Federal Register Vol. 81, No.250,

Federal Register Volume 81, Issue 250 (December 29, 2016)

Page Range95853-96328
FR Document

81_FR_250
Current View
Page and SubjectPDF
81 FR 96200 - Advisory Committee on Automation in Transportation Meeting NoticePDF
81 FR 95962 - U.S.-Nigeria Commercial and Investment DialoguePDF
81 FR 96043 - Notice of Public Meeting, BLM Alaska Resource Advisory CouncilPDF
81 FR 95890 - Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2017; Medicare Advantage Bid Pricing Data Release; Medicare Advantage and Part D Medical Loss Ratio Data Release; Medicare Advantage Provider Network Requirements; Expansion of Medicare Diabetes Prevention Program Model; Medicare Shared Savings Program Requirements; CorrectionsPDF
81 FR 96033 - Notice of Public Meeting for the Steens Mountain Advisory CouncilPDF
81 FR 96030 - Endangered Species; Recovery Permit ApplicationsPDF
81 FR 95982 - California State Motor Vehicle Pollution Control Standards; Greenhouse Gas Emissions From 2014 and Subsequent Model Year Medium- and Heavy-Duty Engines and Vehicles; Notice of DecisionPDF
81 FR 96045 - Bulk Manufacturer of Controlled Substances Application: Janssen Pharmaceutical, Inc.PDF
81 FR 95981 - Human Studies Review Board; Notification of Public MeetingsPDF
81 FR 95992 - Clean Air Act Operating Permit Program; Petition for Objection to State Operating Permit for Piedmont Green Power (Lamar County, Georgia)PDF
81 FR 95987 - Agency Information Collection Activities; Proposed Renewal of an Existing Collection (EPA ICR No. 2472.02 and OMB Control No. 2070-0191); Comment RequestPDF
81 FR 96160 - Agency Information Collection Activities: Proposed Request and Comment RequestPDF
81 FR 96033 - Notice of Availability of the BLM Draft Presumed To Conform List of Actions Under General Conformity-Upper Green River Basin, WyomingPDF
81 FR 96007 - Identification and Characterization of the Infectious Disease Risks of Human Cells, Tissues, and Cellular and Tissue-Based Products; Public WorkshopPDF
81 FR 96018 - Botanical Drug Development; Guidance for Industry; AvailabilityPDF
81 FR 96013 - Providing Regulatory Submissions in Electronic Format-Submission of Manufacturing Establishment Information; Draft Guidance for Industry; AvailabilityPDF
81 FR 96004 - Abbott Laboratories, et al.; Withdrawal of Approval of Four New Drug Applications and Two Abbreviated New Drug ApplicationsPDF
81 FR 95966 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Trawl Rationalization Program; 2017 Cost RecoveryPDF
81 FR 95959 - Newspapers Used for Publication of Legal Notices in the Pacific Northwest Region Which Includes Washington and OregonPDF
81 FR 96032 - U.S. Extractive Industries Transparency Initiative Multi-Stakeholder Group (USEITI MSG) Advisory Committee Meeting NoticePDF
81 FR 96043 - Filing of Plats of Survey: Oregon/WashingtonPDF
81 FR 95961 - Foreign-Trade Zone (FTZ) 38-Spartanburg County, South Carolina; Notification of Proposed Production Activity; Black & Decker (U.S.) Inc.; Subzone 38E, (Power Tools), Fort Mill, South CarolinaPDF
81 FR 95994 - Notice of Agreements FiledPDF
81 FR 95963 - Proposed Information Collection; Comment Request; Nautical Discrepancy Reporting SystemPDF
81 FR 96201 - Electronic Tax Administration Advisory Committee (ETAAC)PDF
81 FR 95964 - New England Fishery Management Council; Public MeetingPDF
81 FR 96021 - Office of the Director; Notice of MeetingPDF
81 FR 96024 - National Institute of Allergy And Infectious Diseases; Notice of Closed MeetingsPDF
81 FR 96200 - Proposed Collection; Comment Request for Form 4422PDF
81 FR 96027 - National Institute on Aging; Notice of Closed MeetingPDF
81 FR 96008 - Prescription Requirement Under Section 503A of the Federal Food, Drug, and Cosmetic Act; Guidance for Industry; AvailabilityPDF
81 FR 95970 - Proposed Collection; Comment RequestPDF
81 FR 96000 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 96050 - Acceptance of Commercial-Grade Design and Analysis Computer Programs for Nuclear Power PlantsPDF
81 FR 96048 - South Carolina Electric & Gas Company, South Carolina Public Service Authority; Virgil C. Summer Nuclear Station, Units 2 and 3; Radiologically Controlled Area Ventilation SystemPDF
81 FR 95909 - Fisheries of the Northeastern United States; Atlantic Herring Fishery; Adjustment to the Atlantic Herring Management Area 1A Annual Catch LimitPDF
81 FR 96003 - Listing of Ingredients in Tobacco Products; Revised Guidance for Industry; AvailabilityPDF
81 FR 96017 - Submission of Warning Plans for Cigars; Guidance for Industry; AvailabilityPDF
81 FR 95968 - Submission for OMB Review; Comment RequestPDF
81 FR 96031 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; Federal Fish and Wildlife Permit Applications and Reports-Law EnforcementPDF
81 FR 95956 - Notice of Funds Availability (NOFA); Farm-to-Fleet Feedstock Program Biofuel Production Incentive (BPI)PDF
81 FR 95995 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 96028 - National Institute of Nursing Research; Notice of Closed MeetingPDF
81 FR 95971 - Defense Innovation Board: Notice of Federal Advisory Committee MeetingPDF
81 FR 95970 - Proposed Information Collection; Comment RequestPDF
81 FR 95959 - Okanogan-Wenatchee National Forest; Okanogan, Chelan and Skagit Counties, Washington; Pack Stock Outfitter Guide Special Use Permits Supplemental Environmental Impact StatementPDF
81 FR 95964 - National Estuarine Research Reserve SystemPDF
81 FR 96027 - National Institute of Mental Health; Notice of Closed MeetingPDF
81 FR 96027 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingsPDF
81 FR 96025 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingsPDF
81 FR 96022 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
81 FR 96025 - National Institute on Aging; Notice of Closed MeetingPDF
81 FR 96022 - National Institute on Aging; Notice of Closed MeetingsPDF
81 FR 96026 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 95961 - Fresh Garlic From the People's Republic of China: Initiation of Antidumping Duty New Shipper Review; 2015-2016PDF
81 FR 96191 - Qualification of Drivers; Exemption Applications; VisionPDF
81 FR 96196 - Qualification of Drivers; Exemption Applications; VisionPDF
81 FR 96174 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure DisordersPDF
81 FR 96165 - Qualification of Drivers; Exemption Applications; VisionPDF
81 FR 96178 - Qualification of Drivers; Exemption Applications; VisionPDF
81 FR 96180 - Qualification of Drivers; Exemption Applications; VisionPDF
81 FR 95998 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
81 FR 96187 - Qualification of Drivers; Exemption Applications; HearingPDF
81 FR 96183 - Qualification of Drivers; Exemption Applications; DiabetesPDF
81 FR 96195 - Qualification of Drivers; Exemption Applications; HearingPDF
81 FR 96188 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
81 FR 96185 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
81 FR 96193 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure DisordersPDF
81 FR 96168 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
81 FR 96176 - Qualification of Drivers; Exemption Applications; DiabetesPDF
81 FR 96189 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure DisordersPDF
81 FR 96020 - Proposed Collection; 60-Day Comment Request; Continuation of Use of the Early Career Reviewer Program Online Application and Vetting System-Center for Scientific Review (CSR)PDF
81 FR 95960 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF
81 FR 95977 - Eugene Water and Electric Board; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and ProtestsPDF
81 FR 95974 - Allete, Inc.; Notice of Application Accepted for Filing, Soliciting Comments, Protests and Motions To IntervenePDF
81 FR 95980 - Whitney Point Solar, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 95977 - Westside Solar, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 95978 - Millennium Pipeline Company, LLC; Notice of Schedule for Environmental Review of the Eastern System Upgrade ProjectPDF
81 FR 95981 - High Point Gas Transmission, LLC; Notice of Schedule for Environmental Review of the Venice to Toca Pipeline Abandonment ProjectPDF
81 FR 95975 - Combined Notice of Filings #2PDF
81 FR 95979 - Combined Notice of Filings #1PDF
81 FR 96021 - Meeting of the National Vaccine Advisory CommitteePDF
81 FR 96002 - Agency Information Collection Activities: Submission for OMB Review; Comment Request; Alzheimer's and Dementia Program Data Reporting Tool (ADP-DRT) (Previously Entitled: Alzheimer's Disease Supportive Services Program Data Reporting Tool (ADSSP-DRT) and Alzheimer's disease Initiative- Specialized Supportive Services (ADI- SSS) project))PDF
81 FR 96046 - Notice of Lodging of Proposed Second Partial Consent Decree Under the Clean Air ActPDF
81 FR 95892 - Fraser River Sockeye Salmon Fisheries; Inseason OrdersPDF
81 FR 96052 - Product Change-Parcel Select Negotiated Service AgreementPDF
81 FR 96053 - Product Change-Parcel Select Negotiated Service AgreementPDF
81 FR 96053 - Product Change-Priority Mail Express and Priority Mail Negotiated Service AgreementPDF
81 FR 96052 - Product Change-First-Class Package Service Negotiated Service AgreementPDF
81 FR 96052 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 95879 - Interpretive Bulletin Relating to the Exercise of Shareholder Rights and Written Statements of Investment Policy, Including Proxy Voting Policies or GuidelinesPDF
81 FR 96011 - Compounding and Repackaging of Radiopharmaceuticals by State-Licensed Nuclear Pharmacies and Federal Facilities; Draft Guidance for Industry; AvailabilityPDF
81 FR 96005 - Compounding and Repackaging of Radiopharmaceuticals by Outsourcing Facilities; Draft Guidance for Industry; AvailabilityPDF
81 FR 96010 - Clinical Pharmacology Data To Support a Demonstration of Biosimilarity to a Reference Product; Guidance for Industry; AvailabilityPDF
81 FR 96159 - Boathouse Capital II, L.P.; Notice Seeking Exemption Under Section 312 of the Small Business Investment Act, Conflicts of InterestPDF
81 FR 95958 - Sitka/Tenakee Springs/Port Alexander Resource Advisory CommitteePDF
81 FR 95860 - Qualification, Service, and Use of Crewmembers and Aircraft Dispatchers; Related Aircraft AmendmentPDF
81 FR 96164 - Petition for Exemption; Summary of Petition Received; Yamaha Motor CorporationPDF
81 FR 96165 - Petition for Exemption; Summary of Petition Received; Alaska Aerial Media LLCPDF
81 FR 96163 - Petition for Exemption; Summary of Petition Received; Skylift Global, Inc.PDF
81 FR 96164 - Petition for Exemption; Summary of Petition Received; SkyFly Cinema, LLCPDF
81 FR 96162 - Petition for Exemption; Summary of Petition Received; Leading Edge Associates, Inc.PDF
81 FR 96163 - Petition for Exemption; Summary of Petition Received; Brewster Fresh ProducePDF
81 FR 96074 - Self-Regulatory Organizations: Investors Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Related to Retention of Jurisdiction Over Members and Persons Associated with Members Upon Termination, Revocation, or Cancellation of Membership or Association ThereofPDF
81 FR 96062 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing of Proposed Rule Change To Amend the Opening ProcessPDF
81 FR 96102 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change in Connection With the Proposed Acquisition of National Stock Exchange, Inc. by the Exchange's Parent the NYSE Group, Inc. To Amend Certain Organizational Documents of NYSE Group, NYSE Holdings LLC, Intercontinental Exchange Holdings, Inc., and Intercontinental Exchange, Inc.PDF
81 FR 96114 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing of Proposed Rule Change To Amend Various Rules in Connection With a System Migration to Nasdaq INET TechnologyPDF
81 FR 96150 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change Amending Its Listing Standards for Special Purpose Acquisition CompaniesPDF
81 FR 96128 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change in Connection With the Proposed Acquisition of National Stock Exchange, Inc. by the NYSE Group, Inc.PDF
81 FR 96053 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Amendment No. 3 to Proposed Rule Change Amending the Co-Location Services Offered by the Exchange To Add Certain Access and Connectivity FeesPDF
81 FR 96107 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment Nos. 2 and 3 to Proposed Rule Change Amending the Co-Location Services Offered by the Exchange To Add Certain Access and Connectivity FeesPDF
81 FR 96080 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Amendment Nos. 2 and 3 to Proposed Rule Change Amending the Co-Location Services Offered by the Exchange To Add Certain Access and Connectivity FeesPDF
81 FR 96124 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change in Connection With the Proposed Acquisition of National Stock Exchange, Inc. by the Exchange's Parent the NYSE Group, Inc. To Amend Certain Organizational Documents of NYSE Group, NYSE Holdings LLC, Intercontinental Exchange Holdings, Inc., and Intercontinental Exchange, Inc.PDF
81 FR 96152 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify Administrative Charges for Distributors of Proprietary Data Feed ProductsPDF
81 FR 96133 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule To Modify the Exchange's Connectivity FeesPDF
81 FR 96092 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, To Amend the Exchange's Rules Regarding Routing of Orders, Cancellation of Orders, and Handling of Error Positions, and Permit Nasdaq Execution Services, LLC To Become an Affiliated Member of the Exchange To Perform Certain Routing and Other FunctionsPDF
81 FR 96136 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment Nos. 1 and 2, To Permit Nasdaq Execution Services, LLC To Become an Affiliated Member of the Exchange To Perform Certain Routing and Other FunctionsPDF
81 FR 96089 - Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment Nos. 1 and 2, To Permit Nasdaq Execution Services, LLC To Become an Affiliated Member of the Exchange To Perform Certain Routing and Other FunctionsPDF
81 FR 96087 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, To Permit The Nasdaq Options Market LLC To Accept Inbound Options Orders Routed by Nasdaq Execution Services LLCPDF
81 FR 96100 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, To Permit BX To Accept Inbound Options Orders Routed by Nasdaq Execution Services LLCPDF
81 FR 96060 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, To Permit Phlx To Accept Inbound Options Orders Routed by Nasdaq Execution Services LLCPDF
81 FR 96076 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change To Conform to Proposed Amendments to Securities Exchange Act Rule 15c6-1(a) To Shorten the Standard Settlement Cycle From Three Business Days After the Trade Date (“T+3”) to Two Business Days After the Trade Date (“T+2”)PDF
81 FR 96143 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change To Conform to Proposed Amendments to Securities Exchange Act Rule 15c6-1(a) To Shorten the Standard Settlement Cycle From Three Business Days After the Trade Date (“T+3”) to Two Business Days After the Trade Date (“T+2”)PDF
81 FR 96146 - Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of Filing of Proposed Rule Change To Reflect Updates to the Consolidated Trade Summary, Eliminate Re-Pricing in the Foreign Security Accounting Operation and Make Other ChangesPDF
81 FR 96140 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify Administrative Charges for Distributors of Proprietary Data Feed ProductsPDF
81 FR 96157 - Announcement of InnovateHER: Innovating for Women Business Challenge 2017PDF
81 FR 96044 - Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses From China and Indonesia; DeterminationsPDF
81 FR 96001 - Meeting of the Community Preventive Services Task Force (Task Force)PDF
81 FR 95973 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; National Professional Development Program: Grantee Performance ReportPDF
81 FR 95974 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Credit Enhancement for Charter School Facilities Program Performance ReportPDF
81 FR 96162 - Release of Waybill DataPDF
81 FR 96304 - Endangered and Threatened Wildlife and Plants; Proposed Threatened Listing Determination for the Oceanic Whitetip Shark Under the Endangered Species Act (ESA)PDF
81 FR 96201 - Agency Information Collection Activity: (Foot Conditions Including Flatfoot (Pes Planus) Disability Benefits Questionnaire (VA Form 21-0960M-6)PDF
81 FR 96202 - Agency Information Collection Activity: Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (VA Form 21-0960M-14)PDF
81 FR 95853 - Post-Employment Conflict of Interest Restrictions; Revision of Departmental Component DesignationsPDF
81 FR 96155 - Announcement of the Aspire Challenge-An Agency Prize CompetitionPDF
81 FR 96160 - Virginia Disaster Number VA-00066PDF
81 FR 96048 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 95998 - Agency Information Collection Activities; Submission for OMB Review; Proposed Collection; Comment Request for a Modified OGE Form 450 Executive Branch Confidential Financial Disclosure ReportPDF
81 FR 95997 - Agency Information Collection Activities; Submission for OMB Review; Proposed Collection; Comment Request for a Modified OGE Form 201 Ethics in Government Act Access FormPDF
81 FR 95991 - Environmental Financial Advisory Committee; Request for Nominations of Candidates to the Environmental Financial Advisory BoardPDF
81 FR 95988 - Notice of Open Meeting of the Environmental Financial Advisory Board (EFAB)PDF
81 FR 95989 - Final Test Guidelines; OCSPP Series 850 Group A-Ecological Effects Test Guidelines; Notice of AvailabilityPDF
81 FR 95992 - Receipt of Information Under the Toxic Substances Control ActPDF
81 FR 96199 - Joint Development: Updated CircularPDF
81 FR 95972 - Agency Information Collection Activities; Comment Request; Loan Rehabilitation: Reasonable and Affordable PaymentsPDF
81 FR 96025 - Interagency Coordinating Committee on the Validation of Alternative Methods Communities of Practice Webinar on Incorporating Chemical Information: Resources, Limitations, and Characterizing the Domain of Applicability for 21st Century Toxicity Testing; Notice of Public Webinar; Registration InformationPDF
81 FR 96024 - Using Informatics To Improve Data Analysis of Chemical Screening Assays Conducted in Zebrafish; Notice of Webinars; Registration InformationPDF
81 FR 96023 - Prospective Grant of Exclusive Patent License: Development and Commercialization of Nitrite Salts for the Treatment, Amelioration, and Prevention by Any Route of Administration of Pulmonary Hypertension, Including All WHO Classifications of Pulmonary Hypertension, e.g., Groups 1-5PDF
81 FR 96051 - New Postal ProductsPDF
81 FR 96044 - Notice of Receipt of Complaint; Solicitation of Comments; Relating to the Public InterestPDF
81 FR 96047 - Policy and Procedural Change To No Longer Publish Notices of Funding Opportunities in the Federal RegisterPDF
81 FR 96028 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingsPDF
81 FR 96028 - National Cancer Institute; Notice of Closed MeetingsPDF
81 FR 96023 - National Center for Complementary and Integrative Health; Notice of MeetingPDF
81 FR 96029 - Agency Information Collection Activities: Application for Asylum and for Withholding of Removal, Form I-589; Revision of a Currently Approved CollectionPDF
81 FR 96015 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Procedures for the Safe and Sanitary Processing and Importing of Fish and Fishery ProductsPDF
81 FR 96161 - Notice on Penalty Inflation Adjustments for Civil Monetary PenaltiesPDF
81 FR 96162 - Regional Meeting of the Binational Bridges and Border Crossings Group in Fort Worth, TexasPDF
81 FR 95993 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
81 FR 95995 - Agency Information Collection Activities; Proposed Collection; Comment RequestPDF
81 FR 95968 - Academic Research Council Solicitation of Applications for MembershipPDF
81 FR 95869 - Availability of RecordsPDF
81 FR 95863 - Refuse To Accept Procedures for Premarket Tobacco Product SubmissionsPDF
81 FR 95893 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery Off the Southern Atlantic States; Regulatory Amendment 16PDF
81 FR 95903 - Atlantic Highly Migratory Species; Individual Bluefin Quota Program; Inseason TransfersPDF
81 FR 95932 - Endangered and Threatened Wildlife and Plants; Reclassifying the Tobusch Fishhook Cactus From Endangered to Threatened on the Federal List of Endangered and Threatened PlantsPDF
81 FR 95884 - Extension of Deadline for Action on the November 2016 Section 126 Petition From DelawarePDF
81 FR 95886 - Isobutyl Acetate and Isobutyric Acid; Exemption From the Requirement of a TolerancePDF
81 FR 95929 - Nuclear Decommissioning FundsPDF
81 FR 95860 - Regulatory Program Fees and Water Supply ChargesPDF
81 FR 95965 - SAW-SARC 63 Public MeetingPDF
81 FR 95941 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagic Resources in the Gulf of Mexico and Atlantic Region; Amendment 26PDF
81 FR 95911 - Mortality Tables for Determining Present Value Under Defined Benefit Pension PlansPDF
81 FR 96242 - Enterprise Duty To Serve Underserved MarketsPDF
81 FR 95857 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 95854 - Airworthiness Directives; Airbus Helicopters (Previously Eurocopter France) HelicoptersPDF
81 FR 96204 - Energy Conservation Program for Consumer Products and Certain Commercial and Industrial Equipment: Test Procedures for Consumer and Commercial Water HeatersPDF

Issue

81 250 Thursday, December 29, 2016 Contents Agency Toxic Agency for Toxic Substances and Disease Registry NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 95998-96000 2016-31554 Agriculture Agriculture Department See

Farm Service Agency

See

Forest Service

Army Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 95970-95971 2016-31605 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Requests for Nominations: Academic Research Council, 95968-95970 2016-31398 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 96000-96001 2016-31604 Meetings: Community Preventive Services Task Force, 96001-96002 2016-31468 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: Revisions to Payment Policies under the Physician Fee Schedule and Other Revisions to Part B for CY 2017; Medicare Advantage Bid Pricing Data Release; Medicare Advantage and Part D Medical Loss Ratio Data Release; Medicare Advantage Provider Network Requirements; Expansion of Medicare Diabetes Prevention Program Model; Medicare Shared Savings Program Requirements; Corrections, 95890-95892 2016-31649 Commerce Commerce Department See

Economic Development Administration

See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Community Living Administration Community Living Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Alzheimer's and Dementia Program Data Reporting Tool (Previously Entitled: Alzheimer's Disease Supportive Services Program Data Reporting Tool and Alzheimer's Disease Initiative: Specialized Supportive Services Project), 96002-96003 2016-31528 Corporation Corporation for National and Community Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 95970 2016-31576 Defense Department Defense Department See

Army Department

NOTICES Meetings: Defense Innovation Board, 95971-95972 2016-31577
Delaware Delaware River Basin Commission RULES Regulatory Program Fees and Water Supply Charges, 95860-95863 2016-31146 Drug Drug Enforcement Administration NOTICES Manufacturers of Controlled Substances; Applications: Janssen Pharmaceutical, Inc., 96045-96046 2016-31641 Economic Development Economic Development Administration NOTICES Trade Adjustment Assistance Eligibility; Petitions, 95960-95961 2016-31542 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Credit Enhancement for Charter School Facilities Program Performance Report, 95974 2016-31466 Loan Rehabilitation: Reasonable and Affordable Payments, 95972-95973 2016-31441 National Professional Development Program: Grantee Performance Report, 95973-95974 2016-31467 Employee Benefits Employee Benefits Security Administration RULES Interpretive Bulletin Relating to Exercise of Shareholder Rights and Written Statements of Investment Policy, Including Proxy Voting Policies or Guidelines, 95879-95884 2016-31515 Employment and Training Employment and Training Administration NOTICES Policy and Procedural Change to No Longer Publish Notices of Funding Opportunities in Federal Register, 96047-96048 2016-31434 Energy Department Energy Department See

Federal Energy Regulatory Commission

RULES Energy Conservation Programs: Test Procedures for Consumer and Commercial Water Heaters, 96204-96239 2016-29994
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Extension of Deadline for Action on November 2016 Section 126 Petition from Delaware, 95884-95886 2016-31256 Pesticide Tolerances; Exemptions: Isobutyl acetate and isobutyric acid, 95886-95890 2016-31211 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 95987-95988 2016-31633 California State Motor Vehicle Pollution Control Standards: Greenhouse Gas Emissions from 2014 and Subsequent Model Year Medium and Heavy-Duty Engines and Vehicles; Decision, 95982-95987 2016-31646 Clean Air Act Operating Permit Programs; Petitions: Piedmont Green Power, 95992-95993 2016-31639 Meetings: Environmental Financial Advisory Board, 95988-95989 2016-31448 Human Studies Review Board, 95981-95982 2016-31640 Receipt of Information under Toxic Substances Control Act, 95992 2016-31445 Requests for Nominations: Environmental Financial Advisory Board, 95991 2016-31449 Test Guidelines: OCSPP Series 850 Group A: Ecological Effects Test Guidelines, 95989-95991 2016-31447 Equal Equal Employment Opportunity Commission RULES Availability of Records, 95869-95879 2016-31388 Farm Service Farm Service Agency NOTICES Funding Availability: Farm-to-Fleet Feedstock Program Biofuel Production Incentive, 95956-95958 2016-31582 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Helicopters (Previously Eurocopter France) Helicopters, 95854-95857 2016-30020 The Boeing Company Airplanes, 95857-95860 2016-30279 Qualification, Service, and Use of Crewmembers and Aircraft Dispatchers; Related Aircraft Amendment, 95860 2016-31507 NOTICES Petitions for Exemption; Summaries: Alaska Aerial Media, LLC, 96165 2016-31505 Brewster Fresh Produce, 96163-96164 2016-31501 Leading Edge Associates, Inc., 96162-96163 2016-31502 SkyFly Cinema, LLC, 96164-96165 2016-31503 Skylift Global, Inc., 96163 2016-31504 Yamaha Motor Corp., 96164 2016-31506 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 95993-95994 2016-31420 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 95975-95977, 95979-95980 2016-31533 2016-31534 Environmental Assessments; Availability, etc.: High Point Gas Transmission, LLC; Venice to Toca Pipeline Abandonment Project, 95981 2016-31535 Millennium Pipeline Co., LLC; Eastern System Upgrade Project; Schedule for Environmental Review, 95978-95979 2016-31536 Hydroelectric Applications: Allete, Inc., 95974-95975 2016-31539 Eugene Water and Electric Board, 95977-95978 2016-31540 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Westside Solar, LLC, 95977 2016-31537 Whitney Point Solar, LLC, 95980-95981 2016-31538 Federal Housing Finance Agency Federal Housing Finance Agency RULES Enterprise Duty to Serve Underserved Markets, 96242-96301 2016-30284 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 95994 2016-31615 Federal Motor Federal Motor Carrier Safety Administration NOTICES Qualification of Drivers; Exemption Applications: Diabetes, 96176-96178, 96183-96185 2016-31545 2016-31552 Diabetes Mellitus, 96168-96174, 96185-96189 2016-31546 2016-31548 2016-31549 Epilepsy and Seizure Disorders, 96174-96176, 96189-96191, 96193-96195 2016-31544 2016-31547 2016-31558 Hearing, 96187-96188, 96195-96196 2016-31550 2016-31553 Vision, 96165-96168, 96178-96183, 96191-96193, 96196-96199 2016-31555 2016-31556 2016-31557 2016-31559 2016-31560 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 95995 2016-31580 Federal Trade Federal Trade Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 95995-95997 2016-31401 Federal Transit Federal Transit Administration NOTICES Joint Developments: Updated Circular, 96199-96200 2016-31443 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: Reclassifying Tobusch Fishhook Cactus from Endangered to Threatened, 95932-95941 2016-31296 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Fish and Wildlife Permit Applications and Reports: Law Enforcement, 96031-96032 2016-31584 Endangered Species Recovery Permit Applications, 96030-96031 2016-31647 Food and Drug Food and Drug Administration RULES Refuse to Accept Procedures for Premarket Tobacco Product Submissions, 95863-95869 2016-31370 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Procedures for Safe and Sanitary Processing and Importing of Fish and Fishery Products, 96015-96017 2016-31424 Guidance: Botanical Drug Development, 96018-96020 2016-31627 Clinical Pharmacology Data to Support Demonstration of Biosimilarity to Reference Product, 96010-96011 2016-31511 Compounding and Repackaging of Radiopharmaceuticals by Outsourcing Facilities, 96005-96007 2016-31512 Compounding and Repackaging of Radiopharmaceuticals by State-Licensed Nuclear Pharmacies and Federal Facilities, 96011-96013 2016-31513 Listing of Ingredients in Tobacco Products, 96003-96004 2016-31587 Prescription Requirement under Section 503A of Federal Food, Drug, and Cosmetic Act, 96008-96009 2016-31607 Providing Regulatory Submissions in Electronic Format: Submission of Manufacturing Establishment Information, 96013-96015 2016-31626 Submission of Warning Plans for Cigars, 96017-96018 2016-31586 Meetings: Identification and Characterization of Infectious Disease Risks of Human Cells, Tissues, and Cellular and Tissue-based Products; Public Workshop, 96007-96008 2016-31628 New Drug Applications: Abbott Laboratories, et al.; Withdrawal, 96004-96005 2016-31625 Foreign Trade Foreign-Trade Zones Board NOTICES Production Activities: Black and Decker (U.S.), Inc.; Subzone 38E; Foreign-Trade Zone 38, Spartanburg County, SC, 95961 2016-31617 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Pack Stock Outfitter Guide Special Use Permits, Okanogan-Wenatchee National Forest, Okanogan, Chelan and Skagit Counties, WA, 95959 2016-31574 Meetings: Sitka/Tenakee Springs/Port Alexander Resource Advisory Committee, 95958-95959 2016-31509 Newspapers Used for Publication of Legal Notices: Pacific Northwest Region: Washington and Oregon, 95959-95960 2016-31623 Government Ethics Government Ethics Office RULES Post-Employment Conflict of Interest Restrictions: Revision of Departmental Component Designations, 95853-95854 2016-31457 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Ethics in Government Act Access Form, 95997-95998 2016-31451 Executive Branch Confidential Financial Disclosure Report, 95998 2016-31452 Health and Human Health and Human Services Department See

Agency for Toxic Substances and Disease Registry

See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Community Living Administration

See

Food and Drug Administration

See

National Institutes of Health

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Early Career Reviewer Program Online Application and Vetting System: Center for Scientific Review, 96020-96021 2016-31543 Meetings: National Vaccine Advisory Committee, 96021 2016-31530
Homeland Homeland Security Department See

U.S. Citizenship and Immigration Services

Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

NOTICES Meetings: U.S. Extractive Industries Transparency Initiative Multi-Stakeholder Group, 96032-96033 2016-31620
Internal Revenue Internal Revenue Service PROPOSED RULES Mortality Tables for Determining Present Value under Defined Benefit Pension Plans, 95911-95929 2016-30906 Nuclear Decommissioning Funds, 95929-95932 2016-31205 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 96200-96201 2016-31609 Charter Establishments and Operations: Electronic Tax Administration Advisory Committee, 96201 2016-31613 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Fresh Garlic from People's Republic of China, 95961-95962 2016-31564 U.S.-Nigeria Commercial and Investment Dialogue, 95962-95963 2016-31664 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses from China and Indonesia, 96044 2016-31469 Complaints: Certain Electronic Devices, Including Mobile Phones, Tablet Computers, and Components Thereof, 96044-96045 2016-31435 Justice Department Justice Department See

Drug Enforcement Administration

NOTICES Consent Decrees: Proposed Consent Decrees under Clean Air Act, 96046-96047 2016-31527
Labor Department Labor Department See

Employee Benefits Security Administration

See

Employment and Training Administration

Land Land Management Bureau NOTICES Draft Presumed to Conform List of Actions under General Conformity: Upper Green River Basin, WY, 96033-96043 2016-31631 Meetings: Alaska Resource Advisory Council, 96043-96044 2016-31654 Steens Mountain Advisory Council, 96033 2016-31648 Plats of Surveys: Oregon/Washington, 96043 2016-31618 National Archives National Archives and Records Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 96048 2016-31453 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 96026-96027 2016-31565 Clinical Center Research Hospital Board, 96021-96022 2016-31611 Interagency Coordinating Committee on Validation of Alternative Methods Communities of Practice; Webinar on Incorporating Chemical Information: Resources, Limitations, and Characterizing Domain of Applicability for 21st Century Toxicity Testing, 96025-96026 2016-31439 National Advisory Council for Complementary and Integrative Health, 96023-96024 2016-31430 National Cancer Institute, 96028-96029 2016-31431 National Heart, Lung, and Blood Institute, 96028 2016-31432 National Institute of Allergy and Infectious Diseases, 96022, 96024-96025, 96027 2016-31568 2016-31569 2016-31570 2016-31610 National Institute of Mental Health, 96027-96028 2016-31571 National Institute of Nursing Research, 96028 2016-31578 National Institute on Aging, 2016-31433 96022-96023, 96025, 96027 2016-31566 2016-31567 2016-31608 Using Informatics to Improve Data Analysis of Chemical Screening Assays Conducted in Zebrafish; Webinar, 96024-96025 2016-31438 Prospective Grants of Exclusive Patent Licenses: Development and Commercialization of Nitrite Salts for the Treatment, Amelioration, and Prevention by any Route of Administration of Pulmonary Hypertension, Including All WHO Classifications of Pulmonary Hypertension, e.g., Groups 1-5, 96023 2016-31437 National Oceanic National Oceanic and Atmospheric Administration RULES Atlantic Highly Migratory Species: Individual Bluefin Quota Program; Inseason Transfers, 95903-95909 2016-31357 Fisheries of Caribbean, Gulf of Mexico, and South Atlantic: Snapper-Grouper Fishery off Southern Atlantic States; Regulatory Amendment 16, 95893-95903 2016-31363 Fisheries of Northeastern United States: Atlantic Herring Fishery; Adjustment to Atlantic Herring Management Area 1A Annual Catch Limit, 95909-95910 2016-31588 Fraser River Sockeye Salmon Fisheries; Inseason Orders, 95892-95893 2016-31526 PROPOSED RULES Endangered and Threatened Species: Determination for Oceanic Whitetip Shark under Endangered Species Act, 96304-96328 2016-31460 Fisheries of Caribbean, Gulf of Mexico, and South Atlantic: Coastal Migratory Pelagic Resources in Gulf of Mexico and Atlantic Region; Amendment 26, 95941-95955 2016-31066 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 95968 2016-31585 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Nautical Discrepancy Reporting System, 95963-95964 2016-31614 Fisheries Off West Coast States: Pacific Coast Groundfish Fishery; Trawl Rationalization Program; 2017 Cost Recovery, 95966-95968 2016-31624 Meetings: New England Fishery Management Council, 95964-95965 2016-31612 SAW-SARC 63, 95965-95966 2016-31087 National Estuarine Research Reserve System, 95964 2016-31573 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Exemptions and Combined License Amendments: South Carolina Electric and Gas Co., South Carolina Public Service Authority; Virgil C. Summer Nuclear Station, Units 2 and 3; Radiologically Controlled Area Ventilation System, 96048-96050 2016-31591 Guidance: Acceptance of Commercial-Grade Design and Analysis Computer Programs for Nuclear Power Plants, 96050-96051 2016-31603 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 96051-96052 2016-31436 Postal Service Postal Service NOTICES Product Changes: First-Class Package Service Negotiated Service Agreement, 96052 2016-31519 Parcel Select Negotiated Service Agreement, 96052-96053 2016-31523 2016-31524 Priority Mail Express and Priority Mail Negotiated Service Agreement, 96053 2016-31520 2016-31522 Priority Mail Negotiated Service Agreement, 2016-31516 96052-96053 2016-31517 2016-31518 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: International Securities Exchange, LLC, 96092-96100 2016-31480 Investors Exchange, LLC, 96074-96076 2016-31492 ISE Gemini, LLC, 96062-96074, 96114-96123, 96136-96140 2016-31479 2016-31489 2016-31491 ISE Mercury, LLC, 96089-96092 2016-31478 Miami International Securities Exchange, LLC, 96133-96136 2016-31481 NASDAQ BX, Inc., 96100-96102, 96152-96155 2016-31476 2016-31482 NASDAQ PHLX, LLC, 96060-96062, 96140-96142 2016-31471 2016-31475 Nasdaq Stock Market, LLC, 96087-96089 2016-31477 National Securities Clearing Corp., 96146-96149 2016-31472 New York Stock Exchange, LLC, 96053-96060, 96076-96080, 96124-96128, 96150-96152 2016-31474 2016-31483 2016-31486 2016-31488 NYSE Arca, Inc., 96102-96114 2016-31485 2016-31490 NYSE MKT, LLC, 96080-96086, 96128-96133, 96143-96146 2016-31473 2016-31484 2016-31487 Small Business Small Business Administration NOTICES Agency Prize Competitions: Aspire Challenge, 96155-96157 2016-31455 Conflict of Interest Exemptions: Boathouse Capital II, LP, 96159-96160 2016-31510 Disaster Declarations: Virginia, 96160 2016-31454 Innovating for Women Business Challenge 2017: InnovateHER, 96157-96159 2016-31470 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 96160-96161 2016-31632 Penalty Inflation Adjustments for Civil Monetary Penalties, 96161-96162 2016-31423 State Department State Department NOTICES Meetings: Binational Bridges and Border Crossings Group in Fort Worth, TX, 96162 2016-31421 Surface Transportation Surface Transportation Board NOTICES Release of Waybill Data, 96162 2016-31462 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Transit Administration

NOTICES Meetings: Advisory Committee on Automation in Transportation, 96200 2016-31668
Treasury Treasury Department See

Internal Revenue Service

U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Asylum and for Withholding of Removal, 96029-96030 2016-31429 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire, 96202 2016-31458 Foot Conditions Including Flatfoot (Pes Planus) Disability Benefits Questionnaire, 96201-96202 2016-31459 Separate Parts In This Issue Part II Energy Department, 96204-96239 2016-29994 Part III Federal Housing Finance Agency, 96242-96301 2016-30284 Part IV Commerce Department, National Oceanic and Atmospheric Administration, 96304-96328 2016-31460 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.

81 250 Thursday, December 29, 2016 Rules and Regulations OFFICE OF GOVERNMENT ETHICS 5 CFR Part 2641 RIN 3209-AA14 Post-Employment Conflict of Interest Restrictions; Revision of Departmental Component Designations AGENCY:

Office of Government Ethics.

ACTION:

Final rule.

SUMMARY:

The U.S. Office of Government Ethics (OGE) is issuing this final rule to revise the component designations of two agencies for purposes of the one-year post-employment conflict of interest restriction for senior employees. Specifically, OGE is revoking two existing component designations and adding five new component designations, based on the recommendations of the agencies concerned.

DATES:

This rule is effective December 29, 2016, except for the amendments to Appendix B to 5 CFR part 2641 set forth in amendatory instructions 2.b. and 2.c., which are effective March 29, 2017.

FOR FURTHER INFORMATION CONTACT:

Kimberly L. Sikora Panza, Associate Counsel, Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917; Telephone: (202) 482-9300; TTY: (800) 877-8339; FAX: (202) 482-9237.

SUPPLEMENTARY INFORMATION: I. Background

The Director of OGE (Director) is authorized by 18 U.S.C. 207(h) to designate distinct and separate departmental or agency components in the executive branch for purposes of 18 U.S.C. 207(c), the one-year post-employment conflict of interest restriction for senior employees. The representational bar of 18 U.S.C. 207(c) usually extends to the whole of any department or agency in which a former senior employee served in any capacity during the year prior to termination from a senior employee position. However, 18 U.S.C. 207(h) provides that whenever the Director determines that an agency or bureau within a department or agency in the executive branch exercises functions which are distinct and separate from the remaining functions of the department or agency and there exists no potential for use of undue influence or unfair advantage based on past Government service, the Director shall by rule designate such agency or bureau as a separate component of that department or agency. Under 18 U.S.C. 207(h)(2), component designations do not apply to persons employed at a rate of pay specified in or fixed according to subchapter II of 5 U.S.C. chapter 53 (the Executive Schedule). Component designations are listed in appendix B to 5 CFR part 2641.

Pursuant to the procedures prescribed in 5 CFR 2641.302(e), two agencies forwarded written requests to OGE to amend their listings in appendix B to part 2641, and on October 18, 2016, OGE published a proposed rule in the Federal Register, 81 FR 71644, Oct. 18, 2016, that proposed to revise the component designations of those two agencies. The proposed rule provided a 30-day comment period, which ended on November 17, 2016. OGE did not receive any comments. The rationale for the proposed rule, which OGE is now adopting as final, is explained in the preamble at: https://www.thefederalregister.org/fdsys/pkg/FR-2016-10-18/pdf/2016-25054.pdf.

For the reasons stated in the preamble to the proposed rule, OGE is granting the request of the Department of Labor and is amending the agency's listing in appendix B to part 2641 to remove the designation of the Employment Standards Administration (ESA), and in the place of ESA, designate the Office of Federal Contract Compliance Programs, Office of Labor Management Standards, Office of Workers' Compensation Programs, and the Wage and Hour Division as distinct and separate components of the Department of Labor for purposes of 18 U.S.C. 207(c). OGE also is granting the request of the Department of Transportation and amending the agency's listing in appendix B to part 2641 to remove the designation of the Surface Transportation Board and designate the Pipeline and Hazardous Materials Safety Administration as a distinct and separate component of the Department of Transportation for purposes of 18 U.S.C. 207(c).

As indicated in 5 CFR 2641.302(f), a designation “shall be effective on the date the rule creating the designation is published in the Federal Register and shall be effective as to individuals who terminated senior service either before, on or after that date.” Initial designations in appendix B to part 2641 were effective as of January 1, 1991. The effective date of subsequent designations is indicated by means of parenthetical entries in appendix B. The new component designations made in this rule are effective December 29, 2016.

As also indicated in 5 CFR 2641.302(f), revocation of a component designation is effective 90 days after the publication in the Federal Register of the rule that revokes the designation. Accordingly, the component designation revocations made in this rule will take effect March 29, 2017. Revocations are not effective as to any individual terminating senior service prior to the expiration of the 90-day period.

II. Matters of Regulatory Procedure Regulatory Flexibility Act

As Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this final rule will not have a significant economic impact on a substantial number of small entities because it affects only Federal departments and agencies and current and former Federal employees.

Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply to this final rule because it does not contain information collection requirements that require the 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 25, subchapter II), this final rule will 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.

Congressional Review Act

The final rule is not a major rule as defined in 5 U.S.C. chapter 8, Congressional Review of Agency Rulemaking.

Executive Orders 12866 and 13563

In promulgating this final rule, the Office of Government Ethics has adhered to the regulatory philosophy and the applicable principles of regulation set forth in Executive Orders 12866 and 13563. This rule has not been reviewed by the Office of Management and Budget under Executive Order 12866 because it is not a “significant” regulatory action for the purposes of that order.

Executive Order 12988

As Director of the Office of Government Ethics, I have reviewed this final 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 2641

Conflict of interests, Government employees.

Approved: December 22, 2016. Walter M. Shaub, Jr., Director,Office of Government Ethics.

Accordingly, for the reasons set forth in the preamble, the Office of Government Ethics is amending 5 CFR part 2641 as set forth below:

PART 2641—POST-EMPLOYMENT CONFLICT OF INTEREST RESTRICTIONS 1. The authority citation for part 2641 continues to read as follows: Authority:

5 U.S.C. app. (Ethics in Government Act of 1978); 18 U.S.C. 207; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.

2. Amend appendix B to part 2641 as follows: a. Revise the listings for Parent: Department of Labor and Parent: Department of Transportation. b. Effective March 29, 2017, remove the Employment Standards Administration component from the listing for Parent: Department of Labor c. Effective March 29, 2017, remove the Surface Transportation Board component from the listing for Parent: Department of Transportation.

The revisions read as follows:

Appendix B to Part 2641—Agency Components for Purposes of 18 U.S.C. 207(c) Parent: Department of Labor

Components:

Bureau of Labor Statistics. Employee Benefits Security Administration (formerly Pension and Welfare Benefits Administration) (effective May 16, 1997). Employment and Training Administration. Employment Standards Administration. Mine Safety and Health Administration. Occupational Safety and Health Administration. Office of Disability Employment Policy (effective January 30, 2003). Office of Federal Contract Compliance Programs (effective December 29, 2016). Office of Labor Management Standards (effective December 29, 2016). Office of Workers' Compensation Programs (effective December 29, 2016). Pension Benefit Guaranty Corporation (effective May 25, 2011). Wage and Hour Division (effective December 29, 2016). Parent: Department of Transportation

Components:

Federal Aviation Administration. Federal Highway Administration. Federal Motor Carrier Safety Administration (effective January 30, 2003). Federal Railroad Administration. Federal Transit Administration. Maritime Administration. National Highway Traffic Safety Administration. Pipeline and Hazardous Materials Safety Administration (effective December 29, 2016). Saint Lawrence Seaway Development Corporation. Surface Transportation Board (effective May 16, 1997).
[FR Doc. 2016-31457 Filed 12-28-16; 8:45 am] BILLING CODE 6345-03-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2014-0498; Directorate Identifier 2013-SW-052-AD; Amendment 39-18745; AD 2016-25-19] RIN 2120-AA64 Airworthiness Directives; Airbus Helicopters (Previously Eurocopter France) Helicopters AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are superseding airworthiness directive (AD) 2010-21-07 for Eurocopter France (now Airbus Helicopters) Model AS350B3 and EC130B4 helicopters. AD 2010-21-07 required inspecting the pilot's and co-pilot's throttle twist for proper operation of the contactors. This new AD retains the requirements of AD 2010-21-07, includes additional inspection procedures, and revises the inspection interval. These actions are intended to address the unsafe condition on these products.

DATES:

This AD is effective February 2, 2017.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of February 2, 2017.

ADDRESSES:

For service information identified in this final rule, contact Airbus Helicopters, Inc., 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.airbushelicopters.com/techpub. You may view this referenced service information at the FAA, Office of the Regional Counsel, 10101 Hillwood Parkway, Fort Worth, Texas, 76177. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0498.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov in Docket No. FAA-2014-0498; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the European Aviation Safety Agency (EASA) AD, any incorporated-by-reference information, the economic evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

George Schwab, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Parkway, Fort Worth, Texas, 76101; telephone (817) 222-5110; email [email protected]

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to remove AD 2010-21-07, Amendment 39-16467 (75 FR 63052, October 14, 2010) and add a new AD. AD 2010-21-07 required repetitively inspecting the pilot's and co-pilot's throttle twist for proper operation of the contactors, which provide for changes between the “IDLE” and “FLIGHT” positions of the throttle twist grip control. The NPRM published in the Federal Register on July 30, 2014 (79 FR 44142), and proposed to retain the inspection requirements of AD 2010-21-07 and included additional requirements to inspect for proper operation of contactors 53Ka and 53Kb and the pilot and copilot throttle twist grip controls for proper functioning. The NPRM also proposed to reduce the intervals of the inspections from 600 hours time-in-service (TIS) to 300 hours TIS.

The NPRM was prompted by AD No. 2013-0191-E, dated August 22, 2013, issued by EASA, which is the Technical Agent for the Member States of the European Union. EASA advises that the switches in the engine “IDLE” or “FLIGHT” control system could be affected by the corrosive effects of a salt-laden atmosphere, which could lead to engine power loss. EASA states that these corrosive effects are not prevented by MOD 074263, which Eurocopter designed to address the unsafe condition identified in AD 2010-21-07. According to EASA, a subsequent accident occurred which involved power loss in flight of a Model AS350B3 helicopter with MOD 074263 installed. As a result, EASA AD No. 2013-0191-E does not accept MOD 074263 as terminating action for the required repetitive maintenance actions. Accordingly, the two letters we issued approving MOD 074263 as an Alternate Method of Compliance for AD 2010-21-07 are no longer valid.

Comments

After our NPRM (79 FR 44142, July 30, 2014) was published, we received comments from three commenters.

Request

Two commenters requested that we change the compliance times for the recurring inspection to allow for a longer compliance time for helicopters that do not operate in corrosive or salt laden environments. One commenter noted that the failures have been attributed to operations in a corrosive environment. The other commenter stated the proposed AD would penalize operators in non-salt laden environments by requiring the shorter compliance time. The commenters also requested that we adopt the same compliance intervals, 330 hours TIS or 660 hours TIS for helicopters that do not operate in salt laden environments, allowed by the manufacturer's service information. The commenters stated that this would facilitate maintenance scheduling.

We agree. We are adding a longer recurring inspection compliance interval for helicopters that do not operate in salt laden conditions to match the manufacturer's service information. We have also increased the compliance intervals for the recurring inspection to 330 hours TIS for helicopters operating in salt-laden environments and to 660 hours TIS for all other helicopters.

One commenter requested that the proposed AD condition compliance with paragraph 3.B.2 of the manufacturer's service information on the results of the inspection in paragraph 3.B.1. The commenter noted that the proposed AD requires compliance with paragraph 3.B.1 through 3.B.6 of the service information, but does not clarify that compliance with paragraph 3.B.2 is only required if the aircraft fails the prior inspection.

We agree that compliance with paragraph 3.B.2 of the service information is conditional, but we do not agree that a change to the AD language is necessary. There is no ambiguity in the service information incorporated by reference in the AD as to when compliance with paragraph 3.B.2 is necessary.

FAA's Determination

We have reviewed the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed, except for the changes described previously. We have also changed the service information that is incorporated by reference to the most current revision. These changes are consistent with the intent of the proposals in the NPRM (79 FR 44142, July 30, 2014) and will not increase the economic burden on any operator nor increase the scope of the AD.

Interim Action

We consider this AD interim action. The design approval holder is currently developing a modification that will address the unsafe condition identified in this proposed AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.

Related Service Information Under 1 CFR Part 51

Since we published the NPRM (79 FR 44142, July 30, 2014), Airbus Helicopters (previously Eurocopter) revised its service information. We reviewed one document that co-publishes 3 Emergency Alert Service Bulletin (EASB) identification numbers: No. 05.00.61, Revision 3, dated June 15, 2015, for Model AS350B3 helicopters; No. 05.00.41, Revision 2, dated June 15, 2015, for the non-FAA type-certificated Model AS550C3 helicopter; and No. 05A009, Revision 3, dated June 15, 2015, for Model EC130B4 helicopters. EASB Nos. 05.00.61 and 05A009 are incorporated by reference in this AD. EASB No. 05.00.41 is not incorporated by reference in this AD.

This service information describes procedures for a functional check and installation of a protection for micro-contacts (microswitches) 53Ka, 53Kb, and 65K (IDLE/FLIGHT mode). EASA classified the prior revision of this service information as mandatory and issued EASA Emergency AD No. 2013-0191-E, dated August 22, 2013, to ensure the continued airworthiness of these helicopters.

Because this revision of EASB No. 05.00.61 and No. 05A009 specifies the same actions but clarifies the procedures used in applying varnish to the microswitches, we are incorporating this revision by reference in this AD.

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

Costs of Compliance

We estimate that this AD will affect 517 helicopters of U.S. Registry.

We estimate that operators will incur the following costs in order to comply with this AD. The average labor rate is $85 per work hour. It will take about 4 work hours for the inspections and any necessary maintenance, for a total cost of $340 per helicopter and $175,780 for the U.S. fleet per inspection cycle.

Authority for This Rulemaking

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

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

Regulatory Findings

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

For the reasons discussed above, I certify that this AD:

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that a regulatory distinction is required, and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2010-21-07, Amendment 39-16467 (75 FR 63052, October 14, 2010), and adding the following new AD: 2016-25-19 Airbus Helicopters (Previously Eurocopter France) Helicopters: Amendment 39-18745; Docket No. FAA-2014-0498; Directorate Identifier 2013-SW-052-AD. (a) Applicability

This AD applies to Model AS350B3 and EC130B4 helicopters, certificated in any category, with the ARRIEL 2B1 engine with the two-channel Full Authority Digital Engine Control (FADEC) and with new twist grip modification (MOD) 073254 for the Model AS350B3 helicopter or MOD 073773 for the Model EC130B4 helicopter, installed.

(b) Unsafe Condition

This AD defines the unsafe condition as failure of one of the two contactors, 53Ka or 53Kb, which can prevent switching from “IDLE” mode to “FLIGHT” mode during autorotation training making it impossible to recover from the practice autorotation and compelling the pilot to continue the autorotation to the ground. This condition could result in unintended touchdown to the ground at a flight-idle power setting during a practice autorotation, damage to the helicopter, and injury to occupants.

(c) Affected ADs

This AD supersedes AD 2010-21-07, Amendment 39-16467 (75 FR 63052, October 14, 2010).

(d) Effective Date

This AD becomes effective February 2, 2017.

(e) Compliance

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

(f) Required Actions

(1) Before the next practice autorotation or on or before 100 hours time-in-service (TIS), whichever occurs first, inspect the wiring, perform an insulation test, inspect the pilot and copilot throttle twist grip controls, and test the pilot and copilot throttle twist grip controls for proper functioning by following the Accomplishment Instructions, paragraph 3.B.1 through 3.B.6, of Airbus Helicopters Emergency Alert Service Bulletin (EASB) No. 05.00.61, Revision 3, dated June 15, 2015, for Model AS350B3 helicopters or EASB No. 05A009, Revision 3, dated June 15, 2015, for Model EC130B4 helicopters, as appropriate for your model helicopter.

(2) Repeat the inspections in paragraph (f)(1) of this AD at intervals not to exceed the following compliance times. For purposes of this AD, salt laden conditions exist when a helicopter performs a flight from a takeoff and landing area, heliport, or airport less than 0.5 statute mile from salt water or performs a flight within 0.5 statute mile from salt water below an altitude of 1,000 ft. above ground or sea level.

(i) For helicopters that have operated in salt laden conditions since the previous inspection required by this AD, at intervals not to exceed 330 hours TIS.

(ii) For helicopters that have not operated in salt laden conditions since the previous inspection required by this AD, at intervals not to exceed 660 hours TIS.

(g) Alternative Methods of Compliance (AMOCs)

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

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

(h) Additional Information

The subject of this AD is addressed in European Aviation Safety Agency (EASA) Emergency AD No. 2013-0191-E, dated August 22, 2013. You may view the EASA AD at http://www.regulations.gov in Docket No. FAA-2014-0498.

(i) Subject

Joint Aircraft Service Component (JASC) Code: 76 Engine Controls.

(j) Material Incorporated by Reference

(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.

(i) Airbus Helicopters Emergency Alert Service Bulletin (EASB) No. 05.00.61, Revision 3, dated June 15, 2015.

(ii) Airbus Helicopters EASB No. 05A009, Revision 3, dated June 15, 2015.

Note 1 to paragraph (j)(2):

Airbus Helicopters EASB No. 05.00.61, Revision 3, dated June 15, 2015, and Airbus Helicopters EASB No. 05A009, Revision 3, dated June 15, 2015 are co-published as one document along with Airbus Helicopters EASB No. 05.00.41, Revision 2, dated June 15, 2015, which is not incorporated by reference in this AD.

(3) For Airbus Helicopters service information identified in this final rule, contact Airbus Helicopters, Inc., 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.airbushelicopters.com/techpub.

(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.

(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

Issued in Fort Worth, Texas, on December 6, 2016. Scott A. Horn, Acting Manager, Rotorcraft Directorate, Aircraft Certification Service.
[FR Doc. 2016-30020 Filed 12-28-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-6898; Directorate Identifier 2016-NM-010-AD; Amendment 39-18752; AD 2016-25-26] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for all The Boeing Company Model MD-90-30 airplanes. This AD was prompted by reports of stick shaker activation at airspeeds that were above the stall protection system's stick shaker schedule. This AD requires installing angle-of-attack (AOA) sensor external case heaters on the existing AOA sensors, installing additional wires, and doing a functional test and applicable corrective actions. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective February 2, 2017.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 2, 2017.

ADDRESSES:

For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6898.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6898; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Eric Igama, Aerospace Engineer, Systems and Equipment Branch, ANM-130L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5388; fax: 562-627-5210; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model MD-90-30 airplanes. The NPRM published in the Federal Register on June 13, 2016 (81 FR 38113) (“the NPRM”). The NPRM was prompted by reports of stick shaker activation at airspeeds that were above the stall protection system's stick shaker schedule. The NPRM proposed to require installing AOA sensor external case heaters on the existing AOA sensors, installing additional wires, and doing a functional test and applicable corrective actions. We are issuing this AD to prevent ice formation between the AOA sensor vane and face plate, which could cause both vanes to become immobilized. If both vanes become immobilized, the stall protection system could become unreliable or non-functional, which could result in loss of control of the airplane.

Comments

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.

Support of the NPRM

The Air Line Pilots Association, International provided comments that supported the intent of the NPRM.

Request To Change Boeing Address Identified in the NPRM

Boeing asked that we change its mailing address for obtaining copies of service information as specified in the NPRM to the following: Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1092; Internet https://www.myboeingfleet.com. Boeing stated that this address is valid for this and all future ADs affecting Boeing airplanes.

We agree with the commenter's request. We have updated the contact information accordingly. However, we have corrected the telephone number; it should be 562-797-1717. We have changed this AD to include this new mailing address for Boeing service information.

Request To Clarify Certain Language in the NPRM

Boeing asked that we clarify the language specifying what prompted the AD action, and the description of the unsafe condition, as specified in the SUMMARY section. Boeing stated that the reported incident occurred “on Model 717-200 airplanes” and included further description of what prompted the AD action. Boeing also stated that including this description clarifies the airplane model on which the safety issue was identified. Boeing also asked that we revise the description of the unsafe condition, which stated that “the vane” could become immobilized. Boeing noted that the safety issue is a common cause failure (both vanes could become immobilized) due to an external threat (i.e., weather).

We agree to add “both vanes” to the Discussion section and paragraph (e) of this AD for clarification. Information concerning the origin of the safety issue on Model 717-200 airplanes was included in the Discussion section of the NPRM. Since the information in the Discussion section of the NPRM does not reappear in the final rule, we have not changed this AD in this regard. In addition, we do not agree that the requested changes are necessary in the SUMMARY section, which merely provides a high-level description of the relevant information. Details concerning the unsafe condition that appeared in the SUMMARY section of the NPRM have been removed from this final rule in response to new guidance from the Office of the Federal Register.

Boeing also asked that we clarify the AD requirements by specifying “installing additional wires” in lieu of “changing wires” and installing AOA sensor external case heaters “on the AOA sensors” in lieu of “and AOA sensors.” Delta Air Lines (Delta) asked that we change “and AOA sensors” to “and existing AOA sensors” since they are not new sensors.

We agree to make the requested changes in the SUMMARY section, the Discussion and the Related Service Information under 1 CFR part 51 sections of this final rule, and in paragraph (g) of this AD for clarification.

Delta asked that we remove the references to “water intrusion” from the NPRM related to the description of the unsafe condition. Delta stated that the referenced service information does not address water intrusion. Delta added that the installation of the external case heater only prevents the existing water from freezing and rendering the vane immobilized. UTC Aerospace Systems (UTC) also asked that we remove the reference to moisture (water) intrusion since the referenced service information does nothing to reduce or eliminate the problem; it simply keeps the water from freezing. UTC also asked that we add to the description of the unsafe condition that the AD is intended to reduce or eliminate ice formation between the AOA sensor vane and face plate.

We partially agree with the commenters' requests. Water intrusion is addressed in the referenced service information since it contributes to ice formation between the AOA sensor vane and face plate. However, water intrusion is not corrected by this AD. Therefore, we have revised the Discussion section and paragraph (e) of this AD to state “We are issuing this AD to prevent ice formation between the angle-of-attack (AOA) sensor vane and face plate.”

Request To Clarify Corrective Actions

UTC asked that we re-identify the corrective actions in the SUMMARY and Discussion sections of the NPRM as removing and replacing the existing AOA unit having part number (P/N) 0861EW1 with a certified AOA, or installing a new AOA in accordance with the instructions specified in Boeing Alert Service Bulletin MD90-30A029, dated November 25, 2015. UTC stated that this would clarify the potential cause of the problem as related to the subject AOA and provide another choice for operators to comply with the proposed AD. UTC added that this would also define the AOA replacement as not including the existing AOA unit having P/N 0861EW1.

We agree that clarification is necessary; however, we do not agree that this clarification should be included in the SUMMARY section and the Discussion section of this final rule. The purpose of the language in the SUMMARY section is to provide a high-level description of the relevant information, and the information in the Discussion section of the NPRM does not reappear in the final rule. Therefore, we have revised the description of the required actions in the Related Service Information under 1 CFR part 51 section of this final rule, as specified by the commenter, to provide clarification to operators. We have also included the correct part number for the existing AOA unit in paragraph (g) of this AD.

Request To Update Referenced Service Information To Include the Correct Part Number

UTC asked that Boeing Alert Service Bulletin MD90-30A029, dated November 25, 2015, be updated to correct the part number for the AOA sensor identified therein. UTC stated that the service information identifies replacing any AOA sensor having P/N “081EW1,” but the correct part number is “0861EW1.”

We acknowledge the commenter's concern; however, Boeing Alert Service Bulletin MD90-30A029, dated November 25, 2015, has not yet been revised by the airplane manufacturer. We have confirmed that this part number does not exist, and have clarified the correct part number for the existing AOA sensor in paragraph (g) of this AD.

Request To Change the Costs of Compliance Section

Boeing asked that we change the Costs of Compliance section of the NPRM to include the parts cost for the external case heaters, as provided by the supplier. Boeing stated that the supplier of these heaters has received FAA parts manufacturer approval (PMA), which allows operators to go directly to the supplier to procure the parts. Boeing noted that the parts cost for two heaters is $2,389 each, for a total of $4,778 (operators are required to purchase two external case heaters for installation).

We agree with the commenter's request for the reason provided. We have changed the Costs of Compliance section in this final rule accordingly.

Conclusion

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

Related Service Information Under 1 CFR Part 51

We reviewed Boeing Alert Service Bulletin MD90-30A029, dated November 25, 2015. The service information describes procedures for installing AOA sensor external case heaters on the existing AOA sensors, installing additional wires, and doing a functional test and applicable corrective actions. The applicable corrective actions include removing and replacing the existing AOA unit (P/N 0861EW1) with a certified AOA, or installing a new AOA. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 95 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Installation of AOA sensor external case heaters on the AOA sensors, installation of additional wires, and a functional test Up to 44 work-hours (depending on the group number) × $85 per hour = $3,740 Up to $5,998 (depending on the group number) Up to $9,738 (depending on the group number) Up to $925,110 (depending on the group number).
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify that this AD:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-25-26 The Boeing Company: Amendment 39-18752; Docket No. FAA-2016-6898; Directorate Identifier 2016-NM-010-AD. (a) Effective Date

    This AD is effective February 2, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model MD-90-30 airplanes, certificated in any category.

