be worked out by the committee that drafts the rules, after additional research and more of an opportunity for public comment on the scope of the rules than has been possible for the Conference. It may also be necessary to include specific rules explaining the procedure for the exclusion of appropriate cases.

    Recommendation

    1. The Judicial Conference, in consultation with Congress as appropriate, should develop for the Supreme Court's consideration a uniform set of procedural rules for cases under the Social Security Act in which an individual seeks district court review of a final administrative decision of the Commissioner of Social Security pursuant to 42 U.S.C. 405(g). These rules would not apply to class actions or to other cases that are outside the scope of the rationale for the proposal.

    2. Examples of rules that should be promulgated include:

    a. A rule providing that a claimant's complaint filed under 42 U.S.C. 405(g) be substantially equivalent to a notice of appeal;

    b. A rule requiring the agency to file a certified copy of the administrative record as the main component of its answer;

    c. A rule or rules requiring the claimant to file an opening merits brief to which the agency would respond, and providing for appropriate subsequent proceedings and the filing of appropriate responses consistent with 42 U.S.C. 405(g) and the appellate nature of the proceedings;

    d. A rule or rules setting deadlines and page limits as appropriate; and

    e. Other rules that may promote efficiency and uniformity in social security disability and related litigation, without favoring one class of litigants over another or impacting substantive rights.

    Administrative Conference Recommendation 2016-4 Evidentiary Hearings Not Required by the Administrative Procedure Act Adopted December 13, 2016

    Federal administrative adjudication can be divided into three categories:

    (a) Adjudication that is regulated by the procedural provisions of the Administrative Procedure Act (APA) and usually presided over by an administrative law judge (referred to as Type A in the report that underlies this recommendation and throughout the preamble) 1 ;

    1See Administrative Procedure Act, 5 U.S.C. 554-559 (2012). In a few kinds of cases, the “presiding employees” in APA hearings are not administrative law judges. Congress may provide for a presiding employee who is not an ALJ. See id. § 556(b).

    (b) Adjudication that consists of legally required evidentiary hearings that are not regulated by the APA's adjudication provisions in 5 U.S.C. 554 and 556-557 and that is presided over by adjudicators who are often called administrative judges, though they are known by many other titles (referred to as Type B in the report that underlies this recommendation and throughout the preamble) 2 ; and

    2 This type of adjudication is subject to 5 U.S.C. 555 (requiring various procedural protections in all adjudication) and 5 U.S.C. 558 (relating to licensing), as well as the APA's judicial review provisions.

    (c) Adjudication that is not subject to a legally required (i.e., required by statute, executive order, or regulation) evidentiary hearing (referred to as Type C in the report that underlies this recommendation and throughout the preamble).3

    3See generally Michael Asimow, Evidentiary Hearings Outside the Administrative Procedure Act (Nov. 10, 2016) [hereinafter Asimow], available at https://www.acus.gov/report/evidentiary-hearings-outside-administrative-procedure-act-final-report.

    This recommendation concerns best practices for the second category of adjudication, that is, Type B adjudication.4 In these adjudications, although there is no statutory mandate to hold an “on the record” hearing,5 a statute, regulation, or other source of law does require the agency to conduct an evidentiary hearing. Because the APA's adjudication provisions in 5 U.S.C. 554 and 556-557 are not applicable to these adjudications, the procedures that an agency is required to follow are set forth elsewhere, most commonly in its own procedural regulations.

    4 Traditionally, Type A adjudication has been referred to as “formal adjudication” and Type B and Type C adjudication have been treated in an undifferentiated way as “informal adjudication.” This recommendation does not use that terminology for several reasons. First, the nature of Type B adjudication as involving a legally required hearing sharply distinguishes it from Type C adjudication and makes it feasible to prescribe best practices. Second, the term “informal adjudication” can be a misnomer when applied to Type B adjudication; in fact, Type B adjudication is often as “formal” or even more “formal” than Type A adjudication. Finally, Type C adjudication—which can properly be referred to as “informal adjudication”—is an enormous category, consisting of many millions of adjudications each year. This type of adjudication is highly diverse and does not easily lend itself to an overarching set of best practices.

    5See id. at 7-9 (discussing the boundary between Type A and Type B adjudication).

    Type B adjudications are extremely diverse.6 They involve types of matters spanning many substantive areas, including immigration, veterans' benefits, environmental issues, government contracts, and intellectual property. Some involve disputes between the federal government and private parties; others involve disputes between two private parties. Some involve trial-type proceedings that are at least as formal as Type A adjudication. Others are quite informal and can be decided based only on written submissions. Some proceedings are highly adversarial; others are inquisitorial.7 Caseloads vary. Some have huge backlogs and long delays; others seem relatively current. The structures for internal appeal also vary.

    6See generally id. (describing the vast variety of evidentiary hearings that are not required by the APA). See also Federal Administrative Adjudication, available at https://www.acus.gov/research-projects/federal-administrative-adjudication (providing an extensive database that maps the contours of administrative adjudication across the federal government).

    7See Asimow, supra note 3 at 11-12, 84-88 (providing examples of inquisitorial adjudications).

    The purpose of this recommendation is to set forth best practices that agencies should incorporate into regulations governing hearing procedures in Type B adjudications. The procedures suggested below are highlighted as best practices because they achieve a favorable balance of the criteria of accuracy (meaning that the procedure produces a correct and consistent outcome), efficiency (meaning that the procedure minimizes cost and delay), and acceptability to the parties (meaning that the procedure meets appropriate standards of procedural fairness).

    Some of the best practices set forth in this recommendation may not be applicable or desirable for every Type B adjudicatory program. Accordingly, the recommendation does not attempt to prescribe the exact language that the agency should employ in its procedural regulations.8 This recommendation should be particularly useful to agencies that are either fashioning procedural regulations for new adjudicatory programs or seeking to revise their existing procedural regulations.

    8 Drafters of procedural regulations implementing these best practices may want to consult the Conference-prepared 1993 Model Adjudication Rules for guidance on language, though those rules are directed to adjudication governed by the APA. See Michael Cox, The Model Adjudication Rules (MARS), 11 T.M. Cooley L. Rev. 75 (1994). The Conference has initiated a new Model Adjudication Rules Working Group to revise the model rules. See Admin. Conf. of the U.S., Office of the Chairman Model Adjudication Rules Working Group, available at https://www.acus.gov/research-projects/office-chairman-model-adjudication-rules-working-group for more information.

    Recommendation Integrity of the Decisionmaking Process

    1. Exclusive Record. Procedural regulations should require a decision to be based on an exclusive record. That is, decisionmakers should be limited to considering factual information presented in testimony or documents they received before, at, or after the hearing to which all parties had access, and to matters officially noticed.

    2. Ex Parte Communications. Procedural regulations should prohibit ex parte communications relevant to the merits of the case between persons outside the agency and agency decisionmakers or staff who are advising or assisting the decisionmaker. Communications between persons outside the agency and agency decisionmakers or staff who advise or assist decisionmakers should occur only on the record. If oral, written, or electronic ex parte communications occur, they should be placed immediately on the record.

    3. Separation of Functions. In agencies that have combined functions of investigation, prosecution, and adjudication, procedural regulations should require internal separation of decisional and adversarial personnel. The regulations should prohibit staff who took an active part in investigating, prosecuting, or advocating in a case from serving as a decisionmaker or staff advising or assisting the decisionmaker in that same case. Adversary personnel should also be prohibited from furnishing ex parte advice or factual materials to a decisionmaker or staff who advise or assist decisionmakers.

    4. Staff Who Advise or Assist Decisionmakers. Procedural regulations should explain whether the agency permits ex parte advice or assistance to decisionmakers by staff. The staff may not have taken an active part in investigating, prosecuting, mediating, or advocating in the same case (see paragraph 3). The advice should not violate the exclusive record principle (see paragraph 1) by introducing new factual materials. The term “factual materials” does not include expert, technical, or other advice on the meaning or significance of “factual materials.”

    5. Bias. Procedural regulations should prohibit decisionmaker bias in adjudicatory proceedings by stating that an adjudicator can be disqualified if any of the following types of bias is shown:

    a. Improper financial or other personal interest in the decision;

    b. Personal animus against a party or group to which that party belongs; or

    c. Prejudgment of the adjudicative facts at issue in the proceeding.

    Procedural regulations and manuals should explain when and how parties should raise claims of bias, and how agencies resolve them.

    Pre-Hearing Practices

    6. Notice of Hearing. Procedural regulations should require notice to parties by appropriate means and sufficiently far in advance so that they may prepare for hearings. The notice should contain a statement of issues of fact and law to be decided. In addition, the notice should be in plain language and, when appropriate, contain the following basic information about the agency's adjudicatory process:

    a. Procedures for requesting a hearing;

    b. Discovery options, if any (see paragraph 10);

    c. Information about representation, including self-representation and non-lawyer or limited representation, if permitted (see paragraphs 13-16), and any legal assistance options;

    d. Available procedural alternatives (e.g., in-person, video, or telephonic hearings (see paragraph 20); written and oral hearings (see paragraph 21); and alternative dispute resolution (ADR) opportunities (see paragraph 12));

    e. Deadlines for filing pleadings and documents;

    f. Procedures for subpoenaing documents and witnesses, if allowed (see paragraph 11);

    g. Opportunity for review of the initial decision at a higher agency level (see paragraph 26);

    h. Availability of judicial review; and

    i. Web site address for and/or citation to the procedural regulations and any practice manuals.

    7. Confidentiality. Procedural regulations should provide a process by which the parties may seek to keep certain information confidential or made subject to a protective order in order to protect privacy, confidential business information, or national security.

    8. Pre-Hearing Conferences. Procedural regulations should allow the decisionmaker discretion to require parties to participate in a pretrial conference if the decisionmaker believes the conference would simplify the hearing or promote settlement. The decisionmaker should require that (a) parties exchange witness lists and expert reports before the pretrial conference and (b) both sides be represented at the pretrial conference by persons with authority to agree to a settlement.

    9. Inspection of Materials. Procedural regulations should permit parties to inspect unprivileged materials in agency files that are not otherwise protected.

    10. Discovery. Agencies should empower their decisionmakers to order discovery through depositions, interrogatories, and other methods of discovery used in civil trials, upon a showing of need and cost justification.

    11. Subpoena Power. Agencies with subpoena power should explain their subpoena practice in detail. Agencies that do not have subpoena power should seek congressional approval for subpoena power, when appropriate.

    12. Alternative Dispute Resolution. Agencies should encourage and facilitate ADR, and ensure confidentiality of communications occurring during the ADR process.

    Hearing Practices

    13. Lawyer Representation. Agencies should permit lawyer representation.

    14. Non-Lawyer Representation. Agencies should permit non-lawyer representation. Agencies should have the discretion to (a) establish criteria for appearances before the agency by non-lawyer representatives or (b) require approval on a case-by-case basis.9

    9 Agencies should refer to Recommendation 86-1, Nonlawyer Assistance and Representation, 51 FR 25,641 (June 16, 1986), available at https://www.acus.gov/recommendation/nonlawyer-assistance-and-representation, when establishing or improving their procedures related to non-lawyer representation.

    15. Limited Representation. Agencies should permit limited representation by lawyers or non-lawyers, when appropriate (i.e., representation of a party with respect to some issues or during some phases of the adjudication).

    16. Self-Representation. Agencies should make hearings as accessible as possible to self-represented parties by providing plain language resources, legal information, and other assistance, as allowed by statute and regulations.10

    10 Agencies should refer to Recommendation 2016-6, Self-Represented Parties in Administrative Hearings, __FR __(Dec. __, 2016), available at https://www.acus.gov/recommendation/self-represented-parties-administrative-proceedings-final-recommendation, when establishing or improving their procedures related to self-represented parties.

    17. Sanctions. Agencies with the requisite statutory power should authorize decisionmakers to sanction attorneys and parties for misconduct. Sanctions can include admonitions, monetary fines, and preclusion from appearing before the agency. Agencies should have a mechanism for administrative review of any sanctions.

    18. Open Hearings. Agencies should adopt the presumption that their hearings are open to the public, while retaining the ability to close the hearings in particular cases, including when the public interest in open proceedings is outweighed by the need to protect:

    a. National security;

    b. Law enforcement;

    c. Confidentiality of business documents; and

    d. Privacy of the parties to the hearing.

    19. Adjudicators. Agencies that decide a significant number of cases should use adjudicators—rather than agency heads, boards, or panels—to conduct hearings and provide initial decisions, subject to higher-level review (see paragraph 26).

    20. Video Teleconferencing and Telephone Hearings. Agencies should consult the Administrative Conference's recommendations 11 in determining whether and when to conduct hearings or parts of hearings by video conferencing or telephone.

    11 Agencies should refer to Recommendation 2011-4, Agency Use of Video Hearings: Best Practices and Possibilities for Expansion, 76 FR 48,795 (Aug. 9, 2011), available at https://www.acus.gov/recommendation/agency-use-video-hearings-best-practices-and-possibilities-expansion; Recommendation 2014-7, Best Practices for Using Video Teleconferencing for Hearings, 79 FR 75,119 (Dec. 17, 2014), available at https://www.acus.gov/recommendation/best-practices-using-video-teleconferencing-hearings; and the Conference's Handbook on Best Practices for Using Video Teleconferencing in Adjudicatory Hearings, available at https://www.acus.gov/report/handbook-best-practices-using-video-teleconferencing-adjudicatory-hearings , when establishing or improving their video teleconferencing hearings.

    21. Written-Only Hearings. Procedural regulations should allow agencies to make use of written-only hearings in appropriate cases. Particularly good candidates for written-only hearings include those that solely involve disputes concerning:

    a. Interpretation of statutes or regulations; or

    b. Legislative facts as to which experts offer conflicting views.

    Agencies should also consider the adoption of procedures for summary judgment in cases in which there are no disputed issues of material fact.

    22. Oral Argument. Agencies generally should permit oral argument in connection with a written-only hearing if a party requests it, while retaining the discretion to dispense with oral argument if it appears to be of little value in a given case or parts of a case.

    23. Evidentiary Rules. Procedural regulations should prescribe the evidentiary rules the decisionmaker will apply in order to avoid confusion and time-consuming evidentiary disputes.12

    12 Agencies should refer to Recommendation 86-2, Use of Federal Rules of Evidence in Federal Agency Adjudications, 51 FR 25,642 (June 16, 1986), available at https://www.acus.gov/recommendation/use-federal-rules-vidence-federal-agency-adjudications, when considering whether or how to use the Federal Rules of Evidence.

    24. Opportunity for Rebuttal. Agencies should allow an opportunity for rebuttal, which can take the form of cross-examination of an adverse witness as well as additional written or oral evidence. Agencies should have the discretion to limit or preclude cross-examination or have it be conducted in camera in appropriate cases, such as when:

    a. The dispute concerns a question of legislative fact where the evidence consists of expert testimony;

    b. Credibility is not at issue;

    c. The only issue is how a decisionmaker should exercise discretion;

    d. National security could be jeopardized; or

    e. The identity of confidential informants might be revealed.

    Post-Hearing Practices

    25. Decisions. Procedural regulations should require the decisionmaker to provide a written or transcribable decision and specify the contents of the decision. The decision should include:

    a. Findings of fact, including an explanation of how the decisionmaker made credibility determinations; and

    b. Conclusions of law, including an explanation of the decisionmaker's interpretation of statutes and regulations.

    26. Higher-Level Review. Apart from any opportunity for reconsideration by the initial decisionmaker, procedural regulations should provide for a higher-level review of initial adjudicatory decisions. Agencies should give parties an opportunity to file exceptions and make arguments to the reviewing authority. The reviewing authority should be entitled to summarily affirm the initial decision without being required to write a new decision.

    27. Precedential Decisions. Procedural regulations should allow and encourage agencies to designate decisions as precedential in order to improve decisional consistency. These decisions should be published on the agency's Web site to meet the requirements of 5 U.S.C. 552.

    Management of Procedures

    28. Complete Statement of Important Procedures. Agencies should set forth all important procedures and practices that affect persons outside the agency in procedural regulations that are published in the Federal Register and the Code of Federal Regulations and posted on the agency Web site.

    29. Manuals and Guides. Agencies should provide practice manuals and guides for decisionmakers, staff, parties, and representatives in which they spell out the details of the proceeding and illustrate the principles that are set forth in regulations. These manuals and guides should be written in simple, non-technical language and contain examples, model forms, and checklists, and they should be posted on the agency Web site.

    30. Review of Procedures. Agencies should periodically re-examine and update their procedural regulations, practice manuals, and guides.

    31. Feedback. Agencies should seek feedback from decisionmakers, staff, parties, representatives, and other participants in order to evaluate and improve their adjudicatory programs.

    Administrative Conference Recommendation 2016-5 The Use of Ombuds in Federal Agencies Adopted December 14, 2016

    This recommendation updates and expands on the Administrative Conference's earlier Recommendation 90-2, The Ombudsman in Federal Agencies, adopted on June 7, 1990. That document concentrated on “external ombudsmen,” those who primarily receive and address inquiries and complaints from the public, and was formulated before “use of ombuds” was added to the definition of “means of alternative dispute resolution” in the Administrative Dispute Resolution Act (ADRA) 1 in 1996. In 90-2, the Conference urged “the President and Congress to support federal agency initiatives to create and fund an effective ombudsman in those agencies with significant interaction with the public,” believing that those agencies would benefit from establishing either agency-wide or program-specific ombudsman offices.

    1 5 U.S.C. 571-84 (2012); see id. § 571(3) (2012).

    The present recommendation is based on a study of the far broader array of federal ombuds 2 that have been established since the Conference's earlier recommendation on this subject. Federal ombuds now include multiple variations of both primarily externally-focused and primarily internally-focused ombuds (i.e., those who receive inquiries and complaints from persons within the agency). These individuals and offices can and do make a distinct and beneficial contribution to government effectiveness. While all forms of alternative dispute resolution expressly embraced by the ADRA have the capacity to reduce litigation costs and foster better relationships, the ombuds alone affords the constituent and the agency the opportunity to learn about and address issues before, in effect, they have been joined. Constituents and the agency are served by the ombuds' skilled, impartial assistance in resolution, and the agency is served by the opportunity for critical early warning of specific and systemic issues.

    2 The term ombudsman is Scandinavian and means representative or proxy. Variations on the term exist in the field (ombudsmen, ombudsperson, ombuds, etc.). In this recommendation, the term “ombuds” will be used as the predominant term to be as inclusive as possible. For historical background on the use of ombuds in other countries and their potential value in the United States, see Walter Gellhorn, Ombudsmen and Others: Citizen Protectors in Nine Countries (1966); Walter Gellhorn, When Americans Complain: Governmental Grievance Procedures (1966).

    The research conducted to support this recommendation, including quantitative and qualitative surveys, interviews, case studies and profiles, revealed that federal ombuds can add value to their agencies in a variety of ways.3 Ombuds (1) identify significant new issues and patterns of concerns that are not well known or being ignored; (2) support significant procedural changes; (3) contribute to significant cost savings by dealing with identified issues, often at the earliest or pre-complaint stages, thereby reducing litigation and settling serious disputes; (4) prevent problems through training and briefings; (5) serve as an important liaison between colleagues, units, or agencies; and (6) provide a fair process for constituents.

    3 Carole Houk et al., A Reappraisal — The Nature and Value of Ombudsmen in Federal Agencies, available at www.acus.gov/research-projects/ombudsman-federal-agencies-0.

    Externally-facing ombuds were more likely to report supporting the agency with specific mission-related initiatives; helping the agency to improve specific policies, procedures, or structures; making administrative decisions to resolve specific issues; helping within the agency to keep its organizational processes coordinated; and advocating on behalf of individuals. Internally-facing ombuds were more likely to report helping constituents by providing a safe way to discuss perceptions of unsafe or illegal behavior; promoting the use of fair and helpful options; helping to prevent problems by coaching one-on-one; and providing group training and briefings to constituents. Whistleblower ombuds and procurement ombuds—consonant with their particular focus on more narrowly defined responsibilities—described their accomplishments as providing specific information and education, and guidance about very specific matters of concern to their constituents.

    Since the Conference last considered ombuds in the federal government, the milieu in which government operates has, by all accounts, become more polarized, with government itself often the target of suspicion and hostility. In a challenging environment in which many federal agencies struggle to maintain the trust of the public they serve and even of their own employees, the ombuds is uniquely situated to provide both pertinent information and assistance in resolving issues to constituents and the agency alike. The ability of the ombuds to provide a place perceived as safe—which can offer a ready, responsive, and respectful hearing and credible options—in itself builds trust. And trust is a commodity without which government in a democratic society cannot function effectively.

    Accordingly, the Conference continues to urge Congress and the President to create, fund, and otherwise support ombuds offices across the government consistent with the recommendation articulated below. Further, the Conference urges those agencies that already have ombuds, and those that are contemplating creating ombuds offices, to align their office standards and practices with those included in this recommendation. In general, the Conference recommends these practices to the extent applicable in particular situations, regardless of whether an ombuds office or program is created by Congress or by an agency.

    Although functionally the federal ombuds landscape is quite diverse, most federal ombuds share three core standards of practice—independence, confidentiality, and impartiality—and share common characteristics. The core standards are set forth in the standards adopted by the American Bar Association (ABA),4 the International Ombudsman Association (IOA),5 and the United States Ombudsman Association (USOA),6 though with some variations, particularly with respect to confidentiality. These organizations' standards are generally followed, as applicable, and considered essential by the ombuds profession, both within and outside government. The further an ombuds office and the agency in which it resides deviate from the three core standards in practice, the more difficult it will be to defend whatever confidentiality the office does offer should it be subjected to legal challenge.

    4 ABA Standards for the Establishment and Operation of Ombuds Offices (2004) (hereinafter “ABA Standards”), available at https://www.americanbar.org/content/dam/aba/migrated/leadership/2004/dj/115. authcheckdam.pdf.

    5 IOA Standards of Practice (2009), available at https://www.ombudsassociation.org/IOA_Main/media/SiteFiles/IOA_Standards_of_Practice_Oct09.pdf.

    6 USOA Governmental Ombudsman Standards (2003), available at https://www.usombudsman.org/site-usoa/wp-content/uploads/USOA-STANDARDS1.pdf.

    Most federal ombuds also share the following common characteristics: (1) Ombuds do not make decisions binding on the agency or provide formal rights-based processes for redress; (2) they have a commitment to fairness; and (3) they provide credible processes for receiving, reviewing, and assisting in the resolution of issues. The three core standards and these common characteristics, taken together, are central to the ombuds profession.

    Agencies have the authority to establish ombuds offices or programs. Although legislation establishing a generally applicable template and standards for federal ombuds has not been enacted, the 1996 addition of the words “use of ombuds” to the definition of “means of alternative dispute resolution” in ADRA clarifies that, when the ombuds office is assisting in the resolution of issues that are raised to it under its mandate, it is covered by the Act's provisions.7 The Act's coverage attaches to communications that take place when the constituent first approaches the ombuds office with an issue and continues to cover communications that occur until the case is, in effect, closed.8 While ADRA's definition of “alternative means of dispute resolution” includes use of ombuds, federal agency ombuds programs would benefit from certain targeted amendments to ADRA to clarify certain definitions (e.g., “issue in controversy,” “neutral,” “party”) and other provisions as they apply to the work of ombuds, to expressly align them with current practice.

    7 Further, ombuds are “neutrals” within the meaning of the Act including those ombuds who, after impartial review, advocate for specific processes or outcomes. See ABA Standards, supra note 4, at 14.

    8 The Act's coverage is generally understood to begin at intake in alternative dispute resolution offices and continue until closure even when the constituent's interaction with the office ends without a session process involving both parties. For example, guidance concerning ADRA confidentiality issued by the Federal Alternative Dispute Resolution Council in 2000 concluded that ADRA confidentiality applies to the intake and convening stages of ADR. See Confidentiality in Federal Alternative Dispute Resolution Programs, 65 FR 83,085, 83,090 (Dep't of Justice Dec. 29, 2000). Further, the Interagency ADR Working Group Steering Committee in its Guide states that ADR program administrators are “neutrals when they are helping the parties resolve their controversy by, for example, discussing ADR options with the parties, coaching, and preparing them to negotiate . . . .” See Interagency ADR Working Group Steering Comm., Protecting the Confidentiality of Dispute Resolution Proceedings 8 (2006). While ADRA covers dispute resolution communications occurring through the duration of the case, the neutral's obligation to maintain this confidentiality does not end with the closure of the case.

    The research for this recommendation also identified three areas of potential conflict between (a) the requirements of ADRA § 574 and the scope of confidentiality that ombuds offer to constituents and (b) other legal requirements that may be applicable in certain situations. Federal ombuds should be aware of these matters and how they may affect particular ombuds programs:

    (a) The relationships among their statutory duties to report information, the requirements of ADRA § 574(a)(3) on confidentiality, their agency's mission, and the professional standards to which they adhere. Any latitude they may have under ADRA § 574(d)(1) should be considered in reaching an understanding within the agency and with constituents of the breadth and limits of confidentiality consistent with statutory requirements.

    (b) The requirements and interrelationship of the Federal Records Act,9 the Freedom of Information Act,10 and the Privacy Act,11 with regard to agency records and other documentation.

    9 44 U.S.C. Chaps. 21, 22, 29, 31, and 33.

    10 5 U.S.C. 552 (2012).

    11Id. § 552a.

    (c) The effect on confidentiality of the Federal Service Labor-Management Relations Statute,12 pursuant to which the union may be entitled to notice and an opportunity to be present at meetings with bargaining unit employees (for those ombuds that have employees with a collective bargaining representative among their constituents, or who may have cause, in the course of resolving issues that have been brought to them, to engage with represented employees as well as management on issues affecting the terms and conditions of bargaining unit employees).

    12Id. §§ 7101-35; see id. § 7114.

    In addition, this recommendation addresses standards applicable to federal agency ombuds offices and related issues involved in creating such offices. The practices included in this recommendation are intended to highlight some overarching beneficial practices observed among federal ombuds and to supplement the recommended practices and guidance available from various ombuds professional organizations.

    To foster continual improvement and accountability of individual ombuds offices, the recommendation advises that each ombuds office arrange for periodic evaluation of its management and program effectiveness. Evaluation of ombuds by colleagues within the office can be useful if the office is of sufficient size to make this feasible. Otherwise, any external evaluation should be conducted by individuals knowledgeable about the roles, functions, and standards of practice of federal ombuds. For example, peer evaluation using the expertise of similar types of ombuds in other offices or agencies, or by outside ombuds professionals, may be suitable.

    Finally, the recommendation urges the designation of an entity to serve as a government-wide resource to address certain issues of common concern among agency ombuds that transcend organizational boundaries.

    Recommendation

    1. Establishment and Standards.

    a. Agencies should consider creating additional ombuds offices to provide places perceived as safe for designated constituents to raise issues confidentially and receive assistance in resolving them without fear of retribution. They should ensure that the office is able to, and does, adhere to the three core standards of independence, confidentiality, and impartiality, as these standards are described in generally recognized sets of professional standards, which include those adopted by the American Bar Association, the International Ombudsman Association, and the United States Ombudsman Association, and they should follow, to the extent applicable, the procedural recommendations below. Existing offices with the ombuds title that do not adhere to these standards should consider modifying their title, where permitted, to avoid any confusion.

    b. Ombuds offices created by executive action should be established or governed by a charter or other agency-wide directive specifying the office's mandate, standards, and operational requirements, so that others in the agency and the public are aware of the office's responsibilities.

    2. Legislative Considerations.

    a. Congress should consider creating additional ombuds offices. When Congress creates a new ombuds program, it should observe the procedural principles contained in this recommendation, to the extent applicable.

    b. Any action by Congress creating or affecting the operations of agency ombuds offices, whether through amendment of the Administrative Dispute Resolution Act (ADRA), 5 U.S.C. 571-84, or other legislative action, should reinforce the core standards of independence, confidentiality, and impartiality. Any such actions should maintain clarity and uniformity of definitions and purpose for federal agency ombuds, while allowing for differences in constituencies (whether primarily internal or external), type of office (advocate, analytic, organizational, etc.), and agency missions.

    3. Leadership Support.

    a. Agency leadership should provide visible support, renewed as leadership changes, for the role of ombuds offices in the agency and their standards, including independence, confidentiality, and impartiality.

    b. Agency leadership should consider carefully any specific recommendations for improved agency performance that are provided by agency ombuds.

    4. Independence.

    a. To promote the effectiveness and independence of ombuds offices, agencies should consider structuring ombuds offices so that they are perceived to have the necessary independence and are separate from other units of the agency. To ensure adequate support from agency leadership, ombuds offices should report to an agency official at the highest level of senior leadership. Ombuds offices should not have duties within the agency that might create a conflict with their responsibilities as a neutral, and their budgets should be publicly disclosed.

    b. The agency should ensure that the ombuds has direct access to the agency head and to other senior agency officials, as appropriate. Whether by statute, regulation, or charter, ombuds should expressly be given access to agency information and records pertinent to the ombuds' responsibilities as permitted by law.

    c. Ombuds and the agencies in which they are located should clearly articulate in all communications about the ombuds that the ombuds office is independent and specifically not a conduit for notice to the agency.

    d. Federal ombuds should not be subject to retaliation, up to and including removal from the ombuds office, based on their looking into and assisting with the resolution of any issues within the ombuds' area of jurisdiction.

    5. Confidentiality.

    a. Consistent with the generally accepted interpretation of ADRA § 574, as applied to alternative dispute resolution offices, agencies should understand and support that the Act's requirements for confidentiality attach to communications that occur at intake and continue until the issue has been resolved or is otherwise no longer being handled by the ombuds, whether or not the constituent ever engages in mediation facilitated by the ombuds office. Restrictions on disclosure of such communications, however, should not cease with issue resolution or other indicia of closure within the ombuds office.

    b. Agencies (or other authorizers) should articulate the scope and limits of the confidentiality offered by ombuds offices in their enabling documents (whether statute, regulation, charter or other memoranda), as well as on the agency Web site, in brochures, and in any other descriptions or public communications about the office utilized by the office or the agency.

    c. Agency leadership and management should not ask for information falling within the scope of confidentiality offered by the ombuds office.

    d. If information is requested from an ombuds during discovery in litigation, or in the context of an internal administrative proceeding in connection with a grievance or complaint, then the ombuds should seek to protect confidentiality to the fullest extent possible under the provisions of ADRA § 574, unless otherwise provided by law. Agencies should vigorously defend the confidentiality offered by ombuds offices.

    6. Impartiality. Ombuds should conduct inquiries and investigations in an impartial manner, free from conflicts of interest. After impartial review, ombuds may appropriately advocate with regard to process. An ombuds established with advocacy responsibilities may also advocate for specific outcomes.

    7. Legal Issues. Federal ombuds should consider potential conflicts in the following areas:

    a. The relationships among their statutory duties to report information, the requirements of ADRA § 574(a)(3) on confidentiality, their agency's mission, and the professional standards to which they adhere.

    b. The requirements and interrelationship of the Federal Records Act, the Freedom of Information Act, and the Privacy Act, with regard to agency records and other documentation.

    c. The effect on confidentiality of the provision in the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7114, where applicable, pursuant to which the union may be entitled to notice and an opportunity to be present at meetings with bargaining unit employees.

    8. Staffing.

    a. Agencies should reinforce the credibility of federal ombuds by appointment of ombuds with sufficient professional stature, who also possess the requisite knowledge, skills, and abilities. This should include, at a minimum, knowledge of informal dispute resolution practices as well as, depending on the office mandate, familiarity with process design, training, data analysis, and facilitation and group work with diverse populations. Agency ombuds offices should also seek to achieve the necessary diversity of ombuds skills and backgrounds on their staffs to credibly handle all matters presented to the office.

    b. While the spectrum of federal ombuds is too diverse to recommend a single federal position classification, job grade, and set of qualifications, agencies and the Office of Personnel Management should consider working collaboratively, in consultation with the relevant ombuds professional associations, to craft and propose appropriate job descriptions, classifications, and qualifications, as set forth in the preceding subsection, covering the major categories of federal ombuds.

    9. Training and Skills.

    a. To promote accountability and professionalism, agencies should provide training to ombuds with regard to standards and practice, whether offered by one of the ombuds professional organizations or working groups, or from within the government.

    b. Ombuds should identify steps to build general competency and confidence within the office and to provide specific support to ombuds when cases become highly emotional or complex. More generally, as a regular practice to support and improve their skills, federal ombuds should participate in relevant professional working groups or ombuds association training programs.

    c. Ombuds offices should consider the use of developmental assignments via details to other agencies or offices, as appropriate, supplemented by mentoring, which can be helpful as part of their training program.

    10. Access to Counsel. To protect the independence and confidentiality of federal ombuds, agencies should ensure, consistent with available resources, that ombuds have access to legal counsel for matters within the purview of the ombuds, whether provided within the agency with appropriate safeguards for confidentiality, by direct hiring of attorneys by the ombuds office, or under an arrangement enabling the sharing across agencies of counsel for this purpose. Such counsel should be free of conflicts of interest.

    11. Physical Facilities. To reinforce confidentiality and the perception of independence, to the fullest extent possible and consistent with agency resources, the agency should ensure that the physical ombuds office and telephonic and online communications systems and documentation enable discreet meetings and conversations.

    12. Evaluation. Each ombuds office should, as a regular professional practice, ensure the periodic evaluation of both office management and program effectiveness for the purposes of continual improvement and accountability.

    13. Providing Information.

    a. Ombuds offices should provide information about relevant options to visitors to the ombuds office, including formal processes for resolving issues, and their requirements, so that visitors do not unintentionally waive these options by virtue of seeking assistance in the ombuds office. Correspondingly, ombuds offices should not engage in behavior that could mislead employees or other visitors about the respective roles of the ombuds and those entities that provide formal complaint processes.

    b. Agencies should disclose publicly on their Web sites the identity, contact information, statutory or other basis, and scope of responsibility for their ombuds offices, to the extent permitted by law.

    c. Agency ombuds offices should explore ways to document for agency senior leadership, without breaching confidentiality, the value of the use of ombuds, including identification of systemic problems within the agency and, where available, relevant data on cost savings and avoidance of litigation.

    14. Records Management. Federal ombuds offices should work with agency records officials to ensure appropriate confidentiality protections for the records created in the course of the office's work and to ensure that ombuds records are included in appropriate records schedules.