    (d) Subject

    Air Transport Association (ATA) of America Code 34, Navigation.

    (e) Unsafe Condition

    This AD was prompted by reports of stick shaker activation at airspeeds that were above the stall protection system's stick shaker schedule. We are issuing this AD to prevent ice formation between the angle-of-attack (AOA) sensor vane and face plate, which could cause both vanes to become immobilized. If both vanes become immobilized, the stall protection system could become unreliable or non-functional, which could result in loss of control of the airplane.

    (f) Compliance

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

    (g) Installation of AOA Sensor External Case Heater

    Within 6 years after the effective date of this AD, install AOA sensor external case heaters on the existing AOA sensors, install additional wires, and do a functional test and applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD90-30A029, dated November 25, 2015. All applicable corrective actions must be done before further flight. The correct part number for the existing AOA sensor is P/N 0861EW1.

    (h) Alternative Methods of Compliance (AMOCs)

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

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

    (3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (h)(4)(i) and (h)(4)(ii) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

    (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    (i) Related Information

    For more information about this AD, contact Eric Igama, Aerospace Engineer, Systems and Equipment Branch, ANM-130L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5388; fax: 562-627-5210; email: [email protected]

    (j) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.

    (i) Boeing Alert Service Bulletin MD90-30A029, dated November 25, 2015.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; Internet https://www.myboeingfleet.com.

    (4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on December 7, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-30279 Filed 12-28-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 121 [Docket No.: FAA-2016-9526; Amdt. No. 121-377A] RIN 2120-AK95 Qualification, Service, and Use of Crewmembers and Aircraft Dispatchers; Related Aircraft Amendment AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; Correction.

    SUMMARY:

    The FAA is correcting a final rule published on December 16, 2016. In that final rule, which becomes effective on January 17, 2017, the FAA will allow air carriers to seek a deviation from the flight simulation training device (FSTD) requirements for related aircraft proficiency checks. As a result, that rule will eliminate an inconsistency that currently permits carriers that have obtained FAA approval to modify the FSTD requirements for related aircraft differences training, but not for corresponding proficiency checks. The FAA inadvertently listed an incorrect Amendment Number for that final rule. This document corrects that error.

    DATES:

    Effective January 17, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Sheri Pippin, Air Transportation Division, AFS-200, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-8166; email [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    On December 16, 2016, the FAA published a final rule entitled, “Qualification, Service, and Use of Crewmembers and Aircraft Dispatchers; Related Aircraft Amendment.” 81 FR 90979. In that final rule, effective January 17, 2017, the FAA inadvertently listed the incorrect Amendment Number for part 121 in the header information of the final rule as 121-397. The correct amendment number is 121-377.

    Correction

    In the final rule, FR Doc. 2016-30211, published on December 16, 2016, at 81 FR 90979 make the following correction:

    1. On page 90979 in the heading of the final rule, revise “Amdt. No. 121-397” to read as “121-377”.

    Issued in Washington, DC, under the authority provided by 49 U.S.C. 106(f), on December 22, 2016. Lirio Liu, Director, Office of Rulemaking.
    [FR Doc. 2016-31507 Filed 12-28-16; 8:45 am] BILLING CODE 4910-13-P
    DELAWARE RIVER BASIN COMMISSION 18 CFR Parts 401 and 420 Regulatory Program Fees and Water Supply Charges AGENCY:

    Delaware River Basin Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Commission amends the Rules of Practice and Procedure and the Basin Regulations—Water Supply Charges, respectively, to adopt a new project review fee structure and provide for automatic inflation adjustments. These changes are also incorporated into the Commission's Comprehensive Plan.

    DATES:

    This final rule is effective January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Richard C. Gore, Director of Administration and Finance, 609-883-9500, ext. 201.

    SUPPLEMENTARY INFORMATION:

    Background. The Delaware River Basin Commission (“DRBC” or “Commission”) is a Federal-interstate compact agency charged with managing the water resources of the Delaware River Basin on a regional basis without regard to political boundaries. Its members are the governors of the four basin states—Delaware, New Jersey, New York and Pennsylvania—and on behalf of the federal government, the North Atlantic Division Commander of the U.S. Army Corps of Engineers.

    By Resolution No. 2016-8 on December 14, 2016 the Commission approved a comprehensive revision of its project review fee structure, including an automatic annual indexed inflation adjustment for most fees. An inflation adjustment was also approved for DRBC's water supply charges rates applicable to consumptive and non-consumptive surface water withdrawals. The changes to DRBC's regulatory program fees are designed to provide a more predictable and sustainable source of revenues and to close the annual gap in funding needed to support DRBC's project review program. They also adjust the fees program to better align with the One Process/One Permit Program instituted earlier in 2016. The changes to DRBC's water supply charges regulations are designed to help revenues assigned to DRBC's Water Supply Storage Facilities Fund keep pace with inflation.

    Public Process. A Notice of Proposed Rulemaking and Public Hearing was posted to the Commission's Web site on May 9, 2016. A detailed set of questions and answers about the proposal (“FAQs”) and a press release accompanied the May 9, 2016 web posting. On May 10, 2016, an email alert, including a link to the notice and supporting documents, was transmitted to all parties subscribed to DRBC's list serve. Notice of the proposed rules was published in the Federal Register at 81 FR 35662, June 3, 2016 and appeared in the Delaware Register of Regulations, 19 DE Reg., 1052, June 1, 2016; New Jersey Register, 48 N.J.R. 949, June 6, 2016; New York State Register, May 25, 2016 (page 1); and Pennsylvania Bulletin, 46 Pa.B. 2967, June 11, 2016. DRBC staff hosted a public informational meeting on the proposal on Wednesday, June 15, 2016 in Washington Crossing, Pa., including presentations by staff and informal questions and answers. The FAQs posted on the Commission's Web site were thereafter supplemented with questions and responses offered during the informational meeting. A public hearing on the proposed amendments took place at the Commission's office building in West Trenton, N.J. on July 27, 2016 and written comments were accepted through August 12, 2016.

    In response to the written and oral comments submitted on the draft rules, staff developed a detailed comment and response document, including modest changes to the rule text. After careful consideration and consultation with staff on the comments and proposed changes to the draft rules, the Commissioners determined that the changes were appropriate, responsive to the public's concerns and a logical outgrowth of the rules as proposed. The changes and the staff response to comments were adopted by unanimous vote of the Commissioners to approve Resolution No. 2016-8 at the Commission's public business meeting on December 14, 2016.

    Additional materials. The following additional materials can be found on the Commission's Web site, www.drbc.net:

    • Resolution No. 2016-8, at http://www.nj.gov/drbc/library/documents/Res2016-09_Fee-Rule.pdf. Attachments to the resolution include a redline version of the regulatory program fees rule text, showing changes between the draft and final versions of the new rule; and a redline version of the schedule of water charges, comparing the text that has been in place since 2011 with the text of this final rule.

    • The detailed comment and response document prepared by staff and adopted by the Commission when it approved the final rule on December 14, 2016, at http://www.nj.gov/drbc/library/documents/regs/CR_fees-rulemaking121416.pdf.

    • A questions and answers document (“FAQs”) prepared by staff to explain the purpose and effect of the rule changes, at http://www.nj.gov/drbc/library/documents/FAQ_fees-charges121416.pdf.

    • The Commission's press release dated December 14, 2016, announcing adoption of the project review fees restructuring and amendment of the schedule of water charges, at http://www.nj.gov/drbc/home/newsroom/news/approved/20161214_newsrel_fees.html.

    • Updated versions of the Rules of Practice and Procedure and the Basin Regulations—Water Supply Charges, at http://www.nj.gov/drbc/about/regulations/.

    List of Subjects 18 CFR Part 401

    Administrative practice and procedure, Project review, Water pollution control, Water resources.

    18 CFR Part 420

    Water supply.

    For the reasons set forth in the preamble, the Delaware River Basin Commission amends parts 401 and 420 of title 18 of the Code of Federal Regulations as set forth below:

    PART 401—RULES OF PRACTICE AND PROCEDURE 1. The authority citation for part 401 continues to read as follows: Authority:

    Delaware River Basin Compact (75 Stat. 688), unless otherwise noted.

    Subpart C—Project Review Under Section 3.8 of the Compact 2. Add § 401.43 to subpart C to read as follows:
    § 401.43 Regulatory program fees.

    (a) Purpose. The purpose of this section is to provide an adequate, stable and reliable stream of revenue to cover the cost of the Commission's regulatory program activities, an important means by which the Commission coordinates management of the shared water resources of the Basin. Activities to be covered by the fees include the review of applications for projects that are subject to review under the Delaware River Basin Compact and implementing regulations; and ongoing activities associated with such projects, including but not limited to, effluent and ambient monitoring, data analysis, hydrodynamic and water quality modeling, and coordination with state and federal agencies.

    (b) Types of fees. The following types of fees are established by this section:

    (1) Docket application fee. Except as set forth in paragraph (b)(1)(iii) of this section, the docket application fee shall apply to:

    (i) Project requiring a DRBC-issued docket or permit. Any project that, in accordance with the Delaware River Basin Compact and DRBC regulations, requires a Commission-issued docket or permit, whether it be a new or existing project for which the Commission has not yet issued an approval or a project for which the renewal of a previous Commission approval is required.

    (ii) Project requiring inclusion in the comprehensive plan. Any project that in accordance with section 11 or section 13.1 of the Delaware River Basin Compact and DRBC regulations must be added to the Comprehensive Plan (also, “Plan”). In addition to any new project required to be included in the Plan, such projects include existing projects that in accordance with section 13.1 of the Compact are required to be included in the Plan and which were not previously added to the Plan. Any existing project that is changed substantially from the project as described in the Plan shall be deemed to be a new and different project for purposes of this section.

    (iii) Exemptions. The docket application fee shall not apply to:

    (A) Any project for which the Signatory Party Agency serves as lead under the One Permit Program rule (§ 401.42), unless such project must be added by the Commission to the Comprehensive Plan.

    (B) Any project for which an agency, authority or commission of a signatory to the Compact is the primary sponsor. Projects sponsored by political subdivisions of the signatory states shall not be included in this exemption. For purposes of this section “political subdivisions” shall include without limitation municipalities, municipal utility authorities, municipal development corporations, and all other entities not directly under the budgetary and administrative control of the Commission's members.

    (2) Annual monitoring and coordination fee. An annual monitoring and coordination fee shall apply to each withdrawal and/or discharge project for which a water allocation or wastewater discharge approval issued pursuant to the Compact and implementing regulations is in effect, regardless of whether the approval was issued by the Commission in the form of a docket, permit or other instrument, or by a Signatory Party Agency under the One Permit Program rule (§ 401.42). The fee shall be based on the amount of a project's approved monthly water allocation and/or approved daily discharge capacity.

    (3) Alternative review fee. In instances where the Commission's activities and related costs associated with the review of an existing or proposed project are expected to involve extraordinary time and expense, an alternative review fee equal to the Commission's actual costs may be imposed. The Executive Director shall inform the project sponsor in writing when the alternative review fee is to be applied and may require advance payment in the amount of the Commission's projected costs. Instances in which the alternative review fee may apply include, but are not limited to, matters in which:

    (i) DRBC staff perform a detailed pre-application review, including but not limited to the performance or review of modeling and/or analysis to identify target limits for wastewater discharges.

    (ii) DRBC staff perform or review complex modeling in connection with the design of a wastewater discharge diffuser system.

    (iii) DRBC manages a public process for which the degree of public involvement results in extraordinary effort and expense, including but not limited to, costs associated with multiple stakeholder meetings, special public hearings, and/or voluminous public comment.

    (iv) DRBC conducts or is required to engage third parties to conduct additional analyses or evaluations of a project in response to a court order.

    (4) Additional fees—(i) Emergency approval. A request for an emergency certificate under § 401.40 to waive or amend a docket condition shall be subject to a minimum fee in accordance with paragraph (e) of this section. An alternative review fee also may be charged in accordance with paragraph (b)(3) of this section.

    (ii) Late filed renewal application. Any renewal application submitted fewer than 120 calendar days in advance of the expiration date or after such other date specified in the docket or permit or letter of the Executive Director for filing a renewal application shall be subject to a late filed renewal application charge in excess of the otherwise applicable fee.

    (iii) Modification of a DRBC approval. Following Commission action on a project, each project revision or modification that the Executive Director deems substantial shall require an additional docket application fee calculated in accordance with paragraph (e) of this section and subject to an alternative review fee in accordance with paragraph (b)(3) of this section.

    (iv) Name change. Each project with a docket or permit issued by the DRBC or by a Signatory Party Agency pursuant to the One Permit Program rule (§ 401.42) will be charged an administrative fee as set forth in paragraph (e) of this section.

    (v) Change of ownership. Each project that undergoes a “change in ownership” as that term is defined at 18 CFR 420.31(e)(2) will be charged an administrative fee as set forth in paragraph (e) of this section.

    (c) Indexed adjustment. On July 1 of every year, beginning July 1, 2017, all fees established by this section will increase commensurate with any increase in the annual April 12-month Consumer Price Index (CPI) for Philadelphia, published by the U.S. Bureau of Labor Statistics during that year.1 In any year in which the April 12-month CPI for Philadelphia declines or shows no change, the docket application fee and annual monitoring and coordination fee will remain unchanged. Following any indexed adjustment made under this paragraph (c), a revised fee schedule will be published in the Federal Register by July 1 and posted on the Commission's Web site. Interested parties may also obtain the fee schedule by contacting the Commission directly during business hours.

    1 Consumer Price Index—U/Series ID: CWURA102SA0/Not Seasonally Adjusted/Area: Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD/Item: All items/Base Period: 1982-84 = 100.

    (d) Late payment charge. When any fee established by this section remains unpaid 30 calendar days after the payment due date provided on the Commission's invoice, an incremental charge equal to 2% of the amount owed shall be automatically assessed. Such charge shall be assessed every 30 days thereafter until the total amount owed, including any late payment charges has been paid in full.

    (e) Fee schedules. The fees described in this section shall be as follows:

    Table 1 to § 401.43—Docket Application Filing Fee Project type Docket application fee Fee maximum Water Allocation $400 per million gallons/month of allocation,1 not to exceed $15,000.1 Fee is doubled for any portion to be exported from the basin Greater of: $15,000 1 or Alternative Review Fee. Wastewater Discharge Private projects: $1,000,1 Public projects: $500 1 Alternative Review Fee. Other 0.4% of project cost up to $10,000,000 plus 0.12% of project cost above $10,000,000 (if applicable), not to exceed $75,000 1 Greater of: $75,000 1 or Alternative Review Fee. 1 Subject to annual adjustment in accordance with paragraph (c) of this section. Table 2 to § 401.43—Annual Monitoring and Coordination Fee Annual fee Allocation Water Allocation 1 $300 <4.99 mgm. 1 450 5.00 to 49.99 mgm. 1 650 50.00 to 499.99 mgm. 1 825 500.00 to 9,999.99 mgm. 1 1,000 > or = to 10,000 mgm. Annual fee Discharge design capacity Wastewater Discharge 1 $300 < 0.05 mgd. 1 610 0.05 to 1 mgd. 1 820 1 to 10 mgd. 1 1,000 >10 mgd. 1 Subject to annual adjustment in accordance with paragraph (c) of this section. Table 3 to § 401.43—Additional Fees Proposed action Fee Fee maximum Emergency Approval Under 18 CFR 401.40 $5,000 Alternative Review Fee. Late Filed Renewal Surcharge $2,000 Modification of a DRBC Approval At Executive Director's discretion, Docket Application Fee for the appropriate project type Alternative Review Fee. Name change $1,000 1 Change of Ownership $1,500 1 1 Subject to annual adjustment in accordance with paragraph (c) of this section.
    PART 420—BASIN REGULATIONS—WATER SUPPLY CHARGES 3. The authority citation for part 420 continues to read as follows: Authority:

    Delaware River Basin Compact, 75 Stat. 688.

    4. Revise § 420.41 to read as follows:
    § 420.41 Schedule of water charges.

    The schedule of water charges established in accordance with § 420.22 shall be as follows:

    (a) $80 per million gallons for consumptive use, subject to paragraph (c) of this section; and

    (b) $0.80 per million gallons for non-consumptive use, subject to paragraph (c) of this section.

    (c) On July 1 of every year, beginning July 1, 2017, the rates established by this section will increase commensurate with any increase in the annual April 12-month Consumer Price Index (CPI) for Philadelphia, published by the U.S. Bureau of Labor Statistics during that year.1 In any year in which the April 12-month CPI for Philadelphia declines or shows no change, the water charges rates will remain unchanged. Following any indexed adjustment made under this paragraph (c), revised consumptive and non-consumptive use rates will be published in the Federal Register by July 1 and posted on the Commission's Web site. Interested parties may also obtain the rates by contacting the Commission directly during business hours.

    1 Consumer Price Index—U/Series ID: CWURA102SA0/Not Seasonally Adjusted/Area: Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD/Item: All items/Base Period: 1982-84 = 100.

    Dated: December 20, 2016. Pamela M. Bush, Commission Secretary.
    [FR Doc. 2016-31146 Filed 12-23-16; 4:15 pm] BILLING CODE 6360-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 1105 [Docket No. FDA-2016-N-1555] Refuse To Accept Procedures for Premarket Tobacco Product Submissions AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Food and Drug Administration (FDA) is issuing a final rule describing when FDA will refuse to accept a tobacco product submission (or application) because the application has not met a minimum threshold for acceptability for FDA review. Under the rule, FDA will refuse to accept a tobacco product submission, for example, that is not in English, does not pertain to a tobacco product, or does not identify the type of submission. By refusing to accept submissions that have the deficiencies identified in the proposed rule, FDA will be able to focus our review resources on submissions that meet a threshold of acceptability and encourage quality submissions.

    DATES:

    This rule is effective January 30, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Annette Marthaler or Paul Hart, Office of Regulations, Center for Tobacco Products (CTP), Food and Drug Administration, Document Control Center, Bldg. 71, Rm. G335, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 877-287-1373, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Executive Summary A. Purpose of the Rule

    FDA is issuing this refuse to accept rule to identify deficiencies that will result in FDA's refusal to accept certain tobacco product submissions under sections 905, 910, and 911 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended by the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) (21 U.S.C. 387e, 387j, and 387k).1 Because these submissions will be refused before they enter FDA's review queue, more resources will be available for submissions that are ready for further review. This rule establishes a refuse to accept process for premarket tobacco product submissions, including premarket tobacco product applications (PMTAs), modified risk tobacco product applications (MRTPAs), substantial equivalence (SE) applications (also called SE reports), and exemption requests (including subsequent abbreviated reports).

    1 FDA has published a final rule extending the Agency's “tobacco product” authorities in the FD&C Act to all categories of products that meet the statutory definition of “tobacco product” in the FD&C Act, except accessories of such newly deemed tobacco products (Final Rule Deeming Tobacco Products To Be Subject to the Federal Food, Drug, and Cosmetic Act, as Amended by the Family Smoking Prevention and Tobacco Control Act; Restrictions on the Sale and Distribution of Tobacco Products and Required Warning Statements for Tobacco Products (81 FR 28974, May 10, 2016) (the Deeming rule)). This rule will apply to all tobacco products FDA regulates under Chapter IX of the FD&C Act.

    B. Summary of the Major Provisions of the Regulatory Action

    The rule explains when FDA will refuse to accept a premarket submission, including PMTAs, MRTPAs, SE applications, and exemption requests (including subsequent abbreviated reports). The rule is based on FDA's experience in reviewing these submissions. Under the rule, FDA will refuse to accept a premarket submission that: (1) Does not pertain to a tobacco product; (2) is not in English (or does not include a complete translation); (3) is submitted in an electronic format that FDA cannot process, read, review, or archive; (4) does not include the applicant's contact information; (5) is from a foreign applicant and does not include the name and contact information of an authorized U.S. agent (authorized to act on behalf of the applicant for the submission); (6) does not include a required form(s); (7) does not identify the tobacco product; (8) does not identify the type of submission; (9) does not include the signature of a responsible official authorized to represent the applicant; or (10) does not include an environmental assessment or claim of a categorical exclusion, if applicable. Under the rule, if FDA refuses to accept the submission, FDA will send the contact (if available) a notification. If the submission is accepted for further review, FDA will send an acknowledgement letter.

    II. Background

    FDA published two rulemaking documents concerning refuse to accept procedures in the Federal Register of August 8, 2016: A direct final rule (81 FR 52329) and a companion proposed rule (81 FR 52371). We published the direct final rule because we believed that the rule was noncontroversial, and we did not anticipate that it would receive any significant adverse comments. As a companion to the direct final rule, we published a proposed rule with the same codified language published in the proposed rules section of the Federal Register. The companion proposed rule provides a procedural framework to finalize the rule in the event that the direct final rule receives any adverse comment and is withdrawn. We received adverse comment on the direct final rule and withdrew the direct final rule by issuing a notice in the Federal Register of November 16, 2016 (81 FR 80567). We are now finalizing the proposed rule and responding to the comments we received.

    III. Purpose and Legal Authority A. Purpose

    FDA is issuing this refuse to accept rule to efficiently handle submissions that do not meet a threshold of acceptability for FDA review (e.g., the submission lacks certain information FDA needs for substantive review of the submission). Currently, FDA often expends extensive time and resources in attempts to obtain information and resolve the deficiencies identified in the rule simply to begin substantively processing the submission. FDA expects that this rule will enhance the quality of the submissions and that submissions will move expeditiously through the review process. In addition, this rule will help submitters better understand the common hurdles FDA encounters in conducting a substantive review of submissions.

    The rule identifies deficiencies that FDA has seen across types of premarket submissions and will result in FDA refusing to accept the submission. This rule applies to all tobacco product applications; we note that there are additional deficiencies that are not covered in this rule that may arise for specific types of premarket submissions that would also result in FDA's refusal to accept that specific type of premarket submission (e.g., omission of labeling for a PMTA that is required under section 910(b)(1)(F) of the FD&C Act).

    FDA's refusal to accept a tobacco product submission does not preclude an applicant from resubmitting a new submission that addresses the deficiencies. In addition, acceptance of a submission does not mean that FDA has determined that the submission is complete, rather only that the submission meets the basic, minimum threshold for acceptance. Substantive review of the submission will begin once FDA accepts the submission, and for submissions with filing requirements (i.e., PMTAs and MRPTAs), once filed. This rule establishes a general process for refusing to accept submissions for premarket tobacco review, including PMTAs, MRTPAs, SE applications, and exemption requests (including subsequent abbreviated reports). Because administratively incomplete submissions will be refused before FDA begins substantive review, we will be able to use our resources on submissions that are more complete and better prepared for further review. In addition, FDA intends to determine, as soon as practicable, whether the submission will be accepted. We intend to determine whether we will refuse to accept most premarket submissions under this rule by 21 to 60 days of receipt, with less lengthy submissions, such as some exemption requests, taking closer to 21 days or fewer and other more lengthy submissions taking closer to 60 days or fewer; however, this range is an initial estimate and the actual time required may vary depending on the volume of submissions received at any one time. FDA remains committed to an efficient product review process and intends to establish and implement performance goals for this action once it has experience with the volume of submissions it will receive for newly deemed tobacco products. FDA expects the performance goals to be generally similar to other Agency performance goals, i.e. a certain percentage of refuse to accept determinations made within a defined period of time, and with the percentage rising over time.

    B. Legal Authority

    Section 701(a) of the FD&C Act (21 U.S.C. 371(a)) provides FDA with the authority to issue regulations for the efficient enforcement of the FD&C Act. This rule will allow FDA to more efficiently use our resources to review premarket submissions under sections 905, 910, and 911 of the FD&C Act. FDA has processed and reviewed many submissions since the enactment of the Tobacco Control Act, and submissions with the deficiencies identified in the rule have been repeatedly identified by FDA as reflecting submissions that are incomplete and not prepared for further review.

    IV. Overview of the Final Rule

    We are finalizing the proposed rule with only editorial changes. The rule adds part 1105 (21 CFR part 1105) to title 21, specifically § 1105.10. Section 1105.10 provides that FDA will refuse to accept, as soon as practicable, PMTAs, MRTPAs, SE applications, and exemption requests (including subsequent abbreviated reports) for the reasons listed in paragraphs (a)(1) through (a)(10), if applicable.

    V. Comments on the Proposed Rule

    We consider any comments that were submitted on the direct final rule to have been submitted on the proposed rule. We received two sets of comments on the proposed rule, one from a tobacco product manufacturer and another from a public health group. In general, one of the commenters expressed strong support for this rule, asking that it be applied to a broader set of applications, while the other commenter identified concerns with the rulemaking, including that “promulgating a direct final rule was procedurally improper.” This commenter suggested that FDA withdraw the rule in its entirety and issue any future rule only after engaging in notice and comment rulemaking. This rulemaking, however, did provide both notice and an opportunity for comments. As previously noted, FDA withdrew the direct final rule and is proceeding with the rulemaking under the procedural framework of the proposed rule. FDA has considered the comments submitted to the docket for the rulemaking and responds to the comments in the following paragraphs.

    To make it easier to identify comments and our responses, the word “Comment,” in parentheses, will appear before each comment, and the word “Response,” in parentheses, will appear before each response. We have numbered the comments to make it easier to distinguish between comments; the numbers are for organizational purposes only and do not reflect the order in which we received the comments or any value associated with the comment. We have combined similar comments under one numbered comment.

    (Comment 1) One commenter suggested that FDA apply the rule to provisional substantial equivalence applications submitted by manufacturers under section 910(a)(2)(B) of the FD&C Act for new tobacco products that were first introduced or delivered for introduction into interstate commerce between February 15, 2007, and March 22, 2011.

    (Response) FDA disagrees with this comment. We do not believe that this rule should be applied retroactively to refuse to accept submissions submitted before the rule is effective. While the refuse to accept criteria represent a minimum threshold that applications should be able to meet, we believe that applying this rule retroactively would be unfair to applicants because they had no notice that they would be subject to the rule's requirements.

    (Comment 2) One commenter suggested that FDA apply this “commonsense regulation” to premarket submissions for newly deemed tobacco products submitted during the compliance period announced in the Deeming rule.

    (Response) FDA notes that, as explained in the proposed rule, the rule once effective, will apply to premarket submissions for all tobacco products, including those that are for products covered by the Deeming rule.

    (Comment 3) One commenter requested that FDA revise and expand the requirements of the rule to allow FDA to refuse to accept substantial equivalence applications that fail to comply with certain criteria that relate to the substantial equivalence pathway, such as creating product-identifying information requirements for predicate products.

    (Response) FDA disagrees with this comment. The rule creates a minimum threshold of acceptability for all premarket submissions, regardless of the type of submission, and is not intended to address content specific to only one type of premarket submission. FDA plans to consider including refuse to accept criteria that are specific to a particular premarket pathway as part of future rulemakings. For example, FDA has already issued one such rule, “Tobacco Products, Exemptions From Substantial Equivalence Requirements,” which contains refuse to accept criteria relating specifically to exemption requests (July 5, 2011, 76 FR 38961).

    (Comment 4) One commenter argued that FDA lacks the legal authority to implement the rule. The commenter stated that because the Tobacco Control Act does not set forth content requirements for substantial equivalence applications or exemption requests, FDA has no statutory justification for pre-review of those submissions. The commenter further stated that while the Tobacco Control Act does set forth content requirements for premarket tobacco product applications and modified risk tobacco product applications that grant FDA authority to conduct filing reviews of those submissions, FDA lacks the statutory authority to conduct a separate acceptance review as part of the pre-review of an application. In sum, the commenter argued that FDA does not have the statutory authority, either explicit or implicit, to refuse to accept tobacco product submissions.

    (Response) FDA disagrees with this comment. As described in section III.B of the rule, section 701(a) grants FDA the authority to issue regulations for the efficient enforcement of the FD&C Act. As also discussed in the proposed rule, this rule will allow FDA to efficiently enforce the premarket review requirements of sections 905, 910, and 911 of the FD&C Act by allowing FDA to refuse to accept submissions that do not meet basic criteria and focus its resources on those submissions that are ready for review.

    (Comment 5) One commenter argued that unless FDA establishes a time by which FDA will refuse to accept a premarket submission, the rule is legally problematic for a number of reasons. While two of the specific reasons are discussed in this document in separate comments and responses, overall, the commenter suggested that FDA should, similar to its approach for new drug applications and premarket approval applications for medical devices, create a limit of 15 days in which to determine whether it will refuse to accept a premarket submission.

    (Response) FDA declines the suggestion that FDA adopt a 15-day time limit similar to the refuse to accept review periods for refuse to accept notifications for 510(k) and premarket approval applications established by the Center for Devices and Radiological Health (CDRH). CDRH has had a significantly longer time reviewing such applications and has gained extensive experience doing so. CTP currently lacks sufficient experience reviewing tobacco product submissions to develop specific timeframes. Moreover, there is some uncertainty regarding the types and number of applications that manufacturers will choose to submit for products covered by the Deeming rule and regarding the precise timing of such submissions. Given the size of the industry and the number of newly deemed products on the market, FDA anticipates a large influx of applications, many of which could be at the end of the initial compliance periods for each premarket pathway. It is likely that many applicants will have no experience with the FDA premarket review process, so the quality of the submissions is likewise very difficult to predict. Due to this uncertainty and the difficulty predicting the level of resources FDA will have to expend as a result, FDA is not prepared at this time to commit to a single time limit for all submissions. Instead, FDA is providing an estimated timeframe in which it intends to determine whether to accept submissions: FDA intends to make the determination of whether it will accept an application for review based upon the requirements in the rule by 21 to 60 days of receipt. Further, we intend to establish performance goals or other timeframes once we gain sufficient experience.

    (Comment 6) One commenter argues that the absence of a time limit in the rule poses a problem under the First Amendment. Specifically, the commenter alleges that FDA's premarket review of tobacco product submissions, particularly with regard to MRTPAs, are prior restraints on speech; thus, the lack of a time limit for FDA to make acceptance determinations allows the Agency to delay the applicant's truthful and non-misleading speech indefinitely.

    (Response) FDA disagrees with the commenter's assertion that the rule's provisions are problematic under the First Amendment. First, as the commenter acknowledges in a footnote, members of the tobacco industry challenged the MRTP provisions, including the absence of a time limit, on First Amendment grounds, and the Sixth Circuit rejected that challenge and upheld the MRTP provisions (Discount Tobacco v. United States, 674 F.3d 509, 537 (6th Cir. 2012)). Second, the premarket review process is not unique to FDA's regulation of tobacco and in fact is employed widely across most of FDA's product areas. The commenter singles out the MRTP review process as particularly problematic, but they misapprehend the structure of the provision, which imposes no direct restriction on speech. Rather, it requires premarket review before a product may be introduced into interstate commerce and defines such product in part by reference to its promotional claims. Courts have upheld FDA premarket reviews in other product areas based on a similar scheme. See, e.g., United States v. LeBeau, 2016 U.S. App. LEXIS 12375 (7th Cir. 2016); Whitaker v. Thompson, 353 F.3d 947 (D.C. Cir. 2004); United States v. Cole, 84 F. Supp. 3d 1159, 1166 (D. Or. 2015). Third, there is a split in authority regarding whether the prior restraint doctrine applies to commercial speech; the Sixth Circuit in Discount Tobacco found that the doctrine did not apply to evaluation of the MRTP provisions (674 F.3d at 532-33). Fourth, even assuming that the marketing of a tobacco product is speech to which the prior restraint doctrine could possibly apply, the process established here would satify the requirements of that doctrine. First, prior restraints are not acceptable where they place “unbridled discretion in the hands of a government official or agency.” (FW/PBS, Inc. v. Dallas, 493 U.S. 215, 225-226 (1990) (plurality opinion).) Here, however, the rule lays out 10 basic requirements for tobacco product applications which, if not met, will cause FDA to refuse to accept the submission. Further, when assessing whether a submission meets that minimum threshold of acceptability, FDA will look only to whether the submission is facially complete and it will not conduct a substantive review. Second, the prior restraint doctrine requires that decisions “must be issued within a reasonable period of time.” (City of Littleton v. Z.J. Gifts D-4, L.L.C, 541 U.S. 774, 780 (2004).) For instance, in a case involving FDA premarket review of health claims for dietary supplements, the Second Circuit held that a 540-day period was permissible “given the need to protect consumers before any harm occurs,” to “evaluate the evidence in support of labeling claims,” and to develop “a record on the matter so that a court can determine whether the regulated speech is, in fact, truthful and non-misleading.” (Nutritional Health Alliance v. Shalala, 144 F.3d 220 (2d Cir. 1998).) Furthermore, as the district court in the Discount Tobacco case noted, the Administrative Procedure Act (APA) “imposes a general but nondiscretionary duty upon an administrative agency to pass upon a matter presented to it `within a reasonable time,' 5 U.S.C. 555(b), and authorizes a reviewing court to `compel agency action unlawfully withheld or unreasonably delayed,' 5 U.S.C. 706(1).” (Commonwealth Brands, Inc. v. United States, 678 F. Supp. 2d 512, 533 (W.D. Ky. 2010).) The APA requirement that the Agency act on matters before it “within a reasonable time,” in conjunction with FDA's estimated timeframes and the performance goals for refuse to accept review that FDA intends to establish, indicate that FDA will not leave applications “in limbo,” as claimed by the commenter, but will act on them in a reasonable amount of time. For all of these reasons, the rule's provisions do not constitute an unconstitutional prior restraint.

    (Comment 7) One commenter argued that implementing the rule would allow FDA to deprive manufacturers of the valuable substantive right to market their products during the compliance period for deemed products with no hearing and no substantive review, which is contrary to Congress' intent in the Tobacco Control Act. The commenter further argued that the Tobacco Control Act allows FDA to require certain tobacco products to be taken off of the market only upon making a substantive determination that the action is warranted under statutory standards, and thus FDA cannot require that products be removed from the market without any such substantive review.

    (Response) FDA disagrees with this comment. Under the FD&C Act, generally, a new tobacco product may not be introduced or delivered for introduction into interstate commerce unless it is subject to a marketing order under section 910(c)(1)(A)(i), FDA has issued an order finding the new tobacco product substantially equivalent to a predicate product, or FDA has issued an exemption from the requirements of substantial equivalence. The final Deeming rule, issued with notice and an opportunity for comment, extends this requirement to newly regulated products that are not grandfathered (i.e., marketed as of February 15, 2007). Thus, as of August 8, 2016, marketing these products without FDA authorization is prohibited by statute. However, FDA is affording staggered compliance periods during which FDA does not intend to enforce the premarket review requirements. These compliance periods are general statements of policy that do not establish any rights for any person, and are not binding on FDA or the public. (See e.g., Professionals and Patients for Customized Care v. Shalala, 56 F.3d 592 (5th Cir. 1995).) The commenter gives a vague reference to the rule depriving manufacturers of a “substantive right” to market with no hearing or substantive review, but without citing any authority for such a right. Irrespective of the rule, a manufacturer does not have a right to market a product that is in violation of the FD&C Act because it does not have a required premarket authorization.

    (Comment 8) One commenter stated that FDA should allow manufacturers to amend applications that FDA finds to be deficient and consider the amended applications to be received as of their original submission dates. The commenter explained that this approach would not tie up Agency resources because FDA could simply notify an applicant of any deficiencies and suspend substantive review until the applicant resolves those issues and, as such, there is no valid reason for requiring that applications be resubmitted rather than amended.

    (Response) FDA disagrees with this suggestion. Creating a queue of deficient premarket submissions that FDA must track and manage is the type of inefficient process that FDA seeks to eliminate from the premarket submission review process with the rule. A queue for plainly deficient submissions will require a redirection of FDA resources away from more complete, quality submissions. Additionally, we disagree with the suggestion that we should consider amended submissions to have been received by the original submission date. This would allow manufacturers to submit woefully deficient premarket submissions and rely on FDA to identify deficiencies to be resolved.

    (Comment 9) One commenter argued that FDA should withdraw the rule and instead issue rules specifying the content that must be contained in each type of application because without such application-specific rules, the rule is unconstitutionally vague. The commenter further explained that without the promulgation of such content regulations, it considers the rule to violate the Due Process Clause of the 5th Amendment as well as the APA because it would allow FDA to deny applications without fully explaining application content requirements to applicants. Additionally, the comment asserts that the rule is unduly vague under the Due Process Clause and the APA on the basis that some of the criteria are either “ill-defined or entirely undefined.”

    (Response) FDA disagrees with this comment. The rule is not impermissibly vague as it provides applicants with fair notice of 10 criteria by which FDA will refuse to accept a premarket submission. These criteria are not specific to the requirements of any one premarket pathway but instead include basic parameters that apply to all premarket submissions. Detailed criteria that are specific to each premarket pathway are not necessary to implementing a rule that applies to all types of premarket submissions generally without any consideration of content specific to each premarket pathway. Any additional grounds for which FDA may refuse a premarket submission exist independently from this rulemaking; therefore, the vagueness of such grounds, if any, is not attributable to the rule and does not cause it to violate the Due Process clause of the 5th Amendment or the APA. Further, the comment incorrectly asserts that some of the criteria required by the rule are unduly vague under the Due Process Clause and the APA. A law is impermissibly vague if it does not give “a person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). To the extent that the commenter identifies concerns with specific requirements of the rule, we address them in the responses to comments 10-14; however, FDA believes that the requirements of this rule are sufficiently clear to give submitters a reasonable opportunity to be aware of what information must be included with a tobacco product application.

    (Comment 10) One commenter argued that FDA must edit the rule so that it comprehensively states all potential refuse to accept criteria for each premarket pathway and commit to accepting all submissions that meet those specific criteria because granting FDA discretion to refuse to accept submissions on the basis of criteria not specified in this rule violates the principles of fair notice embodied in the Constitution and the APA.

    (Response) FDA disagrees. Under § 1105.10(b), FDA “may accept the submission” if it “finds that none of the reasons in paragraph (a) of this section exists for refusing to accept a premarket submission.” The use of the word “may” in this section reflects the fact that this rule addresses the basic threshold of acceptability that all premarket submissions must meet; however it does not address other grounds on which FDA could refuse to accept a specific type of premarket submission, such as the omission of labeling from a PMTA that is required by section 910(b)(1)(F) of the FD&C Act. Any additional grounds on which FDA may refuse to accept a premarket submission exist independently from this rulemaking and are outside of its scope.

    (Comment 11) One commenter argues that FDA's discussion in the preamble of the proposed rule regarding “other information” that FDA recommends be included as part of the product-identifying information submitted under § 1105.10(a)(7) should either be deleted or modified to provide a full and complete description of what “other information” applicants should provide. The commenter also suggests that FDA must state whether failure to provide such information would be grounds for FDA to refuse to accept a submission.

    (Response) FDA disagrees with this comment. Section 1105.10(a)(7) specifically lists the product-identifying information that is required under the rule: The manufacturer of the tobacco product; the product name, including the brand and subbrand; the product category and subcategory; package type and package quantity; and characterizing flavor. The preamble of the proposed rule notes that other information may be needed to identify the product, such as product descriptors that are not a part of the product name (e.g., premium), but it merely requests such information be submitted to facilitate FDA's review. Failure to include additional product-identifying information beyond those specifically listed in § 1105.10(a)(7) is not grounds for FDA to refuse to accept a submission under the rule.

    (Comment 12) One commenter argued that FDA must either remove the requirement in § 1105.10(a)(7) that applicants specify the category and subcategory of the tobacco product or provide a list of all potential categories and subcategories. The commenter further noted that FDA could require a uniform system of product identification under 21 U.S.C. 387e(e) (section 905(e) of the FD&C Act), but it has not yet issued a regulation doing so.

    (Response) FDA disagrees with this comment. The rule requires applicants to describe the category and subcategory of the tobacco product that is the subject of the premarket submission. This is a requirement to provide basic product-identifying information, such as describing the product category as “Smokeless Tobacco Product” and the subcategory as “Dissolvable,” which in no way creates a rigid system of product identification with which an applicant must comply.2 Creating an exhaustive product categorization system is not necessary for applicants to describe the product's category and subcategory and in some cases may not allow applicants to accurately describe new tobacco products that fall into novel categories or subcategories. Table 1 in the preamble of the proposed rule provides some recommendations on how an applicant may satisfy this requirement, but it is not intended to be an exhaustive list (for example, although recommendations for waterpipes were not included in table 1, submissions on waterpipes should include similar information). While the table is not an exhaustive list of every tobacco product category and subcategory that exists, manufacturers have enough information to reasonably understand how to comply with the requirement and can provide information based on internal classifications. Applicants unable to identify the category or subcategory of the tobacco product that will be the subject of a premarket submission are encouraged to contact FDA prior to submission.

    2 Applicants should note that some categories are defined in section 900 of the FD&C Act (e.g., cigarette (900(3)), cigarette tobacco (900(4)), roll-your-own tobacco (900(15)), smokeless tobacco (900(18))).

    (Comment 13) One commenter argued that FDA should not require an applicant to identify the submission type as part of a premarket submission because the list of submission types provided to implement § 1105.10(a)(8) is incomplete. To support this statement, the commenter notes that the list in the preamble of the proposed rule does not mention Product Quantity Change SE Reports as a potential premarket submission type.

    (Response) FDA disagrees with the suggestion that manufacturers should not be required to identify the type of application they are submitting and that the list of submission types described in the preamble of the proposed rule is incomplete. Identifying the type of submission is necessary for FDA to review a premarket submission because it enables FDA to determine the appropriate decisional standard to apply to a submission (e.g., whether it is a PMTA subject to the requirements of section 910 of the FD&C Act or an MRTPA subject to the requirements of section 911 of the FD&C Act). The commenter is also incorrect in its assertion that the proposed rule's discussion of the types of premarket submissions is incomplete. The only example the commenter provides to support this assertion is the Product Quantity Change SE Reports, which are SE applications. The preamble of the proposed rule described the types of premarket submissions, which are PMTAs, MRTPAs, SE applications, and exemption requests (and subsequent abbreviated reports). Applicants are welcome to provide additional information regarding their submission type, such as specifying that their SE application is being submitted for a product quantity change, provided that the basic submission type remains clear. Applicants unsure of how to identify the type of application that they are submitting are encouraged to contact FDA prior to submission.

    (Comment 14) One commenter argued that FDA should remove the requirement that a premarket submission be accompanied by required forms because FDA has yet to require any forms and it is unclear what those forms may eventually require. The commenter stated that if and when FDA creates required forms, it can issue regulations providing how and when the forms must be submitted.

    (Response) We disagree with the suggestion that this requirement should be removed from the rule. As described in section IV of the proposed rule, if and when FDA issues any forms it would need to do so in accordance with applicable requirements, e.g., notice and opportunity to comment on such forms in accordance with rulemaking procedures and the Paperwork Reduction Act of 1995 and rulemaking under the APA. We have chosen to include the form submission requirement in this rule to provide notice that the failure to submit any required forms, if and whenever they are issued, will be grounds for refusing to accept a premarket submission.

    (Comment 15) One commenter argued that FDA should not require applicants to identify whether a product has a characterizing flavor until FDA has issued a full explanation of what it considers to be a characterizing flavor and how it expects manufacturers to determine what the characterizing flavor of a tobacco product is. The commenter also argued that the requirement to identify a characterizing flavor has no statutory basis and is not necessary to identify a product in light of all other information FDA is requiring, such as the product name, brand, subbrand, category, and subcategory.

    (Response) FDA disagrees with this comment. This requirement, along with the other product-identifying information in § 1105.10(a)(7), will identify to FDA the specific tobacco product that is the intended subject of the application. As explained in the preamble to the proposed rule, FDA is requiring this product-identifying information under section 701 of the FD&C Act to efficiently enforce premarket review requirements for tobacco requirements. For example, FDA needs to be able to distinguish between products that have the same brand and subbrand, but different flavors (e.g., brand X menthol or brand X cinnamon). This also helps ensure that FDA ultimately issues an order that addresses the intended tobacco product. For the purposes of the refuse to accept process and to appropriately identify the specific product that is the subject of the submission, FDA is solely looking to see how the applicant identifies the tobacco product as having no characterizing flavor or having a particular characterizing flavor. Thus, for example, a firm would give “menthol” as the characterizing flavor a tobacco product it identifies as “Brand A menthol”. At the acceptance stage, FDA would not review beyond how the product is identified, such as to determine whether the product contains a different or additional characterizing flavor. Applicants that have questions regarding how to describe their product's characterizing flavor are encouraged to contact FDA prior to submission.

    (Comment 16) One commenter argued that FDA should either modify the rule so that it contains procedures to resolve disputes regarding whether FDA should have refused to accept an application, or it should specify whether the procedures for internal Agency review of decisions specified in § 10.75 (21 CFR 10.75) applies.

    (Response) The procedures for internal Agency review of decisions in § 10.75 apply to a decision of an FDA employee, other than commissioner, on a matter. Applicants seeking review of a refuse to accept decision may use this mechanism or consider other mechanisms set out in part 10. FDA expects, however, that most applicants will find that addressing any deficiencies in the application will quickly resolve issues.

    VI. Paperwork Reduction Act of 1995

    FDA concludes that this rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

    VII. Federalism

    We have analyzed this rule in accordance with the principles set forth in Executive Order 13132. We have determined that the rule does not contain policies 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. Accordingly, we conclude that the rule does not contain policies that have federalism implications as defined in the Executive Order and, consequently, a federalism summary impact statement is not required.

    VIII. Tribal Consultation

    We have analyzed this rule in accordance with the principles set forth in Executive Order 13175. We have determined that the rule does not contain policies that would have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Accordingly, we conclude that the rule does not contain policies that have tribal implications as defined in the Executive Order; consequently, a tribal summary impact statement is not required.

    IX. Analysis of Environmental Impact

    We have determined under 21 CFR 25.30(h) 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.

    X. Economic Analysis of Impacts

    We have examined the impacts of the rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). We believe that this rule is not a significant regulatory action as defined by Executive Order 12866.

    The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this rule establishes a procedure that FDA is responsible for implementing and has the effect of providing all entities useful feedback on the readiness of a submission, we certify that the rule will not have a significant economic impact on a substantial number of small entities.

    The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the 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 one year.” The current threshold after adjustment for inflation is $146 million, using the most current (2015) Implicit Price Deflator for the Gross Domestic Product. This rule does not result in expenditure in any year that meets or exceeds this amount.

    This rule identifies 10 significant and common deficiencies in premarket tobacco submissions that will cause FDA to refuse to accept them. Encouraging submissions that are free of the deficiencies listed in this rule does not represent a change in Agency expectations. One of the 10 deficiencies is required by statute (i.e., must be a tobacco product). One of the deficiencies is required by another regulation (i.e., must comply with requirements related to environmental assessments or exclusions from such assessments). The remaining eight deficiencies are basic expectations for an application to enter the review process. Therefore, this rule clarifies these expectations. This clarification will result in cost savings for both the applicant and FDA as less time is spent by FDA working with applicants to address these significant deficiencies. Applicants have clarity about basic expectations regarding requirements for acceptance of premarket applications. In addition, refusing to accept submissions with these deficiencies will allow Agency staff to more efficiently process submissions and quickly move those submissions without these deficiencies into review of substantial scientific issues.

    List of Subjects in 21 CFR Part 1105

    Administrative practices and procedures, Tobacco, Tobacco products.

    Therefore, under the Federal Food, Drug, and Cosmetic Act, and under authority delegated to the Commissioner of Food and Drugs, 21 CFR chapter I is amended by adding part 1105, consisting of § 1105.10, to read as follows: PART 1105—GENERAL Authority:

    21 U.S.C. 371(a), 387e, 387j, and 387k.

    Subpart A—General Submission Requirements
    § 1105.10 Refusal to accept a premarket submission.

    (a) FDA will refuse to accept for review, as soon as practicable, a premarket tobacco product application, modified risk tobacco product application, substantial equivalence application, or exemption request or subsequent abbreviated report for the following reasons, if applicable:

    (1) The submission does not pertain to a tobacco product as defined in 21 U.S.C. 321(rr).

    (2) The submission is not in English or does not contain complete English translations of any information submitted within.

    (3) If submitted in an electronic format, the submission is in a format that FDA cannot process, read, review, and archive.

    (4) The submission does not contain contact information, including the applicant's name and address.

    (5) The submission is from a foreign applicant and does not identify an authorized U.S. agent, including the agent's name and address, for the submission.

    (6) The submission does not contain a required FDA form(s).

    (7) The submission does not contain the following product-identifying information: The manufacturer of the tobacco product; the product name, including the brand and subbrand; the product category and subcategory; package type and package quantity; and characterizing flavor.

    (8) The type of submission is not specified.

    (9) The submission does not contain a signature of a responsible official, authorized to represent the applicant, who either resides in or has a place of business in the United States.

    (10) For premarket tobacco applications, modified risk tobacco product applications, substantial equivalence applications, and exemption requests only: The submission does not include a valid claim of categorical exclusion in accordance with part 25 of this chapter, or an environmental assessment.

    (b) If FDA finds that none of the reasons in paragraph (a) of this section exists for refusing to accept a premarket submission, FDA may accept the submission for processing and further review. FDA will send to the submitter an acknowledgement letter stating the submission has been accepted for processing and further review and will provide the premarket submission tracking number.

    (c) If FDA finds that any of the reasons in paragraph (a) of this section exist for refusing to accept the submission, FDA will notify the submitter in writing of the reason(s) and that the submission has not been accepted, unless insufficient contact information was provided.

    Dated: December 22, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-31370 Filed 12-28-16; 8:45 am] BILLING CODE 4164-01-P
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 29 CFR Part 1610 RIN 3046-AB05 Availability of Records AGENCY:

    Equal Employment Opportunity Commission.

    ACTION:

    Interim final rule.

    SUMMARY:

    The Equal Employment Opportunity Commission (EEOC or Commission) proposes to revise its Freedom of Information Act (FOIA) regulations in order to implement the substantive and procedural changes to the FOIA identified in the FOIA Improvement Act of 2016 and update two district offices addresses and the Office of Legal Counsel's fax number.

    DATES:

    This interim final rule is effective on December 29, 2016. Comments must be received on or before January 30, 2017.

    ADDRESSES:

    Written comments should be submitted to Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street NE., Suite 6NE03F, Washington, DC 20507. As a convenience to commenters, the Executive Secretariat will accept comments by facsimile (“FAX”) machine. The telephone number of the FAX receiver is (202) 663-4114. (This is not a toll-free FAX number). Only comments of six or fewer pages will be accepted via FAX transmittal to ensure access to the equipment. Receipt of FAX transmittals will not be acknowledged, except that the sender may request confirmation of receipt by calling the Executive Secretariat staff at (202) 663-4070 (voice) or (202) 663-4074 (TTY). (These are not toll-free telephone numbers.) You may also submit comments and attachments electronically at https://www.regulations.gov, which is the Federal eRulemaking Portal. Follow the instructions online for submitting comments. Copies of comments submitted by the public will be available for review by prior appointment at the Commission's Library, 131 M Street NE., Suite 4NW08R, Washington, DC 20507, or can be reviewed anytime at https://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Stephanie D. Garner, Assistant Legal Counsel (202) 663-4642 or Draga G. Anthony, Senior Attorney Advisor, Office of Legal Counsel (216) 522-7452(voice) or (202) 663-7026 (TTY). (These are not toll free numbers.) Requests for this document in an alternative format should be made to the Office of Communications and Legislative Affairs at (202) 663-4191 (voice) or (202) 663-4494 (TTY).

    SUPPLEMENTARY INFORMATION: Executive Summary

    The interim final rule, as directed by the FOIA Improvement Act of 2016, Public Law 114-185, updates the Commission's FOIA regulations to reflect substantive and procedural changes to the FOIA and updates the addresses of two district offices and the Office of Legal Counsel's fax number.

    Background

    On June 30, 2016, President Obama signed the FOIA Improvement Act of 2016 (“Act”). The Act requires agencies to update FOIA regulations to conform to the Act by:

    • Requiring federal agencies to make available their disclosable records and documents for public inspection in an electronic format;

    • making available for inspection in an electronic format records that have been requested three or more times (frequently requested records);

    • requiring that the Annual FOIA data be downloadable;

    • prohibiting agencies from charging a fee for providing records if the agency misses a deadline for complying with a FOIA request unless unusual circumstances apply and more than 5,000 pages are necessary to respond to the request;

    • prohibiting agencies from withholding information requested under FOIA Exemption (b)(5) unless the agency reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or disclosure is prohibited by law;

    • codifying the Administration's presumption of openness;

    • requiring that agencies consider partial disclosures;

    • requiring that agencies take steps to segregate and release nonexempt information;

    • limiting the FOIA exemption for agency communications, (b)(5), to allow the disclosure of agency “deliberative process” records created 25 years or more before the date of a FOIA request;

    • requiring the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between agencies and FOIA requesters;

    • expanding the authority and duties of the Chief FOIA Officer of each agency to require officers to serve as the primary agency liaison with OGIS and the Office of Information Policy;

    • establishing a Chief FOIA Officer Council to develop recommendations for increasing compliance and efficiency in responding to FOIA requests; disseminating information about agency experiences; identifying, developing, and coordinating initiatives to increase transparency and compliance; and promoting performance measures to ensure agency compliance with FOIA requirements; and

    • requiring the Director of the Office of Management and Budget to ensure the operation of a consolidated online request portal that allows a member of the public to submit a request for records to any agency from a single Web site;

    Summary of Changes

    In order to assist agencies and encourage consistency in FOIA practices across the government, the Department of Justice, Office of Information Policy (OIP), created a FOIA template for agencies to use as agencies publish and update their regulations. The template, which is located at https://www.justice.gov/oip/template-agency-foia-regulations, provides sample regulation language. The proposed language contained in these revised FOIA regulations utilizes the language provided in the Act or contained in OIP's template. In order to conform the Commission's FOIA regulations to the requirements of the Act, the proposed rule revises the following sections of 29 CFR part 1610:

    • § 1610.1 (Definitions section is revised to utilize OIP's FOIA template);

    • § 1610.2 (Statutory requirements section is revised to utilize OIP's template language);

    • § 1610.3 (Purpose and scope section is revised to utilize OIP's template language);

    • § 1610.4 (Public reference facilities and current index section is revised to utilize OIP's template language, reflect requirements of the Act, and update District Office addresses);

    • § 1610.5 (Request for records section is revised to utilize OIP's template language);

    • § 1610.6 (Records of other agencies section is deleted; the information is moved to another section and utilizes OIP's template language);

    • § 1610.7 (Where to make request: form section is revised to utilize OIP's template language);

    • § 1610.8 (Authority to determine section is revised to utilize OIP's template language);

    • § 1610.9 (Responses: timing section is revised to utilize OIP's template language);

    • § 1610.10 (Responses: form and content section is revised to utilize OIP's template language and as required by the Act);

    • § 1610.11 (Appeals to the Legal Counsel from initial denials section is revised to utilize OIP's template language and as required by the Act);

    • § 1610.13 (Maintenance of files section is revised to utilize OIP's template language);

    • § 1610.15 (Schedule of fees and method of payment for services section is revised to utilize OIP's template and as required by the Act);

    • § 1610.17 (Exemptions section is revised to utilize OIP's template language and as required by the Act);

    • § 1610.19 (Predisclosure notification procedures for confidential commercial information section is revised to utilize OIP's template language); and

    • § 1610.21 (Annual report section is revised to utilize OIP's template language and as required by the Act).

    Comments

    The Commission invites comments. At the conclusion of the comment period, the Commission will review the comments received, and, if appropriate, will revise the regulation to ensure it aligns with the Act.

    Regulatory Procedures Executive Orders 13563 and 12866

    In promulgating this interim final rule, the Commission has adhered to the regulatory philosophy and applicable principles set forth in Executive Order 13563, 3 CFR 215 (2011). The proposed interim final rule has been drafted and reviewed in accordance with Executive Order 12866, 3 CFR 638 (1993). The rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866.

    Paperwork Reduction Act

    The proposed rule contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 605(b) that the proposed rule will not have a significant economic impact on a substantial number of small entities because the proposed revisions do not impose any burdens upon FOIA requesters, including those that might be small entities. Therefore, a regulatory flexibility analysis is not required by the Regulatory Flexibility Act.

    Unfunded Mandates Reform Act of 1995

    The proposed rule will not result in the expenditure by State, local, or tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501).

    Congressional Review Act

    The proposed rule is not subject to the reporting requirement of 5 U.S.C. 801 because it does not substantially affect the rights or obligations of non-agency parties and therefore is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1998).

    List of Subjects in 29 CFR Part 1610

    Freedom of information.

    For the reasons set forth in the preamble, the Equal Employment Opportunity Commission amends 29 CFR part 1610 as follows: PART 1610—PRODUCTION OR DISCLOSURE UNDER 5 U.S.C. 552 1. The authority citation for Part 1610 continues to read as follows: Authority:

    42 U.S.C. 2000e-12(a), 5 U.S.C. 552 as amended by Pub. L. 93-502, Pub. L. 99-570 and Pub. L. 105-231; for § 1610.15, non-search or copy portions are issued under 31 U.S.C. 9701.

    § 1610.1 [Amended]
    2. In § 1610.1, remove paragraphs (d), (e), (f), (g), (k), (l), (n), and (o) and redesignate paragraphs (h), (i), (j), and (m) as paragraphs (d) through (g), respectively. 3. Revise § 1610.2 to read as follows:
    § 1610.2 Statutory requirements.

    (a) This subpart contains the rules that the Commission will follow in processing requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. These rules should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”). Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with the Commission's Privacy Act regulations as well as under this subpart. The Commission should administer the FOIA with a presumption of openness. As a matter of policy, the Commission may make discretionary disclosures of records or information exempt from disclosure under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption. This policy does not create any right enforceable in court.

    (b) As referenced in this subpart, “component” means each separate office within the Commission that is responsible for processing FOIA requests. The rules described in this regulation that apply to the Commission also apply to its components.

    4. Revise § 1610.3 to read as follows:
    § 1610.3 Purpose and scope.

    (a) This subpart contains the regulations of the Equal Employment Opportunity Commission implementing 5 U.S.C. 552. The regulations of this subpart provide information concerning the procedures by which records may be obtained from all organizational units within the Commission. Official records of the Commission made available pursuant to the requirements of 5 U.S.C. 552 shall be furnished to members of the public only as prescribed by this subpart. Officers and employees of the Commission may continue to furnish to the public, informally and without compliance with the procedures prescribed herein, information and records which prior to the enactment of 5 U.S.C. 552 were furnished customarily in the regular performance of their duties.

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

    5. In § 1610.4, revise paragraphs (a), (b)(6) and (7), add paragraph (b)(8), and revise paragraph (c) to read as follows:
    § 1610.4 Public reference facilities and current index.

    (a) Records that the FOIA requires the Commission to make available for public inspection in an electronic format may be accessed through the Commission's Web site. The Commission is responsible for determining which of its records must be made publicly available, for identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. The Commission must ensure that its Web site of posted records and indices is reviewed and updated on an ongoing basis. The Commission has a FOIA Requester Service Center or FOIA Public Liaison who can assist individuals in locating records particular to the Commission. Contact information is located at https://www.eeoc.gov/eeoc/foia/index.cfm. A list of agency FOIA Public Liaisons is available at http://www.foia.gov/report-makerequest.html.

    (b) * * *

    (6) “CCH Equal Employment Opportunity Commission Decisions” (1973 and 1983);

    (7) Commission awarded contracts; and

    (8) Copies of all records, regardless of form or format, that because of the nature of their subject matter—

    (i) The Commission determines have become, or are likely to become, the subject of subsequent requests for substantially the same records; or

    (ii) That have been requested 3 or more times.

    (c) The Commission's District Offices with public reading areas are:

    Atlanta District Office, Sam Nunn Atlanta Federal Center, 100 Alabama Street SW., Suite 4R30, Atlanta, GA 30303 (includes the Savannah Local Office).

    Birmingham District Office, Ridge Park Place, 1130 22nd Street South, Suite 2000, Birmingham, AL 35205-2397 (includes the Jackson Area Office and the Mobile Local Office).

    Charlotte District Office, 129 West Trade Street, Suite 400, Charlotte, NC 28202 (includes the Raleigh Area Office, the Greensboro Local Office, the Greenville Local Office, the Norfolk Local Office, and the Richmond Local Office).

    Chicago District Office, 500 West Madison Street, Suite 2000, Chicago, IL 60661 (includes the Milwaukee Area Office and the Minneapolis Area Office).

    Dallas District Office, 207 S. Houston Street, 3rd Floor, Dallas, TX 75202-4726 (includes the San Antonio Field Office and the El Paso Area Office).

    Houston District Office, Mickey Leland Building, 1919 Smith Street, 6th Floor, Houston, TX 77002 (includes the New Orleans Field Office).

    Indianapolis District Office, 101 West Ohio Street, Suite 1900, Indianapolis, IN 46204-4203 (includes the Detroit Field Office, the Cincinnati Area Office, and the Louisville Area Office).

    Los Angeles District Office, Roybal Federal Building, 255 East Temple Street, 4th Floor, Los Angeles, CA 90012 (includes the Fresno Local Office, the Honolulu Local Office, the Las Vegas Local Office, and the San Diego Local Office).

    Memphis District Office, 1407 Union Avenue, 9th Floor, Memphis, TN 38104 (includes the Little Rock Area Office, and the Nashville Area Office).

    Miami District Office, Miami Tower, 100 SE 2nd Street, Suite 1500, Miami, FL 33131 (includes the Tampa Field Office, and the San Juan Local Office).

    New York District Office, 33 Whitehall Street, 5th Floor, New York, NY 10004 (includes the Boston Area Office, the Newark Area Office, and the Buffalo Local Office).

    Philadelphia District Office, 801 Market Street, Suite 1300, Philadelphia, PA 19107-3127 (includes the Baltimore Field Office, the Cleveland Field Office, and the Pittsburgh Area Office).

    Phoenix District Office, 3300 N. Central Avenue, Suite 690, Phoenix, AZ 85012-2504 (includes the Denver Field Office, and the Albuquerque Area Office).

    San Francisco District Office, 450 Golden Gate Avenue, 5 West, P.O. Box 36025, San Francisco, CA 94102-3661 (includes the Seattle Field Office, the Oakland Local Office, and the San Jose Local Office).

    St. Louis District Office, Robert A. Young Federal Building, 1222 Spruce Street, Room 8100, St. Louis, MO 63103 (includes the Kansas City Area Office, and the Oklahoma City Area Office).