    15. Agency-wide Considerations.

    a. Ombuds offices should undertake outreach and education to build effective relationships with those affected by their work. Outreach efforts should foster awareness of the services that ombuds offer, to promote understanding of ombuds (and agency) processes and to ensure that constituents understand the role of the ombuds and applicable standards.

    b. To ensure that there is a mutual understanding of respective roles and responsibilities within the agency, ombuds offices should work proactively with other offices and stakeholders within their agencies to establish protocols for referrals and overlap, to build cooperative relationships and partnerships that will enable resolutions, and to develop internal champions. Such initiatives also help the ombuds to identify issues new to the agency, as well as patterns and systemic issues, and to understand how the ombuds can use the resources available to add the most value. Outreach should be ongoing to keep up with the turnover of agency officials and constituents and should utilize as many communications media as appropriate and feasible.

    16. Interagency Coordination. An entity should be designated to serve as a central resource for agency ombuds to address matters of common concern.

    Administrative Conference Recommendation 2016-6 Self-Represented Parties in Administrative Proceedings Adopted December 14, 2016

    Federal agencies conduct millions of proceedings each year, making decisions that affect such important matters as disability or veterans' benefits, immigration status, and home or property loans. In many of these adjudications, claimants appear unrepresented for part or all of the proceeding and must learn to navigate hearing procedures, which can be quite complex, without expert assistance. The presence of self-represented parties 1 in administrative proceedings can create challenges for both administrative agencies and for the parties seeking agency assistance. Further, the presence of self-represented parties raises a number of concerns relating to the consistency of outcomes and the efficiency of processing cases.

    1 The term “self-represented” is used to denote parties who do not have professional representation, provided by either a lawyer or an experienced nonlawyer. Representation by a non-expert family member or friend is included in this recommendation's use of the term “self-represented.” Administrative agencies generally use the term “self-represented,” in contrast to courts' use of the term pro se. Because this recommendation focuses on agency adjudication, it uses the term “self-represented,” while acknowledging that the two terms are effectively synonymous.

    Because of these concerns, in the spring of 2015 the Department of Justice's Access to Justice Initiative asked the Administrative Conference to co-lead a working group on self-represented parties in administrative proceedings, and the Conference agreed. The working group, which operates under the umbrella of the Legal Aid Interagency Roundtable (LAIR), has been meeting since that time.2 During working group meetings, representatives from a number of agencies, including the Social Security Administration (SSA), Executive Office for Immigration Review (EOIR), Board of Veterans' Appeals (BVA), Internal Revenue Service (IRS), Department of Health and Human Services (HHS), Department of Agriculture (USDA), and Department of Housing and Urban Development (HUD) participated and shared information about their practices and procedures relating to self-represented parties. In working group meetings, agency representatives agreed that proceedings involving self-represented parties are challenging, and expressed interest both in learning more about how other agencies and courts handle self-represented parties and in improving their own practices. This recommendation, and its accompanying report,3 arose in response to those concerns.4

    2 LAIR was established in 2012 by the White House Domestic Policy Council and the Department of Justice. See White House Legal Aid Interagency Roundtable, U.S. Dep't of Just., https://www.justice.gov/lair (last visited Aug. 16, 2016). It was formalized by presidential memorandum in the fall of 2015. See Memorandum from the President to the Heads of Exec. Dep'ts and Agencies (Sept. 14, 2015), https://www.whitehouse.gov/the-press-office/2015/09/24/presidential-memorandum-establishment-white-house-legal-aid-interagency.

    3 Connie Vogelmann, Self-Represented Parties in Administrative Hearings (Sept. 7, 2016), https://www.acus.gov/sites/default/files/documents/Self-Represented-Parties-Administrative-Hearings-Draft-Report.pdf.

    4 This recommendation primarily targets the subset of administrative agencies that conduct their own administrative hearings. Components of a number of federal agencies—including HUD, HHS, and USDA—do not conduct hearings directly, and instead delegate adjudication responsibilities to state or local entities. Because the challenges facing these components are quite distinct, they are not addressed in this recommendation.

    While civil courts have long recognized and worked to address the challenges introduced by the presence of self-represented parties, agencies have increasingly begun to focus on issues relating to self-representation only in recent years. Agencies are undertaking numerous efforts to accommodate self-represented parties in their adjudication processes.5 Yet quantitative information on self-representation in the administrative context is comparatively scarce, and there is much insight to be gained from the civil courts in identifying problems and solutions pertaining to self-representation. Although there are important differences between procedures in administrative proceedings and those in civil courts, available information indicates that the two contexts share many of the same problems—and solutions—when dealing with self-represented parties.

    5Id. at 28-50.

    Challenges related to self-represented parties in administrative proceedings can be broken down into two main categories: Those pertaining to the efficiency of the administrative proceeding and those relating to the outcome of the procedure.

    From an efficiency standpoint, self-represented parties' lack of familiarity with agency procedures and administrative processes can cause delay both in individual cases and on a systemic level. Delays in individual cases may arise when self-represented parties fail to appear for scheduled hearings, file paperwork incorrectly or incompletely, do not provide all relevant evidence, or make incoherent or legally irrelevant arguments before an adjudicator. In the aggregate, self-represented parties also may require significant assistance from agency staff in filing their claims and appeals, which can be challenging given agencies' significant resource constraints. Finally, self-represented parties may create challenges for adjudicators, who may struggle to provide appropriate assistance to them while maintaining impartiality and the appearance of impartiality. These problems are exacerbated by the fact that many agencies hear significant numbers of cases by self-represented parties each year.

    Self-represented parties also may face suboptimal outcomes in administrative proceedings compared to their represented counterparts, raising issues of fairness. Even administrative procedures that are designed to be handled without trained representation can be challenging for inexperienced parties to navigate, particularly in the face of disability or language or literacy barriers. Furthermore, missed deadlines or hearings may result in a self-represented party's case being dismissed, despite its merits. Self-represented parties often struggle to effectively present their cases and, despite adjudicators' best efforts, may receive worse results than parties with representation.

    Civil courts face many of these same efficiency and consistency concerns, and in response have implemented wide-ranging innovations to assist self-represented parties. These new approaches have included in-person self-service centers; workshops explaining the process or helping parties complete paperwork; and virtual services such as helplines accessible via phone, email, text, and chat. Courts have also invested in efforts to make processes more accessible to self-represented parties from the outset, through the development of web resources, e-filing and document assembly programs, and plain language and translation services for forms and other documents. Finally, courts have also used judicial resources and training to support judges and court personnel in their efforts to effectively and impartially support self-represented parties.

    These innovations have received extremely positive feedback from parties, and early reports indicate that they improve court efficiency and can yield significant cost savings for the judiciary.6 Administrative agencies have also implemented, or are in the process of implementing, many similar innovations.7 For instance, some agencies make use of pre-hearing conferences to reduce both the necessity and the complexity of subsequent hearings.8

    6 Richard Zorza, Trends in Self-Represented Litigation Innovation, in Future Trends in State Courts 85 (Carol R. Flango et al. eds., 2006). See generally John Greacen, The Benefits and Costs of Programs to Assist Self-Represented Litigants (2009).

    7 Vogelmann, supra note 3, at 28-50.

    8Id. at 32-33.

    This recommendation builds on the successes of both civil courts and administrative agencies in dealing with self-represented parties and makes suggestions for further improvement. In making this recommendation, the Conference makes no normative judgment on the presence of self-represented parties in administrative proceedings. This recommendation assumes that there will be circumstances in which parties will choose to represent themselves, and seeks to improve the resources available to those parties and the fairness and efficiency of the overall administrative process.

    The recommendation is not intended to be one-size-fits-all, and not every recommendation will be appropriate for every administrative agency. To the extent that this recommendation requires additional expenditure of resources by agencies, innovations are likely to pay dividends in increased efficiency and consistency of outcome in the long term.9 The goals of this recommendation are to improve both the ease with which cases involving self-represented parties are processed and the consistency of the outcomes reached in those cases.

    9See generally Greacen, supra note 6.

    Recommendation Agency Resources

    1. Agencies should consider investigating and implementing triage and diagnostic tools to direct self-represented parties to appropriate resources based on both the complexity of their case and their individual level of need. These tools can be used by self-represented parties themselves for self-diagnosis or can be used by agency staff to improve the consistency and accuracy of information provided.

    2. Agencies should strive to develop a continuum of services for self-represented parties, from self-help to one-on-one guidance, that will allow parties to obtain assistance by different methods depending on need. In particular, and depending on the availability of resources, agencies should:

    a. Use Web sites to make relevant information available to the public, including self-represented parties and entities that assist them, to access and expand e-filing opportunities;

    b. Continue efforts to make forms and other important materials accessible to self-represented parties by providing them at the earliest possible stage in the proceeding in plain language, in both English and in other languages as needed, and by providing effective assistance for persons with special needs; and

    c. Provide a method for self-represented parties to communicate in “real-time” with agency staff or agency partners, as appropriate.

    3. Subject to the availability of resources and as permitted by agency statutes and regulations, agencies should provide training for adjudicators for dealing with self-represented parties, including providing guidance for how they should interact with self-represented parties during administrative proceedings. Specifically, training should address interacting with self-represented parties in situations of limited literacy or English proficiency or mental or physical disability.

    Data Collection and Agency Coordination

    4. Agencies should strive to collect the following information, subject to the availability of resources, and keeping in mind relevant statutes including the Paperwork Reduction Act, where applicable. Agencies should use the information collected to continually evaluate and revise their services for self-represented parties. In particular, agencies should:

    a. Seek to collect data on the number of self-represented parties in agency proceedings. In addition, agencies should collect data on their services for self-represented parties and request program feedback from agency personnel.

    b. Seek to collect data from self-represented parties about their experiences during the proceeding and on their use of self-help resources.

    c. Strive to keep open lines of communication with other agencies and with civil courts, recognizing that in spite of differences in procedures, other adjudicators have important and transferable insights in working with self-represented parties.

    Considerations for the Future

    5. In the long term, agencies should strive to re-evaluate procedures with an eye toward accommodating self-represented parties. Proceedings are often designed to accommodate attorneys and other trained professionals. Agencies should evaluate the feasibility of navigating their system for an outsider, and make changes—as allowed by their organic statutes and regulations—to simplify their processes accordingly. Although creation of simplified procedures would benefit all parties, they would be expected to provide particular assistance to self-represented parties.

    [FR Doc. 2016-31047 Filed 12-22-16; 8:45 am] BILLING CODE 6110-01-P
    DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request December 19, 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 23, 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.

    Economic Research Service

    Title: Risk Preferences and Demand for Crop Insurance and Cover Crop Program.

    OMB Control Number: 0536-NEW.

    Summary of Collection: Federal crop insurance programs and soil conservation programs, including those that promote use of cover crops, can significantly alter the farm revenue risk profile for the farmers who adopt them. The Economic Research Service (ERS) currently models the demand for federal crop insurance and cover crop promotion programs as part of multiple research objectives. These economic models rely on traditional theories of farmer decision-making under risk, and over-predict participation rates for all crop insurance and cover crop programs. This data collection will use an experiment with university students to test alternate theories of decision-making under risk. ERS will be using a laboratory experiment to (1) characterize the relationship between cover crop usage and crop insurance purchase, and (2) explore how this relationship depends on individuals risk preferences and demographic characteristics. Data collection for this project is authorized by the 7 U.S.C. 2204(a).

    Need and Use of the Information: The information to be collected under this proposed study is needed to provide evidence as to which theories best predict joint adoption of cover crop and crop insurance programs. This research will be exploratory in nature, and will be used to gain insights into specific economic behaviors regarding decision-making under risk. This research will not be used to generate population estimates, and the results from the proposed study design are not intended to be generalizable outside of the study participants. Results from this experiment will be used to inform future experimental research studies for risk management decision-making with more representative samples.

    Description of Respondents: Individuals or households.

    Number of Respondents: 2,000.

    Frequency of Responses: Reporting: On occasion.

    Total Burden Hours: 861.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2016-30897 Filed 12-22-16; 8:45 am] BILLING CODE 3410-18-P
    DEPARTMENT OF COMMERCE Census Bureau Agency Information Collection Activities; Request for Comments; Revision of the Confidentiality Pledge Under Title 13 United States Code, Section 9 AGENCY:

    Census Bureau, U.S. Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    Under 44 U.S.C. 3506(e) and 13 U.S.C. Section 9, the U.S. Census Bureau is seeking comments on revisions to the confidentiality pledge it provides to its respondents under Title 13, United States Code, Section 9. These revisions are required by the passage and implementation of provisions of the Federal Cybersecurity Enhancement Act of 2015 (H.R. 2029, Division N, Title II, Subtitle B, Sec. 223), which permit and require the Secretary of Homeland Security to provide Federal civilian agencies' information technology systems with cybersecurity protection for their Internet traffic. More details on this announcement are presented in the SUPPLEMENTARY INFORMATION section below.

    DATES:

    To ensure consideration, written comments must be submitted on or before February 21, 2017.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information should be directed to Robin J. Bachman, Policy Coordination Office, Census Bureau, HQ-8H028, Washington, DC 20233; 301-763-6440 (or via email at [email protected]). Due to delays in the receipt of regular mail related to security screening, respondents are encouraged to use electronic communications.

    SUPPLEMENTARY INFORMATION: I. Abstract

    Federal statistics provide key information that the Nation uses to measure its performance and make informed choices about budgets, employment, health, investments, taxes, and a host of other significant topics. The overwhelming majority of Federal surveys are conducted on a voluntary basis. Respondents, ranging from businesses to households to institutions, may choose whether or not to provide the requested information. Many of the most valuable Federal statistics come from surveys that ask for highly sensitive information such as proprietary business data from companies or particularly personal information or practices from individuals. Strong and trusted confidentiality and exclusively statistical use pledges under Title 13, U.S.C. and similar statistical confidentiality pledges are effective and necessary in honoring the trust that businesses, individuals, and institutions, by their responses, place in statistical agencies.

    Under the authority of Title 13, U.S.C. and similar statistical confidentiality protection statutes, many Federal statistical agencies make statutory pledges that the information respondents provide will be seen only by statistical agency personnel or their sworn agents, and will be used only for statistical purposes. Title 13, U.S.C. and similar statutes protect the confidentiality of information that agencies collect solely for statistical purposes and under a pledge of confidentiality. These acts protect such statistical information from administrative, law enforcement, taxation, regulatory, or any other non-statistical use and immunize the information submitted to statistical agencies from legal process. Moreover, many of these statutes carry criminal penalties of a Class E felony (fines up to $250,000, or up to five years in prison, or both) for conviction of a knowing and willful unauthorized disclosure of covered information.

    As part of the Consolidated Appropriations Act for Fiscal Year 2016 signed on December 17, 2015, the Congress included the Federal Cybersecurity Enhancement Act of 2015 (H.R. 2029, Division N, Title II, Subtitle B, Sec. 223). This Act, among other provisions, permits and requires the Secretary of Homeland Security to provide Federal civilian agencies' information technology systems with cybersecurity protection for their Internet traffic. The technology currently used to provide this protection against cyber malware is known as Einstein 3A; it electronically searches Internet traffic in and out of Federal civilian agencies in real time for malware signatures.

    When such a signature is found, Department of Homeland Security (DHS) personnel shunt the Internet packets that contain the malware signature aside for further inspection. Since it is possible that such packets entering or leaving a statistical agency's information technology system may contain a small portion of confidential statistical data, statistical agencies can no longer promise their respondents that their responses will be seen only by statistical agency personnel or their sworn agents. However, they can promise, in accordance with provisions of the Federal Cybersecurity Enhancement Act of 2015, that such monitoring can be used only to protect information and information systems from cybersecurity risks, thereby, in effect, providing stronger protection to the integrity of the respondents' submissions.

    Consequently, with the passage of the Federal Cybersecurity Enhancement Act of 2015, the Federal statistical community has an opportunity to welcome the further protection of its confidential data offered by DHS' Einstein 3A cybersecurity protection program. The DHS cybersecurity program's objective is to protect Federal civilian information systems from malicious malware attacks. The Federal statistical system's objective is to ensure that the DHS Secretary performs those essential duties in a manner that honors the Government's statutory promises to the public to protect their confidential data. Given that the Department of Homeland Security is not a Federal statistical agency, both DHS and the Federal statistical system have been successfully engaged in finding a way to balance both objectives and achieve these mutually reinforcing objectives.

    Accordingly, DHS and Federal statistical agencies, in cooperation with their parent departments, have developed a Memorandum of Agreement for the installation of Einstein 3A cybersecurity protection technology to monitor their Internet traffic and have incorporated an associated Addendum on Highly Sensitive Agency Information that provides additional protection and enhanced security handling of confidential statistical data. However, many current Title 13, U.S.C. and similar statistical confidentiality pledges promise that respondents' data will be seen only by statistical agency personnel or their sworn agents. Since it is possible that DHS personnel could see some portion of those confidential data in the course of examining the suspicious Internet packets identified by Einstein 3A sensors, statistical agencies need to revise their confidentiality pledges to reflect this process change.

    Therefore, the U.S. Census Bureau is providing this notice to alert the public to the confidentiality pledge revisions in an efficient and coordinated fashion and to request public comments on the revisions. The following section contains the revised confidentiality pledge and a listing of the U.S. Census Bureau's current PRA OMB numbers and information collection titles for the Information Collections whose confidentiality pledges will change to reflect the statutory implementation of DHS' Einstein 3A monitoring for cybersecurity protection purposes.

    II. Method of Collection

    The following is the revised statistical confidentiality pledge for the Census Bureau's data collections:

    The U.S. Census Bureau is required by law to protect your information. The Census Bureau is not permitted to publicly release your responses in a way that could identify you. Per the Federal Cybersecurity Enhancement Act of 2015, your data are protected from cybersecurity risks through screening of the systems that transmit your data.

    The following listing includes Census Bureau information collections which are confidential under 13 U.S.C. Section 9, as well as information collections that the Census Bureau conducts on behalf of other agencies which are confidential under 13 U.S.C. Section 9 and for which the confidentiality pledge will also be revised.

    OMB No. Title of information collection 0607-0008 Manufacturers' Shipments, Inventories, and Orders Survey. 0607-0013 Annual Retail Trade Report. 0607-0049 Current Population Survey (CPS) Basic Demographics. 0607-0104 Advance Monthly Retail Trade Survey (MARTS). 0607-0110 Survey of Housing Starts, Sales, and Completions. 0607-0117 U.S. Census-Age Search. 0607-0151 The Boundary and Annexation Survey (BAS) & Boundary Validation Program (BVP). 0607-0153 Construction Progress Reporting Surveys. 0607-0175 Quarterly Survey of Plant Capacity Utilization. 0607-0179 Housing Vacancy Survey (HVS). 0607-0189 Business and Professional Classification Report. 0607-0190 Monthly Wholesale Trade Survey. 0607-0195 Annual Wholesale Trade Survey (AWTS). 0607-0354 Annual Social and Economic Supplement to the Current Population Survey. 0607-0368 Special Census Program. 0607-0422 Service Annual Survey. 0607-0432 Quarterly Financial Report (QFR). 0607-0444 2014-2016 Company Organization Survey. 0607-0449 Annual Survey of Manufactures. 0607-0464 October School Enrollment Supplement to the Current Population Survey. 0607-0466 Current Population Survey, Voting and Registration Supplement. 0607-0561 Manufacturers' Unfilled Orders Survey. 0607-0610 Current Population Survey June Fertility Supplement. 0607-0717 Monthly Retail Trade Survey. 0607-0725 Generic Clearance for Questionnaire Pretesting Research. 0607-0757 2017 New York City Housing and Vacancy Survey. 0607-0782 Annual Capital Expenditures Survey. 0607-0795 Generic Clearance for Geographic Partnership Programs. 0607-0809 Generic Clearance for MAF and TIGER Update Activities. 0607-0810 The American Community Survey. 0607-0907 Quarterly Services Survey. 0607-0909 Information and Communication Technology Survey. 0607-0912 Business R&D and Innovation Survey. 0607-0921 2017 Economic Census—Commodity Flow Survey (CFS)—Advance Questionnaire. 0607-0932 2017 Economic Census—Commodity Flow Survey. 0607-0936 American Community Survey Methods Panel Tests. 0607-0963 2015 Management and Organizational Practices Survey. 0607-0969 Federal Statistical System Public Opinion Survey. 0607-0971 Generic Clearance for 2020 Census Tests to Research the Use of Automation in Field Data Collection Activities. 0607-0977 2014 Survey of Income and Program Participation (SIPP) Panel. 0607-0978 Generic Clearance for Internet Nonprobability Panel Pretesting. 0607-0983 Comparing Health Insurance Measurement Error (CHIME). 0607-0986 Annual Survey of Entrepreneurs. 0607-0987 The School District Review Program (SDRP). 0607-0988 The Redistricting Data Program. 0607-0989 2016 Census Test. 0607-0990 National Survey of Children's Health. 0607-0991 2017 Economic Census Industry Classification Report. 0607-0992 Address Canvassing Testing. 0607-XXXX 2017 Census Test—currently submitted for clearance. 0607-0760 Economic Census Round 3 Focus Group Discussion—currently submitted for clearance. 0607-XXXX Collection of State Administrative Records Data—currently submitted for clearance. 0607-XXXX 2020 Census Local Update of Census Addresses Operation (LUCA)—currently submitted for clearance. 2528-0017 2015 American Housing Survey. 1220-0175 American Time Use Survey (ATUS). 1220-0050 Consumer Expenditure Quarterly and Diary Surveys (CEQ/CED). 1220-0100 Current Population Survey (CPS)—Basic Labor Force. 1121-0317 Identify Theft Supplement to the NCVS. 1121-0111 National Crime Victimization Survey 2015-2018. 3145-0141 National Survey of College Graduates (NSCG). 1018-0088 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation. 1121-0260 2015 Police Public Contact Supplement. 1121-0184 2017 School Crime Supplement to the NCVS. 1121-0302 Supplemental Victimization Survey. 2528-0013 Survey of Market Absorption (SOMA). 2528-0276 Rental Housing Finance Survey (RHFS). 1905-0169 Manufacturing Energy Consumption Survey (MECSA). 2528-0029 Manufactured Housing Survey (MHS). 0935-0110 Medical Expenditure Panel Survey (MEPS). 1220-0187 ATUS-Eating and Health Supplement. 0536-0043 Food Security Supplement to the Current Population Survey. 1220-0153 Contingent Worker Supplement to the Current Population Survey—(Currently in Federal Register Notice Stage—has not been fully approved). 1220-0102 Veterans Supplement to the Current Population Survey. 0970-0416 Child Support Supplement to the Current Population Survey. 3064-0167 National Survey of Unbanked and Underbanked Households. 1220-0102 Volunteers Supplement. 1220-0104 Displaced Workers Supplement. 3135-0136 Survey of Public Participation in the Arts. 0660-0221 Computer and Internet Use. III. Data

    OMB Control Number: 0607-0993.

    Form Number(s): None.

    Affected Public: All survey respondents to Census Bureau data collections.

    Legal Authority: 44 U.S.C. 3506(e) and 13 U.S.C. Section 9.

    IV. Request for Comments

    Comments are invited on the necessity and efficacy of the Census Bureau's revised confidentiality pledge above. Comments submitted in response to this notice will become a matter of public record.

    Sheleen Dumas, PRA Departmental Lead, Office of the Chief Information Officer.
    [FR Doc. 2016-30959 Filed 12-22-16; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF090 Endangered and Threatened Species; Take of Anadromous Fish AGENCY:

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

    ACTION:

    Applications for four new scientific research permits, two permit modifications, and four permit renewals.

    SUMMARY:

    Notice is hereby given that NMFS has received ten scientific research permit application requests relating to Pacific salmon, steelhead, eulachon, and green sturgeon. The proposed research is intended to increase knowledge of species listed under the Endangered Species Act (ESA) and to help guide management and conservation efforts. The applications may be viewed online at: https://apps.nmfs.noaa.gov/preview/preview_open_for_comment.cfm.

    DATES:

    Comments or requests for a public hearing on the applications must be received at the appropriate address or fax number (see ADDRESSES) no later than 5 p.m. Pacific standard time on January 23, 2017.

    ADDRESSES:

    Written comments on the applications should be sent to the Protected Resources Division, NMFS, 1201 NE., Lloyd Blvd., Suite 1100, Portland, OR 97232-1274. Comments may also be sent by email to [email protected] (include the permit number in the subject line of email).

    FOR FURTHER INFORMATION CONTACT:

    Shivonne Nesbit, Portland, OR (ph.: 503-231-6741), email: [email protected]). Permit application instructions are available from the address above, or online at https://apps.nmfs.noaa.gov.

    SUPPLEMENTARY INFORMATION:

    Species Covered in This Notice

    The following listed species are covered in this notice:

    Chinook salmon (Oncorhynchus tshawytscha): threatened California Coastal (CC); endangered Sacramento River winter-run (SRWR); threatened Central Valley spring-run (CVSR).

    Coho salmon (O. kisutch): threatened Southern Oregon/Northern California Coast (SONCC); endangered Central California Coast (CCC).

    Steelhead (O. mykiss): threatened Northern California (NC); threatened Central California Coast (CCC); threatened California Central Valley (CCV); threatened South-Central California Coast (S-CCC); endangered Southern California (SC).

    North American green sturgeon (Acipenser medirostris): threatened southern distinct population segment (sDPS).

    Eulachon (Thaleichthys pacificus): threatened sDPS.

    Authority

    Scientific research permits are issued in accordance with section 10(a)(1)(A) of the ESA (16 U.S.C. 1531 et seq.) and regulations governing listed fish and wildlife permits (50 CFR parts 222-226). NMFS issues permits based on findings that such permits: (1) Are applied for in good faith; (2) if granted and exercised, would not operate to the disadvantage of the listed species that are the subject of the permit; and (3) are consistent with the purposes and policy of section 2 of the ESA. The authority to take listed species is subject to conditions set forth in the permits.

    Anyone requesting a hearing on an application listed in this notice should set out the specific reasons why a hearing on that application would be appropriate (see ADDRESSES). Such hearings are held at the discretion of the Assistant Administrator for Fisheries, NMFS.

    Applications Received Permit 19820

    Dr. James Hobbs, Professor at the University of California in Davis, CA is seeking a five-year research permit to annually take juvenile SRWR and CVSR Chinook, CCC and CCV steelhead, and sDPS green sturgeon in the San Francisco Bay Area and tributaries. The purpose of this research is to determine the degree to which Longfin Smelt use tributaries of San Pablo and San Francisco bays as spawning and rearing habitat. This information would improve the understanding of how bay tributaries contribute to the overall population of Longfin Smelt. Although this study principally targets longfin smelt, SRWR and CVSR Chinook, CCC and CCV steelhead and sDPS green sturgeon may be encountered during sampling. Fish would be captured with beach seines, fyke nets, and trawls (otter and Kodiak). Captured fish would be identified by species, enumerated, and released. A sub-sample of 30 individuals per species would be measured. The researchers do not propose to kill any fish but a small number may die as an unintended result of research activities. This research will enhance the knowledge of the distribution of the species in bay tributaries that have not been previously monitored.

    Permit 17292

    NMFS' Southwest Fisheries Science Center (SWFSC) is seeking a five-year research permit to annually take adult and juvenile CC Chinook, CCC and SONCC coho, NC, S-CCC, SC and CCC steelhead. Sampling would be conducted in California on a variety of coastal salmonid populations. The purposes of this study are to: (1) Estimate population abundance and dynamics; (2) evaluate factors affecting growth, survival, reproduction and life-history patterns; (3) assess life-stage specific habitat use and movement; (4) evaluate physiological performance and tolerance; (5) determine the genetic structure of populations; (6) evaluate the effects of water management and habitat restoration; and (7) develop improved sampling and monitoring methods. The SWFSC proposes to capture fish using backpack electrofishing, hook and line angling, hand and/or dipnets, beach seines, fyke nets, panel, pipe or screw traps, and weirs. The SWFSC also proposes to observe adult and juvenile salmonids during spawning ground surveys and snorkel surveys. Some fish would anesthetized, measured, weighed, tagged (coded wire, elastomer, radio, acoustic, passive integrated transponder (PIT) or sonic), and tissue sampled for genetics identification. Intentional lethal take is proposed to support laboratory experiments using hatchery-origin fish whenever possible to examine fish physiology, environmental tolerance, and as part of field-based research to assess performance, maternal origin (resident v. anadromous) and/or life-history and habitat use (freshwater, estuarine and marine). The research would benefit the affected species by providing critical information in support of the conservation, management, and recovery of Coastal California salmon stocks.

    Permit 20524

    The United States Geological Survey (USGS) is seeking a one-year permit to take juvenile CC, SRWR and CVSR Chinook, CCC coho, CCC, CCV, S-CCC, SC steelhead, and sDPS green sturgeon. The goal of the California Stream Quality Assessment (CSQA) is to assess the quality of streams in California by characterizing multiple water-quality factors that are stressors to aquatic life and evaluating the relation between these stressors and biological communities. Approximately ninety sites would be sampled for up to nine weeks for contaminants, nutrients, and sediment in water. Stream-bed sediment would be collected during the ecological survey for analysis of sediment chemistry and toxicity. Fish would be collected via backpack electrofishing. Captured fish would be held in aerated live wells and buckets and would be identified, enumerated and released. A subset of non-listed fish from each site will be sacrificed for mercury analysis. The researchers do not propose to kill any listed fish but a small number may die as an unintended result of research activities. This research will benefit listed species by providing information about the most critical factors affecting stream quality and thus generate insights about possible approaches to protecting the health of streams in the region.

    Permit 20035

    Stillwater Sciences is seeking a one-year permit to take juvenile SONCC coho in the Salmon and Scott River floodplains (California). Fish would be captured by beach seine or minnow traps. The study is part of a larger comprehensive planning effort that would lead to strategic restoration of floodplains and mine tailings in the Salmon and Scott rivers. The purpose of this research is to assess mercury contamination in fish and invertebrates. Non-listed fish would be collected and sacrificed for tissue testing of mercury contamination. The sampling has the potential to capture juvenile SONCC coho salmon. As part of this project, information would be collected on coho (e.g., locations where individuals were observed and/or captured, habitat conditions) because this information will help determine the presence and distribution of coho—especially in the Salmon River where there is a paucity of such data. The researchers do not propose to kill any listed fish but a small number may die as an unintended result of research activities. The project would benefit listed species by providing data on mercury contamination, data that will be used to direct restoration efforts.

    Permit 17428-2M

    The U.S. Fish and Wildlife Service (FWS) is seeking to modify a five-year permit that allows them to annually take juvenile CCV steelhead, juvenile SRWR and CVSR Chinook salmon, and juvenile sDPS green sturgeon at rotary screw traps in the American River in Sacramento County, California. The purposes of this study are to: (1) Assess population-level abundance, production, condition, survival, and outmigration timing of juvenile salmonids; (2) evaluate the effectiveness of restoration actions; and (3) generate data that can be incorporated into life cycle models. Captured fish would be anesthetized, measured, weighed, tagged (acoustic or PIT), have a tissue sample taken, allowed to recover, and released. The modification is requested because the original permit application underestimated the number of CCV steelhead and SRWR and CVSR Chinook salmon that would be caught in the American River. The FWS is requesting a higher take limit and seeking to add green sturgeon because multiple years of trapping data suggest the authorized take limit needs to be adjusted. The researchers would avoid adult salmonids, but some may be encountered as an unintentional result of sampling. The researchers do not expect to kill any listed salmonids but a small number may die as an unintended result of the research activities. The project would benefit listed species by providing data that will be used to infer biological responses to ongoing habitat restoration activities, and direct future management activities to enhance the abundance, production, and survival of juvenile salmon and steelhead in the American River.

    Permit 17299-3M

    The SWFSC is seeking to modify a five-year permit that currently allows them to annually take juvenile CCV steelhead, juvenile SRWR and CVSR Chinook salmon. The sampling would take place in the Sacramento River and its tributaries. The purpose of this study is to document the survival, movement, habitat use and physiological capacity of Chinook salmon and steelhead and their predators in the Sacramento River basin. The SWFSC proposes to capture fish using hand and/or dipnets, beach seines, hook and line angling, and both backpack and boat-operated electrofishing. Captured fish would be anesthetized, tagged (sonic, acoustic, or PIT) and released. A subsample would have tissue samples taken. The SWFSC proposes to intentionally kill 50 CVSR juvenile chinook. From these, the researchers would collect otoliths for age/growth analysis, organ tissue for isotope, biochemical, and genomic expression assays and parasite infections. They would also collect stomach contents for diet analysis and tag effects/retention studies. Any CVSR fish that are unintentionally killed would be used in place of the intentional mortalities.

    The permit would be modified to include (1) boat electroshocking, (2) PIT-tagging at screw trap locations in lieu of and/or in addition to acoustic tagging, (3) tissue and otolith sampling, and (4) the intentional directed mortality discussed above. The research would benefit the affected species by providing information to support the conservation, restoration, and management of Central Valley salmon stocks.

    Permit 16531-2R

    FISHBIO Environmental is seeking to renew a five-year research permit to take juvenile and adult CCV steelhead and CVSR Chinook in the Merced River (California). The purpose of this study is to obtain data on the habitat needs of fall-run Chinook and to assess the status of steelhead/rainbow trout in the Merced River. Fish would be captured at rotary screw traps and passively observed at a resistance board weir equipped with an infrared camera and during snorkel surveys. Fish captured at the screw traps would be anesthetized, identified by species, measured, weighed and released. A sub-sample of juvenile fall-run Chinook would be marked with a photonic dye to determine trap efficiency. Scale samples would be collected from up to 50 juvenile fall-run Chinook each week and from a small number of juvenile and adult O. mykiss during the season. Although fall-run Chinook are the researchers' primary target, they would also collect data rainbow trout/steelhead. This research would benefit listed salmon by identifying factors that limit fish production in the Merced River.

    Permit 15542-2R

    Normandeau Associates is seeking to renew a five-year research permit to take juvenile and adult CCV steelhead in Lower Putah Creek in the lower Sacramento Basin (California). The purpose of this study is to monitor the distribution and relative abundance of fish populations in lower Putah Creek downstream of the Putah Diversion Dam. Fish would be captured by backpack and boat electrofishing. Captured fish would be identified by species, measured, weighed, allowed to recover, and released. The researchers do not expect to kill any listed salmonids but a small number may die as an unintended result of the research activities. This research would benefit listed steelhead by providing information on fish response to river flows and on the distribution and diversity of rainbow trout/steelhead in Putah Creek.