    6. Revise § 1610.5 to read as follows:
    § 1610.5 Request for records.

    (a) General information. (1) To make a request for records, a requester should write directly to the Commission's FOIA office that maintains the records sought. A request will receive the quickest possible response if it is addressed to the Commission FOIA office that maintains the records sought. Information concerning the Commission's FOIA offices is listed at: https://www.eeoc.gov/eeoc/foia/index.cfm and any additional requirements for submitting a request to the agency are listed at paragraphs (b) and (d) of this section. The Commission's Web site contains instructions for submitting FOIA requests and other resources to assist requesters in determining where to send their requests.

    (2) A requester who is making a request for records about himself or herself must comply with the verification of identity requirements as determined by the Commission.

    (3) Where a request for records pertains to another individual, a requester may receive greater access by submitting either a notarized authorization signed by that individual or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (for example, a copy of a death certificate or an obituary). As an exercise of administrative discretion, the Commission can require a requester to supply additional information if necessary in order to verify that a particular individual has consented to disclosure.

    (b) Description of records sought. Requesters must describe the records sought in sufficient detail to enable Commission personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include specific information that may help the Commission identify the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. Before submitting their requests, requesters may contact the Commission's District Office FOIA contact or FOIA Public Liaison to discuss the records they seek and to receive assistance in describing the records. If after receiving a request the Commission determines that it does not reasonably describe the records sought, the Commission must inform the requester what additional information is needed or why the request is otherwise insufficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with the Commission's FOIA contact or FOIA Public Liaison. If a request does not reasonably describe the records sought, the agency's response to the request may be delayed.

    (1) A written request for inspection or copying of a record of the Commission may be presented in person, by mail, by fax, by email at [email protected], online at https://publicportalfoiapal.eeoc.gov/palMain.aspx, or through the Commission employee designated in § 1610.7.

    (2) A request must be clearly and prominently identified as a request for information under the “Freedom of Information Act.” If submitted by mail, or otherwise submitted under any cover, the envelope or other cover must be similarly identified.

    (3) A respondent must always provide a copy of the “Filed” stamped court complaint when requesting a copy of a charge file. The charging party must provide a copy of the “Filed” stamped court complaint when requesting a copy of the charge file if the Notice of Right to Sue has expired as of the date of the charging party's request.

    (4) Each request must contain information which reasonably describes the records sought and, when known, should contain date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number and location for the records requested in order to permit the records to be promptly located.

    (5) Where a request is not considered reasonably descriptive or requires the production of voluminous records, or necessitates the utilization of a considerable number of work hours to the detriment of the business of the Commission, the Commission may require the person making the request or such person's agent to confer with a Commission representative in order to attempt to verify the scope of the request and, if possible, narrow such request.

    (c) Format. Requests may specify the preferred form or format (including electronic formats) for the records the requester seeks. The Commission will accommodate the request if the records are readily reproducible in that form or format.

    (d) Requester information. Requesters must provide contact information, such as their phone number, email address, and/or mailing address, to assist the agency in communicating with them and providing released records.

    § 1610.6 [Removed and Reserved]
    7. Remove and reserve § 1610.6. 8. Revise § 1610.7 to read as follows:
    § 1610.7 Where to make request; form.

    (a) In general. The Commission or component that first receives a request for a record and maintains that record is responsible for responding to the request. In determining which records are responsive to a request, the Commission ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, the Commission must inform the requester of that date. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), is not considered responsive to a request. Requests for the following types of records, however, should be submitted to the District Director for the pertinent district, field, area, or local office, at the district office address listed in § 1610.4(c) or, in the case of the Washington Field Office, shall be submitted to the Field Office Director at 131 M Street NE., Fourth Floor, Washington, DC 20507:

    (1) Information about current or former employees of an office;

    (2) Existing non-confidential statistical data related to the case processing of an office;

    (3) Agreements between the Commission and State or local fair employment agencies operating within the jurisdiction of an office; or

    (4) Materials in office investigative files related to charges under: Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act (29 U.S.C. 206(d)); the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.); the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.); or the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et seq.).

    (b) Request for other records. A request for any record which does not fall within the ambit of paragraph (a) of this section, or a request for any record the location of which is unknown to the person making the request, shall be submitted in writing to the Assistant Legal Counsel, FOIA Programs, U.S. Equal Employment Opportunity Commission, by mail to 131 M Street NE., Suite 5NW02E, Washington, DC 20507, by fax to (202) 653-6034, by email to [email protected], or by Internet to https://publicportalfoiapal.eeoc.gov/palMain.aspx.

    (c) Authority to grant or deny requests. The Commission has granted this authority to the Legal Counsel. The Legal Counsel is authorized to grant or to deny any requests for records that are maintained by the Commission.

    (d) Re-routing of misdirected requests. Where the Commission determines that a request was misdirected within the agency, the receiving component's FOIA office must route the request to the FOIA office of the proper component(s) within the Commission.

    (e) Consultation, referral, and coordination. When reviewing records located by the Commission in response to a request, the Commission will determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, the Commission must proceed in one of the following ways:

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

    (2) Referral. (i) When the Commission believes that a different agency or component is best able to determine whether to disclose the record, the Commission typically will refer the responsibility for responding to the request regarding that record to that agency. Ordinarily, the agency that originated the record is presumed to be the best agency to make the disclosure determination. However, if the Commission is processing the request and the originating agency agrees that the Commission is in the best position to respond regarding the record, then the record may be handled as a consultation.

    (ii) Whenever the Commission refers any part of the responsibility for responding to a request to another agency, it must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the agency to which the record was referred, including that agency's FOIA contact information.

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

    (e) Classified information. On receipt of any request involving information that is marked classified, the Commission must determine whether the information is currently and properly classified in accordance with applicable classification rules. Whenever a request involves a record containing information that has been marked as classified or may be appropriate for classification by another agency under any applicable executive order concerning the classification of records, the Commission must refer the responsibility for responding to the request regarding that information to the agency that classified the information, or that should consider the information for classification. Whenever an agency's record contains information that has been derivatively classified (for example, when it contains information classified by another agency), the Commission must refer the responsibility for responding to that portion of the request to the agency that classified the underlying information.

    (f) Timing of responses to consultations and referrals. All consultations and referrals received by the Commission will be handled according to the date that the referring agency received the perfected FOIA request.

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

    9. Revise § 1610.9 to read as follows:
    § 1610.9 Responses: Timing.

    (a) In general. The Commission ordinarily will respond to requests according to their order of receipt. The various ways in which to submit a request to, or check on the status of a request with, EEOC are listed at: https://www.eeoc.gov/eeoc/foia/index.cfm. The information located at www.foia.gov/report-makerequest.html contains a list of all agencies and components that are designated to accept requests. In instances involving misdirected requests that are re-routed pursuant to § 1610.7(d), the response time will commence on the date that the request is received by the proper component office that is designated to receive requests, but in any event not later than 10 working days after the request is first received by the component office that is designated by these regulations to receive requests.

    (b) Multitrack processing. The Commission designates a specific track for requests that are granted expedited processing, in accordance with the standards set forth in paragraph (f) of this section. The Commission also designates additional processing tracks that distinguish between simple and more complex requests based on the estimated amount of work or time needed to process the request. Among the factors considered are the number of records requested, the number of pages involved in processing the request and the need for consultations or referrals. The Commission must advise requesters of the track into which their request falls and, when appropriate, will offer the requesters an opportunity to narrow or modify their request so that it can be placed in a different processing track.

    (c) Acknowledgment. The Assistant Legal Counsel, FOIA Programs, the District Director, or the District Director's designee shall, within 10 days from receipt of a request, notify the requester in writing of the date the Commission received the request, the expected date of issuance of the determination, the individualized FOIA tracking number assigned to the request, and the telephone number or Internet site where requesters may inquire about the status of their request.

    (d) Unusual circumstances. Whenever the Commission cannot meet the statutory time limit for processing a request because of “unusual circumstances,” as defined in the FOIA, and the Commission extends the time limit on that basis, the Commission must, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which the agency estimates processing of the request will be completed. Where the extension exceeds 10 working days, the agency must, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request. The Commission must make available its designated FOIA contact or its FOIA Public Liaison for this purpose. The contact information for the EEOC FOIA Public Liaison is located at: https://www.eeoc.gov/eeoc/foia/index.cfm. A list of agency FOIA Public Liaisons is available at: http://www.foia.gov/report-makerequest.html. The Commission must also alert requesters to the availability of the Office of Government Information Services (OGIS) to provide dispute resolution services.

    (e) Aggregating requests. To satisfy unusual circumstances under the FOIA, the Commission may aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a requester or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances. The Commission cannot aggregate multiple requests that involve unrelated matters.

    (f) Expedited processing. (1) The Commission must process requests and appeals on an expedited basis whenever it is determined that they involve:

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

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

    (2) A request for expedited processing may be made at any time. Requests based on paragraphs (f)(1)(i) and (ii) of this section must be submitted to the Commission or component of the Commission that maintains the records requested. When making a request for expedited processing of an administrative appeal, the request should be submitted to the Commission's Office of Legal Counsel, the office that adjudicates appeals.

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

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

    (g) Tolling. The Commission may toll the statutory time period to issue its determination on a FOIA request one time during the processing of the request to obtain clarification from the requester. The statutory time period to issue the determination on disclosure is tolled until EEOC receives the information reasonably requested from the requester. The agency may also toll the statutory time period to issue the determination to clarify with the requester issues regarding fees. There is no limit on the number of times the agency may request clarifying fee information from the requester.

    10. Revise § 1610.10 to read as follows:
    § 1610.10 Responses: Form and content.

    (a) In general. The Commission, to the extent practicable, will communicate with requesters having access to the Internet electronically, such as email or web portal.

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

    (c) Estimated dates of completion and interim responses. Upon request, the Commission will provide an estimated date by which it expects to provide a response to the requester. If a request involves a voluminous amount of material, or searches in multiple locations, the Commission may provide interim responses, releasing the records on a rolling basis.

    (d) Grants of requests. Once the Commission determines it will grant a request in full or in part, it must notify the requester in writing. The agency must also inform the requester of any fees charged under § 1610.15 of this part and must disclose the requested records to the requester promptly upon payment of any applicable fees. The Commission must inform the requester of the availability of its FOIA Public Liaison to offer assistance.

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

    (f) Content of denial. The denial must be signed by the head of the Commission or designee and must include:

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

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

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

    (4) A statement that the denial may be appealed under paragraph 1610.11 of this section, and a description of the appeal requirements; and

    (5) A statement notifying the requester of the assistance available from the Commission's FOIA Public Liaison and the dispute resolution services offered by OGIS.

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

    11. Amend § 1610.11 as follows: a. Revise paragraphs (a) through (c); b. Remove paragraph (g); c. Redesignate paragraphs (d) through (f) as paragraphs (f) through (h); and d. Add new paragraphs (d) and (e).

    The revisions and additions read as follows:

    § 1610.11 Appeals to the legal counsel from initial denials.

    (a) Requirements for making an appeal. A requester may appeal any adverse determination to the Legal Counsel, or the Assistant Legal Counsel, FOIA Programs. Any appeal of a determination issued by a District Director or the District Director's designee must include a copy of the District Director's or the District Director's designee's determination. If a FOIA appeal is misdirected to a District Office, the District Office shall forward the appeal to the Legal Counsel, or the Assistant Legal Counsel, FOIA Programs, as appropriate, within 10 business days. Examples of adverse determinations are provided in § 1610.10(e). Requesters can submit appeals by mail, by fax to (202) 653-6034, by email to [email protected], or online at https://publicportalfoiapal.eeoc.gov/palMain.aspx. The requester must make the appeal in writing and to be considered timely it must be postmarked, or in the case of electronic submissions, transmitted, within 90 calendar days after the date of the response. The appeal should clearly identify the Commission determination that is being appealed and the assigned request number. To facilitate handling, the requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, “Freedom of Information Act Appeal.”

    (b) Adjudication of appeals. (1) The Legal Counsel or designee, or the Assistant Legal Counsel, FOIA Programs, as appropriate, will decide all appeals under this section.

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

    (c) Decisions on appeals. The Commission must provide its decision on an appeal in writing. A decision that upholds the Commission's determination in whole or in part must contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision must provide the requester with notification of the statutory right to file a lawsuit and will inform the requester of the mediation services offered by the Office of Government Information Services of the National Archives and Records Administration as a non-exclusive alternative to litigation. If the Commission's decision is remanded or modified on appeal, the Commission will notify the requester of that determination in writing. The Commission will then further process the request in accordance with that appeal determination and will respond directly to the requester.

    (d) Engaging in dispute resolution services provided by OGIS. Mediation is a voluntary process. If the Commission agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.

    (e) When appeal is required. Before seeking review by a court of the Commission's adverse determination, a requester generally must first submit a timely administrative appeal.

    12. Revise § 1610.13 to read as follows:
    § 1610.13 Maintenance of files.

    The Commission must preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to Title 44 of the United States Code or the General Records Schedule 14 of the National Archives and Records Administration. The Commission must not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA.

    13. Revise § 1610.15 to read as follows:
    § 1610.15 Schedule of fees and method of payment for services rendered.

    (a) In general. (1) The Commission will charge for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines. For purposes of assessing fees, the FOIA establishes three categories of requesters:

    (i) Commercial use requesters;

    (ii) Non-commercial scientific or educational institutions or news media requesters; and

    (iii) All other requesters.

    (2) Different fees are assessed depending on the category. Requesters may seek a fee waiver. The Commission must consider requests for fee waiver in accordance with the requirements in paragraph (k) of this section. To resolve any fee issues that arise under this section, the Commission may contact a requester for additional information. The Commission must ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner. The Commission ordinarily will collect all applicable fees before sending copies of records to a requester. Requesters must pay fees by check or money order made payable to the Treasury of the United States, or through Pay.gov.

    (b) Definitions. For purposes of this section:

    (1) Commercial use request refers to a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. An agency's decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester's intended use of the information. The Commission will notify requesters of their placement in this category.

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

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

    (4) Educational institution refers to any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with his or her role at the educational institution. The Commission may seek verification from the requester that the request is in furtherance of scholarly research, and the Commission will advise requesters of their placement in this category.

    Example 1.

    A request from a professor of sociology at a university for records relating to women in the workplace, written on letterhead of the Department of Sociology, would be presumed to be from an educational institution.

    Example 2.

    A request from the same professor of sociology seeking candidate correspondence from the Commission in furtherance of a mystery book she is writing would not be presumed to be an institutional request, regardless of whether it was written on institutional stationery.

    Example 3.

    A student who makes a request in furtherance of her coursework or other school-sponsored activities and provides a copy of a course syllabus or other reasonable documentation to indicate the research purpose for the request, would qualify as part of this fee category.

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

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

    (7) Review is the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 1610.19, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.

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

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

    (1) Search. (i) Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. The Commission will charge search fees for all other requesters, subject to the restrictions of paragraph (d) of this section. The Commission may properly charge for time spent searching even if it does not locate any responsive records or if it determines that the records are entirely exempt from disclosure.

    (ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be charged as follows:

    (A) By clerical personnel—at the rate of $5.00 per quarter hour.

    (B) By paralegals—at the rate of $9.00 per quarter hour.

    (C) By professional personnel—at the rate of $10.00 per quarter hour.

    (D) By managers—at the rate of $17.50 per quarter hour.

    (E) By SES employees—at the rate of $20.00 per quarter hour.

    (iii) The Commission will charge the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. The Commission must notify the requester of the costs associated with creating such a program, and the requester must agree to pay the associated costs before the costs may be incurred.

    (iv) For requests that require the retrieval of records stored by the Commission at a Federal Records Center operated by the National Archives and Records Administration (NARA), the Commission will charge additional costs in accordance with the Transactional Billing Rate Schedule established by NARA: http://www.archives.gov/dc-metro/suitland/delivery-fees.html.

    (2) Duplication. The Commission will charge duplication fees to all requesters, subject to the restrictions of paragraph (d) of this section. The Commission must honor a requester's preference for receiving a record in a particular form or format where the Commission can readily reproduce it in the form or format requested. Where photocopies are supplied, the Commission will provide one copy per request at the cost of $.15/page. For copies of records produced on tapes, disks, or other media, agencies will charge the direct costs of producing the copy, including operator time. Where paper documents must be scanned in order to comply with a requester's preference to receive the records in an electronic format, the requester must also pay the direct costs associated with scanning those materials. For other forms of duplication, the Commission will charge the direct costs.

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

    (d) Restrictions on charging fees. (1) When the Commission determines that a requester is an educational institution, non-commercial scientific institution, or representative of the news media, and the records are not sought for commercial use, it will not charge search fees.

    (2)(i) If the Commission fails to comply with the FOIA's time limits in which to respond to a request, it may not charge search fees, or, in instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees, except as described in paragraphs (d)(2)(ii) through (iv) of this section.

    (ii) If the Commission has determined that unusual circumstances as defined by the FOIA apply and the Commission provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 days.

    (iii) If the Commission has determined that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to the request, the Commission may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees, if the following steps are taken. The Commission must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA, and the Commission must have discussed with the requester via written mail, email or telephone (or not made 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). If this exception is satisfied, the Commission may charge all applicable fees incurred in the processing of the request.

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

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

    (4) Except for requesters seeking records for a commercial use, the Commission must provide without charge:

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

    (ii) The first two hours of search.

    (5) No fee will be charged when the total fee, after deducting the 100 free pages (or its cost equivalent) and the first two hours of search, is equal to or less than $25.00.

    (e) Notice of anticipated fees in excess of $25.00. (1) When the Commission determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the Commission must notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review, or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the Commission will advise the requester accordingly. If the request is not for noncommercial use, the notice will specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge, and will advise the requester whether those entitlements have been provided.

    (2) If the agency notifies the requester that the actual or estimated fees are in excess of $25.00, the request will not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the requester's statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. The Commission is not required to accept payments in installments.

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

    (4) The Commission must make available its FOIA Public Liaison or other FOIA professional to assist any requester in reformulating a request to meet the requester's needs at a lower cost.

    (f) Charges for other services. Although not required to provide special services, if the Commission chooses to do so as a matter of administrative discretion, the direct costs of providing the service will be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail. The Commission charges for the following special services:

    (1) For attestation of documents—$25.00 per authenticating affidavit or declaration. Additionally, there may be search and review charges assessed in accordance with the rates listed in paragraph (c)(1) of this section.

    (2) For certification of document—$50.00 per authenticating affidavit or declaration. Additionally, there may be search and review charges assessed in accordance with the rates listed in paragraph (c)(1) of this section.

    (g) Charging interest. The Commission may charge interest on any unpaid bill starting on the 31st day following the date of billing the requester. Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the billing date until payment is received by the agency. Agencies must follow the provisions of the Debt Collection Act of 1982, 5 U.S.C. 5514, as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.

    (h) Aggregating requests. When the Commission reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single request into a series of requests for the purpose of avoiding fees, the Commission may aggregate those requests and charge accordingly. The Commission may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. For requests separated by a longer period, the Commission will aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters cannot be aggregated.

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

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

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

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

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

    (k) Requirements for waiver or reduction of fees. (1) Requesters may seek a waiver of fees by submitting a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

    (2) The Commission must furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the factors described in paragraphs (k)(2)(i) through (iii) of this section are satisfied.

    (i) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated.

    (ii) Disclosure of the requested information would be likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met:

    (A) Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding.

    (B) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public must be considered. The Commission will presume that a representative of the news media will satisfy this consideration.

    (iii) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, the Commission will consider the following criteria:

    (A) The Commission must identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration.

    (B) If there is an identified commercial interest, the Commission must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (k)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. The Commission ordinarily will presume that when a news media requester has satisfied factors set forth in paragraphs (k)(2)(i) and (ii) of this section, the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.

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

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

    § 1610.16 [Removed and Reserved]
    14. Remove and reserve § 1610.16. 15. In § 1610.17, redesignate paragraphs (b) through (h) as paragraphs (e) through (k) and add new paragraphs (b) through (d) and paragraph (l) to read as follows:
    § 1610.17 Exemptions.

    (b) The Commission shall withhold information under the FOIA only if:

    (1) It reasonably foresees that disclosure would harm an interest protected by an exemption; or

    (2) Disclosure is prohibited by law.

    (c)(1) The Commission shall consider whether partial disclosure of information is possible whenever it determines that a full disclosure of a requested record is not possible; and

    (2) Take reasonable steps necessary to segregate and release nonexempt information.

    (d) Paragraph (c) of this section does not require disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under Exemption 3.

    (l) The deliberative process privilege attached to Exemption 5 shall not apply to records created 25 years or more before the date on which the records were requested.

    16. Revise § 1610.19 to read as follows:
    § 1610.19 Predisclosure notification procedures for confidential commercial information.

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

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

    (b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, at the time of submission, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.

    (c) When notice to submitters is required. (1) The Commission must promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if the Commission determines that it may be required to disclose the records, provided—

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

    (ii) The Commission has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure.

    (2) The notice must either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, the Commission may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications.

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

    (1) The Commission determines that the information is exempt under the FOIA, and therefore will not be disclosed;

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

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

    (4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, the Commission must give the submitter written notice of any final decision to disclose the information within 10 days prior to a specified disclosure date.

    (e) Opportunity to object to disclosure. (1) The Commission must specify a reasonable time period within which the submitter must respond to the notice referenced above.

    (2) If a submitter has any objections to disclosure, it should provide the agency a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential.

    (3) A submitter who fails to respond within the time period specified in the notice will be considered to have no objection to disclosure of the information. The Commission is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.

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

    (g) Notice of intent to disclose. Whenever the Commission decides to disclose information over the objection of a submitter, the Commission must provide the submitter written notice, which must include:

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

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

    (3) A specified disclosure date, which must be 10 days after the notice.

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

    (i) Requester notification. The Commission must notify the requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.

    17. Amend § 1610.21 as follows: a. Revise the first sentence of paragraph (a); b. Redesignate paragraph (b) as paragraph (c); and c. Add new paragraph (b).

    The revision and addition read as follows:

    § 1610.21 Annual report.

    (a) The Legal Counsel shall, on or before February 1, submit individual Freedom of Information Act reports for each principal agency FOIA component and one for the entire agency covering the preceding fiscal year to the Attorney General of the United States and to the director of the Office of Information Government Services. * * *

    (b) The Commission will make each such report available for public inspection in an electronic format. In addition, the Commission will make the raw statistical data used in each report available in a timely manner for public inspection in an electronic format, which will be available—

    (1) Without charge, license, or registration requirement;

    (2) In an aggregated, searchable format; and

    (3) In a format that may be downloaded in bulk.

    Dated: December 22, 2016.

    For the Commission.

    Jenny R. Yang, Chair.
    [FR Doc. 2016-31388 Filed 12-28-16; 8:45 am] BILLING CODE 6570-01-P
    DEPARTMENT OF LABOR Employee Benefits Security Administration 29 CFR Part 2509 RIN 1210-AB78 Interpretive Bulletin Relating to the Exercise of Shareholder Rights and Written Statements of Investment Policy, Including Proxy Voting Policies or Guidelines AGENCY:

    Employee Benefits Security Administration, Labor.

    ACTION:

    Interpretive bulletin.

    SUMMARY:

    This document sets forth supplemental views of the Department of Labor (Department) concerning the legal standards imposed by sections 402, 403 and 404 of Part 4 of Title I of the Employee Retirement Income Security Act of 1974 (ERISA) with respect to voting of proxies on securities held in employee benefit plan investment portfolios, the maintenance of and compliance with statements of investment policy, including proxy voting policy, and the exercise of other legal rights of a shareholder. In this document, the Department withdraws Interpretive Bulletin 2008-2 and replaces it with Interpretive Bulletin 2016-1, which reinstates the language of Interpretive Bulletin 94-2 with certain modifications.

    DATES:

    This interpretive bulletin is effective on December 29, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Office of Regulations and Interpretations, Employee Benefits Security Administration, (202) 693-8500. This is not a toll-free number.

    SUPPLEMENTARY INFORMATION: Background

    Title I of the Employee Retirement Income Security Act of 1974 (ERISA) establishes minimum standards for the operation of private-sector employee benefit plans and includes fiduciary responsibility rules governing the conduct of plan fiduciaries. The Department's longstanding position is that the fiduciary act of managing plan assets which are shares of corporate stock includes decisions on the voting of proxies and other exercises of shareholder rights. To assist plan fiduciaries in understanding their obligations under ERISA, the Department issued Interpretive Bulletin 94-2 (IB 94-2) in 1994 and updated that guidance in 2008 in Interpretive Bulletin 2008-2 (IB 2008-2).1

    1 IB 94-2 was codified at 29 CFR 2509.94-2 and published with an explanatory preamble in the Federal Register at 59 FR 38863 (July 29, 1994). The IB was presented as a restatement of views the Department had expressed in two letters addressing questions that arose concerning the voting of proxies on shares of corporate stock held by plans. The first letter was addressed to Helmuth Fandl, Chairman of the Retirement Board of Avon Products Inc. and dated February 23, 1988, and the second letter was addressed to Robert A.G. Monks of Institutional Shareholder Services, Inc. and dated January 23, 1990.

    IB 94-2 noted that the duty to vote proxies lies exclusively with the plan trustee unless “the power to manage, acquire or dispose of the relevant assets has been delegated by a named fiduciary to one or more investment managers” pursuant to section 403(a)(2) of ERISA. IB 94-2 also explained that when the authority to manage plan assets has been delegated to an investment manager, “no person other than the investment manager has authority to vote proxies appurtenant to such plan assets except to the extent that the named fiduciary has reserved to itself (or to another named fiduciary so authorized by the plan document) the right to direct a plan trustee regarding the voting of proxies.” In addition, if the plan document or the investment management agreement does not expressly preclude the investment manager from voting proxies, the investment manager has the exclusive responsibility for proxy voting. An investment manager is not relieved of its own fiduciary responsibilities by following directions of some other person regarding the voting of proxies, or by delegating such responsibility to another person. IB 94-2 pointed out that the maintenance of written statements of investment policy, including guidelines on voting proxies on securities held in plan investment portfolios, is consistent with Title I of ERISA and that compliance with such a policy would be required under ERISA to the extent that such compliance with respect to any given investment decision is consistent with the provisions of Title I and Title IV of ERISA.

    IB 94-2 also recognized that fiduciaries may engage in other shareholder activities intended to monitor or influence corporate management where the responsible fiduciary concludes that there is a reasonable expectation that such monitoring or communication with management, by the plan alone or together with other shareholders, is likely to enhance the value of the plan's investment in the corporation, after taking into account the costs involved. The bulletin observed that active monitoring and communication may be carried out through a variety of methods including by means of correspondence and meetings with corporate management as well as by exercising the legal rights of a shareholder.

    IB 94-2 reiterated the Department's view that ERISA does not permit fiduciaries to subordinate the economic interests of participants and beneficiaries to unrelated objectives in voting proxies or in exercising other shareholder rights, but pointed out that a reasonable expectation of enhancing the value of the plan's investment through shareholder activities may exist in various circumstances, for example, where plan investments in corporate stock are held as long-term investments or where a plan may not be able to easily dispose of such an investment. IB 94-2 explained that active monitoring and communication activities could concern such issues as the independence and expertise of candidates for the corporation's board of directors and assuring that the board has sufficient information to carry out its responsibility to monitor management. Other issues identified in the bulletin included such matters as consideration of the appropriateness of executive compensation, the corporation's policy regarding mergers and acquisitions, the extent of debt financing and capitalization, the nature of long-term business plans, the corporation's investment in training to develop its work force, other workplace practices and financial and non-financial measures of corporate performance.2

    2 The Department has not been alone in emphasizing the significance of proxy voting to the value of investments. See SEC Final Rule, Disclosure of Proxy Voting Policies and Proxy Voting Records by Registered Management Investment Companies, Release Nos. 33-8188; 34-47304; IC-25922 (Jan. 31, 2003) and SEC Final Rule, Proxy Voting by Investment Advisers, Release No. IA-2106 (Jan. 31, 2003). In addition, the SEC also adopted a rule requiring corporations to provide additional disclosure in proxy materials associated with the election of directors. See SEC Final Rule, Proxy Disclosure Enhancements, Release Nos. 33-9089; 34-61175 (Dec. 16, 2009).

    On October 17, 2008, the Department replaced IB 94-2 with Interpretive Bulletin 2008-2 codified at 29 CFR 2509.08-2.3 The Department's intent was to clarify and update the guidance in IB 94-2 and to reflect interpretive positions issued by the Department after 1994 on shareholder activism and socially-directed proxy voting initiatives. On the same date, the Department published Interpretive Bulletin 2008-1 (IB 2008-1) to update Interpretive Bulletin 94-1 (IB 94-1), which addressed issues regarding fiduciary consideration of investments and investment strategies that take into account environmental, social and governance (ESG) factors.

    3 Also published in the Federal Register at 73 FR 61731 (Oct. 17, 2008).

    The Department believes that in the eight years since its publication, the changes made to IB 94-2 by IB 2008-2 have been misunderstood and may have worked to discourage ERISA plan fiduciaries who are responsible for the management of shares of corporate stock from voting proxies and engaging in other prudent exercises of shareholder rights.4 In particular, the Department is concerned that IB 2008-2 has been read by some stakeholders to articulate a general rule that broadly prohibits ERISA plans from exercising shareholder rights, including voting of proxies, unless the plan has performed a cost-benefit analysis and concluded in the case of each particular proxy vote or exercise of shareholder rights that the action is more likely than not to result in a quantifiable increase in the economic value of the plan's investment.

    4 The Department reached a similar conclusion in rescinding IB 2008-1 on economically targeted investments (ETIs) and reinstating the language from its original 1994 guidance in IB 94-1. See Interpretive Bulletin 2015-1, 80 FR 65135 (Oct. 26, 2015). The Department noted that the ETI market which considers ESG factors had grown internationally as new tools and measures were developed leaving investors better equipped to evaluate the question of whether a given investment could both benefit the plan in financial terms and advance environmental, social or corporate governance goals. In fact, the new tools and measures have revealed that environmental, social and governance impacts can be intrinsic to the market value of an investment. Based on those developments, the Department concluded that its attempt to update IB 94-1 in 2008, rather than clarifying permissible ESG considerations, had in practice had a chilling effect on ERISA plans participating in the growth of economically targeted investing.

    The essential point of IB 94-2, however, was to articulate a general principle that a fiduciary's obligation to manage plan assets prudently extends to proxy voting. As such, IB 94-2 properly read was meant to express the view that proxies should be voted as part of the process of managing the plan's investment in company stock unless a responsible plan fiduciary determined that the time and costs associated with voting proxies with respect to certain types of proposals or issuers may not be in the plan's best interest. IB 94-2 was also intended to make it clear that fiduciary duties associated with voting proxies encompass the monitoring of decisions made and actions taken with regard to proxy voting, and that it was appropriate for a plan fiduciary to incur reasonable expenses in fulfilling those fiduciary obligations. While there may be special circumstances that might warrant a discrete analysis of the cost of the shareholder activity versus the economic benefit associated with the outcome of the activity, the Department did not intend to imply that such an analysis should be conducted in most cases. In most cases, proxy voting and other shareholder engagement does not involve a significant expenditure of funds by individual plan investors because the activities are engaged in by institutional investment managers appointed as the responsible plan fiduciary pursuant to sections 402(c)(3), 403(a)(2) and 3(38) of ERISA. Those investment managers often engage consultants, including proxy advisory firms, in an attempt to further reduce the costs of researching proxy matters and exercising shareholder rights.5 Thus, such a conclusion ignores the fact that many proxy votes involve very little, if any, additional expense to the individual plan shareholders to arrive at a prudent result and that, depending on the particular resolution and the extent of the plan's holdings, not voting, in fact, may in effect count one way or another.

    5 In selecting an investment manager for a plan, the responsible plan fiduciary should include a review of any voting policies or guidelines that would be followed in the management of plan assets to ensure consistency with ERISA. Further, as plan fiduciaries, investment managers who utilize proxy advisory firms should engage in an objective process that is designed to elicit information necessary to assess the provider's qualifications, quality of services offered, and reasonableness of fees charged for the service. The process also must avoid self-dealing, conflicts of interest or other improper influence. The investment manager in considering any proxy recommendation should assure that it is fully informed of potential conflicts of proxy advisory firms and the steps the firm has taken to address them. See generally “Proxy Voting: Proxy Voting Responsibilities of Investment Advisers and Availability of Exemptions from the Proxy Rules for Proxy Advisory Firms,” SEC Staff Legal Bulletin No. 20 (IM/CF) (June 30, 2014) (discussing issues that may arise under the federal securities laws for registered investment advisers in connection with selection and monitoring of proxy advisory firms, among other things).

    The pervasiveness of US publicly-traded stock in ERISA plan investment portfolios, both direct holdings and through pooled investment funds, including index funds, is another factor that contributes to the importance of proxy voting and shareholder engagement practices. If there is a problem identified with a portfolio company's management, selling the stock and finding a replacement investment may not be a prudent solution for a plan fiduciary. As Vanguard founder John Bogle put it in the context of index funds, “the only weapon [index funds] have, if we don't like the management, is to get a new management or to force the management to reform.” 6

    6 Interview by Christine Benz with John Bogle, Founder, Vanguard (Oct. 10, 2010) (available at www.morningstar.com/videos/359002/bogle-index-funds-power-in-corporate-governance.aspx).

    The Department is also concerned that despite the guidance on ESG issues the Department recently provided in IB 2015-1, statements in IB 2008-2 may cause confusion as to whether or how a plan fiduciary may consider ESG issues in connection with proxy voting or undertaking other shareholder engagement activities. The Department has rejected a construction of ERISA that would render ERISA's tight limits on the use of plan assets illusory and that would permit plan fiduciaries to expend trust assets to promote myriad public policy preferences. Rather, plan fiduciaries may not increase expenses, sacrifice investment returns, or reduce the security of plan benefits in order to promote collateral goals. However, by focusing on a “cost-benefit analysis” demonstrating a “more likely than not” enhancement in the economic value of the investment, the Department believes that IB 2008-2 may be read as discouraging fiduciaries from recognizing the long-term financial benefits that, although difficult to quantify, can result from thoughtful shareholder engagement when voting proxies, establishing a proxy voting policy, or otherwise exercising rights as shareholders.

    The existence of financial benefits associated with shareholder engagement is suggested by the fact that a growing number of institutional investors are now engaging companies on ESG issues. According to a 2014 survey by the US SIF Foundation, 202 institutional investors or money managers representing $1.72 trillion in US-domiciled assets filed or co-filed shareholder resolutions on ESG issues at publicly traded companies from 2012 through 2014.7 The members of the Investor Network on Climate Risk (INCR), a network of institutions representing more than $14 trillion in assets, engage with companies in their portfolios on climate and sustainability issues. Members include BlackRock, California Public Employees' Retirement System, Deutsche Asset & Wealth Management, Prudential Investment Management, State Street Global Advisors and TIAA Global Asset Management.8 Globally, over 1300 asset managers and asset owners have signed the Principles for Responsible Investment, the second principle of which states that the managers and owners will be active owners and incorporate ESG issues into ownership policies and practices.9 Companies are also being required to be more transparent in the way they address ESG issues. For example, in 2010, the Dodd-Frank Act required publicly traded companies to allow shareholders an advisory vote on executive pay plans at least once every three years.10 Similarly, in 2009 the SEC issued rules which required companies to disclose in proxy statements relating to the election of directors, among other things, their policy for consideration of diversity in the process by which candidates for director are considered for nomination by a company's nominating committee.11

    7 US SIF FOUNDATION, Report on US Sustainable, Responsible and Impact Investing Trends 2014.

    8 See INCR membership list at www.ceres.org/investor-network/incr/member-directory.

    9 The Principles for Responsible Investment (PRI) has been supported by the United Nations since its launch. The PRI has two UN partners, the United Nations Environment Programme Finance Initiative and the United Nations Global Compact, which play an important role in delivering the PRI's strategy. See “About the PRI” for further explanation of PRI and their responsible investment effort at www.unpri.org/about.

    10See Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law No. 111-203, 124 Stat. 1376 (2010), for section 951 requirements. See also SEC Final Rule, Shareholder Approval of Executive Compensation and Golden Parachute Compensation, Release Nos. 33-9178; 34-63768 (Jan. 25, 2011).

    11 SEC Final Rule, Proxy Disclosure Enhancements, Release Nos. 33-9089; 34-61175 (Dec. 16, 2009).

    Other market developments further substantiate the financial benefits from shareholder engagement. Companies themselves are seeking more engagement as a way of understanding and responding to their shareholders' views.12 There have also been market events that were catalysts for the growth of shareholder engagement. The financial crisis of 2008 exposed some of the pitfalls of shareholder inattention to corporate governance and highlighted the merits of shareholders taking a more engaged role with the companies.

    12 Blackrock and Ceres, 21st Century Engagement: Investor Strategies for Incorporating ESG Considerations into Corporate Interactions (2015). See also Joseph McCahery, Zacharias Sautner & Laura T. Starks, Behind the Scenes The Corporate Governance Preferences of Institutional Investors, 71 The Journal of Finance 2905-2932 (Dec. 2016).

    This is not a trend unique to the United States. Other countries have recognized these developments and taken steps to provide guidance on proxy voting and shareholder engagement in the form of “stewardship codes.” The first stewardship code was published in 2010 by the UK's Financial Reporting Council, which traces its origins to principles published by the UK's Institutional Shareholders Committee in 2002 and later the International Corporate Governance Network Principles on Institutional Investor Responsibilities in 2007.13 Other such codes have followed, including in Canada, Italy, Japan, Singapore, South Africa, Switzerland, the Netherlands, and Malaysia.14

    13 BLACKROCK AND CERES, supra footnote 12, at 34.

    14Id.

    For all the above reasons, the Department is concerned that the changes to IB 94-2 in IB 2008-2 are out of step with important domestic and international trends in investment management and have the potential to dissuade ERISA fiduciaries from exercising shareholder rights, including the voting of proxies, in areas that are increasingly being recognized as important to long-term shareholder value. In fact, the Department believes the principles originally articulated in IB 94-2, with certain updates to reflect the trends on shareholder engagement discussed above, are a better expression of a fiduciary's obligations under sections 402(c)(3), 403(a) and 404(a)(1)(A) of ERISA on these issues. The Department therefore has decided to withdraw IB 2008-2 and replace it with Interpretive Bulletin 2016-1 which reinstates the language of IB 94-2 with minor updates.

    The following Interpretive Bulletin deals solely with the applicability of the prudence and exclusive purpose requirements of ERISA as applied to fiduciary decisions with respect to voting of proxies on securities held in employee benefit plan investment portfolios, the maintenance of and compliance with statements of investment policy, including proxy voting policy, and the appropriateness under ERISA of shareholder engagement with corporate management by plan fiduciaries. The bulletin does not supersede the regulatory standard contained at 29 CFR 2550.404a-1, nor does it address any issues which may arise in connection with the prohibited transaction provisions under ERISA section 406 or the statutory exemptions under ERISA section 408 from those provisions. This Interpretative Bulletin is a restatement of IB 94-2 with certain updates to the examples of areas where monitoring or communication with management is likely to enhance the value of the plan's investment in the corporation.

    List of Subjects in 29 CFR Part 2509

    Employee benefit plans, Pensions.

    For the reasons set forth in the preamble, the Department is amending part 2509 of title 29 of the Code of Federal Regulations as follows:

    PART 2509—INTERPRETIVE BULLETINS RELATING TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 1. The authority citation for part 2509 continues to read as follows: Authority:

    29 U.S.C. 1135. Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb. 3, 2003). Sections 2509.75-10 and 2509.75-2 issued under 29 U.S.C. 1052, 1053, 1054. Sec. 2509.75-5 also issued under 29 U.S.C. 1002. Sec. 2509.95-1 also issued under sec. 625, Public Law 109-280, 120 Stat. 780.

    § 2509.08-2 [Removed]
    2. Remove § 2509.08-2. 3. Add § 2509.2016-01 to read as follows:
    § 2509.2016-01 Interpretive Bulletin relating to the exercise of shareholder rights and written statements of investment policy, including proxy voting policies or guidelines.

    This interpretive bulletin sets forth the Department of Labor's (the Department) interpretation of sections 402, 403 and 404 of the Employee Retirement Income Security Act of 1974 (ERISA) as those sections apply to voting of proxies on securities held in employee benefit plan investment portfolios and the maintenance of and compliance with statements of investment policy, including proxy voting policy. In addition, this interpretive bulletin provides guidance on the appropriateness under ERISA of active engagement with corporate management by plan fiduciaries.

    (1) Proxy Voting

    The fiduciary act of managing plan assets that are shares of corporate stock includes the voting of proxies appurtenant to those shares of stock. As a result, the responsibility for voting proxies lies exclusively with the plan trustee except to the extent that either (1) the trustee is subject to the directions of a named fiduciary pursuant to ERISA section 403(a)(1), or (2) the power to manage, acquire or dispose of the relevant assets has been delegated by a named fiduciary to one or more investment managers pursuant to ERISA section 403(a)(2). Where the authority to manage plan assets has been delegated to an investment manager pursuant to section 403(a)(2), no person other than the investment manager has authority to vote proxies appurtenant to such plan assets except to the extent that the named fiduciary has reserved to itself (or to another named fiduciary so authorized by the plan document) the right to direct a plan trustee regarding the voting of proxies. In this regard, a named fiduciary, in delegating investment management authority to an investment manager, could reserve to itself the right to direct a trustee with respect to the voting of all proxies or reserve to itself the right to direct a trustee as to the voting of only those proxies relating to specified assets or issues.

    If the plan document or investment management agreement provides that the investment manager is not required to vote proxies, but does not expressly preclude the investment manager from voting proxies, the investment manager would have exclusive responsibility for voting proxies. Moreover, an investment manager would not be relieved of its own fiduciary responsibilities by following directions of some other person regarding the voting of proxies, or by delegating such responsibility to another person. If, however, the plan document or the investment management contract expressly precludes the investment manager from voting proxies, the responsibility for voting proxies would lie exclusively with the trustee. The trustee, however, consistent with the requirements of ERISA section 403(a)(1), may be subject to the directions of a named fiduciary if the plan so provides.

    The fiduciary duties described at ERISA section 404(a)(1)(A) and(B), require that, in voting proxies, the responsible fiduciary consider those factors that may affect the value of the plan's investment and not subordinate the interests of the participants and beneficiaries in their retirement income to unrelated objectives. These duties also require that the named fiduciary appointing an investment manager periodically monitor the activities of the investment manager with respect to the management of plan assets, including decisions made and actions taken by the investment manager with regard to proxy voting decisions. The named fiduciary must carry out this responsibility solely in the interest of the participants and beneficiaries and without regard to its relationship to the plan sponsor.

    It is the view of the Department that compliance with the duty to monitor necessitates proper documentation of the activities that are subject to monitoring. Thus, the investment manager or other responsible fiduciary would be required to maintain accurate records as to proxy voting. Moreover, if the named fiduciary is to be able to carry out its responsibilities under ERISA section 404(a) in determining whether the investment manager is fulfilling its fiduciary obligations in investing plans assets in a manner that justifies the continuation of the management appointment, the proxy voting records must enable the named fiduciary to review not only the investment manager's voting procedure with respect to plan-owned stock, but also to review the actions taken in individual proxy voting situations.

    The fiduciary obligations of prudence and loyalty to plan participants and beneficiaries require the responsible fiduciary to vote proxies on issues that may affect the value of the plan's investment. This principle applies broadly. However, the Department recognizes that in some special cases voting proxies may involve out of the ordinary costs or unusual requirements, for example in the case of voting proxies on shares of certain foreign corporations. Thus, in such cases, a fiduciary should consider whether the plan's vote, either by itself or together with the votes of other shareholders, is expected to have an effect on the value of the plan's investment that warrants the additional cost of voting. Moreover, a fiduciary, in deciding whether to purchase shares for which this may be the case, should consider whether the difficulty and expense in voting the shares is reflected in their market price.

    (2) Statements of Investment Policy

    The maintenance by an employee benefit plan of a statement of investment policy designed to further the purposes of the plan and its funding policy is consistent with the fiduciary obligations set forth in ERISA section 404(a)(1)(A) and (B). Since the fiduciary act of managing plan assets that are shares of corporate stock includes the voting of proxies appurtenant to those shares of stock, a statement of proxy voting policy would be an important part of any comprehensive statement of investment policy. For purposes of this document, the term “statement of investment policy” means a written statement that provides the fiduciaries who are responsible for plan investments with guidelines or general instructions concerning various types or categories of investment management decisions, which may include proxy voting decisions as well as policies concerning economically targeted investments or incorporating environmental, social or governance (ESG) factors in investment policy statements or integrating ESG-related tools, metrics and analyses to evaluate an investment's risk or return or choose among equivalent investments. A statement of investment policy is distinguished from directions as to the purchase or sale of a specific investment at a specific time or as to voting specific plan proxies.

    In plans where investment management responsibility is delegated to one or more investment managers appointed by the named fiduciary pursuant to ERISA section 402(c)(3), the named fiduciary responsible for appointment of investment managers has the authority to condition the appointment on acceptance of a statement of investment policy. Thus, such a named fiduciary may expressly require, as a condition of the investment management agreement, that an investment manager comply with the terms of a statement of investment policy which sets forth guidelines concerning investments and investment courses of action which the investment manager is authorized or is not authorized to make. Such investment policy may include a policy or guidelines on the voting of proxies on shares of stock for which the investment manager is responsible. In the absence of such an express requirement to comply with an investment policy, the authority to manage the plan assets placed under the control of the investment manager would lie exclusively with the investment manager. Although a trustee may be subject to the directions of a named fiduciary pursuant to ERISA section 403(a)(1), an investment manager who has authority to make investment decisions, including proxy voting decisions, would never be relieved of its fiduciary responsibility if it followed directions as to specific investment decisions from the named fiduciary or any other person.

    Statements of investment policy issued by a named fiduciary authorized to appoint investment managers would be part of the “documents and instruments governing the plan” within the meaning of ERISA section 404(a)(1)(D). An investment manager to whom such investment policy applies would be required to comply with such policy, pursuant to ERISA section 404(a)(1)(D) insofar as the policy directives or guidelines are consistent with titles I and IV of ERISA. Therefore, if, for example, compliance with the guidelines in a given instance would be imprudent, then the investment manager's failure to follow the guidelines would not violate ERISA section 404(a)(1)(D). Moreover, ERISA section 404(a)(1)(D) does not shield the investment manager from liability for imprudent actions taken in compliance with a statement of investment policy.

    The plan document or trust agreement may expressly provide a statement of investment policy to guide the trustee or may authorize a named fiduciary to issue a statement of investment policy applicable to a trustee. Where a plan trustee is subject to an investment policy, the trustee's duty to comply with such investment policy would also be analyzed under ERISA section 404(a)(1)(D). Thus, the trustee would be required to comply with the statement of investment policy unless, for example, it would be imprudent to do so in a given instance.

    Maintenance of a statement of investment policy by a named fiduciary does not relieve the named fiduciary of its obligations under ERISA section 404(a) with respect to the appointment and monitoring of an investment manager or trustee. In this regard, the named fiduciary appointing an investment manager must periodically monitor the investment manager's activities with respect to management of the plan assets. Moreover, compliance with ERISA section 404(a)(1)(B) would require maintenance of proper documentation of the activities of the investment manager and of the named fiduciary of the plan in monitoring the activities of the investment manager. In addition, in the view of the Department, a named fiduciary's determination of the terms of a statement of investment policy is an exercise of fiduciary responsibility and, as such, statements may need to take into account factors such as the plan's funding policy and its liquidity needs as well as issues of prudence, diversification and other fiduciary requirements of ERISA.

    An investment manager of a pooled investment vehicle that holds assets of more than one employee benefit plan may be subject to a proxy voting policy of one plan that conflicts with the proxy voting policy of another plan. Compliance with ERISA section 404(a)(1)(D) would require the investment manager to reconcile, insofar as possible, the conflicting policies (assuming compliance with each policy would be consistent with ERISA section 404(a)(1)(D)) and, if necessary and to the extent permitted by applicable law, vote the relevant proxies to reflect such policies in proportion to each plan's interest in the pooled investment vehicle. If, however, the investment manager determines that compliance with conflicting voting policies would violate ERISA section 404(a)(1)(D) in a particular instance, for example, by being imprudent or not solely in the interest of plan participants, the investment manager would be required to ignore the voting policy that would violate ERISA section 404(a)(1)(D) in that instance. Such an investment manager may, however, require participating investors to accept the investment manager's own investment policy statement, including any statement of proxy voting policy, before they are allowed to invest. As with investment policies originating from named fiduciaries, a policy initiated by an investment manager and adopted by the participating plans would be regarded as an instrument governing the participating plans, and the investment manager's compliance with such a policy would be governed by ERISA section 404(a)(1)(D).

    (3) Shareholder Engagement

    An investment policy that contemplates activities intended to monitor or influence the management of corporations in which the plan owns stock is consistent with a fiduciary's obligations under ERISA where the responsible fiduciary concludes that there is a reasonable expectation that such monitoring or communication with management, by the plan alone or together with other shareholders, is likely to enhance the value of the plan's investment in the corporation, after taking into account the costs involved. Such a reasonable expectation may exist in various circumstances, for example, where plan investments in corporate stock are held as long-term investments, where a plan may not be able to easily dispose of such an investment, or where the same shareholder engagement issue is likely to exist in the case of available alternative investments. Active monitoring and communication activities would generally concern such issues as the independence and expertise of candidates for the corporation's board of directors and assuring that the board has sufficient information to carry out its responsibility to monitor management. Other issues may include such matters as governance structures and practices, particularly those involving board composition, executive compensation, transparency and accountability in corporate decision-making, responsiveness to shareholders, the corporation's policy regarding mergers and acquisitions, the extent of debt financing and capitalization, the nature of long-term business plans including plans on climate change preparedness and sustainability, governance and compliance policies and practices for avoiding criminal liability and ensuring employees comply with applicable laws and regulations, the corporation's workforce practices (e.g., investment in training to develop its work force, diversity, equal employment opportunity), policies and practices to address environmental or social factors that have an impact on shareholder value, and other financial and non-financial measures of corporate performance. Active monitoring and communication may be carried out through a variety of methods including by means of correspondence and meetings with corporate management as well as by exercising the legal rights of a shareholder.

    Phyllis C. Borzi, Assistant Secretary, Employee Benefits Security Administration, Department of Labor.
    [FR Doc. 2016-31515 Filed 12-28-16; 8:45 am] BILLING CODE 4510-29-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-HQ-OAR-2016-0691; FRL-9957-28-OAR] Extension of Deadline for Action on the November 2016 Section 126 Petition From Delaware AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    In this action, the Environmental Protection Agency (EPA) is determining that 60 days is insufficient time to complete the technical and other analyses and public notice-and-comment process required for our review of a petition submitted by the state of Delaware pursuant to section 126 of the Clean Air Act (CAA). The petition requests that the EPA make a finding that Homer City Generating Station, located in Indiana County, Pennsylvania, emits air pollution that significantly contributes to nonattainment and interferes with maintenance of the 2008 and 2015 ozone national ambient air quality standards (NAAQS) in the state of Delaware. Under section 307(d)(10) of CAA, the EPA is authorized to grant a time extension for responding to a petition if the EPA determines that the extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of the section 307(d) notice-and-comment rulemaking requirements. By this action, the EPA is making that determination. The EPA is therefore extending the deadline for acting on the petition to no later than July 9, 2017.

    DATES:

    This final rule is effective on December 29, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0691. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Benjamin Gibson, Office of Air Quality Planning and Standards (C545-E), U.S. EPA, Research Triangle Park, North Carolina 27709, telephone number (919) 541-3277, email: [email protected]

    SUPPLEMENTARY INFORMATION: I. Background and Legal Requirements for Interstate Air Pollution

    This is a procedural action to extend the deadline for the EPA to respond to a petition from the state of Delaware filed pursuant to CAA section 126(b). The EPA received the petition on November 10, 2016. The petition requests that the EPA make a finding under section 126(b) of the CAA that the Homer City Generating Station, located in Indiana County, Pennsylvania, is operating in a manner that emits air pollutants in violation of the provisions of section 110(a)(2)(D)(i)(I) of the CAA with respect to the 2008 and 2015 ozone NAAQS.

    Section 126(b) of the CAA authorizes states to petition the EPA to find that a major source or group of stationary sources in upwind states emits or would emit any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i) 1 by contributing significantly to nonattainment or maintenance problems in downwind states. Section 110(a)(2)(D)(i)(I) of the CAA prohibits emissions of any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any NAAQS. The petition asserts that emissions from Homer City Generating Station's three electric generating units emit air pollutants in violation of CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 8-hour ozone NAAQS, set at 0.075 parts per million (ppm), and the revised 2015 8-hour ozone NAAQS, set at 0.070 ppm.2

    1 The text of CAA section 126 codified in the United States Code cross references CAA section 110(a)(2)(D)(ii) instead of CAA section 110(a)(2)(D)(i). The courts have confirmed that this is a scrivener's error and the correct cross reference is to CAA section 110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d 1032, 1040-44 (D.C. Cir. 2001).

    2 On October 1, 2015, the EPA strengthened the ground-level ozone NAAQS, based on extensive scientific evidence about ozone's effects on public health and welfare. See 80 FR 65291 (October 26, 2015).

    Pursuant to CAA section 126(b), the EPA must make the finding requested in the petition, or must deny the petition within 60 days of its receipt. Under CAA section 126(c), any existing sources for which the EPA makes the requested finding must cease operations within 3 months of the finding, except that the source may continue to operate if it complies with emission limitations and compliance schedules (containing increments of progress) that the EPA may provide to bring about compliance with the applicable requirements as expeditiously as practical but no later than 3 years from the date of the finding.

    CAA section 126(b) further provides that the EPA must hold a public hearing on the petition. The EPA's action under section 126 is also subject to the procedural requirements of CAA section 307(d). See CAA section 307(d)(1)(N). One of these requirements is notice-and-comment rulemaking, under section 307(d)(3)-(6).

    In addition, CAA section 307(d)(10) provides for a time extension, under certain circumstances, for a rulemaking subject to CAA section 307(d). Specifically, CAA section 307(d)(10) provides:

    Each statutory deadline for promulgation of rules to which this subsection applies which requires promulgation less than six months after date of proposal may be extended to not more than six months after date of proposal by the Administrator upon a determination that such extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of the subsection.

    CAA section 307(d)(10) may be applied to section 126 rulemakings because the 60-day time limit under CAA section 126(b) necessarily limits the period for promulgation of a final rule after proposal to less than 6 months.

    II. Final Rule A. Rule

    In accordance with CAA section 307(d)(10), the EPA is determining that the 60-day period afforded by CAA section 126(b) for responding to the petition from the state of Delaware is not adequate to allow the public and the agency the opportunity to carry out the purposes of CAA section 307(d). Specifically, the 60-day period is insufficient for the EPA to complete the necessary technical review, develop an adequate proposal, and allow time for notice and comment, including an opportunity for public hearing, on a proposed finding regarding whether the Homer City Generating Station identified in the CAA section 126 petition contributes significantly to nonattainment or interferes with maintenance of the 2008 ozone NAAQS or the 2015 ozone NAAQS in Delaware. Moreover, the 60-day period is insufficient for the EPA to review and develop response to any public comments on a proposed finding, or testimony supplied at a public hearing, and to develop and promulgate a final finding in response to the petition. The EPA is in the process of determining an appropriate schedule for action on the CAA section 126 petition. This schedule must afford the EPA adequate time to prepare a proposal that clearly elucidates the issues to facilitate public comment, and must provide adequate time for the public to comment and for the EPA to review and develop responses to those comments prior to issuing the final rule. As a result of this extension, the deadline for the EPA to act on the petition is July 9, 2017.

    B. Notice and Comment Under the Administrative Procedure Act (APA)

    This document is a final agency action, but may not be subject to the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The EPA believes that, because of the limited time provided to make a determination, the deadline for action on the CAA section 126 petition should be extended. Congress may not have intended such a determination to be subject to notice-and-comment rulemaking. However, to the extent that this determination otherwise would require notice and opportunity for public comment, there is good cause within the meaning of 5 U.S.C. 553(b)(3)(B) not to apply those requirements here. Providing for notice and comment would be impracticable because of the limited time provided for making this determination, and would be contrary to the public interest because it would divert agency resources from the substantive review of the CAA section 126 petition.

    C. Effective Date Under the APA

    This action is effective on December 29, 2016. Under the APA, 5 U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days after the date of publication in the Federal Register if the agency has good cause to mandate an earlier effective date. This action—a deadline extension—must take effect immediately because its purpose is to extend by 6 months the deadline for action on the petition. As discussed earlier, the EPA intends to use the 6-month extension period to develop a proposal on the petition and provide time for public comment before issuing the final rule. It would not be possible for the EPA to complete the required notice and comment and public hearing process within the original 60-day period noted in the statute. These reasons support an immediate effective date.

    III. Statutory and Executive Order Reviews A. Executive Orders 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory

    This action is exempt from review by the Office of Management and Budget because it simply extends the date for the EPA to take action on a petition.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. This good cause final action simply extends the date for the EPA to take action on a petition and does not impose any new obligations or enforceable duties on any state, local or tribal governments or the private sector. It does not contain any recordkeeping or reporting requirements.

    C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. This rule is not subject to notice-and-comment requirements because the agency has invoked the APA “good cause” exemption under 5 U.S.C. 553(b).

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175. This good cause final action simply extends the date for the EPA to take action on a petition. Thus, Executive Order 13175 does not apply to this rule.

    G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

    H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This good cause final action simply extends the date for the EPA to take action on a petition and does not have any impact on human health or the environment.

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice-and-comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule as discussed in Section II.B of this document, including the basis for that finding.

    IV. Statutory Authority

    The statutory authority for this action is provided by sections 110, 126 and 307 of the CAA as amended (42 U.S.C. 7410, 7426 and 7607).

    V. Judicial Review

    Under section 307(b)(1) of the CAA, judicial review of this final rule is available only by the filing of a petition for review in the U.S. Court of Appeals for the appropriate circuit by February 27, 2017. Under section 307(b)(2) of the CAA, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practices and procedures, Air pollution control, Electric utilities, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone.

    Dated: December 15, 2016. Gina McCarthy, Administrator.
    [FR Doc. 2016-31256 Filed 12-28-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2016-0007 and EPA-HQ-OPP-2016-0008; FRL-9950-40] Isobutyl Acetate and Isobutyric Acid; Exemption From the Requirement of a Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes exemptions from the requirement of a tolerance for residues of isobutyl acetate (CAS Reg. No. 110-19-0) and isobutyric acid (CAS Reg. No. 79-31-2) when used as inert ingredients (solvent) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest. Technology Sciences Group Inc. on behalf of Jeneil Biosurfactant Company submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of these exemptions from the requirement of a tolerance. This regulation eliminates the need to establish maximum permissible levels for residues of isobutyl acetate and isobutyric acid.

    DATES:

    This regulation is effective December 29, 2016. Objections and requests for hearings must be received on or before February 27, 2017, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The dockets for this action, identified by docket identification (ID) numbers EPA-HQ-OPP-2016-0007 and EPA-HQ-OPP-2016-0008, are available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. 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 OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me?

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0007 or EPA-HQ-OPP-2016-0008 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before February 27, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0007 or EPA-HQ-OPP-2016-0008, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Petition for Exemption

    In the Federal Register of April 25, 2016 (81 FR 24044) (FRL-9944-86), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (IN-10846 for isobutyl acetate; IN-10852 for isobutyric acetate) by Technology Sciences Group Inc., (1150 18th Street NW., Suite 1000, Washington, DC 20036) on behalf of Jeneil Biosurfactant Company (400 N. Dekora Woods Blvd. Saukville, WI 53080). The petition requested that 40 CFR 180.910 be amended by establishing exemptions from the requirement of a tolerance for residues of isobutyl acetate (CAS Reg. No. 110-19-0) and isobutyric acid (CAS Reg. No. 79-31-2) when used as inert ingredients (solvent) in pesticide formulations applied to growing crops and to raw agricultural commodities after harvest. That document referenced the summaries of the petitions prepared by Technology Sciences Group Inc. on behalf of Jeneil Biosurfactant Company, the petitioner, which is available in the docket, http://www.regulations.gov. A comment was received on the notice of filing concerning petition #IN-10846. EPA's response to this comment is discussed in Unit V.B.

    III. Inert Ingredient Definition

    Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

    IV. Aggregate Risk Assessment and Determination of Safety

    Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

    EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

    Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for isobutyl acetate and isobutyric acid including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with isobutyl acetate and isobutyric acid follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by isobutyl acetate and isobutyric acid as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

    Only acute toxicity data are available on isobutyric acid and no data are available on isobutyl acetate. However, upon ingestion, isobutyl acetate is rapidly and completely hydrolyzed to isobutanol and acetic acid. Isobutyric acid is a metabolic product of isobutanol.

    Isobutanol is metabolized by alcohol dehydrogenase to form isobutyric acid via conversion to isobutyraldehyde. Therefore, toxicity data on isobutanol are considered suitable to assess repeated exposure to isobutyl acetate and isobutyric acid. Since acetic acid is currently exempted from tolerance under 40 CFR 180.910 without limitation, this risk assessment focuses on toxicity data available on isobutanol.

    The acute oral and dermal toxicities are low for isobutyric acid. Isobutyric acid has an acute oral lethal dose (LD50) ≥ 2,230 milligram/kilogram (mg/kg) in rats and rabbits. The acute dermal LD50 = 475 mg/kg in rabbits. The acute inhalation LC50 > 9.59 milligram/liter (mg/L) in rats. It is corrosive to the eye and skin in rabbits. Isobutyric acid is not a dermal sensitizer in rabbits. Isobutanol has an acute oral LD50 ≥ 2,830 mg/kg in rats. The acute dermal acute LD50 ≥ 2,000 mg/kg in rabbits. The acute inhalation LC50 > 6,000 parts per million (ppm) (approximately equivalent to 6,000 mg/L) in rats. Isobutanol is severely irritating to the eye and minimally to moderately irritating to the skin in rabbits.