    Permit 16318-2R

    Hagar Environmental Services is seeking to renew a five-year research permit to take juvenile CCC coho, CCC and S-CCC steelhead in the San Lorenzo-Soquel and Salinas subbasins. The purpose of this study is to assess salmonid habitat, presence, and abundance in order to inform watershed management and establish baseline population abundances before habitat conservation measures are implemented. The researchers would use backpack electrofishing and beach seines to capture the fish and would observe them during snorkel surveys. Captured fish would be enumerated, measured, and examined. Scale samples would be taken from a limited subset of individuals. Some salmonids would be PIT-tagged for a mark-recapture abundance estimation and to assess movement patterns. Snorkel surveys would be used in place of capture whenever possible. The researchers do not expect to kill any listed salmonids but a small number may die as an unintended result of the research activities. This research would benefit listed species by providing population, distribution and habitat data that will be used to draft a Habitat Conservation Plan for the City of Santa Cruz.

    Permit 10093-2R

    The California Department of Fish and Wildlife (CDFW) is seeking to renew a five-year permit to take adult and juvenile CC Chinook, CCC and SONCC coho, and NC, S-CCC, SC and CCC steelhead. The project goal is to restore salmon and steelhead productivity in coastal California streams through a comprehensive restoration program. The specific goals of this research project are to assess fish abundance and distribution in coastal streams. Fish would be captured by backpack electrofishing, beach seine, minnow traps, and weirs, and they would be observed during snorkel and spawning ground surveys. Some fish would be anesthetized, measured, weighed, tagged, and tissue sampled for genetic information. The researchers do not expect to kill any listed salmonids but a small number may die as an unintended result of the research activities. This research would benefit listed species by providing data to assess restoration projects and direct future habitat restoration needs.

    This notice is provided pursuant to section 10(c) of the ESA. NMFS will evaluate the applications, associated documents, and comments submitted to determine whether the applications meet the requirements of section 10(a) of the ESA and Federal regulations.

    The final permit decisions will not be made until after the end of the 30-day comment period. NMFS will publish notice of its final action in the Federal Register.

    Dated: December 19, 2016. Angela Somma, Chief, Endangered Species Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-30877 Filed 12-22-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE980 Takes of Marine Mammals Incidental to Specified Activities; St. George Reef Lighthouse Restoration, Maintenance, and Tour Operations at Northwest Seal Rock, Del Norte County, California AGENCY:

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

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments.

    SUMMARY:

    NMFS has received an application from the St. George Reef Lighthouse Preservation Society (Society), for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment incidental to conducting aircraft operations, lighthouse renovation, light maintenance activities, and tour operations on the St. George Reef Lighthouse Station on Northwest Seal Rock (NWSR) in the northeast Pacific Ocean. The proposed dates for this action would be February 19, 2017 through February 18, 2018. Pursuant to the Marine Mammal Protection Act, NMFS is requesting comments on its proposal to issue an IHA to the Society to incidentally take, by Level B harassment only, marine mammals during the specified activity.

    DATES:

    NMFS must receive comments and information on or before January 23, 2017.

    ADDRESSES:

    Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is [email protected] Comments sent via email to [email protected], including all attachments, must not exceed a 25-megabyte file size.

    Instructions: NMFS may not consider comments if they are sent by any other method, to any other to addresses or individual, or received after the comment period ends. All comments received are a part of the public record and NMFS will post them for public viewing to http://www.nmfs.noaa.gov/pr/permits/incidental/research.htm without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the commenter is publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    An electronic copy of the application may be obtained by writing to the address specified above, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/research.htm.

    The Environmental Assessment (EA) specific to conducting aircraft operations, restoration, and maintenance work on the lighthouse is also available at the same internet address. Information in the EA and this notice collectively provide the environmental information related to the proposed issuance of the IHA for public review and comment. The public may also view documents cited in this notice, by appointment, during regular business hours, at the aforementioned address.

    FOR FURTHER INFORMATION CONTACT:

    Laura McCue, NMFS, Office of Protected Resources, NMFS (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    Background

    Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

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

    Summary of Request

    On October 14, 2016, NMFS received an application from the Society for the taking of marine mammals incidental to restoration, maintenance, and tour operations at St. George Reef Lighthouse (Station) located on Northwest Seal Rock offshore of Crescent City, California in the northeast Pacific Ocean. NMFS determined the application complete and adequate on December 12, 2016.

    The Society proposes to conduct aircraft operations, lighthouse renovation, and periodic maintenance on the Station's optical light system on a monthly basis. The proposed activity would occur on a monthly basis over one weekend, November through April. The Society currently has an IHA that is valid through February 18, 2017. This IHA would start on February 19, 2017, to avoid a lapse in authorization, and would be valid for one year. The following specific aspects of the proposed activities would likely to result in the take of marine mammals: Acoustic and visual stimuli from (1) helicopter landings/takeoffs; (2) noise generated during restoration activities (e.g., painting, plastering, welding, and glazing); (3) maintenance activities (e.g., bulb replacement and automation of the light system); and (4) human presence. Thus, NMFS anticipates that take, by Level B harassment only, of California sea lions (Zalophus californianus); Pacific harbor seals (Phoca vitulina); Steller sea lions (Eumetopias jubatus) of the eastern U.S. Stock; and northern fur seals (Callorhinus ursinus) could result from the specified activity.

    Description of the Specified Activity Overview

    To date, NMFS has issued five IHAs to the Society for the conduct of the same activities from 2010 to 2016 (75 FR 4774, January 29, 2010; 76 FR 10564, February 25, 2011; 77 FR 8811, February 15, 2012; 79 FR 6179, February 3, 2014; and 81 FR 9440, February 23, 2016). This is the Society's sixth request for an annual IHA as their current IHA will expire on February 18, 2017.

    The Station, listed in the National Park Service's National Register of Historic Places, is located on NWSR offshore of Crescent City, California in the northeast Pacific Ocean. The Station, built in 1892, rises 45.7 meters (m) (150 feet (ft)) above sea level. The structure consists of hundreds of granite blocks topped with a cast iron lantern room and covers much of the surface of the islet. The purpose of the project is to restore the lighthouse, to conduct tours, and to conduct annual and emergency maintenance on the Station's optical light system.

    Dates and Duration

    The Society proposes to conduct the activities (aircraft operations, lighthouse restoration, and maintenance activities) at a maximum frequency of one session per month. The proposed duration for each session would last no more than three days (e.g., Friday, Saturday, and Sunday). The proposed IHA, if issued, would be effective from February 19, 2017 through February 18, 2018 with restrictions on the Society conducting activities from May 1, 2017 to October 31, 2017. NMFS refers the reader to the Detailed Description of Activities section later in this notice for more information on the scope of the proposed activities.

    Specified Geographic Region

    The Station is located on a small, rocky islet (41°50′24″ N., 124°22′06″ W.) approximately 9 kilometers (km) (6.0 miles (mi)) in the northeast Pacific Ocean, offshore of Crescent City, California (41°46′48″ N.; 124°14′11″ W.). NWSR is approximately 91.4 meters (m) (300 feet (ft)) in diameter that peaks at 5.18 m (17 ft) above mean sea level.

    Detailed Description of Activities Aircraft Operations

    Because NWSR has no safe landing area for boats, the proposed restoration activities would require the Society to transport personnel and equipment from the California mainland to NWSR by a small helicopter. Helicopter landings take place on top of the engine room (caisson) which is approximately 15 m (48 ft) above the surface of the rocks on NWSR. The landing zone has been relocated nearer the edge of the caisson, increasing the distance of the rotor from the lighthouse tower by the required footage. The Society plans to charter a Raven R44 helicopter, owned and operated by Air Shasta Rotor and Wing, LLC. The Raven R44, which seats three passengers and one pilot, is a compact-sized (1134 kilograms (kg), 2500 pounds (lbs)) helicopter with two-bladed main and tail rotors. Both sets of rotors are fitted with noise-attenuating blade tip caps that would decrease flyover noise.

    The Society proposes to transport no more than 15 work crew members and equipment to NWSR for each session and estimates that each session would require no more than 34 helicopter landings/takeoffs per month (see below for number per day). During landing, the helicopter would land on the caisson to allow the work crew members to disembark and retrieve their equipment located in a basket attached to the underside of the helicopter. The helicopter would then return to the mainland to pick up additional personnel and equipment.

    Proposed schedule: The Society would conduct a maximum of 16 flights (8 arrivals and eight departures) for the first day. The first flight would depart from Crescent City Airport at approximately 9 a.m. for a 6-minute flight to NWSR. The helicopter would land and takeoff immediately after offloading personnel and equipment every 20 minutes (min). The total duration of the first day's aerial operations could last for approximately three hours (hrs) and 26 min and would end at approximately 12:34 p.m. Crew members would remain overnight at the Station and would not return to the mainland on the first day.

    For the second day, the Society would conduct a maximum of 10 flights (five arrivals and five departures) to transport additional materials on and off the islet, if needed. The first flight would depart from Crescent City Airport at 9 a.m. for a 6-min flight to NWSR. The total duration of the second day's aerial operations could last up to three hrs. Second-day operations are only conducted if needed; flights on the second day do not normally occur.

    For the final day of operations, the Society could conduct a maximum of eight helicopter flights (four arrivals and four departures) to transport the remaining crew members and equipment/material back to the Crescent City Airport. The total duration of the third day's helicopter operations in support of restoration could last up to two hrs and 14 min.

    Lighthouse Restoration Activities

    Restoration and maintenance activities would involve the removal of peeling paint and plaster, restoration of interior plaster and paint, refurbishing structural and decorative metal, reworking original metal support beams throughout the lantern room and elsewhere, replacing glass as necessary, upgrading the present electrical system; and annual light beacon maintenance.

    Emergency Light Maintenance

    If the beacon light fails, the Society proposes to send a crew of two to three people to the Station by helicopter to repair the beacon light. For each emergency repair event, the Society proposes to conduct a maximum of four flights (two arrivals and two departures) to transport equipment and supplies. The helicopter may remain on site or transit back to shore and make a second landing to pick up the repair personnel.

    In the case of an emergency repair between May 1, 2016, and October 31, 2016, the Society would consult with the NMFS' Westcoast Regional Office (WRO) biologists to best determine the timing of the trips to the lighthouse, on a case-by-case basis, based upon the existing environmental conditions and the abundance and distribution of any marine mammals present on NWSR. The regional biologists would have real-time knowledge regarding the animal use and abundance of the NWSR at the time of the repair request and would make a decision regarding when the Society could conduct trips to the lighthouse during the emergency repair time window that would have the least practicable adverse impact to marine mammals. The WRO biologists would also ensure that the Society's request for incidental take during emergency repairs would not exceed the number of incidental take authorized in the proposed IHA.

    Sound Sources and Sound Characteristics

    NMFS expects that acoustic stimuli resulting from the proposed helicopter operations; noise from maintenance and restoration activities; and human presence have the potential to harass marine mammals, incidental to the conduct of the proposed activities.

    This section includes a brief explanation of the sound measurements frequently used in the discussions of acoustic effects in this notice. Sound pressure is the sound force per unit area, and is usually measured in micropascals (μPa), where 1 pascal (Pa) is the pressure resulting from a force of one newton exerted over an area of one square meter. Sound pressure level (SPL) is the ratio of a measured sound pressure and a reference level. The commonly used reference pressure is 1 μPa for under water, and the units for SPLs are dB re: 1 μPa. The commonly used reference pressure is 20 μPa for in air, and the units for SPLs are dB re: 20 μPa.

    SPL (in decibels (dB)) = 20 log (pressure/reference pressure).

    SPL is an instantaneous measurement expressed as the peak, the peak-peak, or the root mean square (rms). Root mean square is the square root of the arithmetic average of the squared instantaneous pressure values. All references to SPL in this document refer to the rms unless otherwise noted. SPL does not take into account the duration of a sound.

    R44 Helicopter Sound Characteristics

    Noise testing performed on the R44 Raven Helicopter, as required for Federal Aviation Administration approval, required an overflight at 150 m (492 ft) above ground level, 109 knots and a maximum gross weight of 1,134 kg (2,500 lbs). The noise levels measured on the ground at this distance and speed were 81.9 dB re: 20 μPa (A-weighted) for the model R44 Raven I, or 81.0 dB re: 20 μPa (A-weighted) for the model R44 Raven II (NMFS, 2007).

    Based on this information, we expect that the received sound levels at the landing area on the Station's caisson would increase above 81-81.9 dB re: 20 μPa (A-weighted).

    Restoration and Maintenance Sound Characteristics

    Any noise associated with these activities is likely to be from light construction (e.g., sanding, hammering, or use of hand drills). The Society proposes to confine all restoration activities to the existing structure which would occur on the upper levels of the Station. Pinnipeds hauled out on NWSR do not have access to the upper levels of the Station.

    Description of Marine Mammals in the Area of the Specified Activity

    Table 1 provides the following information: All marine mammal species with possible or confirmed occurrence in the proposed activity area; information on those species' regulatory status under the MMPA and the Endangered Species Act (ESA) of 1973 (16 U.S.C. 1531 et seq.); abundance; occurrence and seasonality in the activity area. NMFS refers the public the draft 2016 NMFS Marine Mammal Stock Assessment Report available online at: http://www.nmfs.noaa.gov/pr/sars/ for further information on the biology and distribution of these species.

    Table 1—General Information on Marine Mammals That Could Potentially Haul Out on Northwest Seal Rock, November 2015 Through November 2016 Species Stock Regulatory status 12 Stock abundance
  • (CV, Nmin, most recent
  • abundance survey) 3
  • PBR Occurrence and seasonality
    California sea lion (Zalophus californianus) U.S. MMPA—NC ESA—NL 296,750 (n/a; 153,337; 2011) 9,200 Year-round presence. Steller sea lion (Eumetopias jubatus) Eastern Distinct Population Segment MMPA—D ESA—DL 60,131-74,448 (n/a; 36,551; 2013) 1,645 Year-round presence. Pacific harbor seal (Phoca vitulina) California MMPA—NC ESA—NL 30,968 (n/a; 27,348; 2012) 1,641 Occasional, spring. Northern fur seal (Callorhinus ursinus) California Breeding MMPA—D ESA—NL 14,050 (n/a; 7,524; 2013) 451 Rare. 1 MMPA: D = Depleted, S = Strategic, NC = Not Classified. 2 ESA: EN = Endangered, T = Threatened, DL = Delisted, NL = Not listed. 3 2016 draft NMFS Stock Assessment Reports: Carretta et al. (2015) and Muto et al. (2015).
    Eastern Distinct Population Segment of Steller Sea Lions

    Steller sea lions consist of two distinct population segments: The western and eastern distinct population segments (eDPS and wDPS, respectively) divided at 144° West longitude (Cape Suckling, Alaska). The western segment of Steller sea lions inhabit central and western Gulf of Alaska, Aleutian Islands, as well as coastal waters and breed in Asia (e.g., Japan and Russia). The eastern segment includes sea lions living in southeast Alaska, British Columbia, California, and Oregon. The eDPS includes animals born east of Cape Suckling, AK (144° W) and the latest abundance estimate for the stock is 60,131 to 74,448 animals, with PBR at 1,645 animals (Muto et al., 2015).

    Steller sea lions range along the North Pacific Rim from northern Japan to California (Loughlin et al., 1984), with centers of abundance and distribution in the Gulf of Alaska and Aleutian Islands, respectively. The species is not known to migrate, but individuals disperse widely outside of the breeding season (late May through early July), thus potentially intermixing with animals from other areas.

    The eDPS of Steller sea lions breeds on rookeries located in southeast Alaska, British Columbia, Oregon, and California. There are no rookeries located in Washington State. Steller sea lions give birth in May through July and breeding commences a couple of weeks after birth. Pups are weaned during the winter and spring of the following year.

    Despite the wide-ranging movements of juveniles and adult males in particular, exchange between rookeries by breeding adult females and males (other than between adjoining rookeries) appears low, although males have a higher tendency to disperse than females (Trujillo et al., 2004; Hoffman et al., 2006). A northward shift in the overall breeding distribution has occurred, with a contraction of the range in southern California and new rookeries established in southeastern Alaska (Pitcher et al., 2007). Overall, counts of non-pups at trend sites in California and Oregon have been relatively stable or increasing slowly since the 1980s (Allen and Angliss 2012).

    Steller sea lion numbers at NWSR ranged from 20 to 355 animals (CCR 2001). Counts of Steller sea lions during the spring (April-May), summer (June-August), and fall (September-October), averaged 68, 110, and 56, respectively (CCR 2001). A multi-year survey at NWSR between 2000 and 2004 showed Steller sea lion numbers ranging from 175 to 354 in July (M. Lowry, NMFS/SWFSC, unpubl. data). The Society presumes that winter use of NWSR by Steller sea lion to be minimal, due to inundation of the natural portion of the island by large swells.