    Based on the subchronic data available, isobutanol is not toxic up to the limit dose of 1,000 milligram/kilogram/day (mg/kg/day). In a 90-day oral toxicity study via gavage in rats, hypo-activity, ataxia and salivation were observed at 1,000 mg/kg/day of isobutanol. In another 90-day oral toxicity study with isobutanol via drinking water in rats, no adverse effects were observed at doses up to 16,000 ppm (approximately 1,450 mg/kg/day), the highest dose tested (HDT). The study conducted via drinking water in rats is considered more relevant to human exposure and therefore more reflective of potential human toxicity.

    In developmental toxicity studies with isobutanol via inhalation in rats and rabbits, neither maternal nor developmental toxicity is seen at doses up to 10,000 mg/m3 (approximately 3,060 mg/kg/day), the HDT in both studies and above the limit dose of 1,000 mg/kg/day.

    Similarly, no adverse effects are observed in a two-generation reproductive study with isobutanol via inhalation in rats at doses up to 2,500 ppm (approximately 2,326 mg/kg/day).

    Carcinogenicity studies with isobutyl acetate, isobutyric acid or isobutanol are not available. However, a chronic toxicity study in rats treated with isobutantol in drinking water for 53-56 weeks did not show any evidence of toxicity or tumors at doses as high as 200 mg/kg/day. In addition, no toxicity is observed in other studies at doses below 1,450 mg/kg/day with isobutanol. Moreover, mutagenicity studies are negative with isobutanol and isobutyric acid. An Ames test, unscheduled DNA synthesis and mouse lymphoma assay are negative when tested with isobutyric acid. The Ames test, mouse lymphoma, Comet and micronucleus assays are negative when tested with isobutanol. Therefore, isobutyl acetate and isobutyric acid are not expected to be carcinogenic.

    A neurotoxicity screening battery with isobutanol via the inhalation route of exposure in rats was available for review. Also, neurotoxicity endpoints were evaluated in an acute toxicity study in rats with isobutanol via the inhalation route of exposure. No adverse effects were observed in the functional observational battery, motor activity, schedule control operant behavior or neuropathology at doses up to 1,500 ppm (approximately 1,408 mg/kg/day) and 2,500 ppm (approximately 2,326 mg/kg/day) in rats in the neurotoxicity screening battery and acute toxicity studies, respectively. EPA concluded that isobutyl acetate and isobutyric acid are not expected to be neurotoxic.

    Immunotoxicity studies with isobutyric acid and isobutanol are available for review. Mouse cell-mediated immune response is not modulated by isobutyric acid in a host-resistant assay using Listeria monocytogenes. Humoral immunity is unaffected in mice as measured by the antibody plaque-forming cell response to sheep erythrocytes. Also, a lymphocyte mitogenesis test with isobutanol showed mitogenic activity is not inhibited in stimulated B and T cells from mouse spleen. Therefore, isobutyl acetate and isobutyric acid are not expected to be immunotoxic.

    Metabolism studies are not available for isobutyl acetate. Limited data are available on isobutyric acid and isobutanol. A metabolism study with a single dose of isobutyric acid via gavage in rats showed that it is rapidly metabolized and the majority eliminated as expired CO2. Less than 1.0% of the dose is found in feces and 3.21-4.61% in urine. A metabolism study with isobutanol via gavage in rabbits showed that it is rapidly metabolized. 0.5% is excreted in the urine or exhaled air. Identified metabolites are isobutyraldehyde, isobutyric acid, and isovaleric acid. There is no concern for the metabolites isobutyraldehyde and isovaleric acid as they will be conjungated and excreted.

    B. Toxicological Points of Departure/Levels of Concern

    The available toxicity studies indicate that isobutanol has very low toxicity. The lowest NOAEL (316 mg/kg/day) in the database occurred in a 90-day oral toxicity study with isobutanol via gavage in rats. Hypo-activity, ataxia and salivation were seen at 1,000 mg/kg/day. In a second study conducted for 90 days with isobutanol via drinking water in rats, the aforementioned effects weren't seen at doses as high 1,450 mg/kg/day. The drinking water study in rats represents a more realistic route for human exposure to isobutyric acid and isobutyl acetate, and is considered more reflective of potential toxicity. Therefore, since no signs of toxicity were observed at doses up to the limit dose in oral and inhalation toxicity studies, an endpoint of concern for risk assessment purposes was not identified. Since no endpoint of concern was identified for the acute and chronic dietary exposure assessment and short and intermediate dermal and inhalation exposure, a quantitative risk assessment for isobutyric acid and isobutyl acetate is not necessary.

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to isobutyl acetate and isobutyric acid, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from isobutyl acetate and isobutyric acid in food as follows:

    Under this exemption from the requirement of a tolerance, residues of isobutyl acetate and isobutyric acid may be found on foods from crops that were treated with pesticide formulations containing isobutyl acetate and isobutyric acid. However, a quantitative dietary exposure assessment was not conducted since a toxicological endpoint for risk assessment was not identified.

    2. Dietary exposure from drinking water. Since a hazard endpoint of concern was not identified for the acute and chronic dietary assessment, a quantitative dietary exposure risk assessment for drinking water was not conducted, although exposures may be expected from use on food crops.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, and tables).

    Isobutyl acetate and isobutyric acid may be used in pesticide products and non-pesticide products that may be used in and around the home. Based on the discussion in Unit IV.B., a quantitative residential exposure assessment for isobutyl acetate and isobutyric acid was not conducted.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

    Based on the available data, isobutyl acetate and isobutyric acid do not have a toxic mechanism; therefore, section 408(b)(2)(D)(v) does not apply.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor (FQPA SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    As part of its qualitative assessment, the Agency did not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children. Based on an assessment of isobutyl acetate and isobutyric acid, EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children.

    E. Aggregate Risks and Determination of Safety

    Because no toxicological endpoints of concern were identified, EPA concludes that aggregate exposure to residues of isobutyl acetate and isobutyric acid will not pose a risk to the U.S. population, including infants and children, and that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to isobutyl acetate and isobutyric acid residues.

    V. Other Considerations A. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

    B. Response to Comments

    A comment was received from a private citizen who was concerned about the safety and impact pesticides on food on human health. The Agency understands the commenter's concerns and recognizes that some individuals believe that no residue of pesticides should be allowed. However, under the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA), EPA is authorized to establish pesticide tolerances or exemptions where persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by the statute, which EPA has determined here.

    VI. Conclusions

    Therefore, exemptions from the requirement of a tolerance are established under 40 CFR 180.910 for residues of isobutyl acetate (CAS Reg. No. 110-19-0) and isobutyric acid (CAS Reg. No. 79-31-2) when used as inert ingredients (solvent) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest.

    VII. Statutory and Executive Order Reviews

    This action establishes tolerance exemptions under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemptions in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    VIII. 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 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: December 16, 2016. Daniel J. Rosenblatt, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.910, add alphabetically the inert ingredients to the table to read as follows:
    § 180.910 Inert ingredients used pre- and post-harvest; exemptions from the requirement of a tolerance. Inert ingredients Limits Uses *         *         *         *         *         *         * Isobutyl Acetate (CAS Reg. No. 110-19-0) Solvent. Isobutyric Acid (CAS Reg. No. 79-31-2) Solvent. *         *         *         *         *         *         *
    [FR Doc. 2016-31211 Filed 12-28-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 405, 410, 411, 414, 417, 422, 423, 424, 425, and 460 [CMS-1654-CN3] RIN 0938-AS81 Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2017; Medicare Advantage Bid Pricing Data Release; Medicare Advantage and Part D Medical Loss Ratio Data Release; Medicare Advantage Provider Network Requirements; Expansion of Medicare Diabetes Prevention Program Model; Medicare Shared Savings Program Requirements; Corrections 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 November 15, 2016 Federal Register (81 FR 80170). That rule is entitled, “Medicare Program; Revisions to Payment Policies under the Physician Fee Schedule and Other Revisions to Part B for CY 2017; Medicare Advantage Bid Pricing Data Release; Medicare Advantage and Part D Medical Loss Ratio Data Release; Medicare Advantage Provider Network Requirements; Expansion of Medicare Diabetes Prevention Program Model; Medicare Shared Savings Program Requirements.”

    DATES:

    This correcting document is effective January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Jessica Bruton (410) 786-5991.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In FR Doc 2016-26668 (81 FR 80170 through 80562), the final rule entitled, “Medicare Program; Revisions to Payment Policies under the Physician Fee Schedule and Other Revisions to Part B for CY 2017; Medicare Advantage Bid Pricing Data Release; Medicare Advantage and Part D Medical Loss Ratio Data Release; Medicare Advantage Provider Network Requirements; Expansion of Medicare Diabetes Prevention Program Model; Medicare Shared Savings Program Requirements” there were a number of technical and typographical errors that are identified and corrected in this correcting document. These corrections are effective as if they had been included in the document published November 15, 2016. Accordingly, the corrections are effective January 1, 2017.

    II. Summary of Errors A. Summary of Errors in the Preamble

    On page 80252, in our discussion of certain primary care services, we made typographical errors and referenced the final HCPCS G-codes incorrectly.

    On page 80268, we made a typographical error in the new locality number for Stockton-Lodi-CA.

    On page 80330, due to a drafting error, we inadvertently stated that we did not receive any comments on our proposals for the Electroencephalogram (EEG) family of codes, CPT Codes 95812, 95813, and 95957.

    On page 80540, we inadvertently included language in our discussion of ICRs regarding payment to organizations that provide Medicare Diabetes Prevention Program Services.

    On page 80543, due to a drafting error, in our discussion of RVUs relative to 2016, we inadvertently used the result descriptors incorrectly.

    On page 80543, due to typographical errors the title of Table 51 and the CY 2017 RVU Budget Neutrality Adjustment are incorrect.

    B. Summary and Correction of Errors in the Addenda on the CMS Web Site

    Due to a data error, the incorrect CY 2017 PE RVUs are included in Addendum B for HCPCS codes G0422 and G0423. The corrected CY 2017 PE RVUs for these codes are reflected in the corrected Addendum B available on the CMS Web site at www.cms.gov//PhysicianFeeSched/.

    III. Waiver of Proposed Rulemaking

    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 for 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 APA notice and comment, and delay in effective date 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 of the Act 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 notice and comment rulemaking procedures for good cause if the agency makes a finding that the notice and comment process is impracticable, unnecessary, or contrary to the public interest; and includes a statement of the finding and the reasons for it in the rule. In addition, section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and the agency includes in the rule a statement of the finding and the reasons for it.

    In our view, this correcting document does not constitute a rulemaking that would be subject to these requirements. This document merely corrects technical errors in the CY 2017 PFS final rule. The corrections contained in this document are consistent with, and do not make substantive changes to, the policies and payment methodologies that were proposed subject to notice and comment procedures and adopted in the CY 2017 PFS final rule. As a result, the corrections made through this correcting document are intended to resolve inadvertent errors so that the rule accurately reflects the policies adopted in the final rule.

    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 PFS final rule or delaying the effective date of the corrections would be contrary to the public interest because it is in the public interest to ensure that the rule accurately reflects our policies as of the date they take effect. Further, such procedures would be unnecessary because we are not making any substantive revisions to the final rule, but rather, we are simply correcting the Federal Register document to reflect the policies that we previously proposed, received public comment on, and subsequently finalized in the final rule. For these reasons, we believe there is good cause to waive the requirements for notice and comment and delay in effective date.

    IV. Correction of Errors

    In FR Doc. 2016-26668 of November 15, 2016 (81 FR 80170-80562), make the following corrections:

    1. On page 80252,

    a. First column; in the section heading, 5. Assessment and Care Planning for Patients with Cognitive Impairment (GPPP6); line 3, the code “(GPPP6)” is corrected to read “(G0505)”.

    b. Third column; first partial paragraph, line 6, the codes “GPPP1, GPPP2, GPPP3, GPPPX).” are corrected to read “G0502, G0503, G0504, G0507).”.

    c. Third column; first partial paragraph, line 12 and 13, the codes “GPPP1, GPPP2, GPPP3, and GPPPX” are corrected to read “G0502, G0503, G0504 and G0507”.

    3. On page 80268, top third of the page; in Table 15, MSA-Based Fee Schedule Areas in California—Continued, the list entry:

    Current locality No. New
  • locality No.
  • Fee schedule area
  • (MSA name)
  • Counties Transition area
    99 73 Stockton-Lodi, CA San Joaquin YES.
    is corrected to read: Current locality No. New
  • locality No.
  • Fee schedule area
  • (MSA name)
  • Counties Transition area
    99 68 Stockton-Lodi, CA San Joaquin YES.

    4. On page 80330, second column, third full paragraph; lines 1 and 2 the sentence “We did not receive any comments on our proposals for this family of codes.” is corrected to read “We received comments on the clinical labor task “perform procedure” for CPT codes 95812 and 95813, but these comments did not address the information contained in the RUC's PE summary of recommendations, which served as the primary rationale for our proposal. Instead, the commenters stated that the clinical labor task is not temporally equivalent to the services performed by the physician.”

    5. On page 80540, third column; first full paragraph,

    a. Lines 2 through 4, the phrase “Security Act exempts the Center for Medicare and Medicaid Innovation (CMMI) model tests and expansion,” is corrected to read “Security Act exempts models tested and expanded under section 1115A of the Act,”.

    b. Line 11, the phrase “evaluation of CMMI models or” is corrected to read “evaluation of models or”.

    6. On page 80543,

    a. Third column, first full paragraph, line 10, the phrase “an overall decrease” is corrected to read “an overall increase”.

    b. Third column, first full paragraph, line 12, the phrase “neutrality adjustment that is positive.” is corrected to read “neutrality adjustment that is negative.”

    c. Bottom third of the page in Table 51, Calculation of the Final CY 2017 Anesthesia Conversion Factor (CM Estimate);

    (1) The parenthetical in the table heading “(CM Estimate)” is removed.

    (2) The list entry:

    CY 2016 National Average Ansthesia Conversion Factor 21,9935 CY 2017 RVU Budget Neutrality Adjustment 0.013 percent (0.99987) is corrected to read: CY 2016 National Average Anesthesia Conversion Factor 21.9935 CY 2017 RVU Budget Neutrality Adjustment −0.013 percent (0.99987) Dated: December 22, 2016. Wilma M. Robinson, Deputy Executive Secretary to the Department, Department of Health and Human Services.
    [FR Doc. 2016-31649 Filed 12-28-16; 8:45 am] BILLING CODE 4120-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 RIN 0648-XE860 Fraser River Sockeye Salmon Fisheries; Inseason Orders AGENCY:

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

    ACTION:

    Temporary orders; inseason orders.

    SUMMARY:

    NMFS publishes Fraser River salmon inseason orders to regulate treaty and non-treaty (all citizen) commercial salmon fisheries in U.S. waters. The orders were issued by the Fraser River Panel (Panel) of the Pacific Salmon Commission (Commission) and subsequently approved and issued by NMFS during the 2016 salmon fisheries within the U.S. Fraser River Panel Area. These orders established fishing dates, times, and areas for the gear types of U.S. treaty Indian and all citizen commercial fisheries during the period the Panel exercised jurisdiction over these fisheries. In 2016, only treaty Indian fisheries were affected by these orders.

    DATES:

    The effective dates for the inseason orders are set out in this document under the heading Inseason Orders.

    FOR FURTHER INFORMATION CONTACT:

    Peggy Mundy at 206-526-4323.

    SUPPLEMENTARY INFORMATION:

    The Treaty between the Government of the United States of America and the Government of Canada concerning Pacific Salmon was signed at Ottawa on January 28, 1985, and subsequently was given effect in the United States by the Pacific Salmon Treaty Act (Act) at 16 U.S.C. 3631-3644.

    Under authority of the Act, Federal regulations at 50 CFR part 300, subpart F, provide a framework for the implementation of certain regulations of the Commission and inseason orders of the Commission's Fraser River Panel for U.S. sockeye and pink salmon fisheries in the Fraser River Panel Area.

    The regulations close the U.S. portion of the Fraser River Panel Area to U.S. sockeye and pink salmon tribal and non-tribal commercial fishing unless opened by Panel orders that are given effect by inseason regulations published by NMFS. During the fishing season, NMFS may issue regulations that establish fishing times and areas consistent with the Commission agreements and inseason orders of the Panel. Such orders must be consistent with domestic legal obligations and are issued by the Regional Administrator, West Coast Region, NMFS. Official notification of these inseason actions is provided by two telephone hotline numbers described at 50 CFR 300.97(b)(1) and in 81 FR 26157 (May 2, 2016). The inseason orders are published in the Federal Register as soon as practicable after they are issued. Due to the frequency with which inseason orders are issued, publication of individual orders is impractical.

    Inseason Orders

    The following inseason orders were adopted by the Panel and issued for U.S. fisheries by NMFS during the 2016 fishing season. Each of the following inseason actions were effective upon announcement on telephone hotline numbers as specified at 50 CFR 300.97(b)(1) and in 81 FR 26157 (May 2, 2016); those dates and times are listed herein. The times listed are local times, and the areas designated are Puget Sound Management and Catch Reporting Areas as defined in the Washington State Administrative Code at Chapter 220-22.

    Fraser River Panel Order Number 2016-01: Issued 12:32 p.m., July 22, 2016 Treaty Indian Fishery

    Areas 4B, 5, and 6C: Open to drift gillnets 12 p.m. (noon), Saturday, July 23, 2016, to 12 p.m. (noon), Wednesday, July 27, 2016.

    Fraser River Panel Order Number 2016-02: Issued 11:46 a.m., July 26, 2016 Treaty Indian Fishery

    Areas 4B, 5, and 6C: Extend for drift gillnets from 12 p.m. (noon), Wednesday, July 27, 2016, to 12 p.m. (noon), Saturday, July 30, 2016.

    Fraser River Panel Order Number 2016-03: Issued 12:52 p.m., July 29, 2016 Treaty Indian Fishery

    Areas 4B, 5, and 6C: Extend for drift gillnets from 12 p.m. (noon), Saturday, July 30, 2016, to 12 p.m. (noon), Wednesday, August 3, 2016.

    Fraser River Panel Order Number 2016-04: Issued 11:47 a.m., August 2, 2016 Treaty Indian Fishery

    Areas 4B, 5, and 6C: Extend for drift gillnets from 12 p.m. (noon), Wednesday, August 3, 2016, to 12 p.m. (noon), Saturday, August 6, 2016.

    Fraser River Panel Order Number 2016-05: Issued 2:32 p.m., August 26, 2016 Treaty Indian and All Citizen Fisheries

    Areas 4B, 5, 6, 6C, 7, and 7A, excluding the Apex: Relinquish regulatory control effective 11:59 p.m. (midnight), Saturday, September 3, 2016. The Apex is those waters north and west of the Area 7A “East Point Line,” defined as a line projected from the low water range marker in Boundary Bay on the U.S./Canada border through the east tip of Point Roberts, WA, to the East Point Light on Saturna Island in the Canadian Province of British Columbia.

    Classification

    The Assistant Administrator for Fisheries NOAA (AA), finds that good cause exists for the inseason orders to be issued without affording the public prior notice and opportunity for comment under 5 U.S.C. 553(b)(B) as such prior notice and opportunity for comments is impracticable and contrary to the public interest. Prior notice and opportunity for public comment is impracticable because NMFS has insufficient time to allow for prior notice and opportunity for public comment between the time the stock abundance information is available to determine how much fishing can be allowed and the time the fishery must open and close in order to harvest the appropriate amount of fish while they are available.

    The AA also finds good cause to waive the 30-day delay in the effective date, required under 5 U.S.C. 553(d)(3), of the inseason orders. A delay in the effective date of the inseason orders would not allow fishers appropriately controlled access to the available fish at that time they are available.

    This action is authorized by 50 CFR 300.97, and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 3636(b).

    Dated: December 22, 2016. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-31526 Filed 12-28-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 131113952-6999-02] RIN 0648-BD78 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery Off the Southern Atlantic States; Regulatory Amendment 16 AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    NMFS issues regulations to implement Regulatory Amendment 16 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as prepared and submitted by the South Atlantic Fishery Management Council (Council). This final rule revises the current seasonal prohibition on the use of black sea bass pot gear in the South Atlantic and adds an additional gear marking requirement for black sea bass pot gear. The purpose of this final rule is to reduce the adverse socioeconomic impacts from the current seasonal black sea bass pot gear prohibition while continuing to protect Endangered Species Act (ESA) listed North Atlantic right whales (NARW)in the South Atlantic. This final rule also helps to better identify black sea bass pot gear in the South Atlantic.

    DATES:

    This rule is effective January 30, 2017, except for the amendments to § 622.183(b)(6) that are effective December 29, 2016.

    ADDRESSES:

    Electronic copies of Regulatory Amendment 16, which includes an environmental impact statement (EIS), a Regulatory Flexibility Act (RFA) analysis, and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at https://sero.nmfs.noaa.gov/sustainable_fisheries/s_atl/sg/2013/reg_am16/index.html.

    Comments regarding the burden-hour estimates, clarity of the instructions, or other aspects of the collection of information requirements contained in this final rule (see the Classification section of the preamble) may be submitted in writing to Adam Bailey, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; or the Office of Management and Budget (OMB), by email at [email protected], or by fax to 202-395-5806.

    FOR FURTHER INFORMATION CONTACT:

    Nikhil Mehta, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Black sea bass is in the snapper-grouper fishery and is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

    On December 4, 2013, NMFS published a notice of intent to prepare a draft EIS for Regulatory Amendment 16 and requested public comment (78 FR 72968). On October 23, 2015, the notice of availability for the draft EIS was published and public comment was also requested (80 FR 64409). The notice of availability for the final EIS for Regulatory Amendment 16 published on July 1, 2016 (81 FR 43198). On August 11, 2016, NMFS published a proposed rule for Regulatory Amendment 16 and requested public comment (81 FR 53109). The proposed rule and Regulatory Amendment 16 outline the rationale for the actions contained in this final rule. A summary of the actions implemented by Regulatory Amendment 16 and this final rule is provided below.

    Management Measures Contained in this Final Rule

    This final rule implements modifications to the current black sea bass pot seasonal closure. This final rule also modifies the buoy line rope marking requirements for black sea bass pots.

    Black Sea Bass Pot Gear Seasonal Prohibition

    As established through Regulatory Amendment 19 to the FMP, black sea bass pot gear is prohibited in the South Atlantic exclusive economic zone (EEZ) annually from November 1 through April 30 (78 FR 58249, September 23, 2013). This final rule retains the November 1 through April 30 prohibition on the use of black sea bass pots but modifies the boundaries of the prohibition. This rule revises the South Atlantic EEZ-wide seasonal closure to a closure with two temporal and spatial components. The first closure period is for the months of November and April and the second closure period is for the months of December through March, each year. The first closure period is illustrated by Figure 1 below. During the November and April seasonal prohibition, the eastern boundary of the sea bass pot closed area off North and South Carolina is closer to shore than during the months of December through March.

    ER29DE16.021

    During the black sea bass pot seasonal prohibition from December through March, each year, the closure area is larger than during the seasonal prohibition during November and April, particularly off Georgia and Florida. Waters off the coast of Georgia and Florida represent the primary right whale calving grounds in the South Atlantic EEZ. The black sea bass pot seasonal closure for December through March is illustrated in Figure 2 below.

    ER29DE16.022

    The alternatives considered in Regulatory Amendment 16 for the black sea bass pot seasonal prohibition were developed considering spatial, temporal, and environmental variables. Spatial variation in the distribution of right whales is influenced by environmental variables such as water temperature, depth, and distance to shore. The closed areas in this final rule incorporate these environmental variables and spatial distribution patterns to minimize the risk of interactions of NARWs with black sea bass pot gear.

    During the months of November and April, the area closed through this rule prohibits black sea bass pots inshore of an area which represents 91 percent of historical right whale sightings off Florida and Georgia; and off North Carolina and South Carolina, the black sea bass pot prohibition would apply to Federal waters shallower than 25 meters (m) in depth. During December through March, the area closed through this final rule prohibits black sea bass pots shallower than 25 m in depth off Florida and Georgia; and from the Georgia/South Carolina border to Cape Hatteras, North Carolina, the prohibition applies to Federal waters that are shallower than 30 m in depth. The bathymetric area closed during December through March is based on right whale sightings by depth and captures 97 percent and 96 percent of right whale sightings off the North Carolina/South Carolina area, and Florida/Georgia area, respectively.

    The reduction in the closure areas described in this final rule are expected to minimize adverse socioeconomic effects of the current November through April black sea bass pot prohibition by increasing the area available to fish using black sea bass pots. In addition, the changes are expected to increase the flexibility of black sea bass pot endorsement holders to fish with this gear while maintaining an appropriate level of protection for NARWs.

    On December 1, 2016, NMFS completed a new ESA consultation and biological opinion on the South Atlantic snapper-grouper fishery. The biological opinion concluded that the continued authorization of the South Atlantic snapper-grouper fishery, including the black sea bass component, is not likely to jeopardize the continued existence of North Atlantic right whales, the only listed whale species in the South Atlantic region that may be adversely affected by the fishery.

    This final rule also allows for vessel transit through the black sea bass pot closed areas, providing that the black sea bass pot gear is appropriately stowed on the vessel. Transit is defined as non-stop progression through the closed area; fishing gear appropriately stowed means all black sea bass pot gear must be out of the water and on board the deck of the vessel. All buoys must either be disconnected from the gear or stowed within the sea bass pot. The disconnected buoys may remain on deck.

    Gear Marking Requirements

    Fish traps and pot buoy lines, including black sea bass pots, are currently required to have specific line marking requirements during certain times of the year and in the locations described in the Atlantic Large Whale Take Reduction Plan (ALWTRP)(see 50 CFR 229.32(b)). The ALWTRP includes at least three areas where black sea bass pots are regulated and fished. This includes the Offshore Trap/Pot Waters Area, Southern Nearshore Trap/Pot Waters Area, and the U.S. Southeast Restricted Area North.

    Additionally, the FMP contains separate gear requirements, and Regulatory Amendment 16 modifies the current gear marking requirements under the FMP by requiring additional markings for black sea bass pot buoy lines. This final rule requires that an additional 12-inch (30.5 cm) wide purple band be added onto the buoy line at the end of, and directly adjacent to, each of the currently required 12-inch (30.5 cm) colored marks that are required through the ALWTRP, described in 50 CFR 229.32(b). Within the area of the Council's jurisdiction for managing black sea bass, the additional black sea bass gear marking requirements are required to be in place in Federal waters from September 1 through May 31 in the Offshore Trap/Pot Waters Area and the Southern Nearshore Trap/Pot Waters Area, and from November 15 through May 31 in the Southeast U.S. Restricted Area North. The Council's requirement that sea bass pot gear have additional gear-specific marking will help distinguish black sea bass pots from other fishing gear that could be encountered by whales.

    Comments and Responses

    A total of 13 comment submissions were received on the proposed rule from individuals, a Federal agency, a commercial fishing organization, and non-governmental organizations (NGOs). Eight comments were in favor of the preferred actions in Regulatory Amendment 16 and three comments were opposed to the use of black sea bass pots in general in the South Atlantic EEZ. Two comment submissions received from the Federal agency and the NGOs expressed concerns over the actions in Regulatory Amendment 16. Specific comments related to the actions in Regulatory Amendment 16 and the proposed rule, as well as NMFS' respective responses, are summarized below.

    Comment 1: Black sea bass pot gear marking should be a year-round requirement for all black sea bass pot buoy lines rather than just a seasonal measure as required in Regulatory Amendment 16.

    Response: There currently are gear marking requirements for black sea bass pots as required through the ALWTRP, and separate gear marking requirements as required through the FMP. This final rule requires buoy line marking for black sea bass pots in addition to those already required through the ALWTRP. These additional markings are required in areas and during times similar to the existing ALWTRP gear marking requirements. The additional buoy line markings are required from September 1 through May 31, in the ALWTRP Offshore Trap/Pot Waters Area and Southern Nearshore Trap/Pot Waters Area, and from November 15 through May 31, in the ALWTRP Southeast U.S. Restricted Area North. NMFS and the Council determined that the new requirement for black sea bass pot gear marking, together with existing requirements, provides a mechanism to adequately identify the black sea bass pot component of the snapper-grouper commercial sector, given the timing and location of right whale expected occurrence. In addition, black sea bass pot fishers have reported that they will likely leave the newly required gear markings on their buoy lines year-round since it would require additional effort for them to remove it for a limited season. Therefore, the Paperwork Reduction Act (PRA) burden estimates assume that the required gear markings would stay on the buoy lines as long as the marking is clearly visible as required by the rule (50 CFR 622.189(g)), and not be applied and removed from the buoy lines each season.

    Comment 2: NMFS should monitor and enforce the requirement for additional black sea bass pot gear marking required in this final rule.

    Response: NMFS agrees that monitoring and enforcement of fishing gear marking requirements increases the effectiveness of these measures and intends to do that for the specific measures in Regulatory Amendment 16 upon implementation of this final rule. NMFS's Office of Law Enforcement (NOAA/OLE) and the United States Coast Guard (USCG) have the authority and the responsibility to enforce regulations implementing FMPs. NOAA/OLE special agents and officers specialize in living marine resource violations and provide fisheries expertise and investigative support for the overall fisheries mission, while the USCG provides at-sea patrol services for the fisheries mission.

    To increase the effectiveness of fishing regulations, NOAA supplements at-sea and dockside inspections of fishing vessels through Cooperative Enforcement Agreements and Joint Enforcement Agreements with most of the states in the South Atlantic region. These agreements can include granting authority to state officers to also enforce the laws for which NOAA/OLE has jurisdiction. Additionally, all of the states in the South Atlantic region have their own law enforcement officers that routinely patrol and enforce fisheries regulations in state waters.

    Comment 3: Several commenters stated that NMFS neglected to consider whether gear restrictions more stringent than those required by ALWTRP are needed in an area with juveniles and calves. In particular, the commenters stated that line breaking strength of greater than 2,200 lb (998 kg) is risk prone to the whales, and vertical lines heavier than 1,700 lb (771 kg) should not be allowed. The commenters were disappointed that the Agency has proposed to re-open a closed area and yet apparently failed to address the need to reduce risk beyond the status quo in the ALWTRP. The commenters noted that a recent peer-reviewed paper by Knowlton et al. (2015), though largely referencing the entanglement of adults, indicates that line breaking strengths of less than 1,700 lb (771 kg) would reduce the likelihood of life-threatening entanglements, and they noted that adult right whales have been found dead, entangled in gear with unbroken 600 lb (272 kg) weak links.

    Response: While the Council considered a measure in the amendment to require a breaking strength lower than that required under the ALWTRP, they did not choose that measure because they changed their preferred alternative during the development of the black sea bass pot seasonal closure to require fishers to travel further offshore to fish for black sea bass during November 1 through April 30, when the weather is likely to be more inclement (such as increased currents) than at other times of the year. The Council concluded that fishing in these areas during the winter would likely put greater stress on the fishing gear in the water, and a breaking strength that is lower than is currently required under the ALWTRP could increase the number of lost black sea bass pots. NMFS agrees that if fishermen used vertical lines with a breaking strength less than 1,700 lb (771 kg), the risk of life-threatening entanglements to right whales would be reduced from current levels, however, with the Council's choice of closures for the black sea bass pot sector, the risk of potential right whale entanglement with black sea bass pot gear is low (Farmer et al. 2016). The recently completed ESA biological opinion on this fishery addresses vertical line breaking strength and contains a conservation recommendation that promotes the use of ropes with breaking strengths equal to or less than 1,700 lb (771 kg) for the black sea bass pot sector (50 CFR 402.2). NMFS is currently evaluating the implementation of this recommendation.

    Comment 4: Passive acoustic recording arrays have been deployed off Georgia, South Carolina, and southern North Carolina since 2015; however, data from those arrays have yet to be published in a scientific journal describing the frequency of call rates at different distances from shore. Data on right whale call rates from these arrays should be analyzed to assess the probabilities of right whales encountering black sea bass pot buoy lines seaward of the offshore of the closure boundaries in Regulatory Amendment 16.

    Response: National Standard 2 of the Magnuson-Stevens Act requires that conservation and management measures shall be based upon the best scientific information available, and NMFS has determined that the actions in Amendment 16 and this final rule are based on the best scientific information available. Based on NMFS's review of whale sightings, the models used for this rulemaking have performed well in predicting right whale distribution, and NMFS disagrees that unpublished data from these acoustic arrays should be included as part of Regulatory Amendment 16.

    Comment 5: One commenter agrees that the modified seasonal closures from November 1 through April 30 for the black sea bass pot component would substantially reduce the entanglement risk to right whales but suggests that the minimum distance from shore for the seaward boundaries of the black sea bass pot closure should be revised to extend to at least 30 nautical miles (nm) from shore between Cape Hatteras and the Florida-Georgia border and at least 20 nm from shore in Duval and St. Johns Counties in Florida.

    Response: NMFS disagrees that the boundaries of the black sea bass pot closure should be revised from those being implemented in this final rule. During the months of November and April, the area closed through this rule prohibits black sea bass pots inshore of an area which represents 91 percent of historical right whale sightings off Florida and Georgia; and off North Carolina and South Carolina, the black sea bass pot prohibition applies to Federal waters shallower than 25 m in depth. During December through March, the area closed through this final rule prohibits black sea bass pots shallower than 25 m in depth off Florida and Georgia; and from the Georgia/South Carolina border to Cape Hatteras, North Carolina, the prohibition applies to Federal waters that are shallower than 30 m in depth. This bathymetric area is based on right whale sightings by depth and captures 97 percent and 96 percent of right whale sightings off the North Carolina/South Carolina area, and Florida/Georgia area, respectively.

    Right whales are likely to be most abundant offshore of Duval and St. Johns Counties in Florida from December through March. In Regulatory Amendment 16, for December through March off Duval and St. Johns Counties, the distance of the black sea bass pot gear offshore boundary to the shoreline is greater than 20 nm from shore, except for an approximately 15 square nm area off the boundary that separates Duval and St. Johns Counties. NMFS has determined that changing the boundary for that 15 nm area, as the commenter requests, would not result in a significant change in the predicted relative risk to right whales from black sea bass pot gear.

    The analysis used in Regulatory Amendment 16 estimated that the area prohibition for black sea bass pots chosen by the Council has a low relative risk of entanglement of whales in black sea bass pot lines when compared with the other areas considered, and NMFS has determined that the analysis is based on the best scientific information available.

    Comment 6: The proposed depth thresholds for the offshore boundaries do not adequately capture all areas likely to be used by right whales during the peak months of right whale occurrence. The analysis used to evaluate the alternatives in Regulatory Amendment 16 is based almost entirely on right whale sightings from aerial surveys. Aerial surveys under-represent right whale occurrence and entanglement risks for areas farther offshore. Other analyses of sighting data (e.g., Knowlton et al. 2002, Schick et al. 2009) indicate that a large majority of sightings have occurred within approximately 10 or 15 nm of shore, but conclude that habitat extending 30 nm from shore should be considered important to migrating and calving whales off the southeastern United States.

    Response: NMFS disagrees. In Regulatory Amendment 16, right whale occurrence was predicted from two spatial distribution models that were based on a robust data set: Survey data for Florida-South Carolina during the calving season from 2003-2004 to 2012-2013 (Gowan and Ortega-Ortiz 2014) and surveys off North Carolina from October 2005-April 2006, December 2006-April 2007, and February 2008-April 2008 (Farmer et al. 2016). These two models allowed for extrapolation of predicted right whale occurrence in areas that were not surveyed (i.e., the models controlled for bias created by shore-based search effort).

    The commenter cited Knowlton et al. (2002) and Schick et al. (2009) to support extending the black sea bass pot closure 30 nm from shore. However, Knowlton et al. (2002) summarized sightings data in the mid-Atlantic, but did not correct those sightings for survey effort as was done in the models used in the development of Regulatory Amendment 16. Schick et al. (2009) modeled right whale spatial distribution in the mid-Atlantic, but the results have a high degree of uncertainty as the study only used data from two female right whales, one tagged in 1996 and the other tagged in 2000. NMFS has determined that the analysis in Regulatory Amendment 16 represents the best scientific information available.

    Comment 7: Limited telemetry and recent acoustic monitoring suggest that waters beyond 15 or 20 nm from shore are used by right whales more frequently than aerial survey data indicate. For example, data on right whales tagged with telemetry devices to document northbound migration routes from the southeastern U.S. calving grounds (Andrews 2016, Slay et al. 2002) indicate that they regularly use waters out to 30 nm from shore and therefore are not confined to waters shallower than 25 or 30 m in depth.

    Response: There are varying levels of error and uncertainty associated with the preliminary telemetry tracks gathered from the two studies referenced (Andrews 2016, Slay et al. 2002), and the data have not been processed completely to account for those errors. Andrews (2016) summarizes the results of a right whale tagging study and contains a map that illustrates the estimated tracks of right whales tagged during the study. Slay et al. (2002) describes the results of a January 1999 study in which a female right whale accompanied by her calf was tracked via radio off northeast Florida and southeast Georgia. The researchers used telemetry to follow the mother/calf pair for 140 hours. That report overlays the whales' track with that of sea surface temperature and the temperatures associated with the track are consistent with modeled right whale distribution in Gowan and Ortega-Ortiz (2014), which was the basis for the analysis contained in Regulatory Amendment 16. Since the study described in Slay et al. (2002) used telemetry data, NMFS believes that the results have a high degree of uncertainty. However, the spatial distribution information learned from the one right whale mother/calf pair in Slay et al. (2002) was adequately represented in the model used by Gowan and Ortega-Ortiz (2014) during the development of Regulatory Amendment 16 and this final rule.

    Comment 8: A 2016 study by the U.S. Navy shows that right whale call rates detected by an acoustic monitoring array moored perpendicular to the coast off Cape Hatteras, North Carolina, are highest within 15 or 20 nm of shore, but significant numbers of right whale calls also occur between 20 and 40 nm offshore.

    Response: The U.S. Navy buoys in the acoustic array appeared to be placed at approximately 5 nm increments from the shoreline (i.e., 5, 10, 15, 20, and 25 nm from the shoreline). The offshore boundary of the black sea bass pot closure area extends nearly 20 nm offshore off North Carolina. From December 2013 through March 2014, the study indicates that the majority of right whale calls were detected at buoys that were located between 10 and 15 nm from the Cape Hatteras, North Carolina, shoreline. Fewer calls were detected 20 nm from the shoreline (when compared to the calls detected at 10 and 15 nm) and even fewer were detected 25 nm from shore. From October 2014 through February 2015, the majority of right whale calls were detected at buoys 5 and 10 nm from the shoreline (the buoy 15 nm from shore was offline from December 2014 through February 2015). Fewer right whale calls were detected 20 and 25 nm from shore. This study did not correlate the number of calls to the number of whales nor did they specify the detection range of the acoustic buoys. The U.S. Navy buoys in the study did not extend out to 40 nm as the commenter suggests, and the buoys were not designed with the intent of detecting whale calls. Therefore, NMFS has determined that the best scientific information available on right whale spatial distribution was used in Regulatory Amendment 16, and serves as the basis for this final rule.

    Comment 9: The black sea bass pot seasonal closures should be extended to the shoreline, and black sea bass pot fishing in state waters should be prohibited at the same times that Federal waters are closed. Similar regulations should be in place for fishing gear in both state and Federal waters.

    Response: The Council does not manage black sea bass in state waters, because the Magnuson-Stevens Act gives the Council the authority to manage fisheries in the EEZ, off North Carolina, South Carolina, Georgia and Florida (16 U.S.C. 1852(a)(1)(C)). However, NMFS and the Council informed the states of North Carolina, South Carolina, Georgia and Florida of the measures proposed for black sea bass pots during the development and implementation of Regulatory Amendment 16, and NMFS intends to ask each of these states to issue regulations compatible with this final rule.

    Comment 10: The prohibition on winter black sea bass pot fishing outside of the right whale critical habitat area should be ended and areas as shown in Alternative 2 of Action 1 (the previous designation of North Atlantic right whale critical habitat) should be closed to fishing with black sea bass pot gear.

    Response: NMFS disagrees that the area shown in Alternative 2 of Action 1 to modify the annual November 1 through April 30 prohibition on the use of black sea bass pot gear in Regulatory Amendment 16 should be the only area closed to fishing with black sea bass pot gear. The area shown in Alternative 2 of Action 1 is based on right whale critical habitat that was implemented in 1994, and on January 26, 2016, NMFS issued a final rule that created an expansion of the right whale critical habitat area (81 FR 4838) that was effective February 26, 2016. This recent determination of critical habitat is based on an increased understanding of where North Atlantic right whales occur, or are most likely to occur, off the southeastern United States. The Council did not include an alternative to base the closed area on the revised right whale critical habitat because the Council voted for final approval of Regulatory Amendment 16 in December 2015, which was prior to the publication of the final rule for the North Atlantic right whale critical habitat area expansion.

    In addition, the analysis in Regulatory Amendment 16 indicated that Alternative 2 in Action 1 would introduce the greatest amount of entanglement risk to large whales, relative to all alternatives, because predicted North Atlantic right whale presence is higher outside of the geographic boundaries of Alternative 2.

    Comment 11: NMFS should not modify the current restrictions on black sea bass pots because this type of fishing gear captures large amounts of fish and reduces the availability of black sea bass to fishermen using hook-and-line gear.

    Response: NMFS agrees that commercial fishermen can harvest more black sea bass using pot gear than hook-and-line gear. In addition, NMFS acknowledges that this final rule will likely increase the benefits to fishers using black sea bass pot gear and decrease the benefits to fishers using hook-and-line gear, as described in the Classification section of this final rule. However, NMFS estimates that revenue losses to each vessel using fishing gear other than black sea bass pots will be relatively small.

    Though commercial harvest is greater using black seas bass pot gear, there are only 32 fishers with an endorsement who may harvest black sea bass using pots, and as implemented through Amendment 18A to the FMP, each endorsement holder is limited to a maximum of 35 pots, a commercial trip limit of 1,000 lb (454 kg) gutted weight, and a requirement that pots be brought back to shore after each trip (77 FR 32408, June 1, 2012). The Council determined that modifying the current closure under this final rule will reduce the adverse socioeconomic impacts and increase the flexibility of black sea bass pot endorsement holders to fish with this gear, while continuing to protect ESA-listed whales in the South Atlantic region.

    Classification

    The Regional Administrator, Southeast Region, NMFS, has determined that this final rule is consistent with Regulatory Amendment 16, the Magnuson-Stevens Act, and other applicable law.

    This final rule has been determined to be not significant for purposes of Executive Order 12866.

    In compliance with section 604 of the RFA, NMFS prepared a final regulatory flexibility analysis (FRFA) for this final rule. The FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant economic issues raised by public comments, NMFS's responses to those comments, and a summary of the analyses completed to support the action. The FRFA follows.

    The preamble to the final rule provides the statement of the need for and objectives of this final rule. The Magnuson-Stevens Act provides the statutory basis for this final rule.

    No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting or record-keeping requirements are introduced by this final rule. However, the final rule will require that for each black sea bass pot buoy line an additional 12-inch (30.5 cm) wide purple band be added at the end of, and directly adjacent to, each of the currently required 12-inch (30.5 cm) colored marks required under the ALWTRP discussed above. Similar to the current requirements under the ALWTRP, this marking requirement does not need an additional expertise on the part of fishermen. NMFS estimates that this requirement will cost each pot endorsement holder about an additional $5 annually if surveyor's tape is used for line marking, or about an additional $90 annually if paint is used instead. The estimated additional annual time burden associated with the marking requirement is up to approximately 3.5 hours annually.

    No comments specific to the IRFA or on the economic impacts of the rule more generally were received from the public or from the Chief Counsel for the Advocacy of the Small Business Administration and, therefore, no public comments are addressed in this FRFA. No changes to the proposed rule were made in response to public comments. NMFS agrees that the Council's choice of preferred alternative will best achieve the Council's objectives for Regulatory Amendment 16 while minimizing, to the extent practicable, the adverse effects on fishers, support industries, and associated communities.

    NMFS expects this final rule to directly affect federally permitted commercial fishermen fishing for black sea bass in the South Atlantic. For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration's (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA after July 1, 2016.

    Pursuant to the RFA, and prior to July 1, 2016, an IRFA was developed for this regulatory action using SBA's size standards. NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. All of the entities directly affected by this regulatory action are commercial fishing businesses and were considered small under the SBA's size standards, and they all will continue to be considered small under the new NMFS standard. Thus, NMFS has determined that the new size standard does not affect analyses prepared for this regulatory action.

    As of December 31, 2014, there were 32 holders of the Federal black sea bass pot endorsement to the snapper-grouper commercial permit. Since that time one endorsement holder has dropped out of the black sea bass pot component of the commercial sector, but the current analysis uses 32 endorsement holders because historical records of these 32 endorsement holders were used in Regulatory Amendment 16. Using the records of 32 endorsement holders for determining the economic effects is not expected to inflate the analytical results because only an average of 31 vessels fished for black sea bass using pots.

    From the 2000/2001 through 2013/2014 fishing years, these endorsement holders used an average of 31 vessels fishing for black sea bass using pots. These vessels generated total combined revenues (2014 dollars) of $732,717 from black sea bass, $228,468 from other species jointly landed with black sea bass, and $248,662 from all other species in trips where black sea bass was not caught. The average annual revenue per vessel from all species, including black sea bass, landed by these vessels was $38,715 (2014 dollars). During the same time period, an average of 215 vessels using gear other than sea bass pots landed at least 1 lb (0.45 kg) of black sea bass. These vessels generated dockside total combined revenues (2014 dollars) of $199,574 from black sea bass, $3.838 million from other species jointly landed with black sea bass, and $7.680 million from all other species in trips where black sea bass was not caught. The average annual revenue per vessel from all species, including black sea bass, landed by these vessels was $54,651 (2014 dollars). Vessels that caught and landed black sea bass may also operate in other fisheries, the revenues of which are not known and are not reflected in these totals. Based on revenue information, all commercial vessels directly affected by the final rule may be assumed to be small entities.

    Because all entities expected to be directly affected by this final rule are assumed to be small entities, NMFS has determined that this final rule will affect a substantial number of small entities. However, the issue of disproportionate effects on small versus large entities does not arise in the present case.

    This final rule modifies the November 1 through April 30 annual prohibition on the use of black sea bass pot gear in the South Atlantic EEZ by allowing black sea bass pot fishing at depths greater than approximately 25 m from November 1 through 30, and April 1 through 30, from approximately Daytona Beach, Florida, to the Georgia/South Carolina border and off North and South Carolina; at depths greater than approximately 25 m from December 1 through March 31, from approximately Cape Canaveral, Florida, to Savannah, Georgia; and, at depths greater than approximately 30 m from December 1 through March 31 off North and South Carolina. In addition, this final rule requires black sea bass pot endorsement holders to put three 12-inch (30.5 cm) purple markings on each sea bass pot buoy line adjacent to the already required color markings on these lines under the ALWTRP. The marks are commonly made with either paint or surveyor's tape. As described in the codified text to this final rule, other materials may also be used for marking the line.

    The modification to the current prohibition on the use of black sea bass pot gear will have contrasting economic effects on the two major groups of participants in the commercial harvest of black sea bass. This action will benefit those using pots for harvesting black sea bass, and given that the commercial annual catch limit (ACL) is predicted to be fully harvested, benefits to users of other fishing gear, such as hook-and-line, will decrease. The combined dockside revenues (2014 dollars) for all sea bass pot gear vessels are estimated to increase annually between $113,964 and $185,068 based on 2000-2013 average black sea bass price, or between $163,606 and $260,355 based on 2011-2013 average black sea bass price. Two price levels are used to provide a limit on the range of revenue effects. The lower limit is based on the 2000-2013 average black sea bass price and the upper limit is based on the 2011-2013 average black sea bass price. In contrast, the combined dockside revenues (2014 dollars) for all non-black seas bass pot gear vessels are estimated to decrease annually between $68,323 and $141,527 based on 2000-2013 average black sea bass price, or between $116,650 and $241,631 based on 2011-2013 the average black sea bass price. The net revenue change for all vessels combined will be between $43,541 and $46,367 based on 2000-2013 average price for black sea bass, or between $43,889 and $46,553 based on 2010-2013 average price for black sea bass. Assuming that revenue increases for users of pot gear will be equally distributed among the 32 endorsement holders, revenues per pot endorsement holder will increase annually between $3,561 and $5,783, or between $5,113 and $8,136. However, revenue per vessel for the 215 users of non-pot gear will decrease between $318 and $658, or between $543 and $1,124. For vessels using black seas bass pot gear, the expected revenue increases will be approximately 9 to 21 percent of their average annual revenue of $38,715 per vessel. However, revenue losses to vessels using fishing gear other than black sea bass pots will be between 1 and 2 percent of their average annual revenue of $54,651 per vessel. Therefore, on a per vessel basis, the revenue gains to the black seas bass pot endorsement holders could potentially be substantial, whereas the revenue losses to the other fishing gear users will be relatively small.

    The requirement for black sea bass pot endorsement holders to put three 12-inch (30.5 cm) purple markings on each black sea bass pot buoy line adjacent to the already required colors required under the ALWTRP will cost each endorsement holder about an additional $5 annually if surveyor's tape is used, or about an additional $90 annually if paint is used instead.

    The following discussion describes the alternatives that were not selected as preferred by the Council. In this section, the term “overall revenues” refers to the sum of revenues from all vessels using black sea bass pots and revenues from all vessels using gear other than black sea bass pots for for harvesting black sea bass.

    Twelve alternatives, including the preferred alternative as described above, were considered for modifying the November 1 through April 30 prohibition on the use of black sea bass pot gear. The first alternative, the no action alternative, would maintain the current economic benefits to all participants in the fishery as well as provide the least likelihood of right whales getting entangled with black sea bass pot lines. However, this alternative would not address the need to reduce the adverse socioeconomic effects resulting from the current prohibition on the use of black sea bass pot gear.

    The second alternative would apply the black sea bass pot closure to the area previously designated as North Atlantic right whale critical habitat from November 15 through April 15. This alternative would provide slightly more increases in overall revenues to commercial vessels than the preferred alternative, but it would also pose the highest risk of right whale entanglement with black sea bass pot buoy lines.

    The third alternative would apply the black sea bass pot closure from approximately Ponce Inlet, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Relative to the preferred alternative, this alternative would result in higher overall revenue increases but would also decrease protection to right whales from getting entangled with pot buoy lines.

    The fourth alternative would apply the black sea bass pot closure from approximately Cape Canaveral, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Although this alternative would provide increased protection to right whales from entanglement with black sea bass pot buoy lines, it would result in smaller overall revenue increases than the preferred alternative.

    The fifth alternative would apply the black sea bass pot closure from approximately Daytona Beach, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Relative to the preferred alternative, this alternative would provide slightly more increases in overall revenues to commercial vessels but would provide less protection to right whales from entanglement with black sea bass pot buoy lines.

    The sixth alternative would apply the black sea bass pot closure from approximately Sebastian Inlet, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Although this alternative would provide the second greatest protection in comparison with the other alternatives in Regulatory Amendment 16 to right whales from entanglement with pot buoy lines, it would result in lower overall revenue increases than the preferred alternative.

    The seventh alternative would apply the black sea bass pot closure from approximately the Altamaha River, Georgia, to Cape Hatteras, North Carolina, with the following sub-alternatives: Annually from November 1 through December 15 and March 15 through April 30; annually from November 1 through December 15 and March 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida; and, annually from February 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida. Relative to the preferred alternative, this alternative and its sub-alternatives would result in relatively higher overall revenue increases but would provide much reduced protection to right whales from entanglement with sea bass pot buoy lines.

    The eighth alternative would apply the black sea bass pot closure from approximately Daytona Beach, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 15; or annually from November 1 through December 15 and February 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida. Relative to the preferred alternative, this alternative and its sub-alternatives would result in higher overall revenue increases but would result in a much reduced protection to right whales from entanglement with pot buoy lines.

    The ninth alternative would apply the black sea bass pot closure from approximately Daytona Beach, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 15; or annually from November 1 through December 15 and February 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida. Relative to the preferred alternative, this alternative and its sub-alternatives would result in higher overall revenue increases but would result in much reduced protection to right whales from entanglement with pot buoy lines.

    The tenth alternative would apply the black sea bass pot closure from approximately the Georgia/South Carolina border, to Cape Hatteras, North Carolina, annually from November 1 through December 15, with the following provision: From February 15 through April 30, the black sea bass pot closure applies to certain inshore waters from approximately the Georgia/South Carolina border, to Cape Hatteras, North Carolina; from December 16 through February 14, there would be no closure off of the Carolinas; from November 15 through April 15, the black sea bass pot closure applies to certain inshore waters from approximately the Georgia/South Carolina border, to approximately Daytona Beach, Florida. Relative to the preferred alternative, this alternative would result in higher overall revenue increases but would result in much reduced protection to right whales from entanglement with pot buoy lines.

    The eleventh alternative would apply the black sea bass pot closure from approximately Cape Canaveral, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Relative to the preferred alternative, this alternative would result in higher overall revenue increases but would result in slightly reduced protection to right whales from entanglement with black sea bass pot buoy lines.

    Four alternatives, including the preferred alternative, were considered in addition to the existing ALWTRP buoy line/weak link gear requirements and buoy line rope marking for black sea bass pots in the South Atlantic. The first alternative, the no action alternative, would not impose any additional cost on fishermen when fishing for black sea bass using pots but it would not meet the need for the action. The second alternative, with two sub-alternatives, would impose requirements in addition to those required under the current ALWTRP for black sea bass pot buoy lines from November 1 through April 30 in Federal waters in the South Atlantic. The first sub-alternative would require that the breaking strength for buoy lines not exceed 2,200 lb (997 kg) and the second sub-alternative would require that the breaking strength for buoy lines not exceed 1,200 lb (544 kg). The first sub-alternative is what is currently required under the ALWTRP in the Southeast U.S. Restricted Area North and would affect only about 17 pot endorsement holders in North Carolina. The estimated cost to each of these 17 fishermen is a maximum of $716. The second sub-alternative would impose the same cost per fisherman of $716 but would affect all 32 pot endorsement holders. The third alternative would require that the breaking strength of the weak links of the buoy lines must not exceed 400 lb (181 kg) for black sea bass pots in the South Atlantic EEZ. This alternative is a decrease from the current requirement of 600 lb (272 kg) breaking strength of the weak links under the ALWTRP, and is estimated to cost each of the 32 pot endorsement holders $65. Relative to the preferred alternative, all these alternatives, except the no action alternative, would impose higher costs upon fishermen using black sea bass pots.

    This final rule contains a revised collection-of-information requirements subject to the PRA, which has been approved by OMB under control number 0648-0358. NMFS estimates the public reporting burden for the sea bass pot gear marking will result in an additional annual cost of up to $90 per sea bass pot endorsement holder and require up to an additional 3.5 hours per response per year. Based upon feedback from fishermen, the cost and time burden for the marking requirement may be slightly lower in subsequent years depending on the marking method used. However, NMFS estimates the requirement to endorsement holders will result in the same for cost and time burden for each subsequent year, because different materials used to mark sea bass pot gear are available and the longevity of the markings vary depending on factors such as the length of the fishing season and how often the gear is used. This estimate of the public reporting burden includes the time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection-of-information.

    Notwithstanding any other provision of the law, no person is required to respond to, nor will any person be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB control number. All currently approved NOAA collections-of-information may be viewed at http://www.cio.noaa.gov/services_programs/prasubs.html.

    Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as small entity compliance guides. As part of the rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all interested parties.

    There are provisions in this final rule that are exempt from the requirement to delay the effectiveness of a final rule by 30 days after publication in the Federal Register, under 5 U.S.C. 553(d)(3). Specifically, NMFS finds good cause under 5 U.S.C. 553(d)(3) to waive the delay in the effective date for the revised time and area closures specific to the use of black sea bass pot gear in the South Atlantic EEZ set forth in § 622.183(b)(6), since these measures increase the allowable area and time available to this fishing gear type for the regulated community during the fishing year. Delaying implementation of these measures for black sea bass could result in snapper-grouper fishermen not having the opportunity to achieve optimum yield from this stock, because the black sea bass pot component of the commercial sector would have less time available during the year to harvest the ACL before the fishing year's end, thereby undermining the intent of the rule. Additionally, a delay in implementation for these measures would not allow fishers using black sea bass pot gear to begin fishing with that gear as soon as possible, which would therefore minimize the potential socioeconomic benefits of this final rule and be contrary to the purpose of Regulatory Amendment 16. Thus, not waiving the 30-day delay of effectiveness for these black sea bass pot gear closure provisions is unnecessary and contrary to the public interest, as a delay in implementation may negatively impact black sea bass pot fishers and be inconsistent with the purpose of this final rule with respect to reducing the socioeconomic impacts of the current closure. Therefore, a delay in effectiveness would diminish the social and economic benefits for snapper-grouper fishermen this final rule provides, which is part of the purpose of the rule. Thus, the measures applicable to the black sea bass pot gear area and seasonal closure in this final rule are effective upon publication.

    List of Subjects in 50 CFR Part 622

    Annual catch limits, Black sea bass, Fisheries, Fishing, South Atlantic.

    Dated: December 22, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 622 is amended as follows: PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 622.183, revise paragraph (b)(6) to read as follows:
    § 622.183 Area and seasonal closures.

    (b) * * *

    (6) Seasonal closure of the commercial black sea bass pot component of the snapper-grouper fishery. The closed area is that area and time period described in paragraphs (b)(6)(i) and (b)(6)(ii) of this section, respectively. During the applicable closure, no person may harvest or possess black sea bass in or from the closed area within the South Atlantic EEZ either with sea bass pots or from a vessel with sea bass pots on board, except that a vessel with a valid commercial permit for snapper-grouper with a sea bass pot endorsement that is in transit and with black sea bass pot gear appropriately stowed as described in paragraph (b)(6)(iii) of this section may possess black sea bass. In addition, sea bass pots must be removed from the water in the applicable closed area within the South Atlantic EEZ before the applicable time period, and may not be on board a vessel in the closed area within the South Atlantic EEZ during the applicable closure, except for such sea bass pot gear appropriately stowed on board a vessel in transit through the closed area. See paragraph (b)(6)(iii) of this section for black sea bass pot transit and gear stowage requirements through the closed areas.

    (i) From November 1 through November 30 and from April 1 through April 30, no person may harvest or possess black sea bass in or from the closed area within the South Atlantic EEZ either with sea bass pots or from a vessel with sea bass pots on board in the South Atlantic EEZ inshore of the rhumb lines connecting, in order, the following points:

    Point North lat. West long. 1 35°15′ State/EEZ boundary. 2 35°15′ 75°09′. 3 35°06′ 75°22′. 4 35°06′ 75°39′. 5 35°01′ 75°47′. 6 34°54′ 75°46′. 7 34°52′ 76°04′. 8 34°33′ 76°22′. 9 34°23′ 76°18′. 10 34°21′ 76°27′. 11 34°25′ 76°51′. 12 34°09′ 77°19′. 13 33°44′ 77°38′. 14 33°25′ 77°27′. 15 33°22′ 77°40′. 16 33°28′ 77°41′. 17 33°32′ 77°53′. 18 33°22′ 78°26′. 19 33°06′ 78°31′. 20 33°05′ 78°40′. 21 33°01′ 78°43′. 22 32°56′ 78°57′. 23 32°44′ 79°04′. 24 32°42′ 79°13′. 25 32°34′ 79°23′. 26 32°25′ 79°25′. 27 32°23′ 79°37′. 28 31°53′ 80°09′. 29 31°31′ 80°33′. 30 30°43′ 80°49′. 31 30°30′ 81°01′. 32 29°45′ 81°01′. 33 29°31′ 80°58′. 34 29°13′ 80°52′. 35 29°13′ State/EEZ boundary.

    (ii) From December 1 through March 31, no person may harvest or possess black sea bass in or from the closed area within the South Atlantic EEZ either with sea bass pots or from a vessel with sea bass pots on board in the South Atlantic EEZ inshore of the rhumb lines connecting, in order, the following points:

    Point North lat. West long. 1 35°15′ State/EEZ boundary. 2 35°15′ 75°08′. 3 34°58′ 75°41′. 4 34°49′ 75°50′. 5 34°47′ 76°05′. 6 34°31′ 76°18′. 7 34°20′ 76°13′. 8 34°12′ 77°00′. 9 33°43′ 77°30′. 10 33°21′ 77°21′. 11 33°18′ 77°41′. 12 33°22′ 77°56′. 13 33°12′ 78°20′. 14 33°05′ 78°22′. 15 33°01′ 78°38′. 16 32°40′ 79°01′. 17 32°36′ 79°18′. 18 32°19′ 79°22′. 19 32°16′ 79°37′. 20 32°03′ 79°48′. 21 31°39′ 80°27′. 22 30°58′ 80°47′. 23 30°13′ 81°01′. 24 29°32′ 80°39′. 25 29°22′ 80°44′. 26 28°50′ 80°22′. 27 28°21′ 80°18′. 28 28°21′ State/EEZ boundary.

    (iii) For the purpose of paragraph (b)(6) of this section, transit means non-stop progression through the area; fishing gear appropriately stowed means all black sea bass pot gear must be out of the water and on board the deck of the vessel. All buoys must either be disconnected from the gear or stowed within the sea bass pot. Disconnected buoys may remain on deck.

    3. § 622.189, add paragraph (g) to read as follows:
    § 622.189 Restrictions and requirements for sea bass pots.

    (g) Sea bass pot buoy line marking requirement. In addition to the gear marking requirements specified in 50 CFR 229.32(b), from November 15 through April 15, each year, in the Southeast U.S. Restricted Area North as described in 50 CFR 229.32(f) and from September 1 through May 31, each year in the Offshore Trap/Pot Waters Area and the Southern Nearshore Trap/Pot Waters Area, as described in 50 CFR 229.32(c)(6) and (9), respectively, the buoy line must be marked with a purple color band. The colored band must be clearly visible when the gear is hauled or removed from the water, including if the color of the rope is the same as, or similar, to the colored band. The purple band must be marked directly onto the line and adjacent to the buoy line markings specified in 50 CFR 229.32(b), that is, at the top, middle, and bottom of each buoy line deployed by, or on board, the vessel. Each of the three purple bands must be a 12-inch (30.5 cm) color mark. In marking or affixing the purple band, the line may be dyed, painted, or marked with thin colored whipping line, thin colored plastic, or heat-shrink tubing, or other material.