    For the 2010 season, the Society reported that no Steller sea lions were present in the vicinity of NWSR during restoration activities (SGRLPS 2010). Based on the monitoring report for the 2011 season, the maximum numbers of Steller sea lions present during the April and November 2011, work sessions was 2 and 150 animals, respectively (SGRLPS 2012). During the 2012 season, the Society did not observe any Steller sea lions present on NWSR during restoration activities. The Society did not conduct any operations for the 2013-2014, 2014-2015, and 2015-2016 seasons.

    California Sea Lion

    The estimated population of the U.S. stock of California sea lion is approximately 296,750 animals, with PBR at 9,200 individuals, and the current maximum population growth rate is 12 percent (Carretta et al., 2015).

    California sea lion breeding areas are on islands located in southern California, in western Baja California, Mexico, and the Gulf of California. During the breeding season, most California sea lions inhabit southern California and Mexico. Rookery sites in southern California are limited to the San Miguel Islands and the southerly Channel Islands of San Nicolas, Santa Barbara, and San Clemente (Carretta et al., 2015). Males establish breeding territories during May through July on both land and in the water. Females come ashore in mid-May and June where they give birth to a single pup approximately four to five days after arrival and will nurse pups for about a week before going on their first feeding trip. Females will alternate feeding trips with nursing bouts until weaning between four and 10 months of age (Allen and Angliss 2010).

    Adult and juvenile males will migrate as far north as British Columbia, Canada while females and pups remain in southern California waters in the non-breeding season. In warm water (El Niño) years, some females range as far north as Washington and Oregon, presumably following prey.

    Crescent Coastal Research (CCR) conducted a three-year (1998-2000) survey of the wildlife species on NWSR for the Society. They reported that counts of California sea lions on NWSR varied greatly (from 6 to 541) during the observation period from April 1997 through July 2000. CCR reported that counts for California sea lions during the spring (April-May), summer (June-August), and fall (September-October), averaged 60, 154, and 235, respectively (CCR 2001).

    The most current counts for the month of July by NMFS (2000 through 2004) have been relatively low as the total number of California sea lions recorded in 2000 and 2003 was three and 11, respectively (M. Lowry, NMFS, SWFSC, unpublished data). Based on the monitoring report for the 2011 season, the maximum numbers of California sea lions present during the April and November, 2011 work sessions was 2 and 160 animals, respectively (SGRLPS 2012). There were no California sea lions present during the March, 2012 work session (SGRLPS 2012).

    Northern Fur Seal

    Northern fur seals occur from southern California north to the Bering Sea and west to the Sea of Okhotsk and Honshu Island of Japan. NMFS recognizes two separate stocks of northern fur seals within U.S. waters: An Eastern Pacific stock distributed among sites in Alaska, British Columbia; and a California stock (including San Miguel Island and the Farallon Islands). The estimated population of the California stock is 14,050 animals with PBR at 451 animals (Carretta et al., 2015).

    Northern fur seals breed in Alaska and migrate along the west coast during fall and winter. Due to their pelagic habitat, they are rarely seen from shore in the continental United States, but individuals occasionally come ashore on islands well offshore (i.e., Farallon Islands and Channel Islands in California). During the breeding season, approximately 45 percent of the worldwide population inhabits the Pribilof Islands in the Southern Bering Sea, with the remaining animals spread throughout the North Pacific Ocean (Caretta et al., 2015).

    CCR observed one male northern fur seal on Northwest Seal Rock in October, 1998 (CCR 2001). It is possible that a few animals may use the island more often than indicated by the CCR surveys, if they were mistaken for other otariid species (i.e., eared seals or fur seals and sea lions) (M. DeAngelis, NMFS, pers. comm., 2007).

    For the 2010, 2011, and 2012 work seasons, the Society did not observe any Northern fur seals present on NWSR during restoration activities (SGRLPS 2010; 2011; 2012).

    Pacific Harbor Seal

    Harbor seals are widely distributed in the North Atlantic and North Pacific. Two subspecies exist in the Pacific: Phoca vitulina stejnegeri in the western North Pacific, near Japan, and P. v. richardii in the eastern North Pacific. The latter subspecies inhabits coastal and estuarine areas from Mexico to Alaska (Carretta et al., 2014) and is the only stock present in the action area. Previous assessments of the status of harbor seals have recognized three stocks along the west coast of the continental U.S.: (1) California, (2) Oregon and Washington outer coast waters, and (3) inland waters of Washington; however, the exact placement of the boundary was arbitrary. The estimated population of the California stock of Pacific harbor seals is approximately 30,968 animals, with PBR at 1,641 animals (Carretta et al., 2015).

    In California, over 500 harbor seal haul out sites are widely distributed along the mainland and offshore islands, and include rocky shores, beaches and intertidal sandbars (Lowry et al., 2005). Harbor seals mate at sea and females give birth during the spring and summer, although, the pupping season varies with latitude. Females nurse their pups for an average of 24 days and pups are ready to swim minutes after being born. Harbor seal pupping takes place at many locations and rookery size varies from a few pups to many hundreds of pups. The nearest harbor seal rookery relative to the proposed project site is at Castle Rock National Wildlife Refuge, located approximately located 965 m (0.6 mi) south of Point St. George, and 2.4 km (1.5 mi) north of the Crescent City Harbor in Del Norte County, California (USFWS, 2007).

    CCR noted that harbor seal use of NWSR was minimal, with only one sighting of a group of 6 animals, during 20 observation surveys. They hypothesized that harbor seals may avoid the islet because of its distance from shore, relatively steep topography, and full exposure to rough and frequently turbulent sea swells. For the 2010 and 2011 seasons, the Society did not observe any Pacific harbor seals present on NWSR during restoration activities (SGRLPS 2010; 2011). During the 2012 season, the Society reported sighting a total of two harbor seals present on NWSR (SGRLPS 2012).

    Other Marine Mammals in the Proposed Action Area

    California (southern) sea otters (Enhydra lutris nereis), listed as threatened under the ESA and categorized as depleted under the MMPA, usually range in coastal waters within 2 km (1.2 mi) of the mainland shoreline. Neither CCR nor the Society has encountered California sea otters on NWSR during the course of the four-year wildlife study (CCR 2001; SGRLPS 2010; 2011; 2012) nor has the Society encountered this species during the course of the previous five IHAs. The U.S. Fish and Wildlife Service (USFWS) manages the sea otter and NMFS will not consider this species further in this notice.

    Potential Effects of the Specified Activities on Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that components (e.g., personnel presence) of the specified activity, including mitigation, may impact marine mammals and their habitat. The Estimated Take by Incidental Harassment section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken during this activity. The Negligible Impact Analysis section will include the analysis of how this specific activity would impact marine mammals and will consider the content of this section, the Estimated Take by Incidental Harassment section, and the Proposed Mitigation section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that consideration, the likely impacts of this activity on the affected marine mammal populations or stocks.

    Acoustic and visual stimuli generated by: (1) Helicopter landings/takeoffs; (2) restoration activities (e.g., painting, plastering, welding, and glazing); (3) maintenance activities (e.g., bulb replacement and automation of the light system); and (4) human presence may have the potential to cause behavioral disturbance.

    Aircraft Presence and Noise

    Pinnipeds have the potential to be disturbed by airborne and underwater noise generated by the engine of the aircraft (Born et al., 1999; Richardson et al., 1995). Data on underwater TTS-onset in pinnipeds exposed to pulses are limited to a single study which exposed two California sea lions to single underwater pulses from an arc-gap transducer and found no measurable TTS following exposures up to 183 dB re: 1 μPa (peak-to-peak) (Finneran et al., 2003).

    Researchers have demonstrated temporary threshold shift (TTS) in certain captive odontocetes and pinnipeds exposed to strong sounds (reviewed in Southall et al., 2007). In 2004, researchers measured auditory fatigue to airborne sound in harbor seals, California sea lions, and Northern elephant seals after exposure to non-pulse noise for 25 minutes (Kastak et al., 2004). In the study, the harbor seal experienced approximately 6 dB of temporary threshold shift (TTS) at 99 dB re: 20 μPa. The authors identified onset of TTS in the California sea lion at 122 dB re: 20 μPa. The northern elephant seal experienced TTS-onset at 121 dB re: 20 μPa (Kastak et al., 2004).

    There is a dearth of information on acoustic effects of helicopter overflights on pinniped hearing and communication (Richardson et al., 1995) and to NMFS' knowledge, there has been no specific documentation of TTS, let alone permanent threshold shift (PTS), in free-ranging pinnipeds exposed to helicopter operations during realistic field conditions (Baker et al., 2012; Scheidat et al., 2011).

    In 2008, NMFS issued an IHA to the USFWS for the take of small numbers of Steller sea lions and Pacific harbor seals, incidental to rodent eradication activities on an islet offshore of Rat Island, AK, conducted by helicopter. The 15-minute aerial treatment consisted of the helicopter slowly approaching the islet at an elevation of over 1,000 ft (304.8 m); gradually decreasing altitude in slow circles; and applying the rodenticide in a single pass and returning to Rat Island. The gradual and deliberate approach to the islet resulted in the sea lions present initially becoming aware of the helicopter and calmly moving into the water. Further, the USFWS reported that all responses fell well within the range of Level B harassment (i.e., limited, short-term displacement resulting from aircraft noise due to helicopter overflights).

    As a general statement from the available information, pinnipeds exposed to intense (approximately 110 to 120 dB re: 20 μPa) non-pulse sounds often leave haul out areas and seek refuge temporarily (minutes to a few hours) in the water (Southall et al., 2007). Per Richardson et al. (1995), approaching aircraft generally flush animals into the water and noise from a helicopter is typically directed down in a “cone” underneath the aircraft.

    It is likely that the initial helicopter approach to NWSR would cause a subset, or all of the marine mammals hauled out to depart the rock and flush into the water. The physical presence of aircraft could also lead to non-auditory effects on marine mammals involving visual or other cues. Airborne sound from a low-flying helicopter or airplane may be heard by marine mammals while at the surface or underwater. In general, helicopters tend to be noisier than fixed wing aircraft of similar size and underwater sounds from aircraft are strongest just below the surface and directly under the aircraft. Noise from aircraft would not be expected to cause direct physical effects, but have the potential to affect behavior. The primary factor that may influence abrupt movements of animals is engine noise, specifically changes in engine noise. Responses by mammals could include hasty dives or turns, change in course, or flushing and stampeding from a haul out site. There are few well documented studies of the impacts of aircraft overflight over pinniped haul out sites or rookeries, and many of those that exist, are specific to military activities (Efroymson et al., 2001).

    Several factors complicate the analysis of long- and short-term effects for aircraft overflights. Information on behavioral effects of overflights by military aircraft (or component stressors) on most wildlife species is sparse. Moreover, models that relate behavioral changes to abundance or reproduction, and those that relate behavioral or hearing effects thresholds from one population to another are generally not available. In addition, the aggregation of sound frequencies, durations, and the view of the aircraft into a single exposure metric is not always the best predictor of effects and it may also be difficult to calculate. Overall, there has been no indication that single or occasional aircraft flying above pinnipeds in water cause long term displacement of these animals (Richardson et al., 1995). The Lowest Observed Adverse Effects Levels (LOAEL) are rather variable for pinnipeds on land, ranging from just over 150 m (492 ft) to about 2,000 m (6,562 ft) (Efroymson et al., 2001). A conservative (90th percentile) distance effects level is 1,150 m (3,773 ft). Most thresholds represent movement away from the overflight. Bowles and Stewart (1980) estimated an LOAEL of 305 m (1,000 ft) for helicopters (low and landing) in California sea lions and harbor seals observed on San Miguel Island, CA; animals responded to some degree by moving within the haul out and entering into the water, stampeding into the water, or clearing the haul out completely. Both species always responded with the raising of their heads. California sea lions appeared to react more to the visual cue of the helicopter than the noise.

    If pinnipeds are present on NWSR, it is likely that a helicopter landing at the Station would cause some number of the pinnipeds on NWSR to flush; however, when present, they appear to show rapid habituation to helicopter landing and departure (CCR, 2001; Guy Towers, SGRLPS, pers.com.). According to the CCR Report (2001), while up to 40 percent of the California and Steller sea lions present on NWSR have been observed to enter the water on the first of a series of helicopter landings, as few as zero percent have flushed on subsequent landings on the same date. In fact, the Society reported that during the November 2011 work session, Steller sea lions and California sea lions exhibited minimal ingress and egress from NWSR during helicopter approaches and departures (SGRLPS, 2011).

    Human Presence

    The appearance of Society personnel may have the potential to cause Level B harassment of marine mammals hauled out on the small island in the proposed action area. Disturbance includes a variety of effects, including subtle to conspicuous changes in behavior, movement, and displacement. Disturbance may result in reactions ranging from an animal simply becoming alert to the presence of the Society's restoration personnel (e.g., turning the head, assuming a more upright posture) to flushing from the haul out site into the water. NMFS does not consider the lesser reactions to constitute behavioral harassment, or Level B harassment takes, but rather assumes that pinnipeds that move greater than two body lengths to longer retreats over the beach, or if already moving, a change of direction of greater than 90 degrees in response to the presence of surveyors, or pinnipeds that flush into the water, are behaviorally harassed, and thus subject to Level B taking. NMFS uses a 3-point scale (Table 2) to determine which disturbance reactions constitute take under the MMPA. Levels two and three (movement and flush) are considered take, whereas level one (alert) is not. Animals that respond to the presence of the Society's restoration personnel by becoming alert, but do not move or change the nature of locomotion as described, are not considered to have been subject to behavioral harassment.

    Table 2—Disturbance Scale of Pinniped Responses to In-Air Sources To Determine Take Level Type of response Definition 1 Alert Seal head orientation or brief movement in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, changing from a lying to a sitting position, or brief movement of less than twice the animal's body length. 2 * Movement Movements in response to the source of disturbance, ranging from short withdrawals at least twice the animal's body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 degrees. 3 * Flush All retreats (flushes) to the water. * Only Levels 2 and 3 are considered take, whereas Level 1 is not.

    Reactions to human presence, if any, depend on species, state of maturity, experience, current activity, reproductive state, time of day, and many other factors (Richardson et al., 1995; Southall et al., 2007; Weilgart 2007). These behavioral reactions from marine mammals are often shown as: Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior; avoidance of areas; and/or flight responses (e.g., pinnipeds flushing into the water from haul outs or rookeries). If a marine mammal does react briefly to human presence by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if visual stimuli from human presence displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (e.g., Lusseau and Bejder 2007; Weilgart, 2007).

    Disturbances resulting from human activity can impact short- and long-term pinniped haul out behavior (Renouf et al., 1981; Schneider and Payne, 1983; Terhune and Almon, 1983; Allen et al., 1984; Stewart, 1984; Suryan and Harvey, 1999; and Kucey and Trites, 2006). Numerous studies have shown that human activity can flush harbor seals off haul out sites (Allen et al., 1984; Calambokidis et al., 1991; Suryan and Harvey 1999; and Mortenson et al., 2000) or lead Hawaiian monk seals (Neomonachus schauinslandi) to avoid beaches (Kenyon 1972). In one case, human disturbance appeared to cause Steller sea lions to desert a breeding area at Northeast Point on St. Paul Island, Alaska (Kenyon 1962).

    In cases where vessels actively approached marine mammals (e.g., whale watching or dolphin watching boats), scientists have documented that animals exhibit altered behavior such as increased swimming speed, erratic movement, and active avoidance behavior (Acevedo, 1991; Trites and Bain, 2000; Williams et al., 2002; Constantine et al., 2003), reduced blow interval (Richter et al., 2003), disruption of normal social behaviors (Lusseau 2003; 2006), and the shift of behavioral activities which may increase energetic costs (Constantine et al., 2003; 2004).

    In 1997, Henry and Hammil (2001) conducted a study to measure the impacts of small boats (i.e., kayaks, canoes, motorboats and sailboats) on harbor seal haul out behavior in Metis Bay, Quebec, Canada. During that study, the authors noted that the most frequent disturbances (n=73) were caused by lower speed, lingering kayaks, and canoes (33.3 percent) as opposed to motorboats (27.8 percent) conducting high speed passes. The seal's flight reactions could be linked to a surprise factor by kayaks and canoes which approach slowly, quietly, and low on the water making them look like predators. However, the authors note that once the animals were disturbed, there did not appear to be any significant lingering effect on the recovery of numbers to their pre-disturbance levels. In conclusion, the study showed that boat traffic at current levels has only a temporary effect on the haul out behavior of harbor seals in the Metis Bay area.

    In 2004, Acevedo-Gutierrez and Johnson (2007) evaluated the efficacy of buffer zones for watercraft around harbor seal haul out sites on Yellow Island, Washington. The authors estimated the minimum distance between the vessels and the haul out sites; categorized the vessel types; and evaluated seal responses to the disturbances. During the course of the seven-weekend study, the authors recorded 14 human-related disturbances which were associated with stopped powerboats and kayaks. During these events, hauled out seals became noticeably active and moved into the water. The flushing occurred when stopped kayaks and powerboats were at distances as far as 453 and 1,217 ft (138 and 371 m) respectively. The authors note that the seals were unaffected by passing powerboats, even those approaching as close as 128 ft (39 m), possibly indicating that the animals had become tolerant of the brief presence of the vessels and ignored them. The authors reported that on average, the seals quickly recovered from the disturbances and returned to the haul out site in less than or equal to 60 minutes. Seal numbers did not return to pre-disturbance levels within 180 minutes of the disturbance less than one quarter of the time observed. The study concluded that the return of seal numbers to pre-disturbance levels and the relatively regular seasonal cycle in abundance throughout the area counter the idea that disturbances from powerboats may result in site abandonment (Johnson and Acevedo-Gutierrez, 2007). As a general statement from the available information, pinnipeds exposed to intense (approximately 110 to 120 decibels re: 20 μPa) non-pulsed sounds often leave haul out areas and seek refuge temporarily (minutes to a few hours) in the water (Southall et al., 2007).