    [FR Doc. 2016-31363 Filed 12-28-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 160527473-6999-02] RIN 0648-BG09 Atlantic Highly Migratory Species; Individual Bluefin Quota Program; Inseason Transfers AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    NMFS modifies the Atlantic highly migratory species (HMS) regulations regarding the distribution of inseason Atlantic bluefin tuna (BFT) quota transfers to the Longline category. This final rule provides NMFS the ability to distribute quota inseason either to all qualified Individual Bluefin Quota (IBQ) share recipients (i.e., share recipients who have associated their permit with a vessel) or only to permitted Atlantic Tunas Longline vessels with recent fishing activity, whether or not they are associated with IBQ shares. This action is necessary to optimize fishing opportunity in the directed pelagic longline fishery for target species such as tuna and swordfish and to improve the functioning of the IBQ Program and its leasing provisions consistent with the objectives of Amendment 7 to the 2006 Consolidated HMS Fishery Management Plan (FMP).

    DATES:

    Effective on January 28, 2017.

    ADDRESSES:

    Supporting documents, including the Regulatory Impact Review and Final Regulatory Flexibility Analysis, may be downloaded from the HMS Web site at www.nmfs.noaa.gov/sfa/hms/.

    FOR FURTHER INFORMATION CONTACT:

    Thomas Warren or Sarah McLaughlin, 978-281-9260; Carrie Soltanoff, 301-427-8503.

    SUPPLEMENTARY INFORMATION:

    Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and implemented by NMFS among the various domestic fishing categories per the allocations established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006), as amended by Amendment 7 to the 2006 Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014), and in accordance with implementing regulations. The current baseline U.S. BFT quota and subquotas were established and analyzed in the BFT quota final rule (80 FR 52198, August 28, 2015). NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota.

    Background

    Background information about the need for additional flexibility within the IBQ Program for distribution of BFT quota transferred to the Longline category inseason was provided in the preamble to the proposed rule (81 FR 65988, September 26, 2016) and most of that information is not repeated here.

    Vessels fishing with pelagic longline gear, which may only catch BFT incidentally while fishing for target species (primarily swordfish and yellowfin tuna), hold limited access Atlantic Tunas Longline permits and utilize Longline category BFT quota. Through Amendment 7, NMFS established the IBQ Program, a catch share program that identified 136 permit holders as IBQ share recipients based on specified criteria, including historical target species landings and the bluefin catch-to-target species ratios from 2006 through 2012. NMFS currently distributes and manages the Longline category BFT quota via the IBQ Program.

    The specific objectives of the IBQ Program are to:

    1. Limit the amount of BFT landings and dead discards in the pelagic longline fishery;

    2. Provide strong incentives for the vessel owner and operator to avoid BFT interactions, and thus reduce bluefin dead discards;

    3. Provide flexibility in the quota system to enable pelagic longline vessels to obtain BFT quota from other vessels with available individual quota in order to enable full accounting for BFT landings and dead discards, and minimize constraints on fishing for target species;

    4. Balance the objective of limiting bluefin landings and dead discards with the objective of optimizing fishing opportunities and maintaining profitability; and

    5. Balance the above objectives with potential impacts on the directed permit categories that target BFT, and the broader objectives of the 2006 Consolidated HMS FMP and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

    IBQ share recipients receive an annual allocation of the Longline category quota based on the percentage share they received through Amendment 7 but only if their permit is associated with a vessel in the subject year (i.e., only “qualified IBQ share recipients” receive annual allocations). Permit holders that were not selected to receive IBQ shares through Amendment 7 may still fish, but they are required to lease quota through the IBQ electronic system. Every vessel must have a minimum amount of quota allocation to fish (e.g., 0.25 metric tons (mt) whole weight (ww) (551 lb ww) for a trip in the Gulf of Mexico and 0.125 mt ww (276 lb ww) for a trip in the Atlantic), whether obtained through shares or by leasing, and every vessel must individually account for its BFT landings and dead discards through the IBQ electronic system.

    In July 2015 and January 2016, NMFS transferred quota inseason from the Reserve category to the Longline category (80 FR 45098, July 29, 2015; 81 FR 19, January 4, 2016). In these inseason actions, NMFS distributed the transferred quota in equal amounts to 136 qualified IBQ share recipients. During 2015, 36 of these 136 qualified IBQ share recipients had no pelagic longline fishing activity (i.e., they took no fishing trips with pelagic longline gear). Furthermore, 31 of the 36 qualified IBQ share recipients that did not fish also did not lease IBQ to others (i.e., 31 neither fished nor leased and 5 did not fish but leased out their IBQ allocations). As a result, those 31 IBQ allocations went unused for the year and expired at year's end.

    NMFS received requests, among other suggestions about the IBQ Program and management of the pelagic longline fishery, that when quota is transferred inseason to the Longline category, NMFS distribute it only to those vessels that are currently fishing (whether associated with IBQ shares or not) to optimize fishing opportunity and account for dead discards, rather than distributing it equally to all IBQ share recipients, some of whom currently neither fish with pelagic longline gear nor lease quota to other active Longline fishery participants. The proposed rule considered and analyzed that approach and invited public comment.

    This final rule modifies the regulations to specify that distribution of quota transferred to the Longline category inseason (i.e., quota beyond the baseline Longline category quota that is distributed to qualified IBQ share recipients according to the three shareholder percentages implemented through Amendment 7) may be either to all qualified IBQ share recipients or only to permitted Atlantic Tunas Longline vessels with recent fishing activity whether they are associated with IBQ shares or not. NMFS will review information from logbook, vessel monitoring system (VMS), or electronic monitoring data to determine whether any fishing activity has occurred over the course of the subject and previous year thus indicating that there is “recent fishing activity,” as discussed in more detail below. For example, for inseason transfers in 2017, NMFS will examine fishing activity data for 2016 and 2017. Providing flexibility in the quota system and maintaining flexibility of the regulations to account for the highly variable nature of the BFT interactions in the pelagic longline fishery was an objective of Amendment 7 (See, e.g., Amendment text at 79 FR 71510 and 71559), and this adjustment to the regulations will further that objective.

    In deciding whether to transfer additional quota to the Longline category inseason from the Reserve category, NMFS would first consider the existing 14 regulatory determination criteria for inseason or annual adjustments at 50 CFR 635.27(a)(8), including the need to “optimize fishing opportunity.”

    Next, if NMFS decides to transfer quota to the Longline category inseason, NMFS will then decide whether to distribute that quota to all qualified IBQ share recipients or only to permitted Atlantic Tunas Longline vessels with recent fishing activity whether or not the vessel is associated with IBQ shares. This decision will be based on information for the subject year and previous year, including the number of BFT landings and dead discards, the number of IBQ lease transactions, the average amount of IBQ leased, the average amount of quota debt, the annual amount of IBQ allocation, any previous inseason allocations of IBQ, the amount of BFT quota in the Reserve category, the percentage of BFT quota harvested by the other quota categories, the remaining number of days in the year, the number of active vessels fishing not associated with IBQ share, and the number of vessels that have incurred quota debt or that have low levels of IBQ allocation. NMFS will determine which approach will best meet the specific objectives of the IBQ Program as stated in Amendment 7, including the objective of providing “flexibility in the quota system to enable pelagic longline vessels to obtain BFT quota from other vessels with available individual quota in order to enable full accounting for BFT landings and dead discards, and minimize constraints on fishing for target species.” For example, in years where leasing by IBQ share recipients is not occurring as anticipated by Amendment 7, distribution to only active vessels might be appropriate to encourage leasing at levels that ensure appropriate functioning of the IBQ system in future years. In years where the leasing program is functioning well and leasing is occurring as needed and as anticipated by Amendment 7, distribution may be to all of the qualified IBQ share recipients.

    If NMFS distributes the inseason quota to all qualified IBQ share recipients, those qualified IBQ share recipients will receive equal amounts of the quota transferred.

    If NMFS distributes inseason quota only to those vessels with recent fishing activity, vessels with “recent fishing activity” in the pelagic longline fishery will be based upon available information such as logbook, VMS, dealer, or electronic monitoring data for the subject and previous year. Any vessel activity in the pelagic longline fishery during this date range will be sufficient to qualify as “recent fishing activity.” The specific data analyzed for this date range in a given inseason action will be those available when the inseason transfer occurs, and will depend on which complete data are available at that time. For example, logbook data for a particular year are typically not available for use until several months into the following year due to the process of data entry and quality control, as well as late reporting. Therefore, early in a year, NMFS may determine vessel activity for the previous and subject year using VMS data, whereas later in the year, it might use both logbook and VMS data.

    Whether NMFS distributes quota to all qualified IBQ recipients or to only those permitted vessels with recent fishing activity, quota transferred inseason will be distributed equally to the vessel accounts associated with the relevant vessels via the electronic IBQ system. In either case, when a qualified IBQ share recipient receives inseason quota, the quota will be designated as either Gulf of Mexico (GOM) IBQ, Atlantic (ATL) IBQ, or both GOM and ATL IBQ, according to the share recipient's regional designations. For vessels with recent fishing activity that are not qualified IBQ share recipients, NMFS will assign the distributed quota a regional designation based on where the majority of the vessel's “recent fishing activity” occurred for the relevant period analyzed.

    Response to Comments

    NMFS received five written comments on the proposed rule during the comment period, three of which expressed support for the rule as proposed, particularly the flexibility in distribution of inseason BFT quota and efficient use of quota through inseason distribution to vessels with recent fishing activity, including newly-permitted vessels. Two written comments expressed qualified support for the proposed flexibility but suggested modified approaches to quota disbursement. All written comments can be found at http://www.regulations.gov/. The comments are summarized below by topic together with NMFS' responses.

    Comment 1: All comments supported the objective of, and rationale for, the proposed regulatory changes to the IBQ Program. Specifically, comments supported the objective of regulations that would allow NMFS to optimize the distributions of inseason Atlantic BFT quota transfers to the Longline category by distributing inseason BFT quota either to all qualified IBQ share recipients or only to those permitted Atlantic Tunas Longline vessels with recent fishing activity, whether or not they are associated with IBQ shares. Comments supported the underlying rationale of the proposed measure, which they expressed as providing reasonable fishing opportunities for pelagic longline vessels in the context of the constraints of the IBQ Program. Some commenters specifically supported the concept of distributing inseason quota only to active vessels in order to increase efficiency of quota use among vessels, allow the distribution of quota to new participants in the fishery, and enable the potential for larger amounts of quota for each permit holder. One comment noted that the proposed regulations contribute to balancing the objective of optimizing fishing opportunity and maintaining profitability with the objective of limiting BFT landings and dead discards.

    Response: NMFS agrees that the regulatory change to the IBQ Program will facilitate accounting for BFT bycatch by permitted Atlantic Tunas Longline vessels actively participating in the HMS pelagic longline fishery and support optimizing the distribution of quota among vessels. When transferring quota from the Reserve category to the Longline category inseason, NMFS will consider specific factors in the fishery and determine whether distribution of inseason quota (in the Longline category) to all qualified IBQ share recipients or only to those permitted Atlantic Tunas Longline vessels with recent fishing activity will best support the objectives of the FMP. Distribution of inseason quota only to active vessels (if the total number of active vessels is a smaller number of vessels than all qualified vessels) may result in a larger amount of quota for each recipient vessel. A larger inseason distribution would help these active vessels to remain fishing longer under fewer quota constraints and would reduce the transaction costs associated with finding additional quota through the leasing program in years where leased quota is not readily available. NMFS agrees that the regulation will be consistent with the objectives of the IBQ Program, which include the objective: “Balance the objective of limiting BFT landings and dead discards with the objective of optimizing fishing opportunities and maintaining profitability”.

    Comment 2: Three comments further supported the specifics of the proposed regulatory changes, including the data and timeframe that will be analyzed to determine whether “recent fishing activity” has occurred and equal distribution of inseason BFT quota among the recipients.

    One commenter was opposed to the aspect of the proposed rule that considers a vessel to be “active” at any level of activity, without any threshold amount of fishing activity specified. The commenter was concerned that a vessel might “game the system” and deploy a single longline set on a single trip, with the goal of establishing a minimal level of fishing activity that would subsequently enable the vessel to be a recipient of an inseason distribution of BFT quota. The commenter suggested a meaningful increase in the number of pelagic longline sets required, and suggested that the amount of quota distributed to each vessel should vary depending upon the amount of pelagic longline sets completed. For example, if the vessel completed 1 to 25 sets during the previous year, they would be distributed a 0.25 share of BFT quota, and if the vessel completed 26 to 65 sets during the previous year, they would be distributed a 0.50 share of BFT quota, and so on. The commenter also suggested that inactive IBQ share recipients that have leased the full amount of their allocation to other Atlantic Tunas Longline vessels should receive inseason quota.

    Response: NMFS proposed a simple method of defining what an active vessel is and distributing inseason quota equally among active vessels because inseason distributions of quota are likely to be relatively small amounts of quota compared to annual allocations of IBQ to share recipients. The use of formulas such as that proposed by the commenter to distribute quota may result in amounts distributed that are less than the minimum share amount required to fish. Distributing such small amounts of quota to vessels inseason might have little beneficial impact on fishing operations and could render the transfer largely meaningless for many vessels. With respect to setting a threshold number of pelagic longline sets as a criterion for receiving inseason allocation, all vessels fishing with pelagic longline gear must possess the minimum amount of IBQ (0.25 mt ww (551 lb ww) in the Gulf of Mexico and 0.125 mt ww (276 lb ww) in the Atlantic) before they can fish, and this requirement applies regardless of the level of fishing activity. Although it is possible that a vessel could conduct a single longline set with the intention of becoming eligible for a potential small future inseason quota distribution, it is likely that there would be few instances of such behavior because the potential costs and uncertainty of any benefit associated with such behavior should serve as adequate disincentive for “gaming the system.” Furthermore, the possibility that active vessels may directly receive quota from the Agency when the leasing system is not functioning effectively, may encourage otherwise-inactive vessel owners to more seriously consider leasing out their quota earlier in the season through the IBQ system, rather than waiting to see if leasing prices increase later in the season. Even if limited instances of such activity occurred, NMFS does not believe that such action would undercut the effectiveness of the regulatory change, which is largely aimed at limiting the amount of quota that could be distributed to vessels that have no fishing activity whatsoever.

    The commenter also suggests that the amount of quota distributed inseason should be based on the level of vessel activity, suggesting that the amount of quota distributed to each vessel should vary depending upon the amount of pelagic longline sets completed. At the beginning of the year, IBQ share recipients are allocated different amounts of annual IBQ, based upon one of the three defined share percentages associated with the Atlantic Tunas Longline permit, which was based on a formula that considered many factors through the Amendment 7 process, including indicators of vessel activity. NMFS determined that additional distributions of quota inseason should be in equal amounts largely for simplicity of administration and given the small amounts of quota involved. An inseason quota distribution that is based upon a formula would be more complex to implement than an equal distribution and could diminish the benefits if implementation of the quota transfer and distribution took a prolonged amount of time. Therefore, NMFS finalizes as proposed the provision that will distribute inseason quota equally among selected recipients.

    Finally, the commenter suggested that inactive IBQ share recipients that have leased the full amount of their allocation to other Atlantic Tunas Longline vessels should receive inseason quota distributions. Under the conditions at this time, the agency prefers its simpler proposed approach for distributing the small amounts of quota that typically are transferred inseason. By distributing the quota transferred inseason equally to active vessels inseason additional trips may be possible in years that leasing is not occurring as anticipated by Amendment 7. NMFS notes, however, that it will further consider this suggested approach as an incentive for those who fully participate in the leasing program. This could be included in the comprehensive three-year review of the IBQ Program that is required by the Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and that NMFS plans to initiate in 2017.

    Comment 3: One commenter sought changes to other aspects of the IBQ Program regulations, such as modifying the IBQ rules to allow the carryover of unused quota from one year to the next, and asked that NMFS consider changes to annual allocation of IBQ (i.e., distribution of the baseline Longline category quota).

    Response: The suggested changes to the regulations were not among the specific management measures considered by the proposed rule and are beyond the scope of this rulemaking. The scope of this rulemaking addressed only inseason transfer criteria regulations; provisions regarding carry-forward and annual allocation of IBQ were established in Amendment 7 and no changes to those provisions were considered in this action. NMFS may consider changes to these provisions and additional topics related to the management of the pelagic longline fishery in future rulemakings and in the comprehensive three-year review of the IBQ Program.

    Comment 4: One comment stated that the IBQ Program, as implemented under Amendment 7, is not consistent with several requirements of the Magnuson-Stevens Act including: The IBQ Program does not provide pelagic longline fishermen with a reasonable opportunity to harvest the Longline category BFT quota; the IBQ Program does not minimize disadvantages to U.S. fishermen; utilization of BFT quota under the IBQ Program could result in unfair and inequitable allocation of quota to pelagic longline fishermen; the IBQ Program does not provide fair and equitable distribution of access privileges; and the IBQ Program, as a limited access privilege program (LAPP), does not promote fishing safety, fishery conservation and management, or social and economic benefits.

    Response: This comment challenges the implementation of Amendment 7 to the 2006 Consolidated HMS FMP, which was adopted through separate notice and comment rulemaking finalized in December 2014. The issues raised in this comment are beyond the scope of this rulemaking. NMFS notes that in litigation brought against the Secretary of Commerce following issuance of the final rule for Amendment 7, pelagic longline fishermen and dealers alleged that implementation of Amendment 7, including the IBQ Program, failed to comply with provisions of the Magnuson-Stevens Act, similar to the issues raised in this comment. The federal district court for the Eastern District of North Carolina rejected Plaintiffs' claims and upheld Amendment 7 as consistent with the Magnuson-Stevens Act and other applicable law (see Willie R. Etheridge Seafood Co. v. Pritzker, 2016 WL 1126014 (E.D.N.C., Mar. 21, 2016)).

    Classification

    The NMFS Assistant Administrator has determined that the final rule is consistent with the 2006 Consolidated HMS FMP and its amendments, the Magnuson-Stevens Act, ATCA, and other applicable law.

    This final rule has been determined to be not significant for purposes of Executive Order 12866.

    This action is categorically excluded from the requirement to prepare an environmental assessment (EA) in accordance with the National Environmental Policy Act and NOAA administrative order NAO 216-6 (as preserved by NAO 216-6A). This action may be categorically excluded since it is a change to a previously analyzed and approved fishery management plan, and the change will have no substantive effect, individually or cumulatively, on the human environment beyond that already analyzed in the Environmental Impact Statement for Amendment 7 (79 FR 71510, December 2, 2014) and in the EA for the final rule that increased the U.S. BFT quota (for 2015 and until changed) based on the recommendation of the International Commission for the Conservation of Atlantic Tunas (80 FR 52198, August 28, 2015). Inseason quota allocations to the Longline category do not modify the annual U.S. BFT quota nor the fishing mortality associated with that quota. Minor modifications of allocations to vessels may contribute somewhat to determining when fishing mortality occurs but not in any meaningful way that would change the environmental impacts given the small amounts of quota at issue and the fact that such transfers do not alter the overall allowable mortality under the U.S. BFT quota. Furthermore, this action will not directly affect fishing effort, fishing gear, interactions with threatened or endangered species, or other relevant behaviors that could have additional environmental impacts. Thus, there is no environmental or ecological effect different than what was analyzed previously.

    NMFS has prepared a Regulatory Impact Review (RIR), and a Final Regulatory Flexibility Analysis (FRFA), which present and analyze anticipated social, and economic impacts of the alternatives contained in this rule. The list of alternatives and their analyses are provided in the RIR and are not repeated here in their entirety. A copy of the RIR prepared for this final rule is available from NMFS (see ADDRESSES).

    A FRFA was prepared, as required by section 604 of the Regulatory Flexibility Act (RFA, 5 U.S.C. 604 et seq.), and is included below. The FRFA describes the economic impact this final rule will have on small entities. A description of the action, why it is being implemented, and the legal basis for this action are contained in the SUMMARY section of the preamble.

    The goal of the RFA is to minimize the economic burden of federal regulations on small entities. To that end, the RFA directs federal agencies to assess whether the regulation is likely to result in significant economic impacts to a substantial number of small entities, and identify and analyze any significant alternatives to the rule that accomplish the objectives of applicable statutes and minimizes any significant effects on small entities.

    Statement of the Need for and Objectives of the Rule

    Section 604(a)(1) of the RFA requires a FRFA to contain a statement of the need for and objectives of the rule. The purpose of this rulemaking, consistent with the 2006 Consolidated HMS FMP objectives, the Magnuson-Stevens Act, and other applicable law, is to provide NMFS additional flexibility when distributing quota inseason to the Longline category. Through this final rule, NMFS may distribute quota inseason either to all qualified IBQ share recipients (those who have associated their share with a vessel) or to permitted Atlantic Tunas Longline vessels with recent fishing activity whether or not they are associated with IBQ shares.

    Since January 1, 2015, NMFS has received requests (among other suggestions about the IBQ Program and management of the pelagic longline fishery) to distribute quota inseason to those vessels that have recent fishing activity (whether associated with IBQ shares or not) to optimize fishing opportunity and account for dead discards, rather than distributing it equally to all IBQ share recipients, some of whom end up neither using it, nor making it available to other vessel owners through the IBQ leasing program. In advance of and at the March 2016 HMS Advisory Panel meeting, pelagic longline fishery participants expressed concerns about the availability of IBQ allocation as implemented under Amendment 7. Longline fishery participants have stated that, while they were able to obtain sufficient IBQ allocation by leasing it under the conditions that applied in 2015, those conditions were temporary. They are concerned, however, that as additional requirements began to apply in 2016, the IBQ Program could negatively impact vessel operations and finances given the pricing of IBQ, the distribution of quota among permit holders as implemented by Amendment 7, and the behavior of some permit holders who, for example, they say hold on to IBQ for the entire season without participating in the fishery or engaging in leasing. Longline fishery participants requested that NMFS take further steps to provide more access to quota for those vessels with recent fishing activity to reduce the dependence on qualified IBQ share recipients, some of whom are not participating in the fishery or engaging in leasing.

    After looking at the issues raised by the fishery participants and at trends in IBQ leasing and utilization for 2015, it became apparent that additional options are needed regarding the distribution of inseason transfers of BFT quota within the Longline category to assist NMFS in providing reasonable opportunities to fish for target species under the limits imposed by the IBQ Program, to optimize distribution of BFT quota transferred inseason to the Longline category, and to encourage proper functioning of the IBQ leasing program as anticipated under Amendment 7. To account for the highly variable nature of the BFT caught in the pelagic longline fishery and maintain flexibility in the regulations, this action provides NMFS with an additional option when distributing quota inseason to the Longline category.

    The objective of this rule is to provide additional flexibility regarding the distribution of inseason Atlantic BFT quota transfers to the Longline category in order to facilitate the management of Atlantic HMS resources in a manner that maximizes resource sustainability and fishing opportunity, while minimizing, to the greatest extent possible, the socioeconomic impacts on affected fisheries.

    Summary of the Issues Raised by the Public Comments in Response to the Initial Regulatory Flexibility Analysis (IRFA), a Summary of the Assessment of the Agency of Such Issues, and a Statement of Any Changes Made in the Rule as a Result of Such Comments

    Section 604(a)(2) of the RFA requires a summary of the significant issues raised by the public comments in response to the IRFA, a summary of the Agency's assessment of such issues, and a statement of any changes made in the rule as a result of such comments. NMFS received five written comments on the proposed rule during the comment period, three of which expressed support for the proposed flexibility in distribution of inseason BFT quota and for efficient use of quota through inseason distribution to vessels with recent fishing activity, including new vessels. Two written comments expressed qualified support for the proposed measures but suggested modified approaches to quota disbursement (i.e., a tiered approach based on previous year activity that would not disburse inseason quota equally among recipients but disburse varying amounts based on levels of fishing activity). None of the comments addressed the economic impacts of the proposed measure. No changes were made to the rule as a result of the public comments.

    Section 604(a)(3) of the RFA requires the Agency to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made in the rule as a result of such comments. NMFS did not receive any comments from the Chief Counsel for Advocacy of the SBA in response to the proposed rule.

    Description and Estimate of the Number of Small Entities to Which the Rule Will Apply

    Section 604(a)(4) of the RFA requires agencies to provide an estimate of the number of small entities to which the rule would apply. The SBA has established size criteria for all major industry sectors in the United States, including fish harvesters. SBA's regulations provide that an agency may develop its own industry-specific size standards after consultation with Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)). Under this provision, NMFS may establish size standards that differ from those established by the SBA Office of Size Standards, but only for use by NMFS and only for the purpose of conducting an analysis of economic effects in fulfillment of the agency's obligations under the RFA. To utilize this provision, NMFS must publish such size standards in the Federal Register. In a final rule that became effective on July 1, 2016 (80 FR 81194, December 29, 2015), NMFS established a small business size standard of $11 million or less in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411) for RFA compliance purposes. NMFS considers all HMS Atlantic Tunas Longline permit holders (280 as of October 2015) to be small entities because these vessels have reported annual gross receipts of less than $11 million for commercial fishing. The average annual gross revenue per active pelagic longline vessel was estimated to be $187,000 based on the 170 active vessels between 2006 and 2012, and that produced an estimated $31.8 million in total revenue annually. The maximum annual revenue for any pelagic longline vessel between 2006 and 2015 was $1.9 million, well below the NMFS small business size threshold of $11 million in gross receipts for commercial fishing.

    NMFS has determined that this rule will apply to the small businesses associated with the 136 Atlantic Tunas Longline permits with IBQ shares and the additional permitted Atlantic Tunas Longline vessels that fish with quota leased through the IBQ Program. The impacts on these small businesses are described below in the discussion of alternatives considered. NMFS has determined that this action will not likely directly affect any small organizations or small government jurisdictions defined under the RFA.

    Description of the Projected Reporting, Record-Keeping, and Other Compliance Requirements of the Rule, Including an Estimate of the Classes of Small Entities Which Will Be Subject to the Requirements of the Report or Record

    Section 604(a)(5) of the RFA requires Agencies to describe any new reporting, record-keeping and other compliance requirements. This rule does not contain any new collection of information, reporting, or record-keeping requirements.

    Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes, Including a Statement of the Factual, Policy, and Legal Reasons for Selecting the Alternative Adopted in the Final Rule and the Reason That Each One of the Other Significant Alternatives to the Rule Considered by the Agency Which Affect Small Entities Was Rejected

    One of the requirements of a FRFA is to describe any alternatives which accomplish the stated objectives and which minimize any significant economic impacts. These impacts are discussed below. Additionally, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four general categories of “significant” alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage of the rule, or any part thereof, for small entities.

    In order to meet the objectives of this final rule, consistent with the Magnuson-Stevens Act and ATCA, NMFS cannot establish differing compliance requirements for small entities or exempt small entities from compliance requirements. Thus, there are no alternatives discussed that fall under the first and fourth categories described above. As for the second category, the objective of this rule is to provide additional flexibility regarding the distribution of inseason Atlantic BFT quota transfers to the Longline category, and therefore does not impact or change compliance and reporting requirements for small entities. The IBQ Program was designed to adhere to performance standards, the third category above; modifications to the regulations implementing the IBQ Program simply make adjustments to the administration of those underlying performance standards. NMFS analyzed several different alternatives in this action and the rationale that NMFS used to determine the alternative for achieving the desired objectives is described below.

    The first alternative is the “no action” (status quo) alternative. The second alternative, the selected alternative, will provide NMFS the flexibility to allocate quota inseason to qualified IBQ share recipients (those who have associated their share with a vessel) or to permitted Atlantic Tunas Longline vessels with any recent fishing activity, whether or not they are associated with IBQ shares. The third alternative would provide NMFS the flexibility to allocate quota inseason to qualified IBQ share recipients with recent fishing activity or IBQ leasing activity. The economic impacts of these three alternatives are detailed below.

    Under all three alternatives, NMFS would continue to consider the regulatory determination criteria for inseason or annual adjustments under 50 CFR 635.27(a)(8), and if NMFS decided that inseason allocation to the Longline category was warranted to increase the amount of quota available to pelagic longline vessels, NMFS would allocate additional quota. The difference among the alternatives is the specific Atlantic Tunas Longline permit holders that would receive distribution of inseason BFT quota.

    Under the “no action” alternative, NMFS would distribute the transferred quota in equal amounts to all 136 qualified IBQ share recipients, which include vessels actively fishing and vessels not actively fishing. This is the manner in which NMFS conducted inseason transfers from the Reserve to the Longline category in July 2015 and January 2016 (80 FR 45098, July 29, 2015; 81 FR 19, January 4, 2016). For each of these 34 mt quota transfers, 0.25 mt (551 lb) of IBQ were distributed equally to each of the 136 qualified IBQ share recipients under Amendment 7. IBQ allocation was distributed via the electronic IBQ system to the vessel accounts with permits with IBQ shares associated with a vessel. For those permits with IBQ shares that were not associated with a vessel at the time of the quota transfer, the IBQ is not usable by the permit holder (i.e., may not be leased or used to account for BFT) until the permit is associated with a vessel. Based on the average 2015 IBQ lease price of $3.34 per pound, the economic value of such an inseason transfer of 551 lb per vessel would be approximately $1,840 per vessel owner under the “no action” alternative.

    Under the selected alternative, NMFS may allocate quota inseason either to each of the 136 qualified IBQ share recipients or to all permitted Atlantic Tunas Longline vessels with recent fishing activity. In 2015, there were 104 active pelagic longline vessels (based on logbook data). If NMFS assumes, for example, a future inseason transfer of 34 mt distributed equally among vessels with recent fishing activity, each of those 104 active vessels would receive 0.327 mt (721 lb) under the selected alternative. Based on the average 2015 IBQ lease price of $3.34 per pound, the economic value of such an inseason transfers of 721 lb per vessel would be approximately $2,408 per vessel owner under the selected alternative. Active vessel owners would receive $568 more in value (31 percent more quota) than under the “no action” (status quo) alternative.

    This increased allocation will help these active vessels to remain fishing longer under fewer quota constraints and reduce the transaction costs associated with finding the same amount of additional quota. The qualified IBQ share recipients with no fishing activity (36 in 2015) would not receive the 551 lb of IBQ worth approximately $1,840 per vessel that they could have received under the status quo alternative if they were to lease their quota to other permit holders. Thus, the cost of this alternative will mainly be limited to the forgone ability to lease out allocation that they otherwise would have received. Under Amendment 7, the purpose of leasing is to accommodate various levels of unintended catch of BFT and to facilitate directed fishing for Atlantic swordfish, other tunas, and other pelagic species. The few Atlantic Tunas Longline vessels that fished that were not associated with IBQ shares but that leased allocation from qualified IBQ share recipients (four in 2015) will receive quota under the selected alternative worth approximately $2,408 per vessel. Such an inseason transfer will help facilitate participation by new entrants to the fishery by lowering their costs to obtain quota.

    Under the third alternative, NMFS would have the flexibility to distribute quota inseason to qualified IBQ share recipients with any recent fishing activity or qualified IBQ share recipients that leased out quota to other Atlantic Tunas Longline permit holders. This differs from the selected alternative in two key ways. First, under the third alternative, only qualified IBQ share recipients with recent activity would receive an inseason transfer, while under the selected alternative all permitted Atlantic Tunas Longline vessels with recent activity would receive an inseason transfer. Secondly, under the third alternative, relevant activity would include IBQ leasing activity in addition to the recent fishing activity required under the selected alternative. In 2015, of the 104 pelagic longline vessels with recent fishing activity, 100 vessels were associated with IBQ shares (four vessels were not associated with IBQ shares in 2015). In addition, 5 vessels were associated with IBQ shares that did not fish but did lease their allocation to other vessels. If NMFS assumes a future inseason transfer of 34 mt, each of those 105 vessels associated with IBQ shares (100 with recent fishing activity and 5 that leased IBQ allocation) would receive 0.324 mt (714 lb) under the third alternative. Based on the average 2015 IBQ lease price of $3.34 per pound, the economic value of such an inseason transfer of 714 lb per vessel would be approximately $2,385 per vessel owner. Vessels associated with IBQ shares with recent fishing activity or IBQ leasing activity would receive $545 more in value (30 percent more quota) than under the “no action” (status quo) alternative. This is $23 less per vessel than under the selected alternative. In addition, under the third alternative, fewer vessels with recent fishing activity would receive quota and new entrants would not receive quota. For these reasons, NMFS did not prefer the third alternative.

    List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: December 22, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 635 is amended as follows:

    PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 1. The authority citation for part 635 continues to read as follows: Authority:

    16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

    2. In § 635.15, revise paragraph (b) introductory text and add paragraph (b)(9) to read as follows:
    § 635.15 Individual bluefin tuna quotas.

    (b) IBQ allocation and usage. An initial IBQ quota allocation is the amount of bluefin tuna (whole weight) in metric tons (mt) that a qualified IBQ share recipient (i.e., a share recipient who has associated their permit with a vessel) is allotted to account for incidental catch of bluefin tuna during a specified calendar year. Unless otherwise required under paragraph (b)(5) of this section, an Atlantic Tunas Longline permitted vessel's initial IBQ allocation for a particular year is derived by multiplying its IBQ share (percentage) by the initial Longline category quota for that year. NMFS may transfer additional quota to the Longline category inseason as authorized under § 635.27(a), and in accordance with § 635.27(a)(8) and (9), and may distribute the transferred quota within the Longline category in accordance with paragraph (b)(9) of this section.

    (9) Distribution of additional Longline category quota transferred inseason. NMFS may distribute the quota that is transferred inseason to the Longline category either to all IBQ share recipients as described under paragraph (k)(1) of this section or to permitted Atlantic Tunas Longline vessels that are determined by NMFS to have any recent fishing activity based on participation in the pelagic longline fishery. In making this determination, NMFS will consider factors for the subject and previous year such as the number of BFT landings and dead discards, the number of IBQ lease transactions, the average amount of IBQ leased, the average amount of quota debt, the annual amount of IBQ allocation, any previous inseason allocations of IBQ, the amount of BFT quota in the Reserve category (at § 635.27(a)(7)(i)), the percentage of BFT quota harvested by the other quota categories, the remaining number of days in the year, the number of active vessels fishing not associated with IBQ share, and the number of vessels that have incurred quota debt or that have low levels of IBQ allocation. NMFS will determine if a vessel has any recent fishing activity based upon the best available information for the subject and previous year, such as logbook, vessel monitoring system, or electronic monitoring data. Any distribution of quota transferred inseason will be equal among selected recipients; when inseason distribution is only to Atlantic Tunas Longline permit holders with IBQ shares, it will therefore not be based on the initial IBQ share determination as specified in paragraph (k)(2) of this section.

    (i) Regional designations described in paragraph (b)(2) of this section will be applied to inseason quota distributed to IBQ share recipients.

    (ii) For permitted Atlantic Tunas Longline vessels with recent fishing activity that are not qualified IBQ share recipients, regional designations of Atlantic (ATL) or Gulf of Mexico (GOM) will be applied to the distributed quota based on best available information regarding geographic location of sets as reported to NMFS during the period of fishing activity analyzed above in this paragraph, with the designation based on where the majority of that activity occurred.

    [FR Doc. 2016-31357 Filed 12-28-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No: 151215999-6960-02] RIN 0648-XF071 Fisheries of the Northeastern United States; Atlantic Herring Fishery; Adjustment to the Atlantic Herring Management Area 1A Annual Catch Limit AGENCY:

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

    ACTION:

    Temporary rule; inseason adjustment.

    SUMMARY:

    NMFS adjusts the 2016 fishing year annual catch limit for Atlantic Herring Management Area 1A due to an underharvest in the New Brunswick weir fishery. This action is necessary to comply with the 2016-2018 specifications and management measures for the Atlantic Herring Fishery Management Plan and to ensure that accounting of the annual catch limit is accurate for fishing year 2016.

    DATES:

    Effective December 29, 2016, through December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Daniel Luers, Fishery Management Specialist, 978-282-8457, Fax 978-281-9135.

    SUPPLEMENTARY INFORMATION:

    Regulations governing the Atlantic herring fishery are found at 50 CFR part 648. The regulations require annual specification of the overfishing limit, acceptable biological catch (ABC), annual catch limit (ACL), optimum yield (OY), domestic harvest and processing, U.S. at-sea processing, border transfer, and sub-ACLs for each management area. The 2016 Domestic Annual Harvest was set as 104,800 metric tons; an additional 4,704 mt was added to this total due to an underharvest during the 2014 fishing year, and 3 percent of herring catch was set aside for research in the 2016-2018 specifications (81 FR 75731, November 1, 2016). After these adjustments, the resulting ACL for the 2016 fishing year was 106,360 mt, and the ACL allocated to Area 1A (sub-ACL) was 29,524 mt.

    The Area 1A sub-ACL has 295 mt set aside for fixed gear fisheries west of Cutler, ME, until November 1, 2016. Due to the variability of Canadian catch in the New Brunswick weir fishery, a 1,000-mt portion of the 4,000-mt buffer between ABC and OY (the buffer to account for Canadian catch) is allocated to Area 1A, provided New Brunswick weir landings are lower than the amount specified in the buffer.

    The NMFS Regional Administrator is required to monitor the fishery landings in the New Brunswick weir fishery each year. If New Brunswick weir fishery herring catch through October 1 is less than 4,000 mt, then 1,000 mt will be subtracted from the management uncertainty buffer and allocated to the ACL and Area 1A Sub-ACL as soon as possible. When such a determination is made, NMFS is required to publish a notification in the Federal Register to adjust the Area 1A sub-ACL upward for the remainder of the fishing year.

    The Regional Administrator has determined, based on the best available information, that the New Brunswick weir fishery catch for fishing year 2016 through October 1, 2016, was 3,478 mt. Therefore, effective December 29, 2016, 1,000 mt will be allocated to the Area 1A sub-ACL, thereby increasing the fishing year 2016 Area 1A sub-ACL from 29,524 mt to 30,524 mt. Because any increase to a sub-ACL also increases the stock-wide ACL, this allocation increases the 2016 stock-wide ACL from 106,360 mt to 107,360 mt.

    The allocation of 1,000 mt will be applied to the quota of Area 1A, which closed on October 18, 2016, before implementation of the 2016-2018 Atlantic herring specifications and management measures. The New Brunswick weir fishery allocation was delayed until the new specifications became effective (December 1, 2016).

    When applied to the 2016 quota for Area 1A, this 1,000 mt increase will drop the catch total from 94.2 percent of the quota to 91.1 percent. NMFS closed Area 1A on October 18 based on the projection that herring catch would reach 92 percent of the quota for that area. In the case where projection falls short of the 92 percent limit, characteristics of the high volume herring fishery make it impracticable to reopen unless the underage is substantial. This is due to the capability of the herring fishing fleet to harvest a large percentage of the quota in only a few days, in which case a reopening would likely result in an overage of the quota before a closure could be imposed. For this reason, NMFS uses discretion in reopening the fishery, and generally would only do so in the case of a large underage. In this case, the allocation of 1,000 mt will only result in an underage of 0.9 percent and thus is not large enough to reopen the herring fishery in Area 1A. This notification principally ensures that the 2018 fishery adjustments for underharvest/overharvest (which are based on 2016 catch) will be accurate.

    Classification

    This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

    The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it is impracticable and contrary to the public interest. This action increases the sub-ACL for Area 1A by 1,000 mt (29,524 mt to 30,524 mt) through December 31, 2016, thereby relieving a more restrictive catch limit. The regulations at § 648.201(f) require such action to help mitigate some of the negative economic effects associated with the reduction in the Area 1A sub-ACL in the 2016-2018 specifications process. The herring fishery extends from January 1 to December 31. Data indicate the New Brunswick weir fishery landed 3,478 mt through October 1, 2016. Allowing for prior notice and public comment on this adjustment is impracticable because regulations require this allocation to occur as quickly as is practicable and for the remainder of the fishing year. NMFS was unable to allocate this quota until the 2016-2018 herring specifications became effective on December 1, 2016. Because of the limited time between December 1 and the end of the U.S. herring fishing year on December 31, the delay associated with soliciting public comment would result in implementation of regulations after the effective end date of the fishing year, which would violate the intent of the regulation and would not benefit the public. Further, this is a nondiscretionary action required by provisions in the 2016-2018 Atlantic Herring Specifications and Management Measures (herring specifications), which previously provided notice to the public that this 1,000 mt allocation would occur if the Canadian catch level was sufficiently low, and offered full opportunity to comment on this. The adjustment required by the regulation is formulaic. This action simply effectuates thesemandatory calculations. NMFS further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: December 22, 2016. Alan Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-31588 Filed 12-28-16; 8:45 am] BILLING CODE 3510-22-P
    81 250 Thursday, December 29, 2016 Proposed Rules DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-112324-15] RIN 1545-BM71 Mortality Tables for Determining Present Value Under Defined Benefit Pension Plans AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking and notice of public hearing.

    SUMMARY:

    This document contains proposed regulations prescribing mortality tables to be used by most defined benefit pension plans. The tables specify the probability of survival year-by-year for an individual based on age, gender, and other factors. This information is used (together with other actuarial assumptions) to calculate the present value of a stream of expected future benefit payments for purposes of determining the minimum funding requirements for the plan. These mortality tables are also relevant to determining the minimum required amount of a lump-sum distribution from such a plan. In addition, this document contains proposed regulations to update the requirements that a plan sponsor must meet in order to obtain IRS approval to use mortality tables specific to the plan for minimum funding purposes (instead of the generally applicable mortality tables). These regulations affect participants in, beneficiaries of, employers maintaining, and administrators of certain retirement plans.

    DATES:

    Comments and outlines of topics to be discussed at the public hearing scheduled for April 13, 2017 must be received by March 29, 2017.

    ADDRESSES:

    Send submissions to: CC:PA:LPD:PR (REG-112324-15), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-112324-15), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224, or sent electronically, via the Federal eRulemaking Portal at www.regulations.gov (IRS REG-112324-15). The public hearing will be held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC 20224.

    FOR FURTHER INFORMATION CONTACT:

    Concerning the regulations, Thomas Morgan at (202) 317-6700; concerning the construction of the base mortality tables and the static mortality tables for 2018, Michael Spaid at (206) 946-3480; concerning submission of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Regina Johnson at (202) 317-6901 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION:

    Background A. Generally applicable mortality tables

    Section 412 of the Internal Revenue Code (Code) prescribes minimum funding requirements for defined benefit pension plans. Section 430, which was added to the Code by the Pension Protection Act of 1996, Public Law 109-280 (120 Stat. 780 (2006)), specifies the minimum funding requirements that apply generally to defined benefit plans that are not multiemployer plans.1 Section 430(a) defines the minimum required contribution by reference to the plan's funding target for the plan year. Under section 430(d)(1), a plan's funding target for a plan year generally is the present value of all benefits accrued or earned under the plan as of the first day of that plan year.

    1 Section 302 of the Employee Retirement Income Security Act of 1974, Public Law 93-406, as amended (ERISA) sets forth funding rules that are parallel to those in section 412 of the Code, and section 303 of ERISA sets forth additional funding rules for defined benefit plans (other than multiemployer plans) that are parallel to those in section 430 of the Code. Under section 101 of Reorganization Plan No. 4 of 1978 (43 FR 47713) and section 302 of ERISA, the Secretary of the Treasury has interpretive jurisdiction over the subject matter addressed in these proposed regulations for purposes of ERISA, as well as the Code. Thus, these proposed Treasury regulations issued under section 430 of the Code apply as well for purposes of section 303 of ERISA.

    Section 430(h)(3) contains rules regarding the mortality tables to be used under section 430. Under section 430(h)(3)(A), except as provided in section 430(h)(3)(C) or (D), the Secretary is to prescribe by regulation mortality tables to be used in determining any present value or making any computation under section 430. Those mortality tables are to be based on the actual mortality experience of pension plan participants and projected trends in that experience. In prescribing those mortality tables, the Secretary is required to take into account results of available independent studies of mortality of individuals covered by pension plans.2 Under section 430(h)(3)(B), the Secretary is required to revise any mortality table in effect under section 430(h)(3)(A) at least every 10 years to reflect actual mortality experience of pension plan participants and projected trends in that experience.

    2 The standards prescribed for developing these mortality tables are the same as the standards that are prescribed for developing mortality tables for multiemployer plans under section 431(c)(6)(D)(iv)(II) (which are used determine current liability in order to determine the minimum full funding limitation under section 431(c)(6)(B)). These standards also apply for purposes of determining current liability in order to determine the minimum full funding limitation under section 433(c)(2)(C) for a CSEC plan (as defined in section 414(y)).

    Section 430(h)(3)(D) provides for the use of separate mortality tables with respect to certain individuals who are entitled to benefits on account of disability. These separate mortality tables are permitted to be used with respect to disabled individuals in lieu of the generally applicable mortality tables provided pursuant to section 430(h)(3)(A) or the substitute mortality tables under section 430(h)(3)(C). The Secretary is to establish separate tables for individuals with disabilities occurring in plan years beginning before January 1, 1995, and in later plan years, with the mortality tables for individuals with disabilities occurring in those later plan years applying only to individuals who are disabled within the meaning of Title II of the Social Security Act.

    Section 417(e)(3) generally provides that the present value of certain benefits under a qualified pension plan (including single-sum distributions) must not be less than the present value of the accrued benefit using applicable interest rates and the applicable mortality table. Section 417(e)(3)(B) defines the term “applicable mortality table” as the mortality table specified for the plan year for minimum funding purposes under section 430(h)(3)(A) (without regard to the rules for substitute mortality tables under section 430(h)(3)(C) or mortality tables for disabled individuals under section 430(h)(3)(D)), modified as appropriate by the Secretary. The modifications made by the Secretary to the section 430(h)(3)(A) mortality table to determine the section 417(e)(3)(B) applicable mortality table are not addressed in these proposed regulations. Revenue Ruling 2007-67, 2007-2 CB 1047, describes the modifications that are currently applied to determine the section 417(e)(3)(B) applicable mortality table.

    Final regulations under section 430(h)(3) were published in the Federal Register on July 31, 2008 in TD 9419, 73 FR 44632. The final regulations issued in 2008 include rules regarding generally applicable mortality tables, which are set forth in § 1.430(h)(3)-1 (the 2008 general mortality table regulations). The final regulations issued in 2008 also include rules regarding substitute mortality tables, which are set forth in § 1.430(h)(3)-2 (the 2008 substitute mortality table regulations).

    The 2008 general mortality table regulations prescribe a base mortality table and a set of mortality improvement rates, which may be reflected through the use of either generational mortality tables or static mortality tables. Generational mortality tables are a series of mortality tables, one for each year of birth, each of which fully reflects projected trends in mortality rates. The static mortality tables (which are updated annually) use a single mortality table for all years of birth to approximate the present value that would be determined using the generational morality tables. Section 1.430(h)(3)-1 includes static mortality tables for valuation dates occurring in 2008 and provides that static mortality tables for valuation dates occurring in later years are to be published in the Internal Revenue Bulletin.

    The mortality tables included in § 1.430(h)(3)-1 are based on the mortality tables included in the RP-2000 Mortality Tables Report (referred to in this preamble as the RP-2000 mortality tables) released by the Society of Actuaries in July 2000 (updated in May 2001) and a set of mortality improvement projection factors (the Scale AA Projection Factors) that was also included in the RP-2000 Mortality Tables Report.

    Section 1.431(c)(6)-1 provides that the same mortality assumptions that apply for purposes of section 430(h)(3)(A) and § 1.430(h)(3)-1(a)(2) are used to determine a multiemployer plan's current liability for purposes of applying the full-funding rules of section 431(c)(6). For this purpose, a multiemployer plan is permitted to apply either the annually-adjusted static mortality tables or the generational mortality tables.

    Static mortality tables for valuation dates occurring during 2009-2013 were published in Notice 2008-85, 2008-42 IRB 905. Updated static mortality tables for valuation dates occurring during 2014 and 2015 were published in Notice 2013-49, 2013-32 IRB 127. Updated static mortality tables for valuation dates occurring in 2016 were published in Notice 2015-53, 2015-33 IRB 190. Updated static mortality tables for valuation dates occurring in 2017 were published in Notice 2016-50, 2016-38 IRB 371.

    Notice 2013-49 requested comments on whether it continues to be necessary to provide multiple alternative versions of the mortality tables in order to accommodate limitations in some actuarial software. Notice 2013-49 also requested comments on whether a separate disability mortality table is still warranted with respect to participants who became disabled before 1995. Finally, Notice 2013-49 noted that the Treasury Department (Treasury) and the IRS were aware that the Society of Actuaries was conducting a mortality study of pension plan participants and specifically requested comments on whether other studies of actual mortality experience of pension plan participants and projected trends of that experience are available that should be considered for use in developing mortality tables for future use under section 430(h)(3).

    In October 2014, the Retirement Plans Experience Committee (RPEC) of the Society of Actuaries issued a new mortality study of participants in private pension plans, referred to as the RP-2014 Mortality Tables Report (which sets forth mortality tables that are referred to as the RP-2014 mortality tables). The RP-2014 Mortality Tables Report, as revised November 2014, is available at www.soa.org/Research/Experience-Study/pension/research-2014-rp.aspx. At the same time, RPEC issued a companion study of mortality improvement, referred to as the Mortality Improvement Scale MP-2014 Report (which sets forth mortality improvement rates that are referred to as Scale MP-2014 Rates). As described in the Mortality Improvement Scale MP-2014 Report, (available at www.soa.org/Research/Experience-Study/pension/research-2014-mp.aspx), the Scale MP-2014 rates were based on mortality improvement experience for the general population through 2009.

    In October 2015, RPEC released an update to the Scale MP-2014 Rates. The updated rates, referred to as Scale MP-2015 Rates, were released as part of the Mortality Improvement Scale MP-2015 Report (which is available at https://www.soa.org/Research/Experience-Study/Pension/research-2015-mp.aspx). The Scale MP-2015 Rates were created using historical data for mortality improvement for the general population through 2011, and the same model and parameters that were used to produce Scale MP-2014 Rates. In conjunction with the release of the updated rates, RPEC indicated the intent to reflect the latest data available by providing future annual updates to the model as soon as practicable following the public release of updated data upon which the model is constructed.

    In October 2016, RPEC released a further update to the Scale MP-2014 Rates, which are referred to as the Scale MP-2016 Rates. The Scale MP-2016 Rates take into account data for mortality improvement for the general population for years 2012 and 2013, along with an estimate of mortality rates for 2014. As described in the Mortality Improvement Scale MP-2016 Report (which is available at www.soa.org/Research/Experience-Study/Pension/research-2016-mp.aspx), in developing the Scale MP-2016 rates, RPEC changed some of the parameters from those that were used in developing the Scale MP-2014 Rates.

    B. Plan-Specific Substitute Mortality Tables

    Section 430(h)(3)(C) prescribes rules for a plan sponsor's use of substitute mortality tables reflecting the specific mortality experience of a plan's population instead of using the generally applicable mortality tables. Under section 430(h)(3)(C), the plan sponsor may request the Secretary's approval to use plan-specific substitute mortality tables that meet requirements specified in the statute. If approved, these substitute mortality tables are used to determine present values and make computations under section 430 during the period of consecutive plan years (not to exceed 10) specified in the request. In order for a plan sponsor to use a substitute mortality table for a plan, the statute requires that: (1) The plan has a sufficient number of plan participants and has been maintained for a sufficient period of time in order to have credible mortality information necessary to create a substitute mortality table; and (2) the tables reflect the actual mortality experience of the plan's participants and projected trends in general mortality experience of participants in pension plans. Except as provided by the Secretary, a plan sponsor must not use substitute mortality tables for any plan unless substitute mortality tables are established and used for each plan maintained by the plan sponsor and its controlled group.

    Regulations issued in 2008 set forth rules regarding the use of substitute mortality tables. Under § 1.430(h)(3)-2(b), in order to use substitute mortality tables with respect to a plan, a plan sponsor must submit a written request to the Commissioner that demonstrates that those substitute mortality tables comply with applicable requirements. A request to use substitute mortality tables must specify the first plan year, and the term of years (not more than 10), for which the tables are requested to be used. In general, substitute mortality tables may not be used for a plan year unless the plan sponsor submits the request at least 7 months prior to the first day of the first plan year for which the substitute mortality tables are to apply.

    The Commissioner has a 180-day period to review a request for the use of substitute mortality tables. If the Commissioner does not issue a denial within this 180-day period, the request is deemed to have been approved unless the Commissioner and the plan sponsor have agreed to extend that period. The Commissioner may request additional information with respect to a submission. Failure to provide that information on a timely basis is grounds for denial of the plan sponsor's request. In addition, the Commissioner will deny a request if the request fails to meet the requirements to use substitute mortality tables or if the Commissioner determines that a substitute mortality table does not sufficiently reflect the mortality experience of the applicable plan population.

    Under § 1.430(h)(3)-2(c)(1)(i), substitute mortality tables must reflect the actual mortality experience of the pension plan for which the tables are to be used. Separate mortality tables must be established for each gender under the plan, and a substitute mortality table may be established for a gender only if the plan has credible mortality experience with respect to that gender. If the mortality experience for one gender is credible but the mortality experience for the other gender is not credible, the substitute mortality tables are used for the gender that has credible mortality experience, and the mortality tables under § 1.430(h)(3)-1 are used for the gender that does not have credible mortality experience.

    Section 1.430(h)(3)-2(c)(1)(ii) provides that, for purposes of determining whether substitute mortality tables may be used, there is credible mortality experience for a gender within a plan if and only if, over the period covered by the experience study, there are at least 1,000 deaths within that gender.3 Pursuant to § 1.430(h)(3)-2(c)(2)(ii), the minimum length of the experience study period is 2 years and the maximum length of the experience study period is 5 years (and can be lengthened in published guidance). Furthermore, under that provision, the last day of the final year reflected in the experience data must be less than three years before the first day of the first plan year for which the substitute mortality tables are to apply.

    3 The 1,000-death threshold for credible mortality experience under the regulations was intended to provide a high degree of confidence that the plan's past mortality experience will be predictive of its future mortality, and is consistent with relevant actuarial literature (see, for example, Thomas N. Herzog, Introduction to Credibility Theory (1999); Stuart A. Klugman, et. al., Loss Models: From Data to Decisions (2004)).

    Under § 1.430(h)(3)-2(c)(2), development of a substitute mortality table under the regulations requires creation of a base table and identification of a base year, which are then used to determine a substitute mortality table. The base table must be developed from a study of the mortality experience of the plan using amounts-weighted data.

    Under § 1.430(h)(3)-2(c)(3), a plan's substitute mortality tables must be generational mortality tables. Substitute mortality tables are determined using the base mortality tables developed from the experience study and the Scale AA Projection Factors, which are also used for the generally applicable mortality tables.

    Under § 1.430(h)(3)-2(c)(4), separate substitute mortality tables are permitted (but not required) to be established for separate populations within a gender, such as annuitants and nonannuitants or hourly and salaried individuals. Under that provision, separate substitute mortality tables generally are permitted to be used for a separate population within a gender under a plan only if all individuals of that gender in the plan are divided into separate populations, each separate population has credible mortality experience (determined in the same manner as determining whether a gender has credible mortality experience), and the separate substitute mortality table for each separate population is developed using mortality experience data for that population.

    Section 1.430(h)(3)-2(d)(3) prescribes rules for aggregating plans for purposes of using substitute mortality tables. Under § 1.430(h)(3)-2(d)(3), in order to use a set of substitute mortality tables for two or more plans, the rules set forth in the regulations must be applied by treating those plans as a single plan. In such a case, the substitute mortality tables must be used for all such plans and must be based on data collected with respect to all such plans.

    Section 1.430(h)(3)-2(d)(4) provides for the early termination of the use of substitute mortality tables in certain specified circumstances, including pursuant to a replacement of the mortality tables specified in § 1.430(h)(3)-1. The early termination pursuant to such a replacement must be effective as of a date specified in guidance published in the Internal Revenue Bulletin.

    Rev. Proc. 2008-62, 2008-2 CB 935, sets forth the procedure by which a plan sponsor of a defined benefit plan may request and obtain approval for the use of plan-specific substitute mortality tables in accordance with section 430(h)(3)(C). The revenue procedure specifies the information that must be provided in order to request the use of substitute mortality tables and specifies two alternative acceptable methods of construction for base substitute mortality tables. Under section 11 of Rev. Proc. 2008-62, a base table for a population can be created from the unadjusted base table for the population through the application of a graduation method generally used by the actuarial profession in the United States (for example, the Whittaker-Henderson Type B graduation method or the Karup-King graduation method). Section 12 of Rev. Proc. 2008-62 provides for an alternative method of constructing a base table through the application of a fixed percentage to the mortality rates of a standard mortality table, projected to the base year. This alternative method can be used only if the IRS determines that the resulting base table sufficiently reflects the mortality experience of the applicable plan population. In general, the standard mortality table that is used under this alternative method is a projection of the base mortality table that applies for the population under § 1.430(h)(3)-1; however, the IRS will consider requests for the approval of base tables constructed through the application of a fixed percentage to the mortality rates of other published generally accepted mortality tables.

    Section 503 of the Bipartisan Budget Act of 2015, Public Law 114-74, 129 Stat. 584, which was enacted November 2, 2015, provides for changes to the rules on the use of substitute mortality tables. Under that section, the determination of whether a plan has credible information that can be used to develop a substitute mortality table must be made in accordance with established actuarial credibility theory, which (1) is materially different from the rules for using substitute mortality tables (including Revenue Procedure 2007-37) 4 that are in effect on November 2, 2015; and (2) permits the use of mortality tables that reflect adjustments to the generally applicable mortality tables, if those adjustments are based on the actual experience of the pension plan maintained by the plan sponsor. This provision applies to plan years beginning after December 31, 2015.

    4 Rev. Proc. 2007-37, 2007-1 CB 1433, was not in effect on November 2, 2015. It was issued in 2007 in conjunction with proposed regulations regarding substitute mortality tables (REG-143601-06, 72 FR 29456), and was replaced by Rev. Proc. 2008-62 when those regulations were finalized in 2008.

    Explanation of Provisions

    These proposed regulations set forth the methodology Treasury and the IRS would use to update the generally applicable mortality tables that are used to determine present value or make any computation under section 430. Pursuant to section 417(e)(3)(B), a modified version of these updated tables would be used for purposes of determining the amount of a single-sum distribution (or another accelerated form of distribution).5 This methodology for developing updated tables under section 430(h)(3)(A) is being proposed pursuant to the requirement under section 430(h)(3)(B) to revise the mortality tables used under section 430 to reflect the actual mortality experience of pension plan participants and projected trends in that experience. As under the 2008 general mortality table regulations, the methodology involves the separate determination of base tables and the projection of mortality improvement.

    5 After these regulations are finalized, the section 417(e)(3)(B) applicable mortality table will be specified in guidance published in the Internal Revenue Bulletin. See § 601.601(d)(2)(ii)(b) of this chapter.

    These proposed regulations also set forth rules for the use of substitute mortality tables. The rules on substitute mortality tables are being proposed pursuant to section 503 of the Bipartisan Budget Act of 2015, which requires that the determination of whether the plan has credible information be made in accordance with established actuarial credibility theory. Pursuant to that requirement, Treasury and the IRS undertook a review of actuarial literature regarding credibility theory and consulted with experts on that topic from the Society of Actuaries. Based on that review and analysis, the proposed regulations set forth a method for developing substitute mortality tables that is materially different from the method that is required under the 2008 substitute mortality table regulations and the associated revenue procedure.

    The method for developing substitute mortality tables that is set forth in the proposed regulations is simpler than the method that applies under the 2008 substitute mortality table regulations, and also accommodates the use of substitute mortality tables by plans with smaller populations that have partially credible mortality experience. Comments are requested regarding additional simplifications that might be appropriate for use in developing substitute mortality tables.

    I. Generally Applicable Mortality Tables A. Base mortality tables

    The base mortality tables proposed for use under section 430(h)(3)(A) are derived from the tables contained in the RP-2014 Mortality Tables Report. In response to Notice 2013-49, commentators generally recommended that the RP-2014 mortality tables form the basis for the mortality tables used under section 430.6 After reviewing the RP-2014 mortality tables, the accompanying report published by the Society of Actuaries, and related public comments, Treasury and the IRS have determined that the experience study used to develop the RP-2014 mortality tables is the best available study of the actual mortality experience of pension plan participants (other than disabled individuals). Accordingly, the RP-2014 mortality tables are the foundation for the base mortality tables used to project the mortality of pension plan participants under these proposed regulations.7

    6 These proposed regulations also apply the new generally applicable mortality tables under section 430 for purposes of determining the current liability of a multiemployer plan pursuant to section 431(c)(6)(D)(iv)(II) or a CSEC plan pursuant to section 433(h)(3).

    7 Mortality tables that may be used as an alternative to the tables provided in these regulations with respect to certain disabled individuals are provided in Rev. Rul. 96-7, 1996-1 CB 59.

    Like the mortality tables provided in the 2008 general mortality table regulations, the mortality tables set forth in these proposed regulations are gender-distinct because of significant differences between expected male mortality and expected female mortality. In addition, as under the 2008 general mortality table regulations, these proposed regulations set forth separate mortality rates for annuitants and nonannuitants. This distinction has been made because these two groups have significantly different mortality experience. See chapter 3 of the RP-2000 Mortality Tables Report, available at www.soa.org/research/experience-study/pension/research-rp-2000-mortality-tables.aspx.

    Under these proposed regulations, the annuitant mortality tables are applied to determine the present value of benefits for an annuitant. For a nonannuitant, the nonannuitant mortality tables are applied for the periods before the participant is projected to commence receiving benefits, and the annuitant mortality tables are used for later periods. With respect to a beneficiary of a participant, the annuitant mortality table applies for the period beginning with each assumed commencement of benefits for the participant. If the participant has died (or to the extent the participant is assumed to die before commencing benefits), the annuitant mortality table applies with respect to the beneficiary for the period beginning with each assumed commencement of benefits for the beneficiary.

    The proposed regulations set forth base tables that are to be used to develop the mortality tables for future years. These base tables have a base year of 2006 (the central year of the experience study used to develop the mortality tables in the RP-2014 Mortality Tables Report). These base tables generally have the same rates as the RP-2014 mortality tables after factoring out the mortality improvements from 2007 to 2014 (calculated using the Scale MP-2014 Rates). However, these base tables also include nonannuitant rates for ages below age 18 and above age 80 and annuitant rates for ages below age 50. This generally is the same approach that was used to develop the base tables included in the 2008 general mortality table regulations.

    The nonannuitant rates for ages above age 80 were developed by (1) using the annuitant rates from the base tables for ages 90 and older and (2) interpolating between the rates for age 80 and age 90 in order to produce a smooth transition between the age 80 rates from the nonannuitant tables to the age 90 rates from the annuitant tables. The interpolation uses increasing fractions with a denominator of 55 to allocate the total difference between the rates at ages 80 and 90 over those 10 years. Thus, the rate at age 81 is set equal to the rate at age 80 plus 1/55 of the total difference, the age 82 rate is equal to the rate at age 81 plus 2/55 of the total difference (so that the age 82 rate is equal to the rate at age 80 plus 3/55 of the total difference), and so on for other ages.

    A similar approach was used to develop annuitant rates for ages below age 50. The annuitant rates for ages under age 50 were determined by (1) using the nonannuitant rates from the base tables for ages 18 to 40, and (2) interpolating between the rates for age 40 and age 50, using the same methodology described in the prior paragraph. This method produces a smooth transition between the age 40 rates from the nonannuitant table and the age 50 rates from the annuitant table. For ages below age 18, both the annuitant and nonannuitant rates incorporate the juvenile rates from the RP-2014 Mortality Tables Report, after factoring out the mortality improvements from 2007 to 2014 (calculated using the Scale MP-2014 Rates).

    B. Reflection of Mortality Improvement

    The proposed regulations provide that expected trends in mortality experience must be taken into account through the use of either generational or annually updated static mortality tables. In accordance with section 430(h)(3)(B), the proposed regulations update the mortality improvement rates from the Scale AA Projection Factors that were set forth under the 2008 general mortality table regulations.

    In order to select up-to-date mortality improvement rates, Treasury and the IRS reviewed the Mortality Improvement Scale MP-2014 Report, related public comments, the data sources cited in those comments, the Mortality Improvement Scale MP-2015 Report, the Mortality Improvement Scale MP-2016 Report, and other published data sources.8 Pursuant to this review, Treasury and the IRS determined that the procedures that RPEC used to develop the Scale MP-2016 Rates generate the most appropriate currently available mortality improvement rates. Accordingly, the proposed regulations provide that, for valuation dates in 2018, the mortality tables for use under section 430(h)(3)(A) must reflect the mortality improvement rates contained in the Mortality Improvement Scale MP-2016 Report.

    8 See the August 2013 Literature Review and Assessment of Mortality Improvement Rates in the U.S. Population: Past Experience and Future Long-Term Trends, available at www.soa.org/Files/Research/Exp-Study/research-2013-lit-review.pdf; and the 2015 Technical Panel on Assumptions and Methods Report to the Social Security Advisory Board, available at www.ssab.gov/Details-Page/ArticleID/656/2015-Technical-Panel-on-Assumptions-and-Methods-A-Report-to-the-Board-September-2015.

    The Scale MP-2016 Rates are structured as two-dimensional tables that contain mortality improvement rates that vary according to both age and calendar year (so that the mortality improvement rate for someone who is age 72 in 2020 is different than the mortality improvement rate for someone who is age 72 in 2030). RPEC provided for two-dimensional tables of mortality improvement rates in order to reflect differences in mortality improvement at different ages as well as mortality improvement trends that vary for different age cohorts. The proposed regulations include numerical examples illustrating how to apply these two-dimensional mortality improvement rates.

    As under the current regulations, the proposed regulations take into account the limitations of some current actuarial software that is not designed to use generational mortality tables. Accordingly, the proposed regulations continue to permit the use of static mortality tables. These static tables consist of a single table for each gender, updated annually, that approximates the effect of projected mortality improvement under the generational mortality tables. The static mortality tables that would be used for 2018 are included in these proposed regulations. For later years, updated static mortality tables will be set forth in guidance published in the Internal Revenue Bulletin. See § 601.601(d)(2)(ii)(b) of this chapter.

    The static mortality tables that would be permitted to be used under the proposed regulations are constructed from the base tables that are used for purposes of the generational mortality tables. For each calendar year, the static mortality tables are based on a projection of mortality improvement applied to the mortality rates in the base tables for the period beginning with 2006 and ending with the year of the table, with a further projection from that year for a specified projection period. The rates in the static mortality tables are not the expected mortality rates for the current plan year, nor are they the mortality rates under the generational mortality tables that would apply for any current age. Instead, the projection period has been selected so that the use of the static mortality tables to calculate present values produces approximately the same results as would be calculated using the generational tables. Based on modeling of annuity values at different ages, Treasury and the IRS have selected a projection period of 8 years for males and 9 years for females, with a further adjustment based on age. For ages below 80, the projection period is increased by 1 year for each year below 80. For ages above 80, the projection period is reduced (but not below zero) by 1/3 year for each year above 80.

    These proposed regulations provide an option for smaller plans (plans for which the total number of active and inactive participants and beneficiaries of deceased participants is not more than 500 on the valuation date for the plan year) to use gender distinct blended static tables for all participants and beneficiaries—in lieu of the separate static tables for annuitants and nonannuitants—in order to simplify the actuarial valuation for these plans. These blended tables are constructed from the separate nonannuitant and annuitant static mortality tables using the same nonannuitant and annuitant weighting factors as in the 2008 general mortality table regulations.

    Treasury and the IRS understand that RPEC expects to issue updated mortality improvement rates that reflect new data for mortality improvement trends for the general population on an annual basis. Treasury and the IRS expect to take those updates into account in determining the mortality rates to be used under section 430(h)(3) for valuation dates in years after 2018. Those rates will be specified in guidance to be published in the Internal Revenue Bulletin. See § 601.601(d)(2)(ii)(b) of this chapter.

    II. Plan-Specific Substitute Mortality Tables A. Overview

    These proposed regulations contain a comprehensive set of rules regarding plan-specific substitute mortality tables. The proposed regulations contain many of the rules regarding substitute mortality tables from the 2008 substitute mortality table regulations. However, after analyzing the actuarial literature regarding credibility theory, Treasury and the IRS propose to make a number of changes to the regulations relating to the development of substitute mortality tables. Specifically, the proposed regulations would require a substitute mortality table to be constructed by multiplying the mortality rates from a projected version of the generally applicable base mortality table by a mortality ratio (that is, a ratio of the actual deaths for the plan population to expected deaths determined using the standard mortality tables for that population).

    Use of mortality ratios (rather than providing for the graduation of raw mortality rates as under the 2008 substitute mortality table regulations) should make it easier for plan sponsors to develop the substitute tables, because it would eliminate the need to apply a graduation technique. It would also make it easier for the IRS to review applications to use substitute mortality tables. This simplification is particularly important in light of the other major change made in the proposed regulations, which would permit the use of substitute mortality tables for a plan that has only partially credible mortality information. Treasury and the IRS expect significantly more plan sponsors to request the use of substitute mortality tables after this change becomes effective.

    B. Development of Substitute Mortality Tables for Plans With Full Credibility

    The substitute mortality table for a population with full credibility would be determined by applying projected mortality improvement to a base substitute mortality table which is developed using an experience study of the population. The proposed regulations would use the same requirements for an experience study as under the 2008 substitute mortality table regulations. Specifically, the experience study would have to cover a period of at least 2 years (and no more than 5 years) that ends less than 3 years before the first day of the first plan year for which the substitute mortality tables are to apply. As under the 2008 substitute mortality table regulations, the calendar year that contains the day before the midpoint of the experience study is the base year for the base substitute mortality table. In addition, the proposed regulations include the rule in the 2008 substitute mortality table regulations that requires an additional demonstration that the experience study results are predictive of future mortality for a plan population if the number of individuals in that population has changed by more than 20 percent compared to the average number of individuals in that population during the experience study period.

    The base substitute mortality table is determined by multiplying the mortality rates from the standard mortality table (that is, the generally applicable base mortality table projected with mortality improvement to the base year for the base substitute mortality table) by the plan's mortality ratio. For this purpose, the mortality improvement rates that apply for the calendar year during which the plan sponsor submits the request to use substitute mortality tables are used to project the generally applicable base mortality table to the base year for the base substitute mortality table.9 The mortality ratio is determined as a fraction, the numerator of which is the number of actual deaths during the experience study period (with each death weighted by the amount of benefit) and the denominator of which is the number of expected deaths during that period (determined using the standard mortality table) weighted by the amount of the benefit. For this purpose, the amount of benefit is the accrued benefit (substituting the current periodic payment in the case of individuals in pay status). Consistent with section 503 of the Bipartisan Budget Act of 2015 (and unlike § 1.430(h)(3)-2(c)(2)(ii)(D) of the 2008 substitute mortality table regulations, which provides that the Commissioner may permit the use of other recognized mortality tables to construct the base substitute mortality table), these proposed regulations provide that the standard mortality table that must be used for this purpose is the generally applicable base mortality table projected with mortality improvement to the base year for the base substitute mortality table.

    9 If the plan sponsor submits such a request during 2017, then the cumulative mortality improvement factors are determined using the Scale MP-2016 Rates.

    C. Standards for Full Credibility

    The proposed regulations revise the standard for full credibility of a population under the 2008 substitute mortality table regulations (which is 1,000 actual deaths for the relevant population during the experience study period). This is because, under established actuarial credibility theory, that threshold (which is a rounding down of the 1,082 actual deaths that would be needed for a 90% confidence level that the measured rate is within 5% of the underlying rate of mortality) should apply to the credibility for a single rate of mortality and not an entire mortality table.10 Moreover, the 1,000 death threshold did not take into account the well-established actuarial principle that mortality experience within a population will vary predictably based on the amount of the annuity (or life insurance, as applicable). The base tables for the generally applicable mortality tables were constructed on an amounts-weighted basis (under which the individuals with higher benefit amounts have a greater weight in the computation of the mortality rate for a particular age); accordingly, substitute mortality tables should be constructed using the same principle.

    10 Note, however, the use of a graduation technique set forth in Rev. Proc. 2008-62 enables a plan to have credible mortality experience in order to establish a substitute mortality table even though there are fewer than 1000 deaths at each age.

    The variability of benefit amounts for different individuals in different populations within a plan means that a single 1,000 actual-death standard that would apply to all populations is not appropriate. Instead, established actuarial credibility theory would require a plan-specific calculation of the full-credibility standard that takes into account the dispersion of benefits within the plan.

    Under the proposed regulations, the number of deaths that are needed for the population within a plan to have fully credible mortality information is determined as the product of 1,082 and the benefit dispersion factor for the population.11 The benefit dispersion factor for a population is equal to the number of expected deaths for the population during the experience study period, times the sum of the mortality-weighted square of the benefits, divided by the square of the mortality-weighted benefits.12

    11 This is based on the assumption that the distribution of releases from liability due to deaths follows a compound Poisson model. See www.actuaries.ca/members/publications/2002/202037e.pdf.

    12 See Gavin Benjamin, Selecting Mortality Tables: A Credibility Approach, available at www.soa.org/Files/Research/Projects/research-2008-benjamin.pdf.

    D. Partial Credibility

    The proposed regulations permit substitute mortality tables to be used for a plan that does not have sufficient deaths to have fully credible mortality information. In accordance with established actuarial credibility theory, such a plan would use a weighted average of the standard mortality table (projected with mortality improvement to the base year of the base substitute mortality table) and the mortality table that would be developed for the plan if it were to have fully credible mortality information. The weight for the mortality table that would apply if the plan were to have fully credible mortality information is the square-root of a fraction, the numerator of which is the actual number of deaths for the population within the experience study period and the denominator of which is the number of deaths needed for the plan to have fully credible mortality information.

    In order to avoid the need to create a substitute mortality table for a plan with a relatively small population, the proposed regulations provide that a population does not have credible mortality information if the actual number of deaths for that population during the experience study period is less than 100. For this purpose, the length of the experience study period must be the same length as the longest experience study period for any plan in the controlled group.

    Treasury and the IRS chose the threshold of 100 deaths as a result of balancing the burdens of developing substitute mortality tables and the benefit of the use of those tables, in light of the requirement under section 430(h)(3)(C)(iv) that substitute mortality tables be used for all plans within a controlled group (and the exception to this requirement for plans that lack fully or partially credible mortality information). Comments are requested regarding whether this is the appropriate threshold or whether a different number of deaths should be used for this purpose.

    E. Mortality Improvement Rates

    As required under the 2008 substitute mortality table regulations, the proposed regulations provide that substitute mortality tables must be generational mortality tables. These proposed regulations require that the mortality improvement rates that are used for the generally applicable mortality tables also be applied beginning with the base year of the base substitute mortality tables.

    F. Other Rules Relating to the Use of Substitute Mortality Tables 1. Use of Separate Subpopulations Within a Gender Under Plan

    The proposed regulations continue to apply the rules under the 2008 substitute mortality table regulations regarding the applicability of substitute mortality tables for separate populations within a plan. Specifically, separate substitute mortality tables must be developed for each gender under the plan. In addition, the regulations permit separate substitute mortality tables to be developed for separate subpopulations (such as hourly and salaried participants) within a gender under the plan in certain circumstances.

    As under the 2008 substitute mortality table regulations, permission to separate a gender into separate subpopulations is generally limited to situations in which each of the subpopulations have fully credible mortality information. However, that requirement does not apply if the separate subpopulations are annuitants and non-annuitants. Comments are requested on whether there should be other exceptions to this rule. For example:

    • Should the regulations allow separate sub-populations to be used if one subpopulation has full credibility while the other one has only partial credibility?

    • Should the regulations provide for the use of separate sub-populations based on age, even if those groups have only partial credibility?

    • Should there be a rule to “normalize” the mortality tables for separate sub-populations (so that the total number of expected deaths for the separate subpopulations is the same as the total number of expected deaths for the entire population without regard to the separation)?

    2. Requirement To Use Substitute Mortality Tables for All Plans With Credible Mortality Information

    As under the 2008 substitute mortality table regulations, the proposed regulations provide that substitute mortality tables are permitted to be used for a plan for a plan year only if, for that plan year, substitute mortality tables are also approved and used for each other pension plan subject to the requirements of section 430 that is maintained by the plan sponsor or by a member of the sponsor's controlled group. However, this rule does not prohibit the use of substitute mortality tables for one plan if the only other plan or plans maintained by the plan sponsor (or by a member of the plan sponsor's controlled group) for which substitute mortality tables are not used are too small to have fully or partially credible mortality information for the plan year. Thus, if a sponsor's controlled group contains two pension plans that are subject to section 430, each of which has fully or partially credible mortality information for at least one gender, either the plan sponsors of both plans must obtain approval from the Commissioner to use substitute mortality tables or substitute mortality tables may not be used for either plan. In contrast, if for one of those plans neither males nor females have fully or partially credible mortality information, then the plan without credible mortality information will not prevent the use of substitute mortality tables for the plan with credible mortality information.

    As under the 2008 substitute mortality table regulations, the proposed regulations provide that the requirement that the plan sponsor demonstrate the lack of credible mortality information for both the male and female populations in other plans maintained by the plan sponsor (and by members of the plan sponsor's controlled group) for which substitute mortality tables are not used must be satisfied for each plan year for which substitute mortality tables are used. This demonstration is made for a plan population by showing that the population has not experienced at least 100 deaths over a time period that satisfies the requirements set forth in the regulations. In general, for each plan year in which substitute mortality tables are used for a plan, in order to demonstrate that a gender within a plan does not have credible mortality information for a plan year, the demonstration that the gender within the plan has fewer than 100 deaths must be made by analyzing the actual number of deaths over a period that is the same length as the period for the experience study on which the substitute mortality tables are based and that ends less than three years before the first day of the plan year.

    3. Permitted Aggregation of Plans

    The proposed regulations retain the rules contained in the 2008 substitute mortality table regulations regarding aggregation of plans for purposes of using substitute mortality tables. Under these rules, in order for a plan sponsor to use the same substitute mortality tables for two or more plans, the rules set forth in the regulations are applied by treating those plans as a single plan. In such a case, the substitute mortality tables must be used for all such plans and must be based on data collected with respect to all such plans. Although plans generally are not required to be aggregated for purposes of substitute mortality tables, the regulations require a plan to be aggregated with any plan that was previously spun off from that plan if the Commissioner determines that one purpose of the spinoff was to avoid the use of substitute mortality tables for any of the plans involved in the spinoff.

    4. Special Rules for Newly-Acquired Plans

    If substitute mortality tables are used for at least one plan within a controlled group, in order for the plan sponsor to continue to use substitute mortality tables for that plan after a plan joins the controlled group, substitute mortality tables must be used for the newly affiliated plan unless the newly affiliated plan demonstrates that it lacks credible mortality information. However, the proposed regulations provide for a transition period during which the standard mortality table is permitted to be used for a newly affiliated plan (without affecting the use of substitute mortality tables for other plans within the controlled group) even if the newly affiliated plan fails to demonstrate a lack of credible mortality information. Similarly, the use of substitute mortality tables for a newly affiliated plan is not affected during the transition period merely because the standard mortality tables are used for another plan within the controlled group despite the failure of that other plan to demonstrate a lack of credible mortality information. Notably, these rules do not change the requirement that the continued use of substitute mortality tables for any plan within the controlled group is permitted only if the other pre-affiliation plans within the controlled group for which substitute mortality tables are not used demonstrate a lack of credible mortality information.

    Like the 2008 substitute mortality table regulations, the proposed regulations do not require the use of pre-affiliation experience in order to establish whether a newly-affiliated plan has credible mortality information. If the pre-affiliation data is excluded and substitute mortality tables will be used for the plan, then the experience study period may be as short as one year (instead of two years). If the pre-affiliation data is excluded and substitute mortality tables will not be used for the plan, then the experience study period used to demonstrate that the plan does not have credible mortality information may also be shortened, provided that the period ends not more than one year and one day before the first day of the plan year.

    5. Treatment of Mortality Experience With Respect to Disabled Individuals

    As under the 2008 substitute mortality table regulations, if separate mortality tables under section 430(h)(3)(D) are used for certain disabled individuals under a plan, then those individuals are disregarded for all purposes with respect to substitute mortality tables under section 430(h)(3)(C). Thus, if the mortality tables under section 430(h)(3)(D) are used for certain disabled individuals under a plan, mortality experience with respect to those individuals must be excluded in determining mortality rates for substitute mortality tables with respect to a plan.

    6. Early Termination of Use of Substitute Mortality Tables

    The proposed regulations retain the rules from the 2008 substitute mortality table regulations regarding the early termination of use of substitute mortality tables. Under those rules, a plan's substitute mortality tables may not be used beginning with the earliest of: (1) For a plan for which substitute mortality tables are used for only one gender because of a lack of credible mortality information with respect to the other gender, the first plan year for which there is credible mortality information with respect to the gender that had lacked credible mortality information (unless the plan receives approval to use a substitute mortality table for that other gender); (2) the first plan year for which the requirements regarding use of substitute mortality tables by controlled group members are not satisfied; (3) the second plan year following the plan year for which there is a significant change in individuals covered by the plan (unless the plan's actuary certifies in writing to the satisfaction of the Commissioner that the substitute mortality tables used for the plan population continue to be accurately predictive of future mortality of that population (taking into account the effect of the change in the population)); (4) the first plan year following the plan year for which a substitute mortality table used for a plan population is no longer accurately predictive of future mortality of that population, as determined by the Commissioner or as certified by the plan's actuary to the satisfaction of the Commissioner; or (5) the date specified in guidance published in the Internal Revenue Bulletin in conjunction with a replacement of generally applicable mortality tables (other than annual updates to the static mortality tables or changes to the mortality improvement rates).

    G. Procedures for Requesting Approval of Substitute Mortality Tables

    As under the 2008 substitute mortality table regulations, the proposed regulations provide that a plan sponsor that wishes to use substitute mortality tables for a plan must submit a request to the IRS for approval to use the proposed tables. In general, the request must be submitted at least 7 months before the first day of the plan year for which the proposed substitute tables would be used. If the IRS does not deny the request within 180 days (which may be extended as agreed to by the IRS and the plan sponsor), the request is deemed to have been approved.

    The IRS intends to issue an updated version of Rev. Proc. 2008-62 after final regulations regarding substitute mortality tables are issued. If the timing of the release of those final regulations and the associated revenue procedure does not leave adequate time to submit an application to use substitute mortality tables for the plan year beginning in 2018, Treasury and the IRS expect that they would provide a transition rule that would permit extra time to submit such an application

    Before final regulations adopting the provisions set forth in these proposed regulations are issued, plan sponsors requesting the use of substitute mortality tables should continue to use the procedures set forth in Rev. Proc. 2008-62. During that period, the IRS will not evaluate whether a substitute mortality table for a population with only partially credible mortality information is appropriate.

    Applicability Date

    These regulations are proposed to apply to plan years beginning on or after January 1, 2018. Under the proposed regulations, a plan sponsor may use a substitute mortality table for a plan year beginning on or after January 1, 2018 only if that substitute mortality table is approved as provided in these proposed regulations.

    Statement of Availability of IRS Documents

    IRS Revenue Rulings, Revenue Procedures, and Notices cited in this document are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, or by visiting the IRS Web site at www.irs.gov.

    Special Analyses

    Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory assessment is not required. The regulations do not impose a collection of information on small entities, therefore the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

    Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to Treasury and the IRS as prescribed in this preamble in the ADDRESSES section. Treasury and the IRS request comments on all aspects of these proposed regulations. All comments will be available for public inspection and copying at www.regulations.gov or upon request.

    A public hearing on these proposed regulations has been scheduled for April 13, 2017 beginning at 10 a.m. in the Auditorium, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

    The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments by March 29, 2017, and an outline of topics to be discussed and the amount of time to be devoted to each topic by March 29, 2017. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

    Drafting Information

    The principal authors of these regulations are Thomas Morgan and Linda S. F. Marshall of Office of Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from Treasury and the IRS participated in the development of these regulations.

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read, in part, as follows: Authority:

    26 U.S.C. 7805 * * *

    Par. 2. Section 1.430(h)(3)-1 is revised to read as follows:
    § 1.430(h)(3)-1 Mortality tables used to determine present value.

    (a) Basis for mortality tables—(1) In general. This section sets forth rules for the mortality tables to be used in determining present value or making any computation under section 430. Generally applicable mortality tables for participants and beneficiaries are set forth in this section pursuant to section 430(h)(3)(A). In general, either the generational mortality tables set forth in paragraph (a)(2) of this section or the static mortality tables set forth in paragraph (a)(3) of this section must be used for a plan. In lieu of using the mortality tables provided under this section with respect to participants and beneficiaries, plan-specific substitute mortality tables are permitted to be used for this purpose pursuant to section 430(h)(3)(C), provided that the requirements of § 1.430(h)(3)-2 are satisfied. Mortality tables that may be used with respect to disabled individuals are to be provided in guidance published in the Internal Revenue Bulletin. See § 601.601(d)(2)(ii)(b) of this chapter.

    (2) Generational mortality tables—(i) In general—(A) Use of generational mortality tables. The generational mortality tables that are permitted to be used under section 430(h)(3)(A) and paragraph (a)(1) of this section are determined using the base mortality tables described in paragraph (a)(2)(i)(B) of this section and the mortality improvement rates described in paragraph (a)(2)(i)(C) of this section.

    (B) Base mortality tables. The base mortality tables are set forth in paragraph (d) of this section. The base year for those tables is 2006.

    (C) Mortality improvement rates. The mortality improvement rates for valuation dates occurring during 2018 are the mortality improvement rates contained in the Mortality Improvement Scale MP-2016 Report (issued by the Retirement Plans Experience Committee (RPEC) of the Society of Actuaries and available at www.soa.org/Research/Experience-Study/Pension/research-2016-mp.aspx). For later years, updated mortality improvement rates that take into account new data for mortality improvement trends of the general population are to be provided in guidance published in the Internal Revenue Bulletin. See § 601.601(d)(2)(ii)(b) of this chapter.

    (D) Application of mortality improvement rates. Under the generational mortality tables described in this paragraph (a)(2), the probability of an individual's death at a particular age in the future is determined as the individual's base mortality rate that applies at that age (that is, the applicable mortality rate from the table set forth in paragraph (d) of this section for that age, gender, and status as an annuitant or a nonannuitant) multiplied by the cumulative mortality improvement factor for the individual's gender and for that age for the period from 2006 through the calendar year in which the individual is projected to reach the particular age. Paragraph (a)(2)(ii) of this section shows how the base mortality tables in paragraph (d) of this section and the mortality improvement rates for valuation dates occurring during 2018 are combined to determine projected mortality rates.

    (E) Cumulative mortality improvement factor. The cumulative mortality improvement factor for an age and gender for a period is the product of the annual mortality improvement factors for that age and gender for each year within that period.

    (F) Annual mortality improvement factor. The annual mortality improvement factor for an age and gender for a year is 1 minus the mortality improvement rate that applies for that age and gender for that year.

    (ii) Example of calculation—(A) Calculation of mortality rate. The mortality rate for 2018 that is applied to male annuitants who are age 66 in 2018 is equal to the product of the mortality rate for 2006 that applied to male annuitants who were age 66 in 2006 (0.013855) and the cumulative mortality improvement factor for age 66 males from 2006 to 2018. The cumulative mortality improvement factor for age 66 males for the period from 2006 to 2018 is 0.8929, and the mortality rate for 2018 for male annuitants who are age 66 in that year would be 0.012371, as shown in the following table.

    Calendar year Scale MP-2016 mortality improvement rate Annual
  • mortality
  • improvement
  • factor (1-scale MP-2016 rate)
  • Cumulative mortality
  • improvement
  • factor
  • Mortality rate
    2006 n/a n/a n/a 0.013855 2007 0.0237 0.9763 0.9763 2008 0.0211 0.9789 0.9557 2009 0.0180 0.9820 0.9385 2010 0.0142 0.9858 0.9252 2011 0.0099 0.9901 0.9160 2012 0.0053 0.9947 0.9112 2013 0.0043 0.9957 0.9072 2014 0.0035 0.9965 0.9041 2015 0.0030 0.9970 0.9014 2016 0.0028 0.9972 0.8988 2017 0.0030 0.9970 0.8961 2018 0.0036 0.9964 0.8929 0.012371

    (B) Probability of survival for an individual. After the projected mortality rates are derived for each age for each year, the rates are used to calculate the present value of a benefit stream that depends on the probability of survival year-by-year. For example, for purposes of calculating the present value (for a 2018 valuation date) of future payments in a benefit stream payable for a male annuitant who is age 66 in 2018, the probability of survival for the annuitant is based on the mortality rate for a male annuitant who is age 66 in 2018 (0.012371), and the projected mortality rate for a male annuitant who will be age 67 in 2019 (0.013302), age 68 in 2020 (0.014321), and so on.

    (3) Static mortality tables. The static mortality tables that are permitted to be used under section 430(h)(3)(A) and paragraph (a)(1) of this section are updated annually by the IRS according to the methodology described in paragraph (c)(2) of this section. Paragraph (e) of this section sets forth static tables that are permitted to be used for valuation dates in 2018. For valuation dates in later years, static mortality tables are to be provided in guidance published in the Internal Revenue Bulletin. See § 601.601(d)(2)(ii)(b) of this chapter.

    (b) Use of the tables—(1) Separate tables for annuitants and nonannuitants—(i) In general. Separate tables are provided for use for annuitants and nonannuitants. The nonannuitant mortality table is applied to determine the probability of survival for a nonannuitant for the period before the nonannuitant is projected to commence receiving benefits. The annuitant mortality table is applied to determine the present value of benefits for each annuitant. In addition, the annuitant mortality table is applied for each nonannuitant with respect to each assumed commencement of benefits for the period beginning with that assumed commencement. For purposes of this section, an annuitant means a plan participant who has commenced receiving benefits and a nonannuitant means a plan participant who has not yet commenced receiving benefits (for example, an active employee or a terminated vested participant). A participant whose benefit has partially commenced is treated as an annuitant with respect to the portion of the benefit that has commenced and treated as a nonannuitant with respect to the balance of the benefit. In addition, with respect to a beneficiary of a participant, the annuitant mortality table applies for the period beginning with each assumed commencement of benefits for the participant. If the participant has died (or to the extent the participant is assumed to die before commencing benefits), the annuitant mortality table applies with respect to the beneficiary for the period beginning with each assumed commencement of benefits for the beneficiary.

    (ii) Examples of calculation using separate annuitant and nonannuitant tables. With respect to a 45-year-old active participant who is projected to commence receiving an annuity at age 55, the funding target is determined using the nonannuitant mortality table for the period before the participant attains age 55 (so that, if the static mortality tables are used pursuant to paragraph (a)(3) of this section, the probability of an active male participant living from age 45 to age 55 using the table that applies for a valuation date in 2018 is 0.988857) and using the annuitant mortality table for the period ages 55 and above. Similarly, for a 45-year-old terminated vested participant who is projected to commence an annuity at age 65, the funding target is determined using the nonannuitant mortality table for the period before the participant attains age 65 and using the annuitant mortality table for ages 65 and above.

    (2) Small plan tables. If static mortality tables are used pursuant to paragraph (a)(3) of this section, as an alternative to the separate static tables specified for annuitants and nonannuitants pursuant to paragraph (b)(1) of this section, combined static tables that apply the same mortality rates to both annuitants and nonannuitants are permitted to be used for a small plan. For this purpose, a small plan is defined as a plan with 500 or fewer total participants (including both active and inactive participants and beneficiaries of deceased participants) on the valuation date. The combined static tables that are permitted to be used for small plans pursuant to this paragraph (b)(2) are constructed from the separate nonannuitant and annuitant static mortality tables using the weighting factors for small plans that are set forth in paragraph (d) of this section. The weighting factors are applied to develop these combined static tables using the following equation: Combined mortality rate = [nonannuitant rate * (1- weighting factor)] + [annuitant rate * weighting factor].

    (c) Static tables—(1) Source of rates. The static mortality tables that are used pursuant to paragraph (a)(3) of this section are determined using the base mortality tables described in paragraph (a)(2)(i)(B) of this section taking into account the mortality improvement rates described in paragraph (a)(2)(i)(C) of this section, in accordance with the rules set forth in paragraph (c)(3) of this section.

    (2) Selection of static tables. The static mortality tables that are used for a valuation date are the static mortality tables for the calendar year that contains the valuation date.

    (3) Projection of mortality improvements—(i) General rule. Except as provided in paragraph (c)(3)(iii) of this section, the static mortality tables for a calendar year are determined by multiplying the applicable mortality rate for each age from the base mortality tables by both—

    (A) The cumulative mortality improvement factor (determined under the rules of paragraph (a)(2) of this section) for the period from 2006 through that calendar year; and

    (B) The cumulative mortality improvement factor (determined under the rules of paragraph (a)(2) of this section) for the period beginning in that calendar year and continuing beyond that calendar year for the number of years in the projection period described in paragraph (c)(3)(ii) of this section.

    (ii) Projection period for static mortality tables—(A) In general. The projection period is 8 years for males and 9 years for females, as adjusted based on age as provided in paragraph (c)(3)(ii)(B) of this section.

    (B) Age adjustment. For ages below 80, the projection period is increased by 1 year for each year below age 80. For ages above 80, the projection period is reduced (but not below zero) by 1/3 year for each year above 80.

    (iii) Fractional projection periods. If for an age the number of years in the projection period determined under this paragraph (c)(3) is not a whole number, then the mortality rate for that age is determined by using linear interpolation between—

    (A) The mortality rate for that age that would be determined under paragraph (c)(3)(i) of this section if the number of years in the projection period were the next lower whole number; and

    (B) The mortality rate for that age that would be determined under paragraph (c)(3)(i) of this section if the number of years in the projection period were the next higher whole number.

    (iv) Example. For example, at age 85 the projection period for a male is 61/3 years (8 years minus 1/3 year for each of the 5 years above age 80). For a valuation date in 2018, the mortality rate in the static mortality table for an 85-year-old male is based on a projection of mortality improvement for 61/3 years beyond 2018. Under paragraph (c)(3)(iii) of this section, the mortality rate for an 85-year-old male annuitant in the static mortality table for 2018 is 2/3 times the projected mortality rate for a male annuitant that age in 2024 plus 1/3 times the projected mortality rate for a male annuitant that age in 2025. Accordingly, the mortality rate for an 85-year-old male annuitant in the static mortality table for 2018 is 0.075196 (2/3 times the projected mortality rate for an 85-year old male annuitant in 2024 (0.075447) plus 1/3 times the projected mortality rate for an 85-year old male annuitant in 2025 (0.074693)).

    (d) Base mortality tables. The following are the base mortality tables. The base year for these tables is 2006.

    Age Males Non-annuitant Annuitant Weighting factor for small plans Females Non-annuitant Annuitant Weighting factor for small plans 0 0.008878 0.008878 0 0.007278 0.007278 0 1 0.000515 0.000515 0 0.000451 0.000451 0 2 0.000348 0.000348 0 0.000295 0.000295 0 3 0.000289 0.000289 0 0.000220 0.000220 0 4 0.000225 0.000225 0 0.000165 0.000165 0 5 0.000197 0.000197 0 0.000149 0.000149 0 6 0.000177 0.000177 0 0.000137 0.000137 0 7 0.000156 0.000156 0 0.000127 0.000127 0 8 0.000132 0.000132 0 0.000117 0.000117 0 9 0.000107 0.000107 0 0.000109 0.000109 0 10 0.000090 0.000090 0 0.000102 0.000102 0 11 0.000095 0.000095 0 0.000105 0.000105 0 12 0.000142 0.000142 0 0.000121 0.000121 0 13 0.000187 0.000187 0 0.000137 0.000137 0 14 0.000230 0.000230 0 0.000151 0.000151 0 15 0.000274 0.000274 0 0.000165 0.000165 0 16 0.000318 0.000318 0 0.000177 0.000177 0 17 0.000364 0.000364 0 0.000187 0.000187 0 18 0.000412 0.000412 0 0.000196 0.000196 0 19 0.000463 0.000463 0 0.000202 0.000202 0 20 0.000510 0.000510 0 0.000202 0.000202 0 21 0.000552 0.000552 0 0.000197 0.000197 0 22 0.000587 0.000587 0 0.000191 0.000191 0 23 0.000599 0.000599 0 0.000190 0.000190 0 24 0.000594 0.000594 0 0.000188 0.000188 0 25 0.000545 0.000545 0 0.000186 0.000186 0 26 0.000510 0.000510 0 0.000186 0.000186 0 27 0.000486 0.000486 0 0.000188 0.000188 0 28 0.000472 0.000472 0 0.000192 0.000192 0 29 0.000468 0.000468 0 0.000198 0.000198 0 30 0.000470 0.000470 0 0.000209 0.000209 0 31 0.000480 0.000480 0 0.000222 0.000222 0 32 0.000495 0.000495 0 0.000238 0.000238 0 33 0.000514 0.000514 0 0.000257 0.000257 0 34 0.000534 0.000534 0 0.000278 0.000278 0 35 0.000557 0.000557 0 0.000301 0.000301 0 36 0.000581 0.000581 0 0.000325 0.000325 0 37 0.000611 0.000611 0 0.000355 0.000355 0 38 0.000648 0.000648 0 0.000389 0.000389 0 39 0.000694 0.000694 0 0.000428 0.000428 0 40 0.000750 0.000750 0 0.000471 0.000471 0 41 0.000814 0.000823 .0045 0.000518 0.000515 0 42 0.000890 0.000969 .0091 0.000570 0.000603 0 43 0.000982 0.001188 .0136 0.000628 0.000735 0 44 0.001088 0.001480 .0181 0.000691 0.000911 0 45 0.001207 0.001846 .0226 0.000758 0.001131 .0084 46 0.001342 0.002285 .0272 0.000831 0.001395 .0167 47 0.001487 0.002797 .0317 0.000908 0.001703 .0251 48 0.001643 0.003382 .0362 0.000986 0.002055 .0335 49 0.001807 0.004040 .0407 0.001065 0.002451 .0419 50 0.001979 0.004771 .0453 0.001151 0.002891 .0502 51 0.002159 0.005059 .0498 0.001242 0.002993 .0586 52 0.002351 0.005343 .0686 0.001344 0.003124 .0744 53 0.002539 0.005592 .0953 0.001458 0.003291 .0947 54 0.002741 0.005839 .1288 0.001588 0.003499 .1189 55 0.002967 0.006102 .2066 0.001735 0.003755 .1897 56 0.003231 0.006399 .3173 0.001902 0.004065 .2857 57 0.003548 0.006746 .3780 0.002091 0.004435 .3403 58 0.003932 0.007155 .4401 0.002302 0.004869 .3878 59 0.004396 0.007639 .4986 0.002537 0.005373 .4360 60 0.004954 0.008211 .5633 0.002795 0.005942 .4954 61 0.005616 0.008878 .6338 0.003080 0.006581 .5805 62 0.006392 0.009646 .7103 0.003388 0.007283 .6598 63 0.007291 0.010523 .7902 0.003724 0.008043 .7520 64 0.008320 0.011514 .8355 0.004089 0.008870 .8043 65 0.009486 0.012621 .8832 0.004482 0.009760 .8552 66 0.010668 0.013855 .9321 0.005004 0.010731 .9118 67 0.011973 0.015221 .9510 0.005575 0.011790 .9367 68 0.013414 0.016736 .9639 0.006205 0.012952 .9523 69 0.015006 0.018421 .9714 0.006898 0.014226 .9627 70 0.016761 0.020288 .9740 0.007662 0.015628 .9661 71 0.018690 0.022348 .9766 0.008507 0.017170 .9695 72 0.020824 0.024638 .9792 0.009438 0.018861 .9729 73 0.023176 0.027176 .9818 0.010470 0.020723 .9763 74 0.025770 0.029992 .9844 0.011615 0.022780 .9797 75 0.028623 0.033113 .9870 0.012887 0.025057 .9830 76 0.031761 0.036585 .9896 0.014301 0.027590 .9864 77 0.035214 0.040457 .9922 0.015885 0.030438 .9898 78 0.039007 0.044778 .9948 0.017656 0.033653 .9932 79 0.043169 0.049605 .9974 0.019639 0.037296 .9966 80 0.047750 0.055022 1.0 0.021859 0.041440 1.0 81 0.049804 0.061087 1.0 0.023791 0.046181 1.0 82 0.053911 0.067902 1.0 0.027655 0.051564 1.0 83 0.060072 0.075550 1.0 0.033451 0.057714 1.0 84 0.068286 0.084162 1.0 0.041179 0.064709 1.0 85 0.078554 0.093775 1.0 0.050838 0.072601 1.0 86 0.090876 0.104507 1.0 0.062429 0.081490 1.0 87 0.105251 0.116487 1.0 0.075952 0.091444 1.0 88 0.121680 0.129770 1.0 0.091407 0.102470 1.0 89 0.140162 0.144470 1.0 0.108794 0.114635 1.0 90 0.160698 0.160698 1.0 0.128113 0.128113 1.0 91 0.177741 0.177741 1.0 0.142619 0.142619 1.0 92 0.195154 0.195154 1.0 0.157939 0.157939 1.0 93 0.212642 0.212642 1.0 0.173886 0.173886 1.0 94 0.230055 0.230055 1.0 0.190319 0.190319 1.0 95 0.247257 0.247257 1.0 0.207191 0.207191 1.0 96 0.265940 0.265940 1.0 0.225057 0.225057 1.0 97 0.284940 0.284940 1.0 0.243507 0.243507 1.0 98 0.304432 0.304432 1.0 0.262587 0.262587 1.0 99 0.324272 0.324272 1.0 0.282171 0.282171 1.0 100 0.344364 0.344364 1.0 0.302162 0.302162 1.0 101 0.364420 0.364420 1.0 0.322282 0.322282 1.0 102 0.384058 0.384058 1.0 0.342371 0.342371 1.0 103 0.403188 0.403188 1.0 0.362210 0.362210 1.0 104 0.421533 0.421533 1.0 0.381534 0.381534 1.0 105 0.438903 0.438903 1.0 0.400321 0.400321 1.0 106 0.455492 0.455492 1.0 0.418418 0.418418 1.0 107 0.470810 0.470810 1.0 0.435390 0.435390 1.0 108 0.484965 0.484965 1.0 0.451459 0.451459 1.0 109 0.498023 0.498023 1.0 0.466408 0.466408 1.0 110 0.509768 0.509768 1.0 0.480123 0.480123 1.0 111 0.512472 0.512472 1.0 0.492664 0.492664 1.0 112 0.509296 0.509296 1.0 0.503970 0.503970 1.0 113 0.506193 0.506193 1.0 0.507361 0.507361 1.0 114 0.503061 0.503061 1.0 0.503564 0.503564 1.0 115 0.500000 0.500000 1.0 0.500000 0.500000 1.0 116 0.500000 0.500000 1.0 0.500000 0.500000 1.0 117 0.500000 0.500000 1.0 0.500000 0.500000 1.0 118 0.500000 0.500000 1.0 0.500000 0.500000 1.0 119 0.500000 0.500000 1.0 0.500000 0.500000 1.0 120 1.000000 1.000000 1.0 1.000000 1.000000 1.0

    (e) Static tables for 2018. The following static mortality tables are used pursuant to paragraph (a)(3) of this section for determining present value or making any computation under section 430 with respect to valuation dates occurring during 2018.

    Age Males Non-
  • annuitant
  • Annuitant Optional combined table for small plans Females Non-
  • annuitant
  • Annuitant Optional combined table for small plans
    0 0.002420 0.002420 0.002420 0.002234 0.002234 0.002234 1 0.000142 0.000142 0.000142 0.000140 0.000140 0.000140 2 0.000097 0.000097 0.000097 0.000092 0.000092 0.000092 3 0.000081 0.000081 0.000081 0.000070 0.000070 0.000070 4 0.000064 0.000064 0.000064 0.000053 0.000053 0.000053 5 0.000056 0.000056 0.000056 0.000048 0.000048 0.000048 6 0.000051 0.000051 0.000051 0.000045 0.000045 0.000045 7 0.000046 0.000046 0.000046 0.000042 0.000042 0.000042 8 0.000039 0.000039 0.000039 0.000039 0.000039 0.000039 9 0.000032 0.000032 0.000032 0.000037 0.000037 0.000037 10 0.000027 0.000027 0.000027 0.000035 0.000035 0.000035 11 0.000029 0.000029 0.000029 0.000036 0.000036 0.000036 12 0.000044 0.000044 0.000044 0.000042 0.000042 0.000042 13 0.000058 0.000058 0.000058 0.000048 0.000048 0.000048 14 0.000072 0.000072 0.000072 0.000053 0.000053 0.000053 15 0.000087 0.000087 0.000087 0.000059 0.000059 0.000059 16 0.000102 0.000102 0.000102 0.000064 0.000064 0.000064 17 0.000118 0.000118 0.000118 0.000068 0.000068 0.000068 18 0.000135 0.000135 0.000135 0.000072 0.000072 0.000072 19 0.000153 0.000153 0.000153 0.000075 0.000075 0.000075 20 0.000170 0.000170 0.000170 0.000076 0.000076 0.000076 21 0.000192 0.000192 0.000192 0.000078 0.000078 0.000078 22 0.000214 0.000214 0.000214 0.000080 0.000080 0.000080 23 0.000229 0.000229 0.000229 0.000084 0.000084 0.000084 24 0.000238 0.000238 0.000238 0.000087 0.000087 0.000087 25 0.000230 0.000230 0.000230 0.000090 0.000090 0.000090 26 0.000226 0.000226 0.000226 0.000094 0.000094 0.000094 27 0.000226 0.000226 0.000226 0.000099 0.000099 0.000099 28 0.000230 0.000230 0.000230 0.000105 0.000105 0.000105 29 0.000238 0.000238 0.000238 0.000111 0.000111 0.000111 30 0.000249 0.000249 0.000249 0.000120 0.000120 0.000120 31 0.000263 0.000263 0.000263 0.000130 0.000130 0.000130 32 0.000278 0.000278 0.000278 0.000142 0.000142 0.000142 33 0.000294 0.000294 0.000294 0.000155 0.000155 0.000155 34 0.000309 0.000309 0.000309 0.000168 0.000168 0.000168 35 0.000323 0.000323 0.000323 0.000182 0.000182 0.000182 36 0.000336 0.000336 0.000336 0.000196 0.000196 0.000196 37 0.000350 0.000350 0.000350 0.000213 0.000213 0.000213 38 0.000366 0.000366 0.000366 0.000231 0.000231 0.000231 39 0.000385 0.000385 0.000385 0.000251 0.000251 0.000251 40 0.000410 0.000410 0.000410 0.000273 0.000273 0.000273 41 0.000438 0.000443 0.000438 0.000298 0.000296 0.000298 42 0.000474 0.000516 0.000474 0.000326 0.000344 0.000326 43 0.000518 0.000627 0.000519 0.000358 0.000419 0.000358 44 0.000573 0.000779 0.000577 0.000395 0.000520 0.000395 45 0.000636 0.000973 0.000644 0.000436 0.000651 0.000438 46 0.000712 0.001213 0.000726 0.000484 0.000813 0.000489 47 0.000798 0.001502 0.000820 0.000538 0.001010 0.000550 48 0.000896 0.001844 0.000930 0.000597 0.001245 0.000619 49 0.001005 0.002248 0.001056 0.000661 0.001522 0.000697 50 0.001128 0.002719 0.001200 0.000734 0.001844 0.000790 51 0.001265 0.002963 0.001350 0.000814 0.001961 0.000881 52 0.001418 0.003224 0.001542 0.000903 0.002099 0.000992 53 0.001580 0.003481 0.001761 0.001003 0.002263 0.001122 54 0.001761 0.003751 0.002017 0.001114 0.002454 0.001273 55 0.001964 0.004040 0.002393 0.001235 0.002673 0.001508 56 0.002200 0.004357 0.002884 0.001367 0.002921 0.001811 57 0.002474 0.004704 0.003317 0.001509 0.003200 0.002084 58 0.002796 0.005088 0.003805 0.001661 0.003512 0.002379 59 0.003174 0.005515 0.004341 0.001823 0.003860 0.002711 60 0.003613 0.005989 0.004951 0.001994 0.004238 0.003106 61 0.004122 0.006516 0.005639 0.002181 0.004659 0.003619 62 0.004705 0.007100 0.006406 0.002381 0.005119 0.004188 63 0.005364 0.007742 0.007243 0.002600 0.005616 0.004868 64 0.006111 0.008457 0.008071 0.002842 0.006165 0.005515 65 0.006940 0.009234 0.008966 0.003107 0.006766 0.006236 66 0.007779 0.010103 0.009945 0.003465 0.007430 0.007080 67 0.008697 0.011056 0.010940 0.003863 0.008170 0.007897 68 0.009709 0.012114 0.012027 0.004308 0.008993 0.008770 69 0.010836 0.013302 0.013231 0.004806 0.009912 0.009722 70 0.012093 0.014637 0.014571 0.005366 0.010945 0.010756 71 0.013486 0.016126 0.016064 0.006001 0.012111 0.011925 72 0.015044 0.017799 0.017742 0.006711 0.013412 0.013230 73 0.016794 0.019693 0.019640 0.007521 0.014886 0.014711 74 0.018751 0.021823 0.021775 0.008439 0.016552 0.016387 75 0.020950 0.024237 0.024194 0.009485 0.018443 0.018291 76 0.023428 0.026986 0.026949 0.010678 0.020600 0.020465 77 0.026183 0.030081 0.030051 0.012035 0.023061 0.022949 78 0.029308 0.033645 0.033622 0.013582 0.025888 0.025804 79 0.032774 0.037661 0.037648 0.015347 0.029144 0.029097 80 0.036705 0.042295 0.042295 0.017347 0.032886 0.032886 81 0.038556 0.047291 0.047291 0.019058 0.036992 0.036992 82 0.042087 0.053009 0.053009 0.022345 0.041662 0.041662 83 0.047283 0.059466 0.059466 0.027251 0.047017 0.047017 84 0.054248 0.066860 0.066860 0.033811 0.053130 0.053130 85 0.062990 0.075196 0.075196 0.042053 0.060056 0.060056 86 0.073605 0.084646 0.084646 0.052009 0.067888 0.067888 87 0.086115 0.095308 0.095308 0.063725 0.076724 0.076724 88 0.100513 0.107196 0.107196 0.077205 0.086549 0.086549 89 0.116840 0.120431 0.120431 0.092462 0.097426 0.097426 90 0.135087 0.135087 0.135087 0.109484 0.109484 0.109484 91 0.150610 0.150610 0.150610 0.122541 0.122541 0.122541 92 0.166534 0.166534 0.166534 0.136397 0.136397 0.136397 93 0.182546 0.182546 0.182546 0.150811 0.150811 0.150811 94 0.198598 0.198598 0.198598 0.165818 0.165818 0.165818 95 0.214442 0.214442 0.214442 0.181360 0.181360 0.181360 96 0.232944 0.232944 0.232944 0.198746 0.198746 0.198746 97 0.251903 0.251903 0.251903 0.216930 0.216930 0.216930 98 0.271612 0.271612 0.271612 0.235921 0.235921 0.235921 99 0.291889 0.291889 0.291889 0.255617 0.255617 0.255617 100 0.312680 0.312680 0.312680 0.275938 0.275938 0.275938 101 0.333720 0.333720 0.333720 0.296628 0.296628 0.296628 102 0.354570 0.354570 0.354570 0.317471 0.317471 0.317471 103 0.375136 0.375136 0.375136 0.338385 0.338385 0.338385 104 0.395172 0.395172 0.395172 0.358868 0.358868 0.358868 105 0.413945 0.413945 0.413945 0.379183 0.379183 0.379183 106 0.432145 0.432145 0.432145 0.398878 0.398878 0.398878 107 0.449197 0.449197 0.449197 0.417703 0.417703 0.417703 108 0.465497 0.465497 0.465497 0.435384 0.435384 0.435384 109 0.480869 0.480869 0.480869 0.452108 0.452108 0.452108 110 0.495080 0.495080 0.495080 0.467928 0.467928 0.467928 111 0.500557 0.500557 0.500557 0.482562 0.482562 0.482562 112 0.500454 0.500454 0.500454 0.496164 0.496164 0.496164 113 0.500352 0.500352 0.500352 0.502110 0.502110 0.502110 114 0.500201 0.500201 0.500201 0.500952 0.500952 0.500952 115 0.500000 0.500000 0.500000 0.500000 0.500000 0.500000 116 0.500000 0.500000 0.500000 0.500000 0.500000 0.500000 117 0.500000 0.500000 0.500000 0.500000 0.500000 0.500000 118 0.500000 0.500000 0.500000 0.500000 0.500000 0.500000 119 0.500000 0.500000 0.500000 0.500000 0.500000 0.500000 120 1.000000 1.000000 1.000000 1.000000 1.000000 1.000000
    Par. 3. Section 1.430(h)(3)-2 is revised to read as follows:
    § 1.430(h)(3)-2 Plan-specific substitute mortality tables used to determine present value.

    (a) In general. This section sets forth rules for the use of substitute mortality tables under section 430(h)(3)(C) in determining any present value or making any computation under section 430 in accordance with § 1.430(h)(3)-1(a)(1). In order to use substitute mortality tables, a plan sponsor must obtain approval to use substitute mortality tables for the plan in accordance with the procedures set forth in paragraph (b) of this section. Paragraph (c) of this section sets forth rules for the development of substitute mortality tables, including guidelines providing that a plan must have either full or partial credibility in order to have sufficient credible mortality information to use substitute mortality tables. Paragraph (d) of this section describes the requirements for full credibility. Paragraph (e) of this section describes the requirements for partial credibility. Paragraph (f) of this section provides special rules for newly affiliated plans not using substitute mortality tables. Paragraph (g) of this section specifies the effective date and applicability date of this section. The Commissioner may, in revenue rulings and procedures, notices or other guidance published in the Internal Revenue Bulletin (see § 601.601(d)(2)(ii)(b) of this chapter), provide additional guidance regarding approval and use of substitute mortality tables under section 430(h)(3)(C) and related matters.

    (b) Procedures for obtaining approval to use substitute mortality tables—(1) Written request to use substitute mortality tables—(i) General requirements. In order to use substitute mortality tables, a plan sponsor must submit a written request to the Commissioner that demonstrates that those substitute mortality tables meet the requirements of section 430(h)(3)(C) and this section. This request must specify the first plan year and the term of years (not more than 10) for which the tables are to apply.

    (ii) Time for written request. Substitute mortality tables may not be used for a plan year unless the plan sponsor submits the written request described in paragraph (b)(1)(i) of this section at least 7 months prior to the first day of the first plan year for which the substitute mortality tables are to apply.

    (2) Commissioner's review of request—(i) In general. During the 180-day period that begins on the date the plan sponsor submits a request to use substitute mortality tables for a plan pursuant to this section, the Commissioner will determine whether the request to use substitute mortality tables satisfies the requirements of this section (including any published guidance issued pursuant to paragraph (a) of this section), and will either approve or deny the request. The Commissioner will deny a request if the request fails to meet the requirements of this section or if the Commissioner determines that a substitute mortality table does not sufficiently reflect the mortality experience of the applicable plan population.

    (ii) Request for additional information. The Commissioner may request additional information with respect to the submission. Failure to provide that information on a timely basis constitutes grounds for denial of the request.

    (iii) Deemed approval. Except as provided in paragraph (b)(2)(iv) of this section, if the Commissioner does not issue a denial within the 180-day review period, the request is deemed to have been approved.

    (iv) Extension of time permitted. The Commissioner and a plan sponsor may, before the expiration of the 180-day review period, agree in writing to extend that period, provided that any such agreement also specifies any revisions in the plan sponsor's request, including any change in the requested term of use of the substitute mortality tables.

    (c) Development of substitute mortality tables—(1) Substitute mortality tables must be used for all plans in controlled group—(i) General rule. Except as otherwise provided in this paragraph (c), substitute mortality tables are permitted to be used for a plan for a plan year only if, for that plan year (or any portion of that plan year), substitute mortality tables are also approved and used for each other pension plan subject to the requirements of section 430 that is maintained by the plan sponsor and by each member of the plan sponsor's controlled group. For purposes of this section, the term controlled group means any group treated as a single employer under paragraph (b), (c), (m), or (o) of section 414.

    (ii) Treatment of plans without credible mortality information. The rule of paragraph (c)(1)(i) of this section does not prohibit use of substitute mortality tables for one plan for a plan year if the only other plan or plans maintained by the plan sponsor (or by a member of the plan sponsor's controlled group) for which substitute mortality tables are not used are too small to have fully or partially credible mortality information for the plan year. For purposes of demonstrating that neither males nor females under a plan have credible mortality information for a plan year, the length of the experience study period must be the same length as the longest experience study period used for any plan within the controlled group.

    (2) Mortality experience requirements—(i) In general. Substitute mortality tables must reflect the actual mortality experience of the pension plan for which the tables are to be used and that mortality experience must be credible mortality information as described in paragraph (c)(2)(ii) of this section. Separate mortality tables must be established for each gender under the plan, and a substitute mortality table is permitted to be established for a gender only if the plan has credible mortality information with respect to that gender. See paragraph (d)(5) of this section for rules permitting the use of substitute mortality tables for populations within a gender that have full credibility.

    (ii) Credible mortality information—(A) In general. There is credible mortality information for a gender within a plan if and only if the mortality experience with respect to that gender satisfies the requirement for either—

    (1) Full credibility (as described in paragraph (d) of this section); or

    (2) Partial credibility (as described in paragraph (e) of this section).

    (B) Simplified rule. Whether there is credible mortality information for a gender may be determined by only taking into account people who are at least age 50 and less than age 100. If there is credible mortality information for a gender when applying this simplified rule, the entire gender (not just those who are at least age 50 and less than age 100) has credible mortality information.

    (iii) Gender without credible mortality information—(A) In general. If for a plan, one gender has credible mortality information but for a plan year the other gender does not have credible mortality information, then the substitute mortality tables are established for the gender that does have credible mortality information and the mortality tables under § 1.430(h)(3)-1 are used for the gender that does not have credible mortality information.

    (B) Demonstration of lack of credible mortality information for a gender. In general, in order to demonstrate that a gender within a plan does not have credible mortality information for a plan year, the demonstration that the gender within the plan has fewer than the minimum number of actual deaths to have partial credibility, as described in paragraph (e)(1) of this section, must be made by analyzing the actual number of deaths over a period that is the same length as the period for the experience study on which the substitute mortality tables are based and that ends less than three years before the first day of the plan year.

    (3) Determination of substitute mortality tables—(i) Requirement to use generational mortality table. A plan's substitute mortality tables must be generational mortality tables. A plan's substitute mortality tables are determined using the plan's base substitute mortality tables developed pursuant to paragraph (d) or (e) of this section and the mortality improvement factors described in paragraph (c)(3)(ii) of this section.

    (ii) Determination of mortality improvement factors. The mortality improvement factor for an age and a gender is the cumulative mortality improvement factor determined under § 1.430(h)(3)-1(a)(2)(i)(E) for the applicable period. The applicable period is the period beginning with the base year of the base substitute mortality table determined under paragraph (d) or (e) of this section and ending in the calendar year in which the individual attains the age for which the probability of death is being determined. The base year for the base substitute mortality table is the calendar year that contains the day before the midpoint of the experience study period.

    (4) Disabled individuals. Under section 430(h)(3)(D), separate mortality tables are permitted to be used for certain disabled individuals. If such separate mortality tables are used for those disabled individuals, then those individuals are disregarded for all purposes under this section. Thus, if the mortality tables under section 430(h)(3)(D) are used for disabled individuals under a plan, mortality experience with respect to those individuals must be excluded in developing mortality rates for substitute mortality tables under this section.

    (5) Aggregation—(i) Permissive aggregation of plans. A plan sponsor may use a set of substitute mortality tables for two or more its plans provided that the rules of this section are applied by treating those plans as a single plan. In such a case, the substitute mortality tables must be used for the aggregated plans and must be based on data collected with respect to those aggregated plans.

    (ii) Required aggregation of plans. In general, plans are not required to be aggregated for purposes of applying the rules of this section. However, for purposes of this section, a plan is required to be aggregated with any plan that was previously spun off from that plan if a purpose of the spinoff is to avoid the use of substitute mortality tables for any of the plans that were involved in the spinoff.

    (6) Duration of use of tables—(i) General rule. Except as provided in this paragraph (c)(6), substitute mortality tables are used for a plan for the term of consecutive plan years specified in the plan sponsor's written request to use such tables under paragraph (b)(1) of this section and approved by the Commissioner, or a shorter period prescribed by the Commissioner in the approval to use substitute mortality tables. Following the end of the approved term of use, or following any early termination of use described in this paragraph (c)(6), the mortality tables specified in § 1.430(h)(3)-1 are used for the plan unless approval under paragraph (b)(1) of this section has been received by the plan sponsor to use substitute mortality tables for a further term.

    (ii) Early termination of use of tables. A plan's substitute mortality tables must not be used beginning with the earliest of—

    (A) For a plan using a substitute mortality table for only one gender because of a lack of credible mortality information with respect to the other gender, the first plan year for which there is credible mortality information with respect to the gender that had lacked credible mortality information (unless an approved substitute mortality table is used for that gender);

    (B) The first plan year for which the plan fails to satisfy the requirements of paragraph (c)(1) of this section (regarding use of substitute mortality tables by controlled group members);

    (C) The second plan year following the plan year for which there is a significant change in individuals covered by the plan as described in paragraph (c)(6)(iii) of this section;

    (D) The first plan year following the plan year for which a substitute mortality table used for a plan population is no longer accurately predictive of future mortality of that population, as determined by the Commissioner or as certified by the plan's actuary to the satisfaction of the Commissioner; or

    (E) The date specified in guidance published in the Internal Revenue Bulletin (see § 601.601(d)(2)(ii)(b) of this chapter) in conjunction with a replacement of mortality tables specified under section 430(h)(3)(A) and § 1.430(h)(3)-1 (other than annual updates to the static mortality tables issued pursuant to § 1.430(h)(3)-1(a)(3) or changes to the mortality improvement rates pursuant to § 1.430(h)(3)-1(a)(2)(i)(C)).

    (iii) Significant change in coverage—(A) Change in coverage from time of experience study. For purposes of applying the rules of paragraph (c)(6)(ii)(C) of this section, a significant change in the individuals covered by a substitute mortality table occurs if there is an increase or decrease in the number of individuals of at least 20 percent compared to the average number of individuals in that population over the years covered by the experience study on which the substitute mortality tables are based. However, a change in coverage is not treated as significant if the plan's actuary certifies in writing to the satisfaction of the Commissioner that the substitute mortality tables used for the plan population continue to be accurately predictive of future mortality of that population (taking into account the effect of the change in the population).

    (B) Change in coverage from time of certification. For purposes of applying the rules of paragraph (c)(6)(ii)(C) of this section, a significant change in the individuals covered by a substitute mortality table occurs if there is an increase or decrease in the number of individuals covered by a substitute mortality table of at least 20 percent compared to the number of individuals in a plan year for which a certification described in paragraph (c)(6)(iii)(A) of this section was made on account of a prior change in coverage. However, a change in coverage is not treated as significant if the plan's actuary certifies in writing to the satisfaction of the Commissioner that the substitute mortality tables used by the plan with respect to the covered population continue to be accurately predictive of future mortality of that population (taking into account the effect of the change in the plan population).

    (d) Full credibility—(1) In general. The mortality experience with respect to a gender or other population within a plan has full credibility if the actual number of deaths for that population during the experience study period described in paragraph (d)(2) of this section is at least the full credibility threshold described in paragraph (d)(3) of this section. Paragraph (d)(4) of this section provides rules for the creation of a base substitute mortality table from the experience study, which apply if the mortality experience for the population has full credibility.

    (2) Experience study period requirements. The base substitute mortality table for a gender or other population within a plan must be developed from an experience study of the mortality experience of that population that is collected over an experience study period. The length of the experience study period must be at least 2 years and no more than 5 years. The last day of the final year reflected in the experience data must be less than 3 years before the first day of the first plan year for which the substitute mortality tables are to apply. For example, if July 1, 2019, is the first day of the first plan year for which the substitute mortality tables will be used, then an experience study using calendar year data must include data collected for a period that ends no earlier than December 31, 2016.