    Stampede

    There are other ways in which disturbance, as described previously, could result in more than Level B harassment of marine mammals. They are most likely to be consequences of stampeding, a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus. These situations are: (1) Falling when entering the water at high-relief locations; (2) extended separation of mothers and pups; and (3) crushing of pups by large males during a stampede. However, NMFS does not expect any of these scenarios to occur at NWSR. There is the risk of injury if animals stampede towards shorelines with precipitous relief (e.g., cliffs). However, there are no cliffs on NWSR. The haul out sites consist of ridges with unimpeded and non-obstructive access to the water. If disturbed, the small number of hauled-out adult animals may move toward the water without risk of encountering barriers or hazards that would otherwise prevent them from leaving the area. Moreover, the proposed area would not be crowded with large numbers of Steller sea lions, further eliminating the possibility of potentially injurious mass movements of animals attempting to vacate the haul out. Thus, in this case, NMFS considers the risk of injury, serious injury, or death to hauled-out animals as very low.

    Anticipated Effects on Marine Mammal Habitat

    The only habitat modification associated with the proposed activity is the restoration of a light station which would occur on the upper levels of Northwest Seal Rock which are not used by marine mammals. Thus, NMFS does not expect that the proposed activity would have any effects on marine mammal habitat and NMFS expects that there will be no long- or short-term physical impacts to pinniped habitat on NWSR.

    The Society would remove all waste, discarded materials and equipment from the island after each visit. The proposed activities will not result in any permanent impact on habitats used by marine mammals, including prey species and foraging habitat. The main impact associated with the proposed activity will be temporarily elevated noise levels and the associated direct effects on marine mammals (i.e., the potential for temporary abandonment of the site), previously discussed in this notice.

    NMFS does not anticipate that the proposed restoration activities would result in any permanent effects on the habitats used by the marine mammals in the proposed area, including the food sources they use (i.e., fish and invertebrates). Based on the preceding discussion, NMFS does not anticipate that the proposed activity would have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or their populations.

    Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat (50 CFR 216.104(a)(11)).

    Time and Frequency: The Society would conduct restoration activities at maximum of once per month over the course of the year, with the exception of between May 1, 2017 through October 31, 2017. Each restoration session would last no more than three days. Maintenance of the light beacon would occur only in conjunction with restoration activities.

    Helicopter Approach and Timing Techniques: The Society would ensure that its helicopter approach patterns to the Station and timing techniques would be conducted at times when marine mammals are less likely to be disturbed. To the extent possible, the helicopter should approach NWSR when the tide is too high for the marine mammals to haul out on NWSR. Additionally, since the most severe impacts (stampede) precede rapid and direct helicopter approaches, the Society's initial approach to the Station must be offshore from the island at a relatively high altitude (e.g., 800-1,000 ft, or 244-305 m). Before the final approach, the helicopter shall circle lower, and approach from area with the lowest pinniped density. If for any safety reasons (e.g., wind condition) the Society cannot conduct these types of helicopter approach and timing techniques, they must postpone the restoration and maintenance activities for that day.

    Avoidance of Visual and Acoustic Contact with People on Island: The Society would instruct its members and restoration crews to avoid making unnecessary noise and not expose themselves visually to pinnipeds around the base of the Station. Although CCR reported no impacts from these activities in the 2001 CCR study, it is relatively simple for the Society to avoid this potential impact. The door to the lower platform shall remain closed and barricaded to all tourists and other personnel since the lower platform is used at times by pinnipeds.

    Mitigation Conclusions

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

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

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

    • The practicability of the measure for applicant implementation.

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

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

    2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    3. A reduction in the number of times (total number or number at biologically important time or location) individuals exposed to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).

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

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

    Based on the evaluation of the Society's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Proposed Monitoring

    In order to issue an incidental take authorization for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that NMFS expects to be present in the proposed action area.

    The Society submitted a marine mammal monitoring plan in Section 13 of their IHA application. NMFS or the Society may modify or supplement the plan based on comments or new information received from the public during the public comment period.

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

    1. An increase in our understanding of the likely occurrence of marine mammal species in the vicinity of the action (i.e., presence, abundance, distribution, and/or density of species).

    2. An increase in our understanding of the nature, scope, or context of the likely exposure of marine mammal species to any of the potential stressor(s) associated with the action (e.g., sound or visual stimuli), through better understanding of one or more of the following: The action itself and its environment (e.g., sound source characterization, propagation, and ambient noise levels); the affected species (e.g., life history or dive pattern); the likely co-occurrence of marine mammal species with the action (in whole or part) associated with specific adverse effects; and/or the likely biological or behavioral context of exposure to the stressor for the marine mammal (e.g., age class of exposed animals or known pupping, calving or feeding areas).

    3. An increase in our understanding of how individual marine mammals respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible, e.g., at what distance or received level).

    4. An increase in our understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either: The long-term fitness and survival of an individual; or the population, species, or stock (e.g., through effects on annual rates of recruitment or survival).

    5. An increase in our understanding of how the activity affects marine mammal habitat, such as through effects on prey sources or acoustic habitat (e.g., through characterization of longer-term contributions of multiple sound sources to rising ambient noise levels and assessment of the potential chronic effects on marine mammals).

    6. An increase in understanding of the impacts of the activity on marine mammals in combination with the impacts of other anthropogenic activities or natural factors occurring in the region.

    7. An increase in our understanding of the effectiveness of mitigation and monitoring measures.

    8. An increase in the probability of detecting marine mammals (through improved technology or methodology), both specifically within the safety zone (thus allowing for more effective implementation of the mitigation) and in general, to better achieve the above goals.

    As part of its IHA application, the Society proposes to sponsor marine mammal monitoring, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the proposed IHA. These include:

    A NMFS approved, experienced biologist will be present on the first flight of each day of activity. This observer will be able to identify all species of pinnipeds expected to use the island, and qualified to determine age and sex classes when viewing conditions allow. The observer would record data including species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the activities, including location, date, and time of the event. In addition, the Society would record observations regarding the number and species of any marine mammals either observed in the water or hauled out.

    Aerial photographic surveys may provide the most accurate means of documenting species composition, age and sex class of pinnipeds using the project site during human activity periods. The Society should complete aerial photo coverage of the island from the same helicopter used to transport the Society's personnel to the island during restoration trips. The Society would take photographs of all marine mammals hauled out on the island at an altitude greater than 300 m (984 ft) by a skilled photographer, on the first flight of each day of activities. These photographs will be forwarded to a biologist capable of discerning marine mammal species. Data shall be provided to us in the form of a report with a data table, any other significant observations related to marine mammals, and a report of restoration activities (see Reporting). The original photographs can be made available to us or other marine mammal experts for inspection and further analysis.

    Proposed monitoring requirements in relation to the Society's proposed activities would include species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the restoration activities, including location, date, and time of the event. In addition, the Society would record observations regarding the number and species of any marine mammals either observed in the water or hauled out.

    The Society can add to the knowledge of pinnipeds in the proposed action area by noting observations of: (1) Unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; (2) tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (3) rare or unusual species of marine mammals for agency follow-up.

    If at any time injury, serious injury, or mortality of the species for which take is authorized should occur, or if take of any kind of any other marine mammal occurs, and such action may be a result of the Society's activities, the Society would suspend survey activities and contact NMFS immediately to determine how best to proceed to ensure that another injury or death does not occur and to ensure that the applicant remains in compliance with the MMPA.

    Summary of Previous Monitoring

    The Society complied with the mitigation and monitoring required under the previous authorizations (2010-2012). They did not conduct any operations for the 2013-2016 seasons. However, in compliance with the 2012 Authorization, the Society submitted a final report on the activities at the Station, covering the period of February 15, 2012 through April 30, 2012. During the effective dates of the 2012 IHA, the Society conducted one work session in March, 2012. The Society's aircraft operations and restoration activities on NWSR did not exceed the activity levels analyzed under the 2012 authorization. During the March 2012 work session, the Society observed two harbor seals hauled out on NWSR. Both animals (a juvenile and an adult) departed the rock, entered the water, and did not return to the Station during the duration of the activities.

    Proposed Reporting

    The Society would submit a draft report to NMFS' Office of Protected Resources no later than 90 days after the expiration of the proposed IHA, if issued. The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in the proposed IHA. The Society will submit a final report to the NMFS within 30 days after receiving comments from NMFS on the draft report. If the Society receives no comments from NMFS on the report, NMFS will consider the draft report to be the final report.

    The report will describe the operations conducted and sightings of marine mammals near the proposed project. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report will provide:

    1. A summary and table of the dates, times, and weather during all research activities.

    2. Species, number, location, and behavior of any marine mammals observed throughout all monitoring activities.

    3. An estimate of the number (by species) of marine mammals exposed to human presence associated with the Society's activities.

    4. A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.

    In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization, such as an injury (Level A harassment), serious injury, or mortality (e.g., stampede), Society personnel shall immediately cease the specified activities and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Assistant Westcoast Regional Stranding Coordinator. The report must include the following information:

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

    • Description and location of the incident (including water depth, if applicable);

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

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

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

    • Fate of the animal(s); and

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

    The Society shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. We will work with the Society to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Society may not resume their activities until notified by us via letter, email, or telephone.

    In the event that the Society discovers an injured or dead marine mammal, and the marine mammal observer determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as we describe in the next paragraph), the Society will immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Assistant Westcoast Regional Stranding Coordinator. The report must include the same information identified in the paragraph above this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS would work with the Society to determine whether modifications in the activities are appropriate.

    In the event that the Society discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Society will report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Assistant Westcoast Regional Stranding Coordinator within 24 hours of the discovery. Society personnel will provide photographs or video footage (if available) or other documentation of the stranded animal sighting to us. The Society can continue their survey activities while NMFS reviews the circumstances of the incident.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    All anticipated takes would be by Level B harassment, involving temporary changes in behavior. NMFS expects that the proposed mitigation and monitoring measures would minimize the possibility of injurious or lethal takes. NMFS considers the potential for take by injury, serious injury, or mortality as remote. NMFS expects that the presence of Society personnel could disturb of animals hauled out on NWSR and that the animals may alter their behavior or attempt to move away from the Society's personnel.

    As discussed earlier, NMFS assumes that pinnipeds that move greater than two body lengths to longer retreats over the beach, or if already moving, a change of direction of greater than 90 degrees in response to the presence of surveyors, or pinnipeds that flush into the water, are behaviorally harassed, and thus subject to Level B taking (Table 2).

    Based on the Society's previous monitoring reports, NMFS estimates that approximately 2880 California sea lions (calculated by multiplying the maximum number California sea lions present on NWSR (160) by 18 days of the restoration and maintenance activities), 2700 Steller sea lions (NMFS' estimate of the maximum number of Steller sea lions that could be present on NWSR (150) by 18 days of activity), 108 Pacific harbor seals (calculated by multiplying the maximum number of harbor seals present on NWSR (6) by 18 days), and 18 Northern fur seals (calculated by multiplying the maximum number of northern fur seals present on NWSR (1) by 18 days) could be potentially affected by Level B behavioral harassment over the course of the IHA. NMFS bases these estimates of the numbers of marine mammals that might be affected on consideration of the number of marine mammals that could be disturbed appreciably by approximately 51 hours of aircraft operations during the course of the activity. These incidental harassment take numbers represent less than one percent of the affected stocks of California sea lions, Pacific harbor seals, and Northern fur seals, and less than five percent of the stock of Steller sea lions (Table 3). However, actual take may be slightly less if animals decide to haul out at a different location for the day or if animals are foraging at the time of the survey activities.

    Table 3—The Percentage of Stock Affected by the Number of Takes per Species Species Take number Stock abundance Percent of stock California sea lion (Zalophus californianus ) 2,880 296,750 0.975 Steller sea lion (Eumetopias jubatus) 2,790 60,131-74,448 4.64-3.75 Pacific harbor seal (Phoca vitulina) 36 30,968 0.35 Northern fur seal (Callorhinus ursinus) 18 14,050 .12

    Because of the required mitigation measures and the likelihood that some pinnipeds will avoid the area, NMFS does not expect any injury or mortality to pinnipeds to occur and NMFS has not authorized take by Level A harassment for this proposed activity.

    Encouraging and Coordinating Research

    The Society would share observations and counts of marine mammals and all observed disturbances to the appropriate state and federal agencies at the conclusion of the survey.

    Analysis and Preliminary Determinations Negligible Impact

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

    Although the Society's survey activities may disturb a small number of marine mammals hauled out on NWSR, NMFS expects those impacts to occur to a small, localized group of animals for a limited duration (e.g., six hours in one day). Marine mammals would likely become alert or, at most, flush into the water in reaction to the presence of the Society's personnel during the proposed activities. Disturbance will be limited to a short duration, allowing marine mammals to reoccupy NWSR within a short amount of time. Thus, the proposed action is unlikely to result in long-term impacts such as permanent abandonment of the area because of the availability of alternate areas for pinnipeds to avoid the resultant acoustic and visual disturbances from the restoration activities and helicopter operations. Results from previous monitoring reports also show that the pinnipeds returned to NWSR and did not permanently abandon haul out sites after the Society conducted their activities.

    The Society's activities would occur during the least sensitive time (e.g., November through April, outside of the pupping season) for hauled out pinnipeds on NWSR. Thus, pups or breeding adults would not be present during the proposed activity days.

    Moreover, the Society's mitigation measures regarding helicopter approaches and restoration site ingress and egress would minimize the potential for stampedes and large-scale movements. Thus, the potential for large-scale movements and stampede leading to injury, serious injury, or mortality is low.

    Any noise attributed to the Society's proposed helicopter operations on NWSR would be short-term (approximately six min per trip). We would expect the ambient noise levels to return to a baseline state when helicopter operations have ceased for the day. As the helicopter landings take place 15 m (48 ft) above the surface of the rocks on NWSR, NMFS presumes that the received sound levels would increase above 81-81.9 dB re: 20 μPa (A-weighted) at the landing pad. However, we do not expect that the increased received levels of sound from the helicopter would cause TTS or PTS because the pinnipeds would flush before the helicopter approached NWSR; thus increasing the distance between the pinnipeds and the received sound levels on NWSR during the proposed action.

    If pinnipeds are present on NWSR, Level B behavioral harassment of pinnipeds may occur during helicopter landing and takeoff from NWSR due to the pinnipeds temporarily moving from the rocks and lower structure of the Station into the sea due to the noise and appearance of helicopter during approaches and departures. It is expected that all or a portion of the marine mammals hauled out on the island will depart the rock and slowly move into the water upon initial helicopter approaches. The movement to the water would be gradual due to the required controlled helicopter approaches (see Proposed Mitigation for more details), the small size of the aircraft, the use of noise-attenuating blade tip caps on the rotors, and behavioral habituation on the part of the animals as helicopter trips continue throughout the day. During the sessions of helicopter activity, if present on NWSR, some animals may be temporarily displaced from the island and either raft in the water or relocate to other haul outs.

    Sea lions have shown habituation to helicopter flights within a day at the project site and most animals are expected to return soon after helicopter activities cease for that day. By clustering helicopter arrival/departures within a short time period, we expect animals present to show less response to subsequent landings. NMFS anticipates no impact on the population size or breeding stock of Steller sea lions, California sea lions, Pacific harbor seals, or Northern fur seals.

    In summary, NMFS anticipates that impacts to hauled-out pinnipeds during the Society's proposed helicopter operations and restoration/maintenance activities would be behavioral harassment of limited duration (i.e., less than three days a month) and limited intensity (i.e., temporary flushing at most). NMFS does not expect stampeding, and therefore injury or mortality to occur (see Proposed Mitigation for more details). Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the Society's proposed survey activities will have a negligible impact on the affected marine mammal species or stocks.

    Small Numbers

    As mentioned previously, NMFS estimates that the Society's proposed activities could potentially affect, by Level B harassment only, four species of marine mammal under our jurisdiction. For each species, these estimates are small numbers (less than one percent of the affected stocks of California sea lions, Pacific harbor seals, and Northern fur seals, and less than five percent of the stock of Steller sea lions) relative to the population size (Table 3).

    Based on the analysis contained in this notice of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that the Society's proposed activities would take small numbers of marine mammals relative to the populations of the affected species or stocks.

    Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses

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

    Endangered Species Act (ESA)

    NMFS does not expect that the Society's proposed helicopter operations and restoration/maintenance activities would affect any species listed under the ESA. Therefore, NMFS has determined that a Section 7 consultation under the ESA is not required.