    (3) Full credibility threshold—(i) Threshold number of deaths. The full credibility threshold for a gender or other population within a plan is the product of 1,082 and the population's benefit dispersion factor. In calculating the population's benefit dispersion factor, for purposes of paragraphs (d)(3)(iii), (iv), and (v) of this section, the population is adjusted, as appropriate, for people who leave on account of reason other than death.

    (ii) Population's benefit dispersion factor. The population's benefit dispersion factor is equal to—

    (A) The number of expected deaths for the population during the experience study period (as defined in paragraph (d)(3)(iii) of this section); multiplied by

    (B) The mortality-weighted square of the benefits (as defined in paragraph (d)(3)(iv) of this section); divided by

    (C) The square of the mortality-weighted benefits (as defined in paragraph (d)(3)(v) of this section).

    (iii) Number of expected deaths. The number of expected deaths for a population during the experience study period is equal to the sum, for each year in the experience study period, of the expected number of deaths in the population during the year using the mortality rates from the standard mortality tables set forth in paragraph (d)(4)(iii) of this section.

    (iv) Mortality-weighted square of the benefits. The mortality-weighted square of the benefits for a population is the sum, for each year in the experience study period, for all individuals for each age in the population at the beginning of the year, of the product of—

    (A) The probability of death of those individuals using the mortality rate for that age from the standard mortality table set forth in paragraph (d)(4)(iii) of this section; and

    (B) The sum of the square of the accrued benefits (substituting the current periodic payment in the case of individuals in pay status) for those individuals.

    (v) Square of the mortality-weighted benefits. The square of the mortality-weighted benefits is equal to the square of the sum, for each year in the experience study period, for all individuals for each age in the population at the beginning of the year, of the product of—

    (A) The probability of death of those individuals using the mortality rate for that age from the standard mortality table set forth in paragraph (d)(4)(iii) of this section; and

    (B) The sum of the accrued benefits (substituting the current periodic payment in the case of individuals in pay status) for those individuals.

    (4) Development of mortality rates—(i) In general. The mortality rates derived from the experience study must be amounts-weighted mortality rates that are derived by multiplying the mortality rate from the standard mortality table described in paragraph (d)(4)(iii) of this section by the mortality ratio determined under paragraph (d)(4)(ii) of this section. If the simplified rule of paragraph (c)(2)(ii)(B) of this section is used for the population, then the mortality ratio is determined only taking into account people who are at least 50 years old and less than 100 years old, but the mortality ratio is applied to all ages. Because amounts-weighted mortality rates for a plan cannot be determined without benefit amounts, the mortality experience study used to develop a base table must not include periods before the plan was established.

    (ii) Mortality ratio. The mortality ratio for a gender or other population within a plan is equal to the quotient determined by dividing—

    (A) The sum, for each year in the experience study period, of the accrued benefits (substituting the current periodic payment in the case of individuals in pay status) for all individuals in the population at the beginning of the year who died during the year, by

    (B) The sum, for each year in the experience study period, for all individuals for each age in the population at the beginning of the year (adjusted, as appropriate, for people who leave on account of reason other than death), of the product of—

    (1) The probability of death of those individuals using the mortality rate for that age from the standard mortality table set forth in paragraph (d)(4)(iii) of this section; and

    (2) The sum of the accrued benefits (substituting the current periodic payment in the case of individuals in pay status) for those individuals.

    (iii) Standard mortality table—(A) Projection of base table. The standard mortality table for a year is the mortality table determined by applying cumulative mortality improvement factors determined under § 1.430(h)(3)-1(a)(2)(i)(E) to the base mortality table under § 1.430(h)(3)-1(d) for the period beginning with 2006 and ending in the base year for the base substitute mortality table determined under paragraph (d) or (e) of this section. For purposes of the previous sentence, the cumulative mortality improvement factors are determined using the mortality improvement rates described in § 1.430(h)(3)-1(a)(2)(i)(C) that apply for the calendar year during which the plan sponsor submits the request to use substitute mortality tables. If the plan sponsor submits such a request during 2017, then the cumulative mortality improvement factors are determined using the mortality improvement rates contained in the Mortality Improvement Scale MP-2016 Report (issued by the Retirement Plans Experience Committee (RPEC) of the Society of Actuaries and available at www.soa.org/Research/Experience-Study/Pension/research-2016-mp.aspx).

    (B) Selection of base table. If the population consists solely of annuitants, the annuitant base mortality table under § 1.430(h)(3)-1(d) must be used for purposes of paragraph (d)(4)(iii)(A) of this section. If the population consists solely of nonannuitants, the nonannuitant base mortality table under § 1.430(h)(3)-1(d) must be used for that purpose. If the population includes both annuitants and non-annuitants, a combination of the annuitant and nonannuitant base tables under § 1.430(h)(3)-1(d) must be used for that purpose. The combined table is constructed using the weighting factors for small plans that are set forth in § 1.430(h)(3)-1(d). The weighting factors are applied to develop the combined table using the following equation: Combined mortality rate = [nonannuitant rate * (1 − weighting factor)] + [annuitant rate * weighting factor].

    (iv) Change in number of individuals covered by table. Experience data may not be used to develop a base table if the number of individuals in the population covered by the table (for example, the male annuitant population) as of the last day of the plan year before the year the request to use substitute mortality tables is made, compared to the average number of individuals in that population over the years covered by the experience study on which the substitute mortality tables are based, reflects a difference of 20 percent or more, unless it is demonstrated to the satisfaction of the Commissioner that the experience data is accurately predictive of future mortality of that plan population (taking into account the effect of the change in individuals) after appropriate adjustments to the data are made (for example, excluding data from individuals with respect to a spun-off portion of the plan). For this purpose, a reasonable estimate of the number of individuals in the population covered by the table may be used.

    (5) Separate tables for specified populations—(i) In general. Except as provided in this paragraph (d)(5), separate substitute mortality tables are permitted to be used for separate populations within a gender under a plan only if—

    (A) All individuals of that gender in the plan are divided into separate populations;

    (B) Each separate population has mortality experience that has full credibility as determined under the rules of paragraph (d)(5)(iii) of this section; and

    (C) The separate base substitute mortality table for each separate population is developed applying the rules of paragraphs (d)(1) through (4) of this section using an experience study that takes into account solely members of that population.

    (ii) Annuitant and nonannuitant separate populations. Notwithstanding paragraph (d)(5)(i)(B) of this section, substitute mortality tables for separate populations of annuitants and nonannuitants within a gender may be used even if only one of those separate populations has credible mortality information. Similarly, if separate populations that satisfy paragraph (d)(5)(i)(B) of this section are established, then any of those populations may be further subdivided into separate annuitant and nonannuitant subpopulations, provided that at least one of the two resulting subpopulations has credible mortality experience. The standard mortality tables under § 1.430(h)(3)-1 are used for a resulting subpopulation that does not have credible mortality information. For example, in the case of a plan with mortality experience for both its male hourly and salaried individuals that has full credibility, if the male salaried annuitant population has credible mortality information, substitute mortality tables may be used for the plan with respect to that population even if the standard mortality tables under § 1.430(h)(3)-1 are used with respect to the male salaried nonannuitant population (because that nonannuitant population does not have credible mortality information).

    (iii) Credible mortality experience for separate populations. In determining whether the mortality experience for a separate population within a gender has full credibility, the requirements of paragraph (d)(1) of this section must be satisfied but, in applying that paragraph (d)(1), the separate population should be substituted for the particular gender. In demonstrating that an annuitant or nonannuitant population within a gender or within a separate population does not have credible mortality information, the requirements of paragraph (c)(2)(iii)(B) of this section must be satisfied but, in applying that paragraph, the annuitant (or nonannuitant) population should be substituted for the particular gender.

    (e) Partial credibility—(1) In general. The mortality experience with respect to a population has partial credibility if the actual number of deaths for that population during the experience study period described in paragraph (d)(2) of this section is at least equal to the partial credibility threshold of 100 and is less than the full credibility threshold described for the population in paragraph (d)(3) of this section. If the mortality experience for the population has partial credibility, then in lieu of creating a base substitute mortality table as described in paragraph (d) of this section, the base substitute mortality table is created as the sum of—

    (i) The product of—

    (A) The partial credibility weighting factor determined under paragraph (e)(2) of this section; and

    (B) The mortality rates that are derived from the experience study determined under paragraph (d)(4)(i) of this section, and

    (ii) The product of—

    (A) One minus the partial credibility weighting factor described in paragraph (e)(2) of this section; and

    (B) The mortality rate from the standard mortality tables described in paragraph (d)(4)(iii) of this section.

    (2) Partial credibility weighting factor. The partial credibility weighting factor is equal to the square root of the fraction—

    (i) The numerator of which is the actual number of deaths for the population during the experience study period, and

    (ii) The denominator of which is the full credibility threshold for the population described in paragraph (d)(3) of this section.

    (f) Special rules for newly affiliated plans—(1) In general. This paragraph (f) provides special rules that provide temporary relief from certain rules in this section in the case of a controlled group that includes a newly affiliated plan. Paragraph (f)(2) of this section provides a transition period during which the requirement in paragraph (c)(1) of this section (that is, the requirement that all plans within the controlled group that have credible mortality information must use substitute mortality tables) is not applicable. Paragraph (f)(3) of this section provides special rules that permit the use of a shorter experience study period in the case of a newly affiliated plan that excludes the mortality experience data for the period prior to the date the plan sponsor becomes maintained by a member of the new plan sponsor's controlled group. Paragraph (f)(4) of this section defines newly affiliated plan.

    (2) Transition period for newly affiliated plans. The use of substitute mortality tables for a plan within a controlled group is not prohibited merely because substitute mortality tables are not used during the transition period for a newly affiliated plan that fails to demonstrate a lack of credible mortality information during the that period. Similarly, during the transition period, the use of substitute mortality tables for a newly affiliated plan is not prohibited merely because substitute mortality tables are not used for another plan within the controlled group that fails to demonstrate a lack of credible mortality information during that period. The transition period runs through the last day of the plan year that contains the last day of the period described in section 410(b)(6)(C)(ii) for either of the plans, whichever is later.

    (3) Experience study period for newly affiliated plan—(i) In general. The mortality experience data for a newly affiliated plan may either include or exclude mortality experience data for the period prior to the date the plan becomes maintained by a member of the new plan sponsor's controlled group. If a plan sponsor excludes mortality experience data for the period prior to the date the plan becomes maintained within the new plan sponsor's controlled group, the exclusion must apply for all populations within the plan.

    (ii) Demonstration relating to lack of credible mortality experience. If the experience study for a newly affiliated plan excludes mortality experience data for the period prior to the date the plan becomes maintained by a member of the new plan sponsor's controlled group, then the demonstration that the plan does not have credible mortality information for a plan year that begins after the transition period can be made using a shorter experience study period than would otherwise be permitted under paragraph (c)(2)(iii)(B) of this section, provided that the experience study period begins with the date the plan becomes maintained within the sponsor's controlled group and ends not more than one year and one day before the first day of the plan year.

    (iii) Demonstration relating to credible mortality experience. If the experience study for a newly affiliated plan excludes mortality experience data for the period prior to the date the plan becomes maintained by a member of the new plan sponsor's controlled group and the plan fails to demonstrate that it does not have credible mortality information for the plan year under the rules of paragraph (f)(3)(ii) of this section, then other plans within the controlled group can continue to use substitute mortality tables only if substitute mortality tables are used for the newly affiliated plan the plan year. In such a case, the experience study period can be a shorter period than the period in paragraph (d)(2) of this section, provided that the period is at least one year.

    (4) Definition of newly affiliated plan. For purposes of this paragraph (f), a plan is treated as a newly affiliated plan if it becomes maintained by the plan sponsor (or by a member of the plan sponsor's controlled group) in connection with a merger, acquisition, or similar transaction described in § 1.410(b)-2(f). A plan also is treated as a newly affiliated plan for purposes of this section if the plan is established in connection with a transfer of assets and liabilities from another employer's plan in connection with a merger, acquisition, or similar transaction described in § 1.410(b)-2(f).

    (g) Effective/applicability date. This section applies for plan years beginning on or after January 1, 2018, and any substitute mortality table used for a plan for such a plan year must comply with the rules of this section.

    Par. 4. Section 1.431(c)(6)-1 is revised to read as follows:
    § 1.431(c)(6)-1 Mortality tables used to determine current liability.

    (a) Mortality tables used to determine current liability. The mortality assumptions that apply to a defined benefit plan for the plan year pursuant to section 430(h)(3)(A) and § 1.430(h)(3)-1(a) are used to determine a multiemployer plan's current liability for purposes of applying the rules of section 431(c)(6). Either the generational mortality tables used pursuant to § 1.430(h)(3)-1(a)(2) or the static mortality tables used pursuant to § 1.430(h)(3)-1(a)(3) are permitted to be used for a multiemployer plan for this purpose. However, for this purpose, substitute mortality tables under § 1.430(h)(3)-2 are not permitted to be used for a multiemployer plan.

    (b) Effective/applicability date. This section applies for plan years beginning on or after January 1, 2018. For rules that apply to plan years beginning before January 1, 2018 and on or after January 1, 2008, see § 1.431(c)(6)-1 (as contained in 26 CFR part 1 revised April 1, 2015).

    Par. 5. Section 1.433(h)(3)-1 is added to read as follows:
    § 1.433(h)(3)-1 Mortality tables used to determine current liability.

    (a) Mortality tables used to determine current liability. In accordance with section 433(h)(3)(B), the mortality assumptions that apply to a defined benefit plan for the plan year pursuant to section 430(h)(3)(A) and § 1.430(h)(3)-1(a) are used to determine a CSEC plan's current liability for purposes of applying the rules of section 433(c)(7)(C). Either the static mortality tables used pursuant to § 1.430(h)(3)-1(a)(3) or generational mortality tables used pursuant to § 1.430(h)(3)-1(a)(2) are permitted to be used for a CSEC plan for this purpose, but substitute mortality tables under § 1.430(h)(3)-2 are not permitted to be used for this purpose.

    (b) Effective/applicability date. This section applies for plan years beginning on or after January 1, 2018.

    John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2016-30906 Filed 12-28-16; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-112800-16] RIN 1545-BN42 Nuclear Decommissioning Funds AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    This document provides proposed changes to the regulations under section 468A of the Internal Revenue Code of 1986 (Code) relating to deductions for contributions to trusts maintained for decommissioning nuclear power plants and the use of the amounts in those trusts to decommission nuclear plants. The proposed regulations revise certain provisions to: Address issues that have arisen as more nuclear plants have begun the decommissioning process; and clarify provisions in the current regulations regarding self-dealing and the definition of substantial completion of decommissioning.

    DATES:

    Written or electronic comments and requests for a public hearing must be received by March 29, 2017.

    ADDRESSES:

    Send submissions to: CC:PA:LPD:PR (REG-112800-16), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-112800-16), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically, via the Federal eRulemaking Portal at http://www.regulations.gov/ (IRS REG-112800-16).

    FOR FURTHER INFORMATION CONTACT:

    Concerning the regulations, Jennifer C. Bernardini, (202) 317-6853; concerning submissions and to request a hearing, Regina Johnson, (202) 317-6901 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION: Paperwork Reduction Act

    There is no new collection of information contained in this notice of proposed rulemaking. The collection of information contained in the regulations under section 468A has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-2091. Responses to these collections of information are required to obtain a tax benefit.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.

    Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by section 6103 of the Code.

    Background

    This proposed rulemaking consists of several amendments to the existing regulations under section 468A. Section 468A was originally enacted by section 91(c)(1) of the Deficit Reduction Act of 1984, Public Law 98-369, (98 Stat 604) and has been amended, most recently by section 1310 of the Energy Policy Act of 2005, Public Law 109-58 (119 Stat 594). Temporary regulations (TD 9374) under section 468A were published in the Federal Register for December 31, 2007 (72 FR 74175). Regulations finalizing and removing the temporary regulations (TD 9512) were published in the Federal Register on December 23, 2010 (75 FR 80697).

    Explanation of Provisions 1. Definition of Nuclear Decommissioning Costs A. Inclusion of Amounts Related to the Storage of Spent Fuel Within Definition of Nuclear Decommissioning Costs

    Section 468A is intended to allow taxpayers to currently deduct amounts set aside in a qualified fund (Fund) for the purpose of decommissioning a nuclear power plant. The taxpayer must include the amount of any actual or deemed distribution from the Fund in gross income in the year of the distribution, as provided in § 1.468A-2(d)(1). Taxpayers may then claim an offsetting deduction for amounts spent on decommissioning costs as determined under section 461(h) and other sections. See § 1.468A-2(e).

    Taxpayers that operate nuclear power plants, whether such plants are currently operating or have ceased operations, must safely store spent fuel. Nuclear fuel assemblies are removed from the reactor and those assemblies are stored in a spent fuel pool for cooling. Subsequently, the spent fuel may be inserted into storage casks and the casks transferred to an on-site Independent Spent Fuel Storage Installation (ISFSI). An ISFSI consists of a concrete storage pad on which the storage casks are placed. Although the Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101, et seq, requires the Department of Energy (DOE) to take and dispose of spent nuclear fuel in a permanent geologic repository, no such repository has been established and the government has not yet begun accepting spent fuel. Thus, operators of nuclear power plants must safely store spent fuel in an on-site ISFSI.

    Existing § 1.468A-1(b)(6) defines nuclear decommissioning costs as including “all otherwise deductible expenses to be incurred in connection with” the disposal of certain nuclear assets. Section 1.468A-1(b)(6) continues that “such term also includes costs incurred in connection with the construction, operation, and ultimate decommissioning of a facility used solely to store, pending acceptance by the government for permanent storage or disposal, spent nuclear fuel generated by the nuclear power plant or plants located on the same site as the storage facility.” The Treasury Department and the IRS have become aware that there are questions regarding whether ISFSI-related costs for the construction or purchase of assets that would not necessarily qualify as “otherwise deductible” expenses under the current regulation are included as nuclear decommissioning costs. The proposed regulations clarify the definition of nuclear decommissioning costs to specifically provide for ISFSI-related costs.

    B. Inclusion of Amounts for Purchase or Construction of a Depreciable Asset as Part of Decommissioning Process Within Definition of Nuclear Decommissioning Costs

    Under the existing regulations, questions have arisen as to whether a cost must be currently deductible for that amount to be payable currently from the Fund under the “otherwise deductible” language of § 1.468A-1(b)(6). For example, where a depreciable asset is purchased or constructed as part of the decommissioning process (and the asset is not considered abandoned) questions have arisen regarding whether the “otherwise deductible” language is satisfied solely by the fact that the property is depreciable or whether the expense is treated as a deductible decommissioning expense only to the extent that depreciation is currently allowed. This raises a timing issue regarding whether a fund may pay for the purchase or construction of a depreciable asset to be used in decommissioning that is not considered abandoned when completed. Under the present regulations, because the asset would be fully depreciable but the cost of the asset is not otherwise deductible, a fund may only pay for the portion of the depreciation allowable in the tax year in which such property is placed in service. The intent of section 468A is to allow owners of nuclear power plants to put amounts in a Fund on a tax-free basis and then to use those amounts and the earnings on those amounts to pay for decommissioning. In order to effectuate that intent, the proposed regulations broaden the definition of nuclear decommissioning costs to include the total cost of depreciable assets by adding the words “or recoverable through depreciation” following “otherwise deductible” in § 1.468A-1(b)(6).

    2. Clarification of the Applicability of the Self-Dealing Rules to Transactions Between the Fund and Related Parties

    Section 4951 imposes an excise tax on acts of self-dealing between a “disqualified person” and a trust described in section 501(c)(21). Section 468A(e)(5) provides that, under regulations prescribed by the Secretary, for purposes of section 4951, the Fund shall be treated in the same manner as a trust described in section 501(c)(21). Section 1.468A-5(b)(1) states that the excise taxes imposed by section 4951 apply to each act of self-dealing between the Fund and a disqualified person. Section 1.468A-5(b)(2) defines “self-dealing,” for purposes of § 1.468A-5(b), as any act described in section 4951(d), but provides for some exclusions, including a payment by a Fund for the purpose of satisfying, in whole or in part, the liability of the taxpayer who has elected section 468A and established a Fund (electing taxpayer) for decommissioning costs of the nuclear power plant to which the Fund relates. Section 1.468A-5(b)(3), by reference to section 4951(e)(4) and § 53.4951-1(d), provides that the term “disqualified person” includes, with respect to a trust, a contributor to the trust and a trustee of the trust.

    The IRS has issued several private letter rulings holding that a reimbursement to an electing taxpayer or an unrelated party by a Fund of decommissioning costs, such as severance payments and pre-dismantlement decommissioning costs, is made for the purpose of satisfying the liability of the electing taxpayer for decommissioning costs of the nuclear power plant to which the Fund relates and therefore is not self-dealing. Thus, under these rulings, the reimbursement by a Fund of these costs represents a permissible use of the Funds. To remove any lingering uncertainty, as well as to avoid the burden on taxpayers of filing additional ruling requests on these issues, the proposed regulations clarify that reimbursements of decommissioning costs by the Fund to related parties (including the electing taxpayer) that paid such costs are not an act of self-dealing. However, no amount beyond what is actually paid by the related party, including amounts such as direct or indirect overhead or a reasonable profit element, may be included in the reimbursement by the Fund.

    3. Definition of “Substantial Completion” in § 1.468A-5(d)(3)(i)

    Existing § 1.468A-5(d)(3)(i) defines the substantial completion date as “the date that the maximum acceptable radioactivity levels mandated by the Nuclear Regulatory Commission [NRC] with respect to a decommissioned nuclear power plant are satisfied.” However, § 1.468A-5(d)(3)(ii) provides that, if a significant portion of the total estimated decommissioning costs are not incurred on or before the substantial completion date, the electing taxpayer may request a ruling that designates a date subsequent to the substantial completion date as the termination date; such later date may be no later than the last day of the third taxable year after the taxable year that includes the substantial completion date. Under certain state and local requirements, the plant operator must return the site of the plant to conditions requiring time beyond that needed to reach the maximum radioactivity level mandated by the NRC. To accommodate these situations without requiring that the taxpayer request a ruling, the proposed regulations amend the definition of “substantial completion” to the date on which all Federal, state, local, and contractual decommissioning liabilities are fully satisfied.

    Proposed Effective/Applicability Date

    The rules contained in these regulations are proposed to apply to taxable years ending on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register. Notwithstanding the prospective effective date, the IRS will not challenge return positions consistent with these proposed regulations for taxable years ending on or after the date these proposed regulations are published.

    Special Analyses

    Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and affirmed by Executive Order 13563. Therefore, a regulatory assessment is not required. It is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on (1) the fact that the rules in these proposed regulations primarily affect owners of nuclear power plants which are not small entities as defined by the Regulatory Flexibility Act (5 U.S.C. 601) and (2) the proposed regulations do not impose a collection of information on small entities. Accordingly, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. 601) is not required. We request comment on the accuracy of this certification. Pursuant to section 7805(f) of the Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

    Comments and Requests for a Public Hearing

    Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronically generated comments that are submitted timely to the IRS. The Treasury Department and the IRS generally request comments on the clarity of the proposed rule and how it may be made easier to understand. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested in writing by a person who timely submits comments. If a public hearing is scheduled, notice of the date, time, and place for the hearing will be published in the Federal Register.

    Drafting Information

    The principal author of these regulations is Jennifer C. Bernardini, Office of Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and Treasury Department participated in their development.

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    Par. 2. Section § 1.468A-1 is amended by revising paragraph (b)(6) to read as follows:
    § 1.468A-1 Nuclear decommissioning costs; general rules.

    (b) * * *

    (6)(i) The term nuclear decommissioning costs or decommissioning costs includes all otherwise deductible expenses to be incurred in connection with the entombment, decontamination, dismantlement, removal and disposal of the structures, systems and components of a nuclear power plant, whether that nuclear power plant will continue to produce electric energy or has permanently ceased to produce electric energy. Such term includes all otherwise deductible expenses to be incurred in connection with the preparation for decommissioning, such as engineering and other planning expenses, and all otherwise deductible expenses to be incurred with respect to the plant after the actual decommissioning occurs, such as physical security and radiation monitoring expenses. An expense is otherwise deductible for purposes of this paragraph (b)(6) if it would be deductible or recoverable through depreciation or amortization under chapter 1 of the Internal Revenue Code without regard to section 280B.

    (ii) The term nuclear decommissioning costs or decommissioning costs also includes costs incurred in connection with the construction, operation, and ultimate decommissioning of a facility used solely to store, pending delivery to a permanent repository or disposal, spent nuclear fuel generated by the nuclear power plant or plants located on the same site as the storage facility (for example, an Independent Spent Fuel Storage Installation). Such term does not include otherwise deductible expenses to be incurred in connection with the disposal of spent nuclear fuel under the Nuclear Waste Policy Act of 1982 (Pub. L. 97-425).

    Par. 3. Paragraph § 1.468A-5 is amended by revising the heading and paragraphs (b)(2)(i) and (d)(3)(i) to read as follows:
    § 1.468A-5 Nuclear decommissioning fund—miscellaneous provisions.

    (b) * * *

    (2) * * *

    (i) A payment by a nuclear decommissioning fund for the purpose of satisfying, in whole or in part, the liability of the electing taxpayer for decommissioning costs of the nuclear power plant to which the nuclear decommissioning fund relates, whether such payment is made to an unrelated party in satisfaction of the decommissioning liability or to the plant operator or other otherwise disqualified person as reimbursement solely for actual expenses paid by such person in satisfaction of the decommissioning liability;

    (d) * * *

    (3) * * *

    (i) The substantial completion of the decommissioning of a nuclear power plant occurs on the date on which all Federal, state, local, and contractual decommissioning requirements are fully satisfied (the substantial completion date). Except as otherwise provided in paragraph (d)(3)(ii) of this section, the substantial completion date is also the termination date.

    John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2016-31205 Filed 12-28-16; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2016-0130; FXES11130900000 178 FF09E42000] RIN 1018-BB90 Endangered and Threatened Wildlife and Plants; Reclassifying the Tobusch Fishhook Cactus From Endangered to Threatened on the Federal List of Endangered and Threatened Plants AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule and 12-month petition finding; request for comments.

    SUMMARY:

    Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), propose to reclassify the Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii; currently listed as Ancistrocactus tobuschii) from endangered to threatened on the Federal List of Endangered and Threatened Plants (List). This determination is based on a thorough review of the best available scientific and commercial information, which indicates that the threats to this plant have been reduced to the point that it no longer meets the definition of endangered under the Act, but may still become endangered within the foreseeable future. This document also serves as the 12-month finding on a petition to reclassify this plant from endangered to threatened.

    DATES:

    We will accept comments received or postmarked on or before February 27, 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 13, 2017.

    ADDRESSES:

    Written comments: You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2016-0130, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2016-0130, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information).

    Copies of Documents: This proposed rule and supporting documents are available on http://www.regulations.gov. In addition, the supporting file for this proposed rule will be available for public inspection, by appointment, during normal business hours, at the Austin Ecological Services Field Office, 10711 Burnet Rd., Suite 200, Austin, TX 78727; telephone 512-490-0057.

    FOR FURTHER INFORMATION CONTACT:

    Adam Zerrenner, Field Supervisor, U.S. Fish and Wildlife Service, Austin Ecological Services Field Office, 10711 Burnet Rd., Suite 200, Austin, TX 78727; telephone 512-490-0057; or facsimile 512-490-0974. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION: Information Requested Public Comments

    We want any final rule resulting from this proposal to be as effective as possible. Therefore, we invite tribal and governmental agencies, the scientific community, industry, and other interested parties to submit comments or recommendations concerning any aspect of this proposed rule. Comments should be as specific as possible.

    To issue a final rule to implement this proposed action, we will take into consideration all comments and any additional information we receive. Such communications may lead to a final rule that differs from this proposal. All comments, including commenters' names and addresses, if provided to us, will become part of the supporting record.

    We are specifically requesting comments on:

    (1) New information on the historical and current status, range, distribution, and population size of the Tobusch fishhook cactus, including the locations of any additional populations.

    (2) New information on the known and potential threats to the Tobusch fishhook cactus.

    (3) New information regarding the life history, ecology, and habitat use of the Tobusch fishhook cactus.

    Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.) directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

    You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES. Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES. We will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in DATES.

    We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

    Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Public Hearing

    Section 4(b)(5)(E) of the Act provides for one or more public hearings on this proposed rule, if requested. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by the date shown in DATES. We will schedule public hearings on this proposal, if any are requested, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before the first hearing.

    Peer Review

    In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” which was published on July 1, 1994 (59 FR 34270), we are soliciting the expert opinion of at least three appropriate independent specialists regarding scientific data and interpretations contained in the Species Status Assessment Report (SSA Report) (Service 2016; available at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0130) supporting this proposed rule. The purpose of such review is to ensure that our decisions are based on scientifically sound data, assumptions, and analysis. We will incorporate, as appropriate, the feedback from the peer review of the SSA Report into any final determination regarding the subspecies.

    Background

    Section 4(b)(3)(B) of the Act requires that, for any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants that contains substantial scientific or commercial information that reclassifying a species may be warranted, we make a finding within 12 months of the date of receipt of the petition (“12-month finding”). In this finding, we determine whether the petitioned action is: (1) Not warranted, (2) warranted, or (3) warranted, but immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants. We must publish these 12-month findings in the Federal Register. This document represents:

    • Our 12-month warranted finding on a July 16, 2012, petition to reclassify the Tobusch fishhook cactus from endangered to threatened (that is, to “downlist” this plant);

    • Our determination that the Tobusch fishhook cactus no longer meets the definition of endangered under the Act; and

    • Our proposed rule to reclassify the Tobusch fishhook cactus from endangered to threatened on the Federal List of Endangered and Threatened Plants.

    Previous Federal Actions

    We published a final rule to list the Tobusch fishhook cactus as an endangered species under the Act on November 7, 1979 (44 FR 64736). At that time, we also determined that it was not prudent to designate critical habitat for the subspecies because the publication of critical habitat maps could make the species more vulnerable to taking. We issued a recovery plan on March 18, 1987. The recovery plan has not been revised. A status review (“5-year review”) under section 4(c)(2)(A) of the Act was completed for the Tobusch fishhook cactus on January 5, 2010. The 5-year review recommended that this plant be reclassified from endangered to threatened (Service 2010).

    On July 16, 2012, we received a petition dated July 11, 2012, from The Pacific Legal Foundation, Jim Chilton, the New Mexico Cattle Growers' Association, New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau requesting, among other things, that the Tobusch fishhook cactus be reclassified as threatened based on the analysis and recommendation contained in the 5-year review. The Service published a 90-day finding on September 9, 2013 (78 FR 55046) that the petition contained substantial scientific or commercial information indicating that the petitioned action may be warranted. On November 20, 2015, the Service received a complaint (New Mexico Cattle Growers' Association et al. v. United States Department of the Interior et al., No. 1:15-cv-01065-PJK-LF (D. N.M.)) for declaratory judgment and injunctive relief from the New Mexico Cattle Growers' Association, Jim Chilton, New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau to, among other things, compel the Service to make a 12-month finding on the petition. This document serves as our 12-month warranted finding on the July 16, 2012, petition to reclassify the Tobusch fishhook cactus from endangered to threatened.

    Species Status Assessment for Tobusch fishhook cactus.

    We prepared a Species Status Assessment (SSA) for the Tobusch fishhook cactus (Service 2016; available at http://www.regulations.gov), which includes a thorough review of the subspecies' taxonomy, natural history, habitats, ecology, populations, and range. The SSA analyzes individual, population, and subspecies requirements, as well as factors affecting the subspecies' survival and its current conditions, to assess the subspecies' current and future viability in terms of resilience, redundancy, and representation.

    We define viability as the ability of a species to persist and to avoid extinction over the long term. Resilience refers to the population size and demographic characteristics necessary to endure stochastic environmental variation (Shaffer and Stein 2000, pp. 308-310). Resilient populations are better able to recover from losses caused by random variation, such as fluctuations in recruitment (demographic stochasticity), variations in rainfall (environmental stochasticity), or changes in the frequency of wildfires. Redundancy refers to the number and geographic distribution of populations or sites necessary to endure catastrophic events (Shaffer and Stein 2000, pp. 308-310). As defined here, catastrophic events are rare occurrences, usually of finite duration, that cause severe impacts to one or more populations. Examples of catastrophic events include tropical storms, unusually high or prolonged floods, prolonged drought, and unusually intense wildfire. Species that have multiple resilient populations distributed over a larger landscape are more likely to survive catastrophic events, since not all populations would be affected. Representation refers to the genetic diversity, both within and among populations, necessary to conserve long-term adaptive capability (Shaffer and Stein 2000, pp. 307-308). Species with greater genetic diversity are more able to adapt to environmental changes and to colonize new sites.

    The SSA Report provides the scientific basis that informs our regulatory determination as to whether or not this subspecies should be listed as an endangered or a threatened species under the Act. This decision involves the application of standards within the Act, the Act's implementing regulations, and Service policies (see Finding and Proposed Determination, below). The following discussion is a summary of the results and conclusions from the SSA Report. We are soliciting peer review of the draft SSA Report from three objective and independent scientific experts.

    Description

    Tobusch fishhook cactus is a rare, endemic plant of the Edwards Plateau of central Texas. The common and scientific names honor Herman Tobusch, who first collected it in 1951 (Marshall 1952, p. 78). In the wild, this globose or columnar cactus rarely exceeds 5 centimeters (2 inches) in diameter and in height (Poole and Janssen 2002, p. 7). As the name implies, it is armed with curved “fishhook” spines.

    Classification

    The taxonomic classifications of Tobusch fishhook cactus include several published synonyms. We listed it as a species, Ancistrocactus tobuschii (44 FR 64736, November 7, 1979), and retained this classification for the recovery plan (Service 1987). However, recent phylogenetic evidence supports classifying Tobusch fishhook cactus as subspecies tobuschii of Sclerocactus brevihamatus (Porter and Prince 2011, pp. 40-47). It is distinguished morphologically from its closest relative, S. brevihamatus ssp. brevihamatus, on the basis of yellow versus pink- or brown-tinged flowers, fewer radial spines, and fewer ribs (Marshall 1952, p. 79; Poole et al. 2007, p. 442; Porter and Prince 2011, pp. 42-45). Additionally, S. brevihamatus ssp. tobuschii is endemic to limestone outcrops of the Edwards Plateau, while S. brevihamatus ssp. brevihamatus occurs in alluvial soils in the Tamaulipan Shrublands and Chihuahuan Desert. A recent investigation confirmed genetic divergence between the two subspecies, although they may interact genetically in a narrow area where their ranges overlap (Rayamajhi 2015, pp. 67, 98; Sharma 2015, p. 1). With the publication of this proposed rule, we officially accept the new scientific name of the Tobusch fishhook cactus as Sclerocactus brevihamatus ssp. tobuschii.

    Reproduction

    Tobusch fishhook cactus grows slowly, reaching a reproductive size of about 2 centimeters (0.8 inches) in diameter after 9 years (Emmett 1995, pp. 168-169). It flowers between late January and mid-March, and its major pollinators are honey bees and halictid bees (Emmett 1995, pp. 74-75; Lockwood 1995, pp. 428-430; Reemts and Becraft 2013, pp. 6-7; Langley 2015, pp. 21-23). The breeding system is primarily out-crossing, requiring two individuals for reproduction, but the subspecies is capable of self-fertilization (Emmett 1995, p. 70; Langley 2015, pp. 24-28). Reproductive individuals produce an average of 112 seeds per year (Emmett 1995, p. 108). Ants may be seed predators, dispersers, or both (Emmett 1995, pp. 112-114, 124). Mammals or birds may also accomplish longer distance seed dispersal (Emmett 1995, pp. 115-116, 126). There is little evidence that seeds persist in the soil (Emmett 1995, pp. 120-122).

    Habitats

    When listed as endangered in 1979, fewer than 200 individuals of Tobusch fishhook cactus were known from 4 riparian sites, 2 of which had been destroyed by floods (44 FR 64736, November 7, 1979; Service 1987, pp. 4-5). We now understand that those riparian habitats were atypical; the great majority of populations that have now been documented occur in upland sites dominated by Ashe juniper-live oak woodlands and savannas on the Edwards Plateau (Poole and Janssen 2002, p. 2). Soils are classified in the Tarrant, Ector, Eckrant, and similar series. Within a matrix of woodland and savanna, the subspecies occurs in discontinuous patches of very shallow, gravelly soils where bare rock and rock fragments comprise a large proportion of the surface cover (Sutton et al. 1997, pp. 442-443). Associated vegetation includes small bunch grasses and forbs. The subspecies' distribution within habitat patches is clumped and tends to be farther from woody plant cover (Reemts 2014, pp. 9-10). The presence of cryptograms, primitive plants that reproduce by spores rather than seeds, may be a useful indicator of fine-scale habitat suitability (Service 2010, p. 17). Wildfire (including prescribed burning) causes negligible damage to Tobusch fishhook cactus populations (Emmett 1995, p. 42; Poole and Birnbaum 2003, p. 12). The subspecies probably does not require fire for germination, establishment, or reproduction, but periodic burning may be necessary to prevent the encroachment of woody plants into its habitats.

    Populations and Range

    A population of an organism is a group of individuals within a geographic area that are capable of interbreeding or interacting. Although the term is conceptually simple, it may be difficult to determine the extent of a population of rare or cryptic species, and this is certainly the case for Tobusch fishhook cactus. Thorough surveys on public lands, such as state parks and highway rights-of-way, have detected groups of individuals, but since the vast majority of the surrounding private lands have not been surveyed, we do not know if these are small, isolated populations, or parts of larger interacting populations or meta-populations. For convenience, we often informally use the terms “site”, referring to a place where the species was found, and “colony”, referring to a cluster of individuals, when we do not know the extent of the local population.

    Tobusch fishhook cactus populations are now confirmed in eight central Texas counties: Bandera, Edwards, Kerr, Kimble, Kinney, Real, Uvalde, and Val Verde. In 2009, the Texas Native Diversity Database listed 105 element occurrences, areas in which the species was present, (EOs; NatureServe 2002, p. 10) of Tobusch fishhook cactus, totaling 3,395 individuals (TXNDD 2009, pp. 1-210). Texas Parks and Wildlife Department botanists monitored 118 permanent plots at 12 protected natural areas from 1991 through 2013 (Poole and Janssen 2002, entire; Poole and Birnbaum 2003, entire). Annual mortality in plots was often greater than 20 percent, and consistently exceeded recruitment (Emmett 1995, pp. 155-161; Poole and Birnbaum 2001, p. 5). In particular, infestations by insect larvae caused catastrophic population declines (Emmett 1995, pp. 155-161; Calvert 2003, entire). However, mortality and recruitment determinations are confounded by the great difficulty in detecting live plants in the field (Poole and Janssen 2002, p. 5; Reemts 2014, pp. 1, 8). Despite the decline of many individual colonies, the total known population sizes have steadily increased, due to the discovery of previously undetected individuals and colonies.

    Summary of Subspecies Requirements Requirements of Individuals

    Tobusch fishhook cactus plants occur in patches of very shallow, rocky soil overlying limestone. The immediate vicinity of plants is sparsely vegetated with small bunch grasses and forbs and there is little or no woody plant cover. Individuals require an estimated 9 years to reach a reproductive size of about 2 centimeters (0.8 inches) in diameter. Reproduction is primarily by out-crossing between unrelated individuals, and the known pollinators include honey bees and halictid bees. Out-crossing requires genetically diverse cactus populations within the foraging range of pollinators, and is less likely to occur in small, isolated populations. Healthy pollinator populations, in turn, require intact, diverse, native plant communities. Halictid bees are frequent natural pollinators of the Tobusch fishhook cactus. Given their relatively small size, we expect the foraging range of these bees to be fairly limited. Therefore, the health and diversity of native vegetation within the vicinity of Tobusch fishhook cactus plants (a range of 50 to 500 meters (m) (164 to 1,640 feet (ft)) may be particularly important for successful cactus reproduction. Healthy pollinator populations also require the least possible exposure to agricultural pesticides within their foraging ranges.

    Requirements of Populations

    Population persistence requires stable or increasing demographic trends. Although some Tobusch fishhook cactus individuals live for decades, annual mortality rates are often greater than 20 percent, and relatively few individuals live long enough to reproduce. Mortality within monitored colonies often exceeds recruitment, and some colonies have died out. Nevertheless, even where individual colonies have collapsed, the total documented population sizes at many protected natural areas are stable or increasing, due to discoveries of new individuals and colonies. Therefore, the assessment of demographic trends depends on how populations are delineated; we conclude that it is more appropriate to track the collective populations of multiple colonies that interact on a landscape scale (i.e., meta-populations). Meta-population persistence requires recruitment of new colonies, and/or reestablishment at sites of former colonies that previously collapsed. A major cause of mortality is infestation by insect larvae, mainly by an undescribed species of Gerstaeckeria (cactus weevil), and one or more species of cactus longhorn beetles (Moneilema spp.). The adults of these parasites are flightless, so their dispersal to new colonies is likely to be very limited. When individual colonies of the cactus die off, the parasites also die off, rendering those patches of suitable habitat available for cactus re-colonization. Hence, these periodic infestations of parasite larvae greatly influence the population dynamics of the Tobusch fishhook cactus. The distance between colonies has two opposing effects on their persistence. Greater distance reduces susceptibility to parasite infestation, but also reduces the amount of gene flow, by means of pollinators vectoring pollen, or through seed dispersal, between colonies. Thus, the persistence of entire meta-populations would require fairly large landscapes where discontinuous patches of suitable habitat are distributed and populated at a density just low enough to hold the parasites at bay, but just high enough for halictid bees and other pollinators and seed dispersers to vector genes between them.

    One measure of population resilience is minimum viable population (MVP), which is an estimate of the minimum population size that has a high probability of enduring a specified period of time. Poole and Birnbaum (2003, p. 1) estimated an MVP of 1,200 individuals for the Tobusch fishhook cactus, using a surrogate species approach (Pavlik 1996, pp. 136-137). For the reasons explained above, MVP levels are more appropriately applied to meta-populations rather than individual colonies of this cactus.

    The degree of genetic diversity within Tobusch fishhook cactus populations is important for several reasons. First, diversity within populations should confer greater resistance to pathogens and parasites, and greater adaptability to environmental stochasticity (random variations, such as annual rainfall and temperature patterns) and climate changes. Second, low genetic diversity within interbreeding populations leads to a higher incidence of inbreeding, and potentially to inbreeding depression. Finally, the breeding system of the Tobusch fishhook cactus is primarily out-crossing, so populations with too little genetic diversity would produce fewer progeny.

    Fire, whether natural or prescribed, appears to have little effect on individual Tobusch fishhook cactus plants. This is because the plants occur where vegetation is very sparse, and the plants protrude very little above the ground and are protected by surrounding rocks from the heat of vegetation burning nearby. On the other hand, periodic fire is likely to be necessary for population persistence to reduce juniper encroachment into suitable habitats. Furthermore, the diverse shrub and forb vegetation that sustains healthy pollinator populations is maintained by periodic wildfire; without fire, dense juniper groves frequently displace these shrubs and forbs. Hence, if the native plant diversity of entire landscapes surrounding Tobusch fishhook cactus populations succumbs to juniper encroachment, pollinator populations will likely decline, and reproduction of the Tobusch fishhook cactus and gene flow between its colonies may be reduced.

    Subspecies Requirements

    In addition to population resilience (described above under “Requirements of Individuals” and “Requirements of Populations”), we assess the subspecies' viability in terms of its redundancy and representation.

    Given that insect parasites are able to devastate large, dense populations, a few large populations are much more vulnerable than many small populations. The resilience of the Tobusch fishhook cactus derives not merely from the size of meta-populations, but also their density. Meta-populations with a low density of colonies may incur loss of genetic diversity and increased potential for inbreeding. Conversely, vulnerability to insect parasitism increases when meta-populations become too dense, or when individual colonies become too large. Assessments of resilience (meta-population size and demographics) and redundancy (number of meta-populations within representative areas) depend on how meta-populations are delineated. We believe that there must be some optimal range of meta-population density, i.e. the distance between meta-populations, and of colony size, although we do not currently know what those are.

    Representation reflects the genetic diversity, both within and among populations, necessary to conserve long-term adaptive capability (Shaffer and Stein 2000, pp. 307-308). Genetic diversity within a population can be measured by the numbers of variant forms of genes represented in that population. One measure of this within-population genetic diversity is called heterozygosity; possible values range from 0 (all members of a population are genetically identical for specified genes) to 1.0 (all members of a population a genetically different). Another useful measure is the inbreeding coefficient (FIS), which ranges from −1 (all members of the population are heterozygous, containing two forms of specific genes, and there is no evidence of inbreeding) to 1.0 (all members are homozygous, containing only one form of specific genes, and inbred). Although there are no heterozygosity levels or inbreeding coefficients that are considered healthy for all species, we may assess the genetic health of the Tobusch fishhook cactus by comparison to the observed values of reference species, such as other cactus species with similar life histories that are abundant and widespread (Rayamajhi 2015, pp. 56, 63; Schwabe et al. 2015, pp. 449, 454-455). The array of different environments in which a species occurs, such as the riparian and upland sites where Tobusch fishhook cactus is found, can also be used as a proxy measure for genetic diversity and therefore representation (Shafer and Stein 2000, p. 308).

    Review of the Recovery Plan

    Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Recovery plans identify site-specific management actions that will achieve recovery of the species, measurable criteria that set a trigger for review of the species' status, and methods for monitoring recovery progress.

    Recovery plans are not regulatory documents; instead they are intended to establish goals for long-term conservation of listed species and define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act, as well as actions that may be employed to achieve reaching the criteria. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met or all actions fully implemented. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

    The Tobusch fishhook cactus recovery plan was approved by the Service on March 18, 1987 (Service 1987). Delisting criteria were not established in the recovery plan. However, the recovery plan established a criterion of 3,000 individuals in each of four safe sites for reclassification from endangered to threatened.

    We now understand that insect parasites are able to devastate large, dense populations and we conclude that a few large populations are much more vulnerable than many small populations; therefore, this recovery criterion should be amended. Currently, many small populations exist, and surveyors have documented 3,395 Tobusch fishhook cactus individuals at 105 element occurrences (EOs) in 8 counties of the Edwards Plateau, including 12 sites managed either by the state or conservation organizations, where monitored populations ranged from 34 to 1,090 individuals.

    Summary of Factors Affecting the Subspecies

    Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. A species may be determined to be an endangered or threatened species due to one or more of the five listing factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. A species may be reclassified or delisted on the same basis. Consideration of these factors was incorporated into the Tobusch fishhook cactus SSA (Service 2016; available at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0130) and projected in future scenarios to evaluate viability of the Tobusch fishhook cactus. The effects of conservation measures were also assessed as part of the current condition of the Tobusch fishhook cactus in the SSA Report, and those effects were projected in future scenarios.

    Land Use Changes (Factor A)

    Relatively little urban and industrial development is occurring within the semi-arid, sparsely populated eight-county known range of the Tobusch fishhook cactus. However, a significant ongoing trend throughout the subspecies' range is the subdivision of large ranches leading to a proliferation of roads, fences, power lines, and residential development, all of which contribute incrementally to habitat loss and fragmentation.

    The predominant, historic land use throughout the Edwards Plateau has been livestock grazing. In many cases, poor rangeland management during the last century has caused the depletion of herbaceous vegetation, cessation of the natural wildfire cycle, proliferation of dense juniper stands, soil erosion, and reduced infiltration and storage of rainwater in the soil profile; all of these changes are likely to have harmed Tobusch fishhook cactus populations. The change to a primarily recreational land use often entails continued grazing, but at a sustainable stocking density.

    Prescribed burning may be one of the most important vegetation management tools for sustaining Tobusch fishhook cactus populations because it reduces woody vegetation encroachment. However, the proliferation of residential development within the species' habitat makes this tool more challenging for natural resource managers to use.

    Changes in Vegetation and Wildfire Frequency (Factor A)

    Bray (1904, pp. 14-15, 23-24) documented the rapid transition of grasslands to woodlands in the Edwards Plateau occurring more than a century ago; he attributed this change to overgrazing, the depletion of grasses, and the cessation of wildfires. Fonteyn et al. (1988, p. 79) state that savannas covered portions of the pre-settlement Edwards Plateau, and since 1850 were transformed to shrubland or woodland “primarily by suppression of recurring natural and anthropogenic fires and the introduction of livestock.” They list the fire-sensitive Ashe juniper (Juniperus ashei) as the most successful of many woody plants that have invaded grasslands. Reemts (2014 p. 1) lists the encroachment of woody plants into the rocky, open habitat as one of several remaining habitat-related threats that endanger the Tobusch fishhook cactus.

    Livestock Grazing (Factor A)

    The recovery plan stated, “Ancistrocactus tobuschii plants have been observed that were either uprooted or had apical meristem injuries from livestock trampling.” Nevertheless, livestock trampling and herbivory have not subsequently been identified as significant causes of mortality or damage to Tobusch fishhook cactus plants. Their recurved spines and small size probably protect Tobusch fishhook cactus plants from livestock herbivory. Livestock are not attracted to the sparsely vegetated outcrops where Tobusch fishhook cactus plants typically occur, and the plants are often nestled among larger rocks. While livestock trampling probably occurs in grazed habitats, we have no evidence that it represents a significant threat to the subspecies. A number of healthy Tobusch fishhook cactus populations occur on well-managed rangeland. We conclude that properly managed livestock grazing, especially where juniper thinning and prescribed burning are used to manage rangeland, is generally compatible with conservation of this cactus.

    Illegal Collection (Factor B)

    Many rare cactus populations have been depleted by overzealous collectors. The recovery plan lists illegal collection as a threat to the subspecies. Westlund (1991, pp. 2, 35, 39) found six specimens of Tobusch fishhook cactus, grown legally from seed, for sale in commercial nurseries. Poole and Janssen (2002, p. 9) noted that one population of the Tobusch fishhook cactus was heavily depleted by collection, but concluded that “collection is not currently perceived to be a grave threat.” Although illegal collection has not significantly impacted the subspecies, the wild populations openly accessed by the public remain vulnerable. The potential threat of illegal collection might be diminished if seeds and plants of legally propagated Tobusch fishhook cacti become easier and less expensive to obtain than wild-dug specimens.

    Parasites (Factor C)

    The Tobusch fishhook cactus weevil (Gerstaeckeria spp.) and cactus longhorn beetle (Moneilema spp.) parasitize and kill Tobusch fishhook cactus plants and have contributed significantly to drastic declines in many of the known populations (Calvert 2003, entire).

    Periodic outbreaks of insect parasitism appear to be an unavoidable natural cycle. For this reason, large cactus populations could eventually host very large parasite populations, leading to their collapse. The most appropriate conservation strategy may be to protect larger numbers of small, widely spaced meta-populations, rather than fewer large populations that are more vulnerable to parasites.

    Other Herbivory (Factor C)

    Poole and Birnbaum (2003, pp. 11-12) report that jackrabbits browse the cactus, but in most sites cause less than 2 percent mortality. If the root systems are not too badly damaged, they may regenerate one or more new stems. Feral hogs have uprooted plants in many sites (also observed by Reemts (2015, p. 1)). An unidentified ant species has also caused 1 percent mortality at some sites by creating mounds on top of the stems. With the exception of feral hogs, herbivory does not appear to be a significant cause of mortality or damage to Tobusch fishhook cactus plants.

    Inadequacy of Existing Regulatory Mechanisms (Factor D)

    Federally listed plants occurring on private lands have limited protection under the Act, unless also protected by state laws; the State of Texas also provides very little protection to listed plant species on private lands. Approximately 95 percent of Texas land area is privately owned. It is reasonable to assume that the vast majority of existing Tobusch fishhook cactus habitat, including sites that have not been documented, occurs on private land. Therefore, most of the subspecies' populations and habitats are not subject to Federal or state protection unless there is a Federal nexus, such as provisions of the Clean Water Act (33 U.S.C. 1251 et seq.) or a federally funded project.

    Demographic Consequences of Small Population Size and Density (Factor E)

    Poole and Birnbaum (2003, p. 1) estimated an MVP of 1,200 individuals (Service 2016, section II.7.5, available at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0130). For Tobusch fishhook cactus, MVP levels are more appropriately applied to meta-populations rather than individual colonies. Small populations are less able to recover from losses caused by random environmental changes (Shaffer and Stein 2000, pp. 308-310), such as fluctuations in recruitment (demographic stochasticity), variations in rainfall (environmental stochasticity), or changes in the frequency of wildfires. The Tobusch fishhook cactus has a predominantly out-crossing breeding system. The probability of successful fertilization between unrelated individuals is reduced in small, isolated populations. The remaining plants would produce fewer viable seeds, further reducing population recruitment and engendering a downward spiral toward extirpation. The demographic consequences of small population size are compounded by genetic consequences (discussed below), because reduced out-crossing corresponds to increased inbreeding. In addition to population size, it is likely that population density within meta-populations also influences population viability; density must be high enough for gene flow within meta-populations, but low enough to minimize parasite infestations.

    Genetic Consequences of Small Population Sizes (Factor E)

    Small, reproductively isolated populations are susceptible to the loss of genetic diversity, to genetic drift, and to inbreeding. The loss of genetic diversity may reduce the ability of a species or population to resist pathogens and parasites, to adapt to changing environmental conditions, or to colonize new habitats. Conversely, populations that pass through a “genetic bottleneck”, i.e. a time of significant loss of genetic diversity, may subsequently benefit through the elimination of harmful alleles, or the variant forms of a given gene. Nevertheless, the net result of loss of the genetic diversity is likely to be a loss of fitness and lower chance of survival of populations and of the subspecies.

    Genetic drift is a change in the frequencies of alleles in a population over time. Genetic drift can arise from random differences in founder populations, i.e. new populations originally established by a very small number of individuals, and the random loss of rare alleles in small, isolated populations. Genetic drift may have a neutral effect on fitness, or contribution to the gene pool, in larger populations, but may cause the loss of genetic diversity in small populations. Genetic drift may also result in the adaptation of an isolated population to the climates and soils of specific sites, leading to the development of distinct genotypes that are specifically adapted to a particular ecological area and to speciation, or the evolution of new species. For example, the genetic divergence of Sclerocactus brevihamatus ssp. brevihamatus and S. brevihamatus ssp. tobuschii (Rayamajhi 2015, pp. 67, 98; Service 2016, pp. 6-7, available at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0130) may have resulted when populations of the species brevihamatus migrated into separate geographic regions, and once separated, each population adapted to different soils, climate, and pollinator species.

    Inbreeding depression is the loss of fitness among offspring of closely related individuals. While most animal species are susceptible to inbreeding depression, plant species vary greatly in response to inbreeding. Levels of inbreeding can be measured with the inbreeding coefficient (FIS), which ranges from −1 (all members of the population are heterozygous for specific genes and there is no evidence of inbreeding) to 1.0 (all members are homozygous and inbred). Rayamajhi (2015, pp. 63-64) found relatively high inbreeding coefficients in three of eight populations, which he attributed to mating of close relatives within small, isolated populations. Nevertheless, we do not know to what extent inbreeding has reduced fitness of these populations.

    Land Ownership (Factor E)

    A large portion of the known individuals and populations of the Tobusch fishhook cactus occurs on privately owned land. This does not constitute a direct threat to the subspecies, and many landowners have demonstrated interest and enthusiasm for its conservation. However, private ownership makes conservation more challenging for several reasons. Access to populations and habitats is subject to the interests of hundreds of individual landowners. Consequently, our knowledge of the subspecies' actual status is far from complete. Establishing and maintaining cooperative relationships with large numbers of private landowners is time-consuming, and these important relationships may lapse when personnel of conservation organizations retire or pursue other career choices. The ownership of private lands changes hands over time, and future owners may choose not to continue conservation efforts that were supported by previous owners. Hence, it is difficult to assure permanent conservation on private lands. These challenges underscore the importance of effective landowner outreach in the conservation of the Tobusch fishhook cactus.

    Climate Change (Factor E)

    The Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) (IPCC 2013, p. 23) projects the following changes by the end of the 21st century, relative to the 1986 to 2005 averages: It is virtually certain that most land areas will experience warmer and/or fewer cold days and nights; it is virtually certain that most land areas will experience warmer and/or more frequent hot days and nights; it is very likely that the frequency and/or duration of warm spells and heat waves will increase in most land areas; it is very likely that the frequency, intensity, and/or amount of heavy precipitation will increase in mid-latitude land masses; it is likely that the intensity and/or duration of droughts will increase on a regional to global scale. The magnitude of projected changes varies widely, depending on which scenario of future greenhouse gas emissions is used.

    To evaluate how the climate of Tobusch fishhook cactus habitats may change, we used the National Climate Change Viewer (U.S. Geological Survey 2015) to compare past and projected future climate conditions for Edwards County, Texas. The baseline for comparison was the observed mean values from 1950 through 2005, and 30 climate models were used to project future conditions for 2050 through 2074. We selected the climate parameters of August maximum temperature, January minimum temperature, annual mean precipitation, and annual mean evaporative deficit. These particular parameters were selected from those available because they represented those most likely to impact the survival of individuals. The highest temperature of the year (August maximum temperature) could potentially affect individuals by exacerbating the effects of drought and the lowest temperatures of the year (January minimum temperature) could expose individuals to freezing temperatures. The annual mean precipitation and evaporative deficit provide measures of drought that could negatively affect individuals. The results are described in detail in the SSA Report (Service 2016, available at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0130), but generally, these models project that plant growth and survival in Edwards County will become more moisture-limited, although the degree of change varies under different scenarios.

    Nevertheless, we do not know how the Tobusch fishhook cactus responded to prior climate changes, nor can we determine how these projected climate changes will affect the Tobusch fishhook cactus and its habitat. Warmer winters could extend the growing season and improve reproduction and survival of the Tobusch fishhook cactus, but might also increase survival of parasite larvae. Heavier, less frequent rainfall could reduce establishment of Tobusch fishhook cactus seedlings, but perhaps less so than the bunch grasses with which it competes. Zaya et al. (2014, pp. 37-38) projected that climate changes will be detrimental to 4 populations, due primarily to lower survival and reproduction, and beneficial to 6 others, given increased individual growth rates. Thus, although it is likely that the projected climate changes will affect the survival of the Tobusch fishhook cactus in infinitely complex ways, we do not currently know what the net result of beneficial and detrimental effects will be.

    Conservation Efforts

    Support for the recovery of Tobusch fishhook cactus has come from a variety of sources. Conservation measures from nine formal consultations under section 7 of the Act supported scientific investigations, the salvage of individuals that would have been destroyed by development, and contributions to the Tobusch Fishhook Cactus Conservation Fund (Fund). The Lady Bird Johnson Wildflower Center manages the Fund through a memorandum of agreement with the Service. The Fund supported three projects that contributed significantly to our knowledge of the Tobusch fishhook cactus. These three Tobusch fishhook cactus projects included a study on the effects of shading by woody shrubs, a conservation genetics study, and population viability analyses. Five grants under section 6 of the Act have supported scientific investigations and extensive inventory and monitoring of the subspecies on state highway rights-of-way, in state parks, in wildlife management areas, and in state natural areas. Four graduate-level investigations focused on the Tobusch fishhook cactus, leading to three Master's theses and a doctoral dissertation, and provided information that is essential to the subspecies' conservation and recovery.

    Current Status

    By 2009, surveyors documented 3,395 Tobusch fishhook cactus individuals at 105 E.O.s in 8 counties of the Edwards Plateau. This includes 12 sites managed either by the state or conservation organizations where monitored populations ranged from 34 to 1,090 individuals, and totaled 3,139 individuals. Recent surveys found 660 new Tobusch fishhook cactus individuals that probably represent many new E.O.s, bringing the total documented number of individuals (based on the most recent surveys) to over 4,000.

    We developed a model of potential habitat based on the soil types and watersheds of documented populations. This model predicts that over 2 million hectares (ha) (5 million acres (ac)) of potential habitat occurs in the eight counties of the cactus' currently known range, as well as in some adjacent counties (mainly Crockett and Sutton Counties). However, we have no records of the Tobusch fishhook cactus occurring in any of these adjacent counties, nor have any surveys for the subspecies been conducted there, to our knowledge. Within these areas of potential habitat, only a small fraction of the total area contains suitable habitat, consisting of discontinuous, open areas on or near exposed limestone strata. Based on 25 surveys widely distributed across the subspecies range, we calculated an average density across the range of the species. That average density was applied to the amount of suitable habitat and used to calculate an estimate of the global population. We estimate that the global population is about 480,000 individuals (Service 2016, Appendix B, available at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0130).

    From 1991 through 2013, many individual colonies of the Tobusch fishhook cactus declined and some have died out completely. A principle cause of colony decline is parasitism by the larvae of flightless insects, including an undescribed species of Gerstaeckeria (a cactus weevil) and one or more species of Moneilema (cactus longhorn beetles). At the same time, total populations in monitored sites (consisting of multiple colonies; meta-populations) have remained steady or have increased, due to the discovery of new colonies or re-colonization of formerly depleted colonies. We believe that the Tobusch fishhook cactus co-evolved with these parasitic organisms, and that they are important drivers of its population dynamics. Large, dense cactus populations become susceptible to larval parasitism and decline until parasite populations cannot be sustained. Meta-populations, consisting of multiple, widely-dispersed colonies, appear to be stable; however, we do not know what the long-term demographic trends are at the meta-population or subspecies level.

    The expected heterozygosity (He) and observed heterozygosity (Ho) are useful measures of within-population genetic diversity; possible values range from 0 (all members of a population are genetically identical for specified genes) to 1.0 (all members of a population are genetically different). Rayamajhi (2015, pp. 57-61, 64, 97) determined that the mean He for nine populations of Sclerocactus brevihamatus ssp. tobuschii was 0.59, and the mean Ho was 0.37. Through comparison to columnar cactus species that are endemic or have limited geographic distribution, he concluded that, for S. brevihamatus ssp. tobuschii, He was moderately high, and Ho was moderate which suggest there is sufficient genetic diversity to conserve long-term adaptive capability.