    National Environmental Policy Act (NEPA)

    To meet our NEPA requirements for the issuance of an IHA to the Society, NMFS has prepared an EA specific to conducting aircraft operations and restoration and maintenance work on the St. George Reef Light Station. The EA, titled “Issuance of an Incidental Harassment Authorization to Take Marine Mammals by Harassment Incidental to Conducting Aircraft Operations, Lighthouse Restoration and Maintenance Activities, and Tour Operations on St. George Reef Lighthouse Station in Del Norte County, California,” evaluated the impacts on the human environment of our authorization of incidental Level B harassment resulting from the specified activity in the specified geographic region. An electronic copy of the EA and the Finding of No Significant Impact (FONSI) for this activity is available on the Web site at: http://www.nmfs.noaa.gov/pr/permits/incidental/research.html.

    Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes issuing an IHA to the Society for conducting helicopter operations and maintenance and restoration activities on the St. George Lighthouse Station in the northeast Pacific Ocean, February 19, 2017 through February 18, 2018, provided they incorporate the previously mentioned mitigation, monitoring, and reporting requirements.

    Draft Proposed Authorization

    This section contains the draft text for the proposed IHA. NMFS proposes to include this language in the IHA, if issued.

    Proposed Authorization Language

    The St. George Reef Lighthouse Preservation Society (Society), P.O. Box 577, Crescent City, CA 95531, is hereby authorized under section 101(a)(5)(D) of the Marine Mammal Protection Act (16 U.S.C. 1371(a)(5)(D)) and 50 CFR 216.107, to harass marine mammals incidental to conducting helicopter operations and restoration and maintenance work on the St. George Reef Light Station (Station) on Northwest Seal Rock (NWSR) in the Northeast Pacific Ocean.

    1. This Incidental Harassment Authorization (IHA) is valid from February 19, 2017 through February 18, 2018. The Society may not conduct operations from May 1, 2017 through October 31, 2017.

    2. This IHA is valid only for activities associated with helicopter operations, lighthouse restoration and maintenance activities, and human presence (See items 2(a)-(d)) on the Station on NWSR (41°50′24″ N., 124°22′06″ W.) in the Northeast Pacific Ocean.

    a. The use of a small, compact, 4-person helicopter with two-bladed main and tail rotors fitted with noise-attenuating blade tip caps to transit to and from NWSR;

    b. Restoration activities (e.g., painting, plastering, welding, and glazing) conducted on the Station;

    c. Maintenance activities (e.g., bulb replacement and automation of the light system) conducted on the Station; and

    d. Emergency repair events (e.g., the failure of the PATON beacon light) outside of the three-day work session.

    e. Human presence.

    3. General Conditions

    a. A copy of this IHA must be in the possession of the Society, its designees, and work crew personnel operating under the authority of this IHA.

    b. The species authorized for taking are the California sea lion (Zalophus californianus), Pacific Harbor seal (Phoca vitulina), the eastern Distinct Population Segment of Steller sea lion (Eumetopias jubatus), and the eastern Pacific stock of northern fur seal (Callorhinus ursinus).

    c. The taking, by Level B harassment only, is limited to the species listed in condition 3(b). Authorized take: California sea lion (2880); Steller sea lion (2790); Pacific harbor seal (36); and northern fur seal (18).

    d. The taking by Level A harassment, injury or death of any of the species listed in item 3(b) of the IHA or the taking by harassment, injury or death of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.

    e. In the case of an emergency repair event (i.e., failure of the PATON beacon light) between May 1, 2017 through October 31, 2017, the Society will consult with the ARA, Westcoast Region, NMFS, to best determine the timing of an emergency repair trip to the Station.

    a. The Westcoast Region NMFS marine mammal biologist will make a decision regarding when the Society can schedule helicopter trips to the NWSR during the emergency repair time window and will ensure that such operations will have the least practicable adverse impact to marine mammals.

    b. The ARA, Westcoast Region, NMFS will also ensure that the Society's request for incidental take during an emergency repair event would not exceed the number of incidental take authorized in this IHA.

    4. Cooperation

    The holder of this IHA is required to cooperate with the NMFS and any other Federal, state, or local agency authorized to monitor the impacts of the activity on marine mammals.

    5. Mitigation Measures

    In order to ensure the least practicable impact on the species listed in condition 3(b), the holder of this IHA is required to:

    a. Conduct restoration and maintenance activities at the Station at a maximum of one session per month between February 19, 2017 and February 18, 2018. Each restoration session will be no more than three days in duration. Maintenance of the light beacon will occur only in conjunction with the monthly restoration activities.

    b. Ensure that helicopter approach patterns to the NWSR will be such that the timing techniques are least disturbing to marine mammals. To the extent possible, the helicopter should approach NWSR when the tide is too high for the marine mammals to haul out on NWSR.

    c. Avoid rapid and direct approaches by the helicopter to the station by approaching NWSR at a relatively high altitude (e.g., 800-1,000 ft; 244-305 m). Before the final approach, the helicopter shall circle lower, and approach from area where the density of pinnipeds is the lowest. If for any safety reasons (e.g., wind conditions or visibility) such helicopter approach and timing techniques cannot be achieved, the Society must abort the restoration and maintenance session for that day.

    d. Provide instructions to the Society's members, the restoration crew, and if applicable, to tourists, on appropriate conduct when in the vicinity of hauled-out marine mammals. The Society's members, the restoration crew, and if applicable, tourists, will avoid making unnecessary noise while on NWSR and must not view pinnipeds around the base of the Station.

    e. Ensure that the door to the Station's lower platform shall remain closed and barricaded at all times.

    6. Monitoring

    The holder of this IHA is required to:

    a. Have a NMFS-approved experienced biologist will be present on the first flight of each day of activities.

    b. Record the date, time, and location (or closest point of ingress) of each visit to the NWSR.

    c. Collect the following information for each visit:

    i. Information on the numbers (by species) of marine mammals observed during the activities;

    ii. The estimated number of marine mammals (by species) that may have been harassed during the activities;

    iii. Any behavioral responses or modifications of behaviors that may be attributed to the specific activities (e.g., flushing into water, becoming alert and moving, rafting); and

    iv. Information on the weather, including the tidal state and horizontal visibility.

    d. Employ a skilled, aerial photographer to document marine mammals hauled out on NWSR.

    i. The photographer will complete a photographic survey of NWSR using the same helicopter that will transport Society personnel to the island during restoration trips.

    ii. Photographs of all marine mammals hauled-out on the island shall be taken at an altitude greater than 300 m (984 ft) during the first arrival flight to NWSR.

    iii. The Society and/or its designees will forward the photographs to a biologist capable of discerning marine mammal species. The Society shall provide the data to us in the form of a report with a data table, any other significant observations related to marine mammals, and a report of restoration activities (see Reporting). The Society will make available the original photographs to NMFS or to other marine mammal experts for inspection and further analysis.

    7. Reporting Requirements

    Final Report: The holder of this IHA is required to submit a draft monitoring report to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, 13th Floor, Silver Spring, MD 20910, no later than 90 days after the project is completed. The report must contain the following information:

    a. A summary of the dates, times, and weather during all helicopter operations, restoration, and maintenance activities.

    b. Species, number, location, and behavior of any marine mammals, observed throughout all monitoring activities.

    c. An estimate of the number (by species) of marine mammals that are known to have been exposed to visual and acoustic stimuli associated with the helicopter operations, restoration, and maintenance activities.

    d. A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.

    8. Reporting Prohibited Take

    In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury (Level A harassment), serious injury, or mortality (e.g., stampede, etc.), the Society shall immediately cease the specified activities and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Assistant Westcoast Regional Stranding Coordinator.

    The report must include the following information:

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

    • Name and type of vessel involved;

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

    • Description of the incident;

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

    • Water depth;

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

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

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

    • Fate of the animal(s); and

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

    The Society shall not resume its activities until we are able to review the circumstances of the prohibited take. We shall work with the Society to determine what is necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Protection Act compliance. The Society may not resume their activities until notified by us via letter, email, or telephone.

    9. Reporting an Injured or Dead Marine Mammal With an Unknown Cause of Death

    In the event that the Society discovers an injured or dead marine mammal, and the observer determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as we describe in the next paragraph), the Society will immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, and the Assistant Westcoast Regional Stranding Coordinator. The report must include the same information identified in the paragraph above this section. Activities may continue while we review the circumstances of the incident. We will work with the Society to determine whether modifications in the activities are appropriate.

    The report must include the same information identified in the paragraph above. Activities may continue while we review the circumstances of the incident. We will work with the Society to determine whether modifications in the activities are appropriate.

    10. Reporting an Injured or Dead Marine Mammal Not Related to the Society's Activities

    In the event that the Society discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Society will report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, and the Assistant Westcoast Regional Stranding Coordinator, within 24 hours of the discovery.

    The Society's staff will provide photographs or video footage (if available) or other documentation of the stranded animal sighting to us.

    11. This IHA may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if the authorized taking is having a more than a negligible impact on the species or stock of affected marine mammals. Request for Public Comments

    NMFS requests comments on our analysis, the draft IHA, and any other aspect of this notice of proposed IHA for the proposed activities. Please include any supporting data or literature citations with your comments to help inform our final decision on the Society's request for an IHA.

    Dated: December 16, 2016. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-30785 Filed 12-22-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF099 Nominations to the Marine Fisheries Advisory Committee AGENCY:

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

    ACTION:

    Notice; request for nominations.

    SUMMARY:

    Nominations are being sought for appointment by the Secretary of Commerce to fill vacancy openings on the Marine Fisheries Advisory Committee (MAFAC or Committee) that will be pending late April 2017. MAFAC is the only Federal advisory committee with the responsibility to advise the Secretary of Commerce (Secretary) on all matters concerning living marine resources that are the responsibility of the Department of Commerce. The Committee makes recommendations to the Secretary to assist in the development and implementation of Departmental regulations, policies, and programs critical to the mission and goals of NMFS. Nominations are encouraged from all interested parties involved with or representing interests affected by NMFS actions in managing living marine resources. Nominees should possess demonstrable expertise in a field related to the management of living marine resources and be able to fulfill the time commitments required for two annual meetings and year round subcommittee work. Individuals serve for a term of three years for no more than two consecutive terms if re-appointed. NMFS is seeking qualified nominees to fill upcoming vacancies being created by term limits.

    DATES:

    Nominations must be postmarked or have an email date stamp on or before February 6, 2017.

    ADDRESSES:

    Nominations should be sent to Heidi Lovett, MAFAC Assistant Director, NMFS Office of Policy, 14th Floor, 1315 East-West Highway, Silver Spring, MD 20910.

    FOR FURTHER INFORMATION CONTACT:

    Heidi Lovett, MAFAC Assistant Director; (301) 427-8034; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The MAFAC was approved by the Secretary on December 28, 1970, and subsequently chartered under the Federal Advisory Committee Act, 5 U.S.C. App. 2, on February 17, 1971. The Committee meets twice a year with supplementary subcommittee meetings as determined necessary by the Committee Chair and Subcommittee Chairs. No less than 15 and no more than 21 individuals may serve on the Committee. Membership is comprised of highly qualified, diverse individuals representing commercial, recreational, subsistence, and aquaculture fisheries interests; seafood industry; environmental organizations; academic institutions; tribal and consumer groups; and other living marine resource interest groups from a balance of U.S. geographical regions, including the Western Pacific and Caribbean.

    A MAFAC member cannot be a Federal employee, member of a Regional Fishery Management Council, registered Federal lobbyist, State employee, or agent of a foreign principal. Selected candidates must pass a security check and submit a financial disclosure form. Membership is voluntary, and except for reimbursable travel and related expenses, service is without pay.

    Each nomination submission should include the nominee's name, a cover letter describing the nominee's qualifications and interest in serving on the Committee, curriculum vitae or resume of the nominee, and no more than three supporting letters describing the nominee's qualifications and interest in serving on the Committee. Self-nominations are acceptable. The following contact information should accompany each nominee's submission: Name, address, telephone number, fax number, and email address (if available).

    Nominations should be sent to Heidi Lovett (see ADDRESSES) and must be received by February 6, 2017. The full text of the Committee Charter and its current membership can be viewed at the NMFS' Web page at www.nmfs.noaa.gov/mafac.htm.

    Dated: December 20, 2016. Jennifer Lukens, Director for the Office of Policy, National Marine Fisheries Service.
    [FR Doc. 2016-31040 Filed 12-22-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF095 North Pacific 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 North Pacific Fishery Management Council (Council) Groundfish Plan Team will hold a two day meeting.

    DATES:

    The meeting will be begin at 9 a.m. on Wednesday January 11, 2017, and end at 5 p.m. on Thursday January 12, 2017, to view the agenda see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The meeting will be held at the Alaska Fishery Science Center Traynor Room 2076, 7600 Sand Point Way NE., Building 4, Seattle, WA 98115.

    Council address: North Pacific Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK 99501-2252; telephone (907) 271-2809.

    FOR FURTHER INFORMATION CONTACT:

    Diana Stram or Jim Armstrong, Council staff; telephone: (907) 271-2809.

    SUPPLEMENTARY INFORMATION:

    Agenda Wednesday, January 11, 2017 Through Thursday January 12, 2017

    The Joint Groundfish Plan Team will provide recommendations on NPFMC stock prioritization results specifically on the following: (a) Evaluate the results of the prioritization process applied to North Pacific groundfish, (b) develop a proposal for how to use those results to support planning, (c) discuss any recommended changes from status quo and whether those changes are supported/justified, and (d) discuss the implications and where assessments may occur at lower frequency, discuss potential interim actions to support management.

    The Agenda is subject to change, and the latest version will be posted, at http://www.npfmc.org/fishery-management-plan-team/goa-bsai-groundfish-plan-team/.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271-2809 at least 7 business days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: December 19, 2016. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-30819 Filed 12-22-16; 8:45 am] BILLING CODE 3510-22-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Proposed Additions and Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Proposed additions to and deletions from the Procurement List.

    SUMMARY:

    The Committee is proposing to add services to the Procurement List that will be provided by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products previously furnished by such agencies.

    DATES:

    Comments must be received on or before—1/22/2017.

    ADDRESSES:

    Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.

    FOR FURTHER INFORMATION CONTACT:

    Barry Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email [email protected]

    SUPPLEMENTARY INFORMATION:

    This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.

    Additions

    If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.

    The following services are proposed for addition to the Procurement List for production by the nonprofit agencies listed:

    Services Service Type: Sustainment, Restoration, and Modernization (SRM) Service Mandatory for: US Army, DPW, Fort Riley, KS (excluding Residential Housing Areas and including Forbes Air Field, Topeka, KS), Fort Riley, KS Mandatory Source(s) of Supply: Skookum Educational Programs, Bremerton, WA Contracting Activity: US Army Corps of Engineers, Huntsville Engineering & Support Center, Huntsville, AL Service Type: Janitorial Service and Grounds Maintenance Service Mandatory for: Federal Aviation Administration, Flight Inspection Field Office, 4185 Martin Luther King Jr. Drive, Atlanta, GA Mandatory Source(s) of Supply: Bobby Dodd Institute, Inc., Atlanta, GA Contracting Activity: Dept of Transportation, Federal Aviation Administration Service Type: Mail and Courier Service Mandatory for: US Customs and Border Protection, New York Field Office Mail Room, One World Trade Center, 285 Fulton Street, New York, NY Mandatory Source(s) of Supply: The Corporate Source, Inc., New York, NY Contracting Activity: U.S. Customs and Border Protection, Border Enforcement Center Div Service Type: Base Operations Support Service Mandatory for: Naval Facilities Engineering Command Northwest, North Sound Facilities, 1101 Tautog Circle, Silverdale, WA Mandatory Source(s) of Supply: Skookum Educational Programs, Bremerton, WA Contracting Activity: Dept of the Navy, NAVFAC NORTHWEST Deletions

    The following products are proposed for deletion from the Procurement List:

    Products NSN(s)—Product Name(s): 2510-00-535-6797—Side Rack, Vehicle 2510-00-571-6968—Side Rack, Vehicle 2510-00-860-0517—Side Rack, Vehicle 2510-00-860-0523—Side Rack, Vehicle 2510-01-180-1099—Stake, Vehicle Body Mandatory Source(s) of Supply: UNKNOWN Contracting Activity: Defense Logistics Agency Land and Maritime NSN(s)—Product Name(s): 7520-00-162-6153—Stand, Calendar Pad, for 3″ x 3-3/4″ refill, Gray 7520-00-139-4341—Stand, Calendar Pad, for 3″ x 3-3/4″ refill, Beige NPA: LC Industries, Inc., Mandatory Source(s) of Supply: LC Industries, Inc., Durham, NC Contracting Activity: General Services Administration, New York, NY NSN(s)—Product Name(s): 7195-01-567-9523—Bulletin Board, Fabric, 36″ x 24″, Plastic Frame Mandatory Source(s) of Supply: The Lighthouse for the Blind, Inc. (Seattle Lighthouse), Seattle, WA Contracting Activities: Department of Veterans Affairs, Strategic Acquisition Center, General Services Administration, Philadelphia NSN(s)—Product Name(s): 6515-00-NIB-0480—Glove Powdered, Perry Orthopaedic Mandatory Source(s) of Supply: Bosma Industries for the Blind, Inc., Indianapolis, IN Contracting Activity: Department of Veterans Affairs Patricia Briscoe, Deputy Director, Business Operations (Pricing and Information Management).
    [FR Doc. 2016-31054 Filed 12-22-16; 8:45 am] BILLING CODE 6353-01-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Additions and Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Additi