    Another useful measure is the inbreeding coefficient (FIS), which ranges from −1 (all members of the population are heterozygous for specific genes and there is no evidence of inbreeding) to 1.0 (all members are homozygous and inbred). For Sclerocactus brevihamatus ssp. tobuschii, the mean FIS was 0.38 (range of 0.15 to 0.63) (Rayamajhi 2015). While most populations had an apparently healthy degree of out-crossing, three populations of S. brevihamatus ssp. tobuschii were at relatively higher risk of inbreeding effects and may have suffered recent genetic bottlenecks through population declines. The higher level of inbreeding in these populations may be due to small, isolated populations; mating of close relatives within populations; the limited range of seed dispersal; and the limited range and foraging behavior of a primary pollinator, halictid bees.

    There were relatively few genetic differences between the nine Tobusch fishhook cactus populations in Rayamajhi's study (2015), regardless of the distance between populations. This evidence supports a hypothesis that gene flow has occurred throughout the subspecies' range, at least until recently; however, recently isolated populations may not yet show genetic differentiation, in part because individuals can live and contribute to the local gene pool at least for several decades.

    Assessment of Current and Future Viability

    We estimate that about 480,000 individuals of Tobusch fishhook cactus are distributed at low density over an area of more than 2 million ha (5 million ac). Thus, it is likely that the Tobusch fishhook cactus has multiple, resilient populations. Although many individual colonies have declined, meta-population levels of monitored areas appear stable; however, we have very little data on meta-population trends over the subspecies' entire range. Genetic data from wild populations indicate that most populations, and the subspecies as a whole, currently possess sufficient genetic diversity to conserve long-term adaptive capability. Nevertheless, some small, isolated populations have higher levels of inbreeding, and may as a consequence suffer reduced fitness and reproduction. There is relatively little genetic diversity between populations, which is evidence that gene flow has occurred fairly recently between populations. Considering the naturally low densities of Tobusch fishhook cactus populations, gene flow among them may be easily disrupted.

    Demographic population viability analyses (PVA) of monitoring plot data predicted stable or increasing trends for two or three populations, moderate declines for two populations, and large to precipitous declines in five populations over the next 50 years (Zaya et al. 2014, pp. 29-42). When expected climate changes were included in these analyses, four populations responded negatively to climate changes, and six populations responded positively (compared to PVA without climate changes). These findings predict an overall decline in subspecies viability over the 50 year time frame. However, we do not know how well these analyses project the demographic trends of meta-populations distributed over larger landscapes.

    We project what the viability of the Tobusch fishhook cactus could be, between 2050 and 2074, under three scenarios. We considered how conservation support, the subspecies' geographic range, habitat management, population management, and climate changes may contribute to these scenarios. The first scenario represents improvements over current conditions. The second scenario represents the most likely conditions if current trends continue. The third scenario represents deteriorating conditions. We conclude that under the most likely scenario, the subspecies remains viable but requires continued conservation, management, and protection.

    Finding and Proposed Determination

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Tobusch fishhook cactus. The Tobusch fishhook cactus was listed as endangered in 1979, due to: Few known populations, habitat destruction, and altered stream flows (Factor A); illegal collection (Factor B); and very limited geographic range, small population sizes, restricted gene pool, and lack of reproduction (Factor E). We now know there are many more populations over a much wider area; about 4,000 individuals have been documented at more than 105 EOs. These data allow us to estimate that the total population size is about 480,000 individuals distributed at low density over about 2 million ha (5 million ac). Most habitats are relatively secure, given that they are in remote, rocky areas that are unsuitable for growing crops. However, the great majority is on private lands that are becoming increasingly fragmented and may be subject to destruction or modification. Many of the known populations are small and isolated, and the monitored portions of numerous populations have declined. Demographic population viability analyses predict an overall future decline in subspecies' viability. However, we do not know how well these analyses project the demographic trends of meta-populations distributed over larger landscapes. We know that insect parasites are a major cause of mortality, and may naturally reduce populations to low densities. Many populations have sufficient genetic diversity to confer long-term adaptive capability, but some small, isolated populations have higher levels of inbreeding and may be affected by reduced fitness and reproduction. It is likely that projected climate changes will affect the Tobusch fishhook cactus, but we do not currently know whether this will have a net positive or negative effect on its viability.

    We have determined that the Tobusch fishhook cactus' current viability is higher than was known at the time of listing. Based on the analysis in the SSA, and summarized above, we believe that the Tobusch fishhook cactus does not meet the definition of endangered under the Act. However, due to continued threats from the demographic and genetic consequences of small population sizes and geographic isolation, insect parasitism, feral hog depredation, and changes in the wildfire cycle and vegetation, as well as unknown long-term effects of land use changes and climate changes, we find that the Tobusch fishhook cactus is likely to become an endangered species within the foreseeable future throughout all of its range. Because we have found that the Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii; currently listed as Ancistrocactus tobuschii) meets the definition of threatened under the Act, we propose to reclassify it from endangered to threatened on the Federal List of Endangered and Threatened Plants (List).

    Significant Portion of the Range Analysis

    Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. We published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578; July 1, 2014). The final policy states that: (1) If a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout a significant portion of its range, and the population in that significant portion is a valid distinct population segment (DPS), we will list the DPS rather than the entire taxonomic species or subspecies. Because we have determined that the Tobusch fishhook cactus is threatened throughout all of its range, no portion of its range can be “significant” for the purposes of the definitions of “endangered species” and “threatened species.”

    Conclusion

    Using the best available scientific information, we have determined that the Tobusch fishhook cactus is not currently in danger of extinction throughout all or a significant portion of its range, but is likely to become endangered within the foreseeable future throughout all of its range. In accordance with 50 CFR 424.11(c), we therefore propose to reclassify the Tobusch fishhook cactus as threatened on the Federal List of Endangered and Threatened Plants at 50 CFR 17.12(h).

    Effects of the Rule

    This proposal, if made final, would revise 50 CFR 17.12(h) to reclassify the Tobusch fishhook cactus as threatened on the Federal List of Endangered and Threatened Plants. There is no critical habitat designated for this subspecies; therefore, this proposed rule would not affect 50 CFR 17.96.

    Required Determinations Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (1) Be logically organized;

    (2) Use the active voice to address readers directly;

    (3) Use clear language rather than jargon;

    (4) Be divided into short sections and sentences; and

    (5) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    National Environmental Policy Act

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection with regulations pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    References Cited

    A complete list of all references cited in this proposed rule is available at http://www.regulations.gov at Docket No. FWS-R2-ES-2016-0130, or upon request from the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this proposed rule are staff members of the Service's Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

    2. Amend § 17.12(h), the List of Endangered and Threatened Plants, under FLOWERING PLANTS by: a. Removing the entry for “Ancistrocactus tobuschii”; and b. Adding, in alphabetical order, an entry for “Sclerocactus brevihamatus ssp. tobuschii” to read as follows:
    § 17.12 Endangered and threatened plants.

    (h) * * *

    Scientific name Common name Where listed Status Listing citations and applicable rules FLOWERING PLANTS *         *         *         *         *         *         * Sclerocactus brevihamatus ssp. tobuschii Tobusch fishhook cactus Wherever found T 44 FR 64736; 11/7/1979, [Federal Register citation of the final rule]. *         *         *         *         *         *         *
    Dated: December 15, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-31296 Filed 12-28-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 160426363-6363-01] RIN 0648-BG03 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagic Resources in the Gulf of Mexico and Atlantic Region; Amendment 26 AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS proposes to implement management measures described in Amendment 26 to the Fishery Management Plan for the Coastal Migratory Pelagics Fishery of the Gulf of Mexico and Atlantic Region (FMP) as prepared and submitted jointly by the Gulf of Mexico Fishery Management Council (Gulf Council) and South Atlantic Fishery Management Council (South Atlantic Council). Amendment 26 and this proposed rule would adjust the management boundary for the Gulf of Mexico (Gulf) and Atlantic migratory groups of king mackerel; revise acceptable biological catch (ABC), commercial and recreational annual catch limits (ACLs), commercial quotas and recreational annual catch targets (ACTs) for Atlantic migratory group king mackerel; allow limited retention and sale of Atlantic migratory group king mackerel incidentally caught in the shark gillnet fishery; establish a commercial split season for Atlantic migratory group king mackerel in the Atlantic southern zone; establish a commercial trip limit system for Atlantic migratory group king mackerel in the Atlantic southern zone; revise the commercial and recreational ACLs for Gulf migratory group king mackerel; revise commercial zone quotas for Gulf migratory group king mackerel; and modify the recreational bag limit for Gulf migratory group king mackerel. The purpose of Amendment 26 and this proposed rule is to ensure that king mackerel management is based on the best scientific information available, while increasing the social and economic benefits of the fishery.

    DATES:

    Written comments must be received on or before January 30, 2017.

    ADDRESSES:

    You may submit comments on the proposed rule, identified by “NOAA-NMFS-2016-0120,” by either of the following methods:

    Electronic submission: Submit all electronic public comments via the Federal e-Rulemaking Portal: http://www.regulations.gov. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0120, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Karla Gore, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in required fields if you wish to remain anonymous).

    Electronic copies of Amendment 26 may be obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_sa/cmp/2016/am%2026/index.html. Amendment 26 includes an environmental assessment, a Regulatory Flexibility Act (RFA) analysis, and a regulatory impact review.

    FOR FURTHER INFORMATION CONTACT:

    Karla Gore, Southeast Regional Office, NMFS, telephone: 727-551-5753, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The coastal migratory pelagic fishery of the Gulf and Atlantic Regions is managed under the FMP and includes the management of the Gulf and Atlantic migratory groups of king mackerel, Spanish mackerel and cobia. The FMP was prepared jointly by the Gulf and South Atlantic Councils (Councils) and is implemented through regulations at 50 CFR part 622 under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

    Background

    The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and achieve, on a continuing basis, OY from federally managed fish stocks.

    In September of 2014, the Southeast Data, Assessment, and Review (SEDAR) 38 stock assessment was completed for both the Gulf and Atlantic migratory groups of king mackerel (SEDAR 38). SEDAR 38 determined that both the Gulf and Atlantic migratory groups of king mackerel are not overfished and are not undergoing overfishing. The Gulf Council's and South Atlantic Council's respective Scientific and Statistical Committees (SSCs) reviewed the assessment and concluded that SEDAR 38 should form the basis for revisions to the overfishing limit (OFL), acceptable biological catch (ABC), and ACLs for the two migratory groups of king mackerel. SEDAR 38 also provided genetic information on king mackerel, which indicated that the Councils' management boundary for the two migratory groups should be revised.

    Management Measures Contained in This Proposed Rule

    This proposed rule to implement Amendment 26 would adjust the management boundary of the Gulf and Atlantic migratory groups of king mackerel; revise management reference points, the commercial and recreational ACLs, commercial quotas and recreational ACTs for Atlantic migratory group king mackerel; allow limited retention and sale of incidental catch of Atlantic migratory group king mackerel in the shark gillnet fishery; establish a commercial split season for Atlantic migratory group king mackerel in the Atlantic southern zone; establish a commercial trip limit system for Atlantic migratory group king mackerel in the Atlantic southern zone; revise commercial and recreational ACLs for Gulf migratory group king mackerel; revise commercial zone quotas for Gulf migratory group king mackerel; and modify the recreational bag limit for Gulf migratory group king mackerel.

    Management Boundary and Zone Descriptions for the Gulf and Atlantic Migratory Groups of King Mackerel

    Currently management boundaries change seasonally for the Gulf and Atlantic migratory groups of king mackerel based on the historical understanding that the two migratory groups mixed seasonally off the east coast of Florida and in Monroe County, Florida. However, in 2014, SEDAR 38 determined the mixing zone between the two migratory groups now exists only in the portion of the EEZ off Monroe County, Florida, south of the Florida Keys. This proposed rule would set a single year-round regulatory boundary (Gulf/Atlantic group boundary) separating management of the two migratory groups of king mackerel, based on the genetic analysis used in SEDAR 38. This new year-round Gulf/Atlantic group boundary would be set at a line extending east of the Miami-Dade/Monroe County, FL boundary, to better represent the area where the two migratory groups primarily exist. The newly defined mixing zone off of the Florida Keys would be included in the Gulf migratory group and managed by the Gulf Council.

    Through this proposed rule, the Gulf migratory group's current eastern zone-northern subzone and eastern zone-southern subzone would be renamed the northern zone and southern zone, respectively. The southern zone would include the new mixing zone, extending east to the new Gulf/Atlantic group boundary. The name and dimensions of the Gulf migratory group's western zone would remain the same. The Atlantic migratory group's northern zone would also remain unchanged. The southern boundary of the Atlantic migratory group's southern zone would shift to the new Gulf/Atlantic group boundary. Due to this shift, the current Florida east coast subzone would no longer exist under the proposed rule. Instead, that area would be included in the Atlantic migratory group's southern zone year-round.

    NMFS notes that, if approved and implemented, the final rule for Amendment 26 would not be effective until after the current Gulf/Atlantic group boundary shifts on November 1, 2016, and the applicable Florida east coast subzone commercial quota is in effect. As described in Amendment 26, landings from that area for the current fishing year would be attributable to the Atlantic southern zone quota. Therefore, any landings from the Florida east coast subzone that occur after November 1, 2016, and before implementation of a final rule for Amendment 26, would count against the Atlantic southern zone king mackerel commercial quota.

    This action would not change the current Federal fishing permits requirements for fishing for king mackerel in Gulf and Atlantic Federal waters.

    Atlantic Migratory Group King Mackerel ACLs, Commercial Quotas and Recreational ACTs

    Amendment 18 to the FMP established reference points, ACLs, and accountability measures for both migratory groups of king mackerel (76 FR 82058, December 29, 2011). The current ABC is 10.46 million lb (4.74 million kg) for Atlantic migratory group king mackerel. This proposed rule to implement Amendment 26 would revise the OFLs and ABCs for Atlantic migratory group king mackerel based on SEDAR 38 and the South Atlantic Council's SSC recommended ABCs based on a high recruitment scenario. The Atlantic migratory group ABC would gradually decrease from 17.4 million lb (7.89 million kg) in the 2016-2017 fishing year to 12.7 million lb (5.76 million kg) in the 2019-2020 fishing year.

    Amendment 26 and this proposed rule would also set the Atlantic migratory group stock ACL equal to OY and the proposed ABC. The Atlantic migratory group's sector allocation (37.1 percent of the ACL to the commercial sector and 62.9 percent of the ACL to the recreational sector) will not change through Amendment 26 or this proposed rule. This proposed rule would revise the commercial ACLs for the Atlantic migratory group to be 6.5 million lb (2.9 million kg) for the 2016-2017 fishing year, 5.9 million lb (2.7 million kg) for the 2017-2018 fishing year, 5.2 million lb (2.4 million kg) for the 2018-2019 fishing year, and 4.7 million lb (2.1 mil kg) for the 2019-2020 fishing year and subsequent fishing years. This proposed rule would revise the recreational ACLs for the Atlantic migratory group to be 10.9 million lb (4.9 million kg) for the 2016-2017 fishing year, 9.9 million lb (4.5 mil kg) for the 2017-2018 fishing year, 8.9 million lb (4.0 million kg) for the 2018-2019 fishing year, and 8.0 million lb (3.6 mil kg) for the 2019-2020 fishing year and subsequent fishing years. The recreational sector ACTs for the Atlantic migratory group would be set at 10.1 million lb (4.6 million kg) for the 2016-2017 fishing year, 9.2 million lb (4.2 mil kg) for the 2017-2018 fishing year, 8.3 million lb (3.8 mil kg) for the 2018-2019 fishing year and 7.4 million lb (3.4 mil kg) for the 2019-2020 fishing year and subsequent fishing years.

    The commercial ACLs for Atlantic migratory group king mackerel would be divided each fishing year between the northern zone (23.04 percent) and southern zone (76.96 percent) into their respective commercial quotas. The proposed commercial quotas for the Atlantic northern zone would be 1,497,600 lb (679,300 kg) for the 2016-17 fishing year, 1,259,360 lb (571,236 kg) for the 2017-2018 fishing year, 1,198,080 lb (543,440 kg) for the 2018-2019 fishing year, and 1,082,880 lb (491,186 kg) for the 2019-2020 fishing year and subsequent years. The proposed commercial quotas for the Atlantic southern zone would be 5,002,400 lb (2,269,050 kg) for the 2016-2017 fishing year, 4,540,640 lb (2,059,600 kg) for the 2017-2018 fishing year, 4,001,920 lb (1,815,240 kg) for the 2018-2019 fishing year, and 3,617,120 lb (1,640,698 kg) for the 2019-2020 fishing year and subsequent fishing years.

    Incidental Catch of Atlantic Migratory Group King Mackerel Caught in the Shark Gillnet Fishery

    Amendment 20A to the FMP prohibited recreational bag limit sales of king mackerel by commercially permitted king mackerel fishers in South Atlantic Council jurisdictional waters, which included king mackerel incidentally caught on directed commercial shark trips (79 FR 34246, June 16, 2014).

    In Amendment 26, the Councils determined that, as a result of the mesh size used and the nature of the shark gillnet fishery, most king mackerel are already dead when the shark gillnets are retrieved. The Councils decided that some incidental catch of Atlantic migratory group king mackerel should be allowed for retention and sale if it is incidentally caught in the commercial shark gillnet fishery by vessels with a Federal king mackerel commercial permit.

    Through this proposed rule, a vessel in the Atlantic Exclusive Economic Zone (EEZ) that is engaged in directed shark fishing with gillnets that has both a valid Federal shark directed commercial permit and a valid Federal king mackerel commercial permit would be allowed to retain a limited number of king mackerel. Through this proposed rule, in the Atlantic northern zone, no more than three king mackerel per crew member may be retained or sold per trip. In the Atlantic southern zone, no more than two king mackerel per crew member may be retained or sold per trip. These incidentally caught king mackerel would be allowed to be retained or sold to a dealer with a valid Federal Gulf and South Atlantic dealer permit. This action is intended to reduce king mackerel discards and allow for the limited retention and sale of king mackerel, while not encouraging direct harvest of king mackerel on these shark fishing trips. The incidental catch allowance would not apply to commercial trips shark trips that are using an authorized gillnet for Atlantic migratory group king mackerel north of 34°37.3′ N. lat., the latitude of Cape Lookout Light, NC, where the existing commercial trip limit of 3,500 lb (1,588 kg) would apply. No type of gillnet is an allowable gear for Atlantic migratory group king mackerel south of Cape Lookout Light.

    Commercial Split Seasons for Atlantic Migratory Group King Mackerel in Atlantic Southern Zone

    Currently, the commercial fishing year for Atlantic migratory group king mackerel is March 1 through the end of February, and the commercial ACLs for the Atlantic northern zone and southern zone are allocated for the entire fishing year. This proposed rule would divide the annual Atlantic migratory group commercial quota for the Atlantic southern zone into two commercial seasons. The Atlantic northern zone quota would not be split. This proposed rule would allocate 60 percent of the Atlantic southern zone commercial quota to the first season of March 1 through September 30, and 40 percent to the second of October 1 through the end of February. This commercial split season for the Atlantic southern zone quota is intended to ensure that a portion of the southern zone's quota is available in later months of the fishing year, which will allow for increased fishing opportunities in that area during more of the fishing year.

    The proposed seasonal commercial quotas for the first season of March 1 through September 30, in the southern zone would be: 3,001,440 lb (1,361,430 kg) for the 2016-2017 fishing year, 2,724,384 lb (1,235,760 kg) for the 2017-2018 fishing year, 2,401,152 lb (1,089,144 kg) for the 2018-2019 fishing year, and 2,170,272 lb (984,419 kg) for the 2019-2020 fishing year and subsequent fishing years. The proposed seasonal commercial quotas for the second season of October 1 through the end of February in the southern zone would be: 2,000,960 lb (907,620 kg) for the 2016-2017 fishing year, 1,816,256 lb (823,840 kg) for the 2017-2018 fishing year, 1,600,768 lb (726,096 kg) for the 2018-2019 fishing year, and 1,446,848 lb (656,279 kg) for the 2019-2020 fishing year and subsequent years.

    Commercial Trip Limit System for the Atlantic Migratory Group of King Mackerel in the Atlantic Southern Zone

    Commercial trip limits for Atlantic migratory group king mackerel are limits on the amount of that species that may be possessed on board or landed, purchased or sold from a federally permitted king mackerel vessel per day. Several commercial trip limits currently exist in the Atlantic southern zone. North of 29°25′ N. lat., which is a line directly east from the Flagler/Volusia County, FL, boundary, the trip limit for Atlantic migratory group king mackerel is 3,500 lb (1,588 kg) year-round. In the area between the Flagler/Volusia County, FL, boundary (29°25′ N. lat.) and 28°47.8′ N. lat., which is a line extending directly east from the Volusia/Brevard County, FL, boundary, the trip limit is 3,500 lb (1,588 kg) from April 1 through October 31. In the area between the Volusia/Brevard County, FL, boundary (28°47.8′ N. lat.) and 25°20.4′ N. lat., which is a line directly east from the Miami-Dade/Monroe County, FL boundary, the trip limit is 75 fish from April 1 through October 31. In the area between the Miami-Dade/Monroe County, FL, boundary, and 25°48″ N. lat., which is a line directly west from Monroe/Collier County, FL, boundary, the trip limit is 1,250 lb (567 kg) from April 1 through October 31. This proposed rule would revise the commercial trip limits for Atlantic migratory group king mackerel in the Atlantic southern zone, based on the revised management boundary and split commercial season. During the first commercial season (March 1 through September 30), in the area between the Flagler/Volusia County, FL, boundary (29°25′ N. lat.), and the Miami-Dade/Monroe County, FL boundary (25°20.24″ N. lat.), the trip limit would be 50 fish during March. From April 1 through September 30, the trip limit would be 75 fish, unless NMFS determines that 75 percent or more of the Atlantic southern zone quota for the first season has been landed, then the trip limit would be 50 fish. During the second commercial season (October 1 through the end of February), the trip limit would be 50 fish for the area between the Flagler/Volusia County, FL, boundary, and the the Miami-Dade/Monroe County, FL boundary. During the month of February, the trip limit would remain 50 fish, unless NMFS determines that less than 70 percent of the commercial quota for the southern zone's second season has been landed, then the trip limit would be 75 fish.

    This proposed rule would not revise the 3,500 lb (1,588 kg) year-round trip limit for Atlantic migratory group king mackerel, north of the Flagler/Volusia County, FL boundary.

    In Amendment 26, the Councils determined that these changes to the commercial season and commercial trip limits for the Atlantic southern zone would ensure the longest possible commercial fishing season for Atlantic migratory group king mackerel.

    Gulf Migratory Group King Mackerel ACLs

    The current ABC and total ACL for Gulf migratory group king mackerel is 10.8 million lb (4.89 million kg). Based on its review of SEDAR 38, the Gulf Council's SSC recommended OFLs and ABCs for Gulf migratory group king mackerel for the 2015-2016 through 2019-2020 fishing years that decrease over time. The Gulf migratory group king mackerel OFLs and ABCs in Amendment 26 are lower than the current ABC and total ACL, because the geographical area for which the new OFLs and ABCs apply is smaller than the current area for which they apply, as a result of the proposed zone revisions in the Gulf and Atlantic.

    Because Gulf migratory group king mackerel is not overfished or undergoing overfishing, the Gulf Council recommended that ACL remain equal to OY and to ABC. Therefore, in Amendment 26, the total ACLs for the Gulf migratory group of king mackerel are equal to the ABCs recommended by the Gulf Council's SSC: 9.21 million lb (4.18 million kg) for the 2016-2017 fishing year, 8.88 million lb (4.03 million kg) for the 2017-2018 fishing year, 8.71 million lb (3.95 million kg) for the 2018-2019 fishing year, and 8.55 million lb (3.88 million kg) for the 2019-2020 fishing year.

    This proposed rule would not revise the current recreational and commercial allocations of Gulf migratory group king mackerel (68 percent of the total ACL to the recreational sector and 32 percent to the commercial sector). Based on the existing allocations, the commercial ACLs proposed for Gulf migratory group king mackerel are: 2.95 million lb (1.34 million kg) for the 2016-2017 fishing year, 2.84 million lb (1.29 million kg) for the 2017-2018 fishing year, 2.79 million lb (1.27 million kg) for the 2018-2019 fishing year, and 2.74 million lb (1.24 million kg) for the 2019-2020 fishing year and subsequent fishing years.

    These Gulf migratory group commercial ACLs would be further divided into gear-specific commercial ACLs, for hook-and-line gear, and for vessels fishing with run-around gillnet gear, which is only an authorized gear in the southern zone. The hook-and-line component commercial ACL (which applies to the entire Gulf) would be: 2,330,500 lb (1,057,097 kg) for the 2016-2017 fishing year, 2,243,600 lb (1,017,680 kg) for the 2017-2018 fishing year, 2,204,100 lb (999,763 kg) for the 2018-2019 fishing year, and 2,164,600 lb (981,846 kg) for the 2019-2020 fishing year and subsequent years. The run-around gillnet component commercial ACL (which applies to the Gulf southern zone) would be: 619,500 lb (281,000 kg) for the 2016-2017 fishing year, 596,400 lb (270,522 kg) for the 2017-2018 fishing year, 585,900 lb (265,760 kg) for the 2018-2019 fishing year, and 575,400 lb (260,997 kg) for the 2019-2020 fishing year and subsequent fishing years.

    The proposed recreational ACLs for Gulf migratory group king mackerel would be: 6.26 million lb (2.84 million kg) for the 2016-2017 fishing year, 6.04 million lb (2.74 million kg) for the 2017-2018 fishing year, 5.92 million lb (2.69 million kg) for the 2018-2019 fishing year, and 5.81 million lb (2.64 million kg) for the 2019-2020 fishing year and subsequent fishing years.

    Commercial Zone Quotas for Gulf Migratory Group King Mackerel

    Amendment 26 and this proposed rule would revise the Gulf migratory group commercial zone quotas because of the proposed changes to the Councils' jurisdiction boundaries and resultant zone revisions. The current allocation of the commercial zone quota for Gulf migratory group king mackerel by zones is 31 percent in the western zone, 5.17 percent in the northern zone, 15.96 percent for the southern zone using hook-and-line gear, 15.96 percent for the southern zone using gillnet gear, and 31.91 percent for the Florida east coast subzone. However, under the proposed rule, the Florida east coast subzone would no longer exist and the quota associated with that zone would be re-allocated to the remaining zones. The revised allocation of commercial zone quotas for Gulf migratory group king mackerel would be: 40 percent in the western zone, 18 percent in the northern zone, 21 percent for the southern zone using hook-and-line gear, and 21 percent for the southern zone using gillnet gear.

    The proposed commercial quotas for the Gulf western zone would be: 1,180,000 lb (535,239 kg) for the 2016-2017 fishing year, 1,136,000 lb (515,281 kg) for the 2017-2018 fishing year, 1,116,000 lb (506,209 kg) for the 2018-2019 fishing year, and 1,096,000 lb (497,137 kg) for the 2019-20 fishing year and subsequent fishing years.

    The proposed commercial quotas for the Gulf northern zone would be: 531,000 lb (240,858 kg) for the 2016-2017 fishing year, 511,200 lb (231,876 kg) for the 2017-18 fishing year, 502,200 lb (227,794 kg) for the 2018-2019 fishing year, and 493,200 lb (223,712 kg) for the 2019-2010 fishing year and subsequent fishing years.

    The proposed commercial hook-and-line and commercial run-around gillnet component quotas in the southern zone would be equal for each fishing year: 619,500 lb (281,000 kg) for the 2016-2017 fishing year, 596,400 lb (270,522 kg) for the 2017-2018 fishing year, 585,900 lb (265,760 kg) for the 2018-2019 fishing year, and 575,400 lb (260,997 kg) for the 2019-2020 fishing year and subsequent fishing years.

    Recreational Bag Limit for Gulf Migratory Group of King Mackerel

    From the 2002-2003 fishing year through the 2013-2014 fishing year, the recreational sector's landings of Gulf migratory group king mackerel were consistently less than 50 percent of the recreational ACL, while the commercial sector's landings were consistently 90 percent or more of the commercial ACL. In Amendment 26, the Councils considered, but rejected, the possibility of reallocating from the recreational ACL to the commercial ACL and instead proposed an increase in the recreational bag limit for Gulf migratory group king mackerel from 2 fish per person per trip to 3 fish per person per trip. The Councils determined that this increased recreational bag limit would allow more opportunities for recreational anglers to harvest the recreational sector's ACL.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 26, the FMP, the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.

    This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

    NMFS prepared an initial regulatory flexibility act analysis (IRFA), as required by section 603 of the RFA, for this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, the objectives of, and legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from NMFS (see ADDRESSES). A summary of the IRFA follows.

    The Magnuson-Stevens Act provides the statutory basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting and record-keeping requirements are introduced by this proposed rule. Accordingly, this proposed rule does not implicate the Paperwork Reduction Act.

    This proposed rule would be expected to directly affect all federally permitted commercial fishermen fishing for king mackerel in the Gulf and Atlantic. Recreational anglers fishing for king mackerel would also be directly affected by the proposed action, but they are not considered business entities under the RFA, so they are outside the scope of this analysis. Charterboat and headboat operations are business entities but they are only indirectly affected by the proposed action. For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

    From the 2000-2001 through 2013-2014 fishing years (the most recent available trip level data at the time that the Councils took final action on Amendment 26), an average of 274 vessels landed Gulf migratory group king mackerel. Those vessels generated dockside revenues (2014 dollars) of $3,987,671 from king mackerel, $1,935,219 from other species jointly landed with king mackerel, and $12,395,741 from all other species in trips where king mackerel was not caught. The average annual revenue per vessel from all species landed by these vessels, including king mackerel, was $66,952. During the same time period, an average of 736 vessels landed Atlantic migratory group king mackerel. These vessels generated dockside revenues (2014 dollars) of $5,842,731 from king mackerel, $1,888,830 from other species jointly landed with king mackerel, and $12,670,841 from all other species in trips where king mackerel was not caught. The average revenue per vessel from all species landed by these vessels, including king mackerel, was $27,817. Vessels that caught and landed king mackerel may also operate in other fisheries, such as the shellfish fisheries, the revenues of which are not known and are not reflected in these totals. Based on revenue information, all commercial vessels affected by the proposed rule may be assumed to be small entities.

    All entities expected to be directly affected by this proposed rule are assumed to be small entities; therefore, NMFS has determined that this proposed rule would affect a substantial number of small entities. The issue of disproportionate effects on small versus large entities does not arise in the present case because all directly affected entities are small entities.

    The nine actions in this proposed rule and their effects on small entities are summarized below.

    Action 1 in Amendment 26 would establish a single year-round boundary for separating the Gulf and Atlantic migratory groups of king mackerel at the Miami-Dade/Monroe county line, with the Gulf Council being responsible for management measures for the mixing zone, defined as the area of the EEZ off of the Florida Keys. This would replace the current mixing zone boundary that varies seasonally, and thus would simplify management, avoid confusion, and likely improve enforcement, because the new boundary designation would also coincide with the boundary designation currently in place for the Gulf and Atlantic migratory groups of Spanish mackerel. This change would provide a favorable environment for commercial vessels to increase revenues and profits, particularly for those vessels operating out of the Florida Keys. However, the extent of any revenue increases cannot be defined at this time, as any increase in revenue would primarily be determined by the kind of fishing regulations that would be established through this amendment. The current Florida east coast subzone would no longer exist under this proposed rule.

    Action 2-1 in Amendment 26 would revise the ABC levels for Atlantic migratory group king mackerel for fishing years 2016-2017 through 2019-2020, based on the ABC levels recommended by the SSC under a high recruitment scenario. This would substantially increase the Atlantic migratory group ABC, thus enabling the Council to increase the ACL, and providing a favorable environment for increases in potential harvest of Atlantic migratory group king mackerel that could result in higher revenues and profits to participating commercial vessels.

    Action 2-2 in Amendment 26 would revise Atlantic migratory group king mackerel ACLs, commercial quotas, and recreational ACT, based on the proposed ABC levels selected in Action 2-1. Action 2-2 would set the ACL equal to OY and equal to ABC. Given the substantial increase proposed for ABC, equating ACL and OY to ABC would directly result in increasing the allowable commercial harvest of Atlantic migratory group king mackerel, as well as the associated potential revenues. Relative to the current commercial ACL, the proposed commercial ACL would provide the opportunity for total revenues to increase by an estimated $4.7 million for the 2016-2017 fishing year, $3.6 million for the 2017-2018 fishing year, $2.4 million for the 2018-2019 fishing year, and $1.5 million for the 2019-2020 fishing year and subsequent fishing years. Action 2-2 would also revise the Atlantic northern and southern zone commercial quotas,based on the ACL selected by the Councils. Whether the full revenue potential for each zone would be realized largely depends on whether the full quotas would be taken. Using the highest past landings (2009-2010 landings) as the expected future landings, neither zone would be expected to fully take its respective commercial quota. The revised northern and southern zone commercial quotas may allow for the possibility for further revenue increases in the future through increased harvest; however, this statement does not account for the effects from Action 4, which would split the commercial season into two fishing seasons each year in the Atlantic southern zone.

    Action 3 in Amendment 26 would allow the limited retention and sale (equal to the bag limit) of Atlantic migratory group king mackerel caught with gillnet as incidental catch in the gillnet portion of the directed commercial shark fishery, for any vessel with both a valid Federal shark directed commercial permit and valid Federal king mackerel commercial permit. The incidentally caught king mackerel must be sold to a dealer with the Gulf and South Atlantic Federal dealer permit. For this type of incidental catch, no more than 2 king mackerel per crew member per trip in the southern zone may be retained and sold, and no more than 3 king mackerel per crew member per trip in the northern zone (except trips north of Cape Lookout Light, NC, that use an authorized gillnet for Atlantic migratory group king mackerel) may be retained and sold. This proposed change would allow affected vessels to generate some revenue from incidentally caught king mackerel instead of discarding them. Only 3 to 5 vessels and 21 to 33 total vessel trips have reported incidental catches of Atlantic migratory group king mackerel, so any potential adverse impact on vessels that target king mackerel when incidental catches are counted against the Atlantic migratory group commercial ACL would be negligible.

    Action 4 in Amendment 26 would allocate the commercial quota for Atlantic migratory group king mackerel's southern zone into two split seasons: 60 percent of the commercial quota would be allocated to the first season of March 1-September 30 and 40 percent would be allocated to the second season of October 1-the end of February. Any remaining quota from the first season would transfer to second season. Any remaining quota from the second season would not be carried forward to the next fishing year. When the commercial quota for either season is met or expected to be met, commercial harvest of king mackerel in the Atlantic southern zone will be prohibited for the remainder of the respective season. In general, the revenue effects of splitting the fishing year into seasons as compared to not splitting the fishing year into seasons are unclear. For example, if all of the commercial quota were harvested early in the fishing season when maintaining only one season, the split-season alternative would comparatively be expected to allow commercial vessels to fish over a longer period of time, because even if the first season quota was reached, 40 percent of the commercial quota would be available for harvest during the second season. Harvest would occur over a longer period of time (i.e. during both the first and second seasons), resulting in a more stable supply of fish. Because a more stable supply is generally associated with higher dockside prices, overall revenues would likely be higher. Conversely, because only 60 percent of the commercial quota is allocated to the first season, the implementation of split seasons may restrict harvest and revenues in the first season that may not be fully recouped in the second season. This could happen if revenues from the relatively higher pricing conditions in the first season, which coincides with the Lenten season, were restricted due to an early season closure. Landings may be higher in the second season, but, if prices were low, the higher landings in the second season may not result in revenue levels that would fully recoup the forgone revenues in the first season. However, given current available information on landings, and the proposed commercial quota increase, no quota closures would be expected for either the first or second season, even if harvest levels reach the highest past recorded landings (2009-2010 landings). Thus, this action would not be expected to adversely affect the revenues and profits of commercial vessels.

    Action 5 would establish a commercial trip limit system for the Atlantic southern zone. For both the first and second commercial seasons, the commercial trip limit north of the Flagler/Volusia county line would remain 3,500 lb (1,587 kg). South of the Flagler/Volusia county line, the trip limit for the first season would be 50 fish for the month of March, and 75 fish for the remainder of the first season, but if 75 percent of the commercial quota for first season has been be landed, the trip limit would be 50 fish. For the second season, the commercial trip limit would be 50 fish, and if less than 70 percent of the season's quota has been landed, would be 75 fish during the month of February. Because the 3,500 lb (1,587 kg) trip limit north of the Flagler/Volusia county line is the same as the current trip limit, vessels fishing in this area would be unaffected by this proposed rule. Given that no commercial quota closures would be expected for the first or second season, as discussed in Action 4, the imposition of a commercial trip limit south of the Flagler/Volusia county line would tend to reduce both per trip revenues and profits of commercial vessels. However, the magnitude of annual revenue reductions would be relatively small, as vessels may be able to take more trips due to a longer season under the proposed quota increases.

    Action 6 would set the Gulf migratory group king mackerel ACL equal to the ABC recommended by the Gulf Council's SSC for the 2016-2017 through 2019-2020 fishing years. The ABC recommended by the SSC is less than the existing ABC, but the lower number is largely a product of the boundary change, based on new information in SEDAR 38 that the range of Gulf migratory group king mackerel spans a smaller area than previously thought. When the existing commercial ACLs for the Gulf migratory group are adjusted to account for landings in the Florida east coast subzone that would no longer be considered part of Gulf migratory group king mackerel, the new commercial ACLs starting in the 2016-2017 fishing year would actually be greater than the existing ones. For this reason, setting the Gulf migratory group ACL equal to the ABC would be expected to provide higher landings and revenues to commercial vessels. Historically, the commercial sector has fully harvested its allocation of Gulf migratory group king mackerel. Thus, using past landings as a predictor of future landings, it is likely that the commercial sector would harvest up to the level of the proposed quota increases for the Gulf migratory group and generate higher revenues from quota increases. Estimated total revenue increases would be approximately $1,068,000 for the 2016-2017 fishing year, $871,000 for the 2017-2018 fishing year, $781,000 for the 2018-2019 fishing year, and $692,000 for the 2019-2020 fishing year and every fishing year thereafter.

    Action 7 in Amendment 26 would revise the commercial zone quotas for Gulf migratory group king mackerel as follows: 40 percent for the western zone; 18 percent for the northern zone; 21 percent for the southern zone hook-and-line component; and 21 percent for the southern zone gillnet component. This revised zone allocation is necessary because the previous Gulf migratory group king mackerel zone allocations included the Florida east coast subzone, which would no longer exist under this proposed rule. The proposed boundary change under Action 1 would render the Florida east coast area part of the southern zone for Atlantic migratory group king mackerel. Action 7 would result in commercial quota increases for all of the Gulf migratory group king mackerel zones, potentially resulting in higher revenues to commercial vessels. However, the quota increases would not be uniform across the zones, with the Gulf northern zone receiving the largest quota increases. For the western zone, total revenue increases would be approximately $194,000 for the 2016-2017 fishing year, $115,000 for the 2017-2018 fishing year, $79,000 for the 2018-2019 fishing year, and $44,000 for the 2019-2020 fishing year and subsequent fishing years. For the northern zone, revenue increases would be approximately $630,000 for the 2016-2017 fishing year, $595,000 for the 2017-2018 fishing year, $579,000 for the 2018-2019 fishing year, and $563,000 for the 2019-2020 fishing year and subsequent fishing years. For the hook-and-line component of the southern zone, revenue increases would be approximately $121,000 for the 2016-2017 fishing year, $80,000 for the 2017-2018 fishing year, $61,000 for the 2018-2019 fishing year, and $42,000 for the 2019-2020 fishing year and subsequent fishing years. Revenue increases for the gillnet component of the southern zone would be identical to those of the hook-and-line component.

    Action 8 considered revising the commercial and recreational allocations for the Gulf migratory group king mackerel; however, the Councils selected the no action alternative.

    Action 9 in Amendment 26 would modify the recreational bag limit for Gulf migratory group king mackerel from two to three fish per person per day. This would not directly affect any business entities under the RFA.

    The following discussion describes the alternatives that were not selected as preferred by the Council. Among the actions considered, only actions that would have direct adverse economic effects on small entities merit inclusion.

    Only Action 5 (commercial trip limits for the Atlantic migratory group's southern zone) may result in adverse economic impacts on small commercial business entities. Four alternatives and five sub-alternatives, including the two preferred alternatives and two preferred sub-alternatives, were considered for establishing commercial trip limits in the Atlantic southern zone. All of the considered alternatives would maintain the current trip limit for Atlantic migratory group king mackerel in areas north of the Volusia/Flagler county line. The first alternative, the no action alternative, would retain the current trip limit system. Because of the proposed boundary change in Action 1, maintaining the current trip limit system would leave certain areas in the Florida east coast that used to be under the Gulf Council jurisdiction without trip limits during the winter months. This would open opportunities for higher harvests that could result in a shorter king mackerel season in the Atlantic southern zone. Vessels fishing in the area with no trip limits would benefit, but any benefit would be at the expense of vessels fishing in areas with trip limits, as allowing unrestricted harvest would likely lead to earlier quota closures. The overall net effects on vessel revenues cannot be determined, but if a commercial quota closure occurs due to increased, unrestricted harvest, overall annual vessel revenues may decrease.

    The second alternative would establish a year-round trip limit of 75 fish for Atlantic migratory group king mackerel in the area south of the Flagler/Volusia county line. This alternative would provide for a greater trip limit than the preferred alternative for certain months of the year, and thus may be expected to result in slightly higher landings and revenues than the preferred alternative. However, this alternative may lead to shorter commercial seasons, as it does not include a mechanism to slow down harvests to avoid exceeding the area's quota for the first or second seasons in the Atlantic southern zone.

    The third alternative, which would apply only to the first season, would establish a trip limit of 50 fish from March 1-March 31, and 75 fish for the remainder of the season 1, for the area south of the Flagler/Volusia county line. Alternative three has two options, one of which is the preferred option. The non-preferred option would reduce the trip limit for the first season if 75 percent of the first season has been landed, but to occur no earlier than August 1 each fishing year. The preferred option would reduce the trip limit anytime during the first season when 75 percent of the first seasons quota has been landed. The non-preferred option would in principle allow for a higher trip limit over a longer period in the first season and would be expected to result in higher per trip revenues and profits than the preferred option. However, analysis of the landings data shows that both options would have the same effects, because the 75 percent trigger is expected to be met at the same date under both options, which would occur after August 1.

    The fourth alternative would establish a 50 fish trip limit for the second season. The fourth alternative has three options, one of which is the preferred option. The preferred option would increase the trip limit to 75 fish during the month of February, but if 70 percent of the second season's commercial quota had been landed, the trip limit would remain 50 fish. The second option would increase the trip limit to 75 fish during January and February as long as less than 70 percent of the second season's quota had been landed. In principle, this second option would be expected to increase vessel revenues per trip in January as compared to the preferred option, but the second option would also increase the likelihood of an earlier closure in the second season. The third option is similar to the preferred option, except that the trigger for increasing the trip limit would be landings less than 80 percent, instead of less than 70 percent, of the second season's quota. In theory, this option has a greater likelihood than the preferred option for increasing the commercial trip limit in February, but it would also increase the likelihood of an early closure in the second season. However, because the greatest historical landings have been well below the proposed second season quota, all three options would be expected to have the same effects on vessel revenues.

    List of Subjects in 50 CFR Part 622

    Annual catch limits, Fisheries, Fishing, Gulf of Mexico, King Mackerel, South Atlantic.

    Dated: December 19, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

    PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. Revise the heading of subpart Q in part 622 to read as follows: Subpart Q—Coastal Migratory Pelagic Resources (Gulf of Mexico, South Atlantic, and Mid-Atlantic) 3. In § 622.7, revise paragraph (b)(1) to read as follows:
    § 622.7 Fishing years.

    (b) * * *

    (1) Gulf migratory group king mackerel—(i) Southern zone— July 1 through June 30.

    (ii) Northern zone—October 1 through September 30.

    (iii) Western zone—July 1 through June 30.

    4. Revise § 622.369 to read as follows:
    § 622.369 Description of zones.

    (a) Migratory groups of king mackerel. In the EEZ, king mackerel are divided into the Gulf migratory group and the Atlantic migratory group. The Gulf migratory group is bound by a line extending east of the U.S./Mexico border and a line extending east of the Miami-Dade/Monroe County, FL boundary. The Atlantic migratory group is bound by a line extending east of the Miami-Dade/Monroe County, FL boundary and a line from the intersection point of Connecticut, Rhode Island, and New York (as described in § 600.105(a) of this chapter). The zone boundaries remain in place year round. See Table 1 of this section for the boundary coordinates. See Figure 1 in Appendix G of this part for illustration.

    (1) Gulf migratory group. The Gulf migratory group is divided into western, northern, and southern zones. See Table 1 of this section for the boundary coordinates. See Figure 1 in Appendix G of this part for illustration.

    (i) Western zone. The western zone encompasses an area of the EEZ north of a line extending east of the U.S./Mexico border, and west of a line extending due south of the Alabama/Florida border, including the EEZ off Texas, Louisiana, Mississippi, and Alabama.

    (ii) Northern zone. The northern zone encompasses an area of the EEZ east of a line extending due south of the Florida/Alabama border, and north of a line extending due west of the Lee/Collier County, Florida, boundary.

    (iii) Southern zone. The southern zone encompasses an area of the EEZ south of a line extending due west of the Lee/Collier County, Florida, boundary on the Florida west coast, and south of a line extending due east of the Monroe/Miami-Dade County, Florida, boundary on the Florida east coast, which includes the EEZ off Collier and Monroe Counties, Florida.

    (2) Atlantic migratory group. The Atlantic migratory group is divided into the northern and southern zones separated by a line extending from the North Carolina/South Carolina border, as specified in § 622.2. See Table 1 of this section for the boundary coordinates. See Figure 1 in Appendix G of this part for illustration. See § 622.385(a)(1) for a description of the areas for Atlantic migratory group king mackerel commercial trip limits.

    (i) Northern zone. The northern zone encompasses an area of the EEZ south of a line extending from the intersection point of New York, Connecticut, and Rhode Island (as described in § 600.105(a) of this chapter), and north of a line extending from the North Carolina/South Carolina border, as specified in § 622.2, including the EEZ off each state from North Carolina to New York. This zone remains the same year round.

    (ii) Southern zone. The southern zone encompasses an area of the EEZ south of a line extending from the North Carolina/South Carolina border, as specified in § 622.2, and north of a line extending due east of the Monroe/Miami-Dade County, Florida, boundary.

    Table 1 to § 622.369—King Mackerel Description of Zones [For illustration, see Figure 1 in Appendix G of this part] Area Boundary 1 Boundary 2 Gulf Migratory Group—Western Zone U.S./Mexico A line east of the intersection of 25°58′30.57″ N. lat. and 96°55′27.37″ W. long AL/FL 87°31′6″ W. long. Gulf Migratory Group—Northern Zone AL/FL 87°31′6″ W. long Lee/Collier 26°19′48″ N. lat. Gulf Migratory Group—Southern Zone Lee/Collier 26°19′48″ N. lat Monroe/Miami-Dade 25°20′24″ N. lat. Atlantic Migratory Group—Northern Zone NY/CT/RI 41°18′16.249″ N. lat. and 71°54′28.477″ W. long. southeast to 37°22′32.75″ N. lat. and the intersection point with the outward boundary of the EEZ NC/SC, a line extending in a direction of 135°34′55″ from true north beginning at 33°51′07.9″ N. lat. and 78°32′32.6″ W. long. to the intersection point with the outward boundary of the EEZ. Atlantic Migratory Group—Southern Zone NC/SC, a line extending in a direction of 135°34′55″ from true north beginning at 33°51′07.9″ N. lat. and 78°32′32.6″ W. long. to the intersection point with the outward boundary of the EEZ Monroe/Miami-Dade 25°20′24″ N. lat.

    (b) Migratory groups of Spanish mackerel—(1) Gulf migratory group. In the EEZ, the Gulf migratory group is bounded by a line extending east of the U.S./Mexico border and a line extending due east of the Monroe/Miami-Dade County, FL, boundary. See Table 2 of this section for the boundary coordinates. See Figure 2 in Appendix G of this part for illustration.

    (2) Atlantic migratory group. In the EEZ, the Atlantic migratory group is bounded by a line extending due east of the Monroe/Miami-Dade County, FL, boundary and a line extending from the intersection point of New York, Connecticut, and Rhode Island (as described in § 600.105(a) of this chapter). The Atlantic migratory group is divided into the northern and southern zones. See Table 2 of this section for the boundary coordinates. See Figure 2 in Appendix G of this part for illustration. See § 622.385(b)(1) for a description of the areas for Atlantic migratory group Spanish mackerel commercial trip limits.

    (i) Northern zone. The northern zone encompasses an area of the EEZ south of a line extending from the intersection point of New York, Connecticut, and Rhode Island (as described in § 600.105(a) of this chapter), and north of a line extending from the North Carolina/South Carolina border, as specified in § 622.2, including the EEZ off each state from North Carolina to New York.

    (ii) Southern zone. The southern zone encompasses an area of the EEZ south of a line extending from the North Carolina/South Carolina border, as specified in § 622.2, and north of a line extending due east of the Monroe/Miami-Dade County, FL, boundary, including the EEZ off South Carolina, Georgia, and Florida.

    Table 2 to § 622.369—Spanish Mackerel Description of Zones [For illustration, see Figure 2 in Appendix G of this part] Area Boundary 1 Boundary 2 Gulf Migratory Group U.S./Mexico A line east of the intersection of 25°58′30.57″ N. lat. and 96°55′27.37″ W. long Monroe/Miami-Dade 25°20′24″ N. lat. Atlantic Migratory Group—Northern Zone NY/CT/RI 41°18′16.249″ N. lat. and 71°54′28.477″ W. long. southeast to 37°22′32.75″ N. lat. and the intersection point with the outward boundary of the EEZ NC/SC, a line extending in a direction of 135°34′55″ from true north beginning at 33°51′07.9″ N. lat. and 78°32′32.6″ W. long. to the intersection point with the outward boundary of the EEZ. Atlantic Migratory Group—Southern Zone NC/SC, a line extending in a direction of 135°34′55″ from true north beginning at 33°51′07.9″ N. lat. and 78°32′32.6″ W. long. to the intersection point with the outward boundary of the EEZ Monroe/Miami-Dade 25°20′24″ N. lat.

    (c) Migratory groups of cobia—(1) Gulf migratory group. In the EEZ, the Gulf migratory group is bounded by a line extending east from the U.S./Mexico border and a line extending due east from the Florida/Georgia border. See Table 3 of this section for the boundary coordinates. (See Figure 3 in Appendix G of this part for illustration.)

    (i) Gulf zone. The Gulf zone encompasses an area of the EEZ north of a line extending east of the U.S./Mexico border, and north and west of the line of demarcation between the Atlantic Ocean and the Gulf of Mexico (the Council boundary, as described in § 600.105(c) of this chapter).

    (ii) Florida east coast zone. The Florida east coast zone encompasses an area of the EEZ south and east of the line of demarcation between the Atlantic Ocean and the Gulf of Mexico (as described in § 600.105(c) of this chapter), and south of a line extending due east from the Florida/Georgia border.

    (2) Atlantic migratory group. In the EEZ, the Atlantic migratory group is bounded by a line extending from the intersection point of New York, Connecticut, and Rhode Island (as described in § 600.105(a) of this chapter) and a line extending due east of the Florida/Georgia border. See Table 3 of this section for the boundary coordinates. (See Figure 3 in Appendix G of this part for illustration.)

    Table 3 to § 622.369—Cobia Description of Zones [For illustration, see Figure 3 in Appendix G of this part] Area Boundary 1 Boundary 2 Gulf Migratory Group—Gulf Zone U.S./Mexico A line east of the intersection of 25°58′30.57″ N. lat. and 96°55′27.37″ W. long Council Boundary—the intersection of the outer boundary of the EEZ and 83°00′ W. long., north to 24°35′ N. lat., (near the Dry Tortugas Islands), then east to the mainland. Gulf Migratory Group—Florida East Coast Zone Council Boundary—the intersection of the outer boundary of the EEZ and 83°00′ W. long., north to 24°35′ N. lat., (near the Dry Tortugas Islands), then east to the mainland FL/GA 30°42′45.6″ N. lat. Atlantic Migratory Group NY/CT/RI 41°18′16.249″ N. lat. and 71°54′28.477″ W. long. southeast to 37°22′32.75″ N. lat. and the intersection point with the outward boundary of the EEZ FL/GA 30°42′45.6″ N. lat.
    5. In § 622.370, revise paragraph (a)(2), paragraph (b)(1) introductory text, and paragraph (c)(1) to read as follows:
    § 622.370 Permits.

    (a) * * *

    (2) Gillnets for king mackerel in the Gulf southern zone. For a person aboard a vessel to use a run-around gillnet for king mackerel in the southern zone (see § 622.369(a)(1)(iii)), a commercial vessel permit for king mackerel and a king mackerel gillnet permit must have been issued to the vessel and must be on board. See § 622.372 regarding a limited access system applicable to king mackerel gillnet permits in the southern zone and restrictions on transferability of king mackerel gillnet permits.

    (b) * * *

    (1) For a person aboard a vessel that is operating as a charter vessel or headboat to fish for or possess, in or from the EEZ, Gulf coastal migratory pelagic fish or Atlantic coastal migratory pelagic fish, a valid charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Atlantic coastal migratory pelagic fish, respectively, must have been issued to the vessel and must be on board.

    (c) * * *

    (1) Permits. For a dealer to first receive Gulf or Atlantic coastal migratory pelagic fish harvested in or from the EEZ, a Gulf and South Atlantic dealer permit must be issued to the dealer.

    6. In § 622.372, revise the section heading to read as follows:
    § 622.372 Limited access system for king mackerel gillnet permits applicable in the Gulf southern zone.
    7. In § 622.374, revise paragraphs (b)(1)(i) and (ii), and (c)(1) to read as follows:
    § 622.374 Recordkeeping and reporting.

    (b) * * *

    (1) * * *

    (i) Charter vessels. The owner or operator of a charter vessel for which a charter vessel/headboat permit for Gulf or Atlantic coastal migratory pelagic fish has been issued, as required under § 622.370(b)(1), or whose vessel fishes for or lands Gulf or Atlantic coastal migratory fish in or from state waters adjoining the Gulf, South Atlantic, or Mid-Atlantic EEZ, who is selected to report by the SRD must maintain a fishing record for each trip, or a portion of such trips as specified by the SRD, on forms provided by the SRD and must submit such record as specified in paragraph (b)(2)(i) of this section.

    (ii) Headboats. The owner or operator of a headboat for which a charter vessel/headboat permit for Gulf coastal migratory fish or Atlantic coastal migratory pelagic fish has been issued, as required under § 622.370(b)(1), or whose vessel fishes for or lands Gulf or Atlantic coastal migratory pelagic fish in or from state waters adjoining the Gulf, South Atlantic, or Mid-Atlantic EEZ, who is selected to report by the SRD must submit an electronic fishing record for each trip of all fish harvested within the time period specified in paragraph (b)(2)(ii) of this section, via the Southeast Region Headboat Survey.

    (c) * * *

    (1) A dealer who first receives Gulf or Atlantic coastal migratory pelagic fish must maintain records and submit information as specified in § 622.5(c).

    8. In § 622.375, revise paragraphs (a)(1)(ii) and (b)(4) to read as follows:
    § 622.375 Authorized and unauthorized gear.

    (a) * * *

    (1) * * *

    (ii) King mackerel, Gulf migratory group—hook-and-line gear and, in the southern zone only, run-around gillnet. (See § 622.369(a)(1)(iii) for a description of the southern zone.)

    (b) * * *

    (4) Exception for king mackerel in the Gulf EEZ. The provisions of this paragraph (b)(4) apply to king mackerel taken in the Gulf EEZ and to such king mackerel possessed in the Gulf. Paragraph (b)(3) of this section notwithstanding, a person aboard a vessel that has a valid commercial permit for king mackerel is not subject to the bag limit for king mackerel when the vessel has on board on a trip unauthorized gear other than a drift gillnet in the Gulf EEZ, a long gillnet, or a run-around gillnet in an area other than the southern zone. Thus, the following applies to a vessel that has a commercial permit for king mackerel:

    (i) Such vessel may not use unauthorized gear in a directed fishery for king mackerel in the Gulf EEZ.

    (ii) If such a vessel has a drift gillnet or a long gillnet on board or a run-around gillnet in an area other than the southern zone, no king mackerel may be possessed.

    (iii) If such a vessel has unauthorized gear on board other than a drift gillnet in the Gulf EEZ, a long gillnet, or a run-around gillnet in an area other than the southern zone, the possession of king mackerel taken incidentally is restricted only by the closure provisions of § 622.384(e) and the trip limits specified in § 622.385(a). See also § 622.379 regarding the purse seine catch allowances of king mackerel.

    9. In § 622.378, revise paragraph (a) to read as follows:
    § 622.378 Seasonal closures of the Gulf group king mackerel gillnet fishery.

    (a) Seasonal closures of the gillnet component for Gulf migratory group king mackerel. The gillnet component for Gulf migratory group king mackerel in or from the southern zone is closed each fishing year from July 1 until 6 a.m. on the day after the Martin Luther King Jr. Federal holiday. The gillnet component is open on the first weekend following the Martin Luther King Jr. holiday, provided a notification of closure has not been filed under § 622.8(b). The gillnet component is closed all subsequent weekends and observed Federal holidays. Weekend closures are effective from 6 a.m. Saturday to 6 a.m. Monday. Holiday closures are effective from 6 a.m. on the observed Federal holiday to 6 a.m. the following day. All times are eastern standard time. During these closures, a person aboard a vessel using or possessing a gillnet with a stretched-mesh size of 4.75 inches (12.1 cm) or larger in the southern zone may not fish for or possess Gulf migratory group king mackerel. (See § 622.369(a)(1)(iii) for a description of the southern zone.)

    10. Amend § 622.379 as follows:
    § 622.379 Incidental catch allowances.

    (a) Purse seine incidental catch allowance. A vessel in the EEZ, or having fished in the EEZ, with a purse seine on board will not be considered as fishing, or having fished, for king or Spanish mackerel in violation of a prohibition of purse seines under § 622.375(b), in violation of the possession limits under § 622.375(b)(3), or, in the case of king mackerel from the Atlantic migratory group, in violation of a closure effected in accordance with § 622.8(b), provided the king mackerel on board does not exceed 1 percent, or the Spanish mackerel on board does not exceed 10 percent, of all fish on board the vessel. Incidental catch will be calculated by number and/or weight of fish. Neither calculation may exceed the allowable percentage. Incidentally caught king or Spanish mackerel are counted toward the quotas provided for under § 622.384 and are subject to the prohibition of sale under § 622.384(e)(3).

    (b) Shark gillnet incidental catch allowance. A vessel in the Atlantic EEZ with a valid Federal Atlantic commercial shark directed permit and a valid Federal king mackerel commercial permit that is engaged in directed shark fishing with gillnets that are not an authorized gear for Atlantic migratory group king mackerel (See § 622.375(a)(1)(i)), may retain and sell a limited number of king mackerel. Any king mackerel retained must be sold to a dealer with a valid Federal Gulf and South Atlantic dealer permit.

    (i) Northern zone. No more than three king mackerel per crew member may be retained or sold per trip (See § 622.385(a)(1)(i) for the commercial trip limit for directed king mackerel trips using authorized gillnets (in the Atlantic EEZ north of 34°37.3′ N. lat, the latitude of Cape Lookout, NC)).

    (ii) Southern zone. No more than two king mackerel per crew member may be retained or sold per trip.

    11. In § 622.382, revise paragraph (a)(1)(ii) to read as follows:
    § 622.382 Bag and possession limits.

    (a) * * *

    (1) * * *

    (ii) Gulf migratory group king mackerel—3.

    12. In § 622.384: A. Revise paragraphs (b) and (e) to read as follows:
    § 622.384 Quotas.

    (b) King mackerel—(1) Gulf migratory group. The Gulf migratory group is divided into zones. The description of the zones is specified in § 622.369(a). Quotas for the western, northern, and southern zones are as follows:

    (i) Western zone. The quota is 1,180,000 lb (535,239 kg) for the 2016-2017 fishing year, 1,136,000 lb (515,281 kg) for the 2017-2018 fishing year, 1,116,000 lb (506,209 kg) for the 2018-2019 fishing year, and 1,096,000 lb (497,137 kg) for the 2019-2020 fishing year and subsequent fishing years.

    (ii) Northern zone. The quota is 531,000 lb (240,858 kg) for the 2016-2017 fishing year, 511,200 lb (231,876 kg) for the 2017-2018 fishing year, 502,200 lb (227,794 kg) for the 2018-2019 fishing year, and 493,200 lb (223,712 kg) for the 2019-2020 fishing year and subsequent fishing years.

    (iii) Southern zone. (A) The hook-and-line quota is 619,500 lb (281,000 kg) for the 2016-2017 fishing year, 596,400 lb (270,522 kg) for the 2017-2018 fishing year, 585,900 lb (265,760 kg) for the 2018-2019 fishing year, and 575,400 lb (260,997 kg) for the 2019-2020 fishing year and subsequent fishing years.

    (B) The run-around gillnet quota is 619,500 lb (281,000 kg) for the 2016-2017 fishing year, 596,400 lb (270,522 kg) for the 2017-2018 fishing year, 585,900 lb (265,760 kg) for the 2018-2019 fishing year, and 575,400 lb (260,997 kg) for the 2019-2020 fishing year and subsequent fishing years.

    (2) Atlantic migratory group. The Atlantic migratory group is divided into northern and southern zones. The descriptions of the zones are specified in § 622.369(a). Quotas for the northern and southern zones for the 2016-2017 fishing year and subsequent years are as follows:

    (i) Northern zone—The quota is 1,497,600 lb (679,300 kg) for the 2016-2017 fishing year, 1,259,360 lb (571,236 kg) for the 2017-2018 fishing year, 1,198,080 lb (543,440 kg) for the 2018-2019 fishing year and 1,082,880 lb (491,186 kg) for the 2019-2020 fishing year and subsequent fishing years. No more than 0.40 million lb (0.18 million kg) may be harvested by purse seine gear.

    (ii) Southern zone. The annual quota is 5,002,400 lb (2,269,050 kg) for the 2016-2017 fishing year, 4,540,640 lb (2,059,600 kg) for the 2017-2018 fishing year, 4,001,920 lb (1,815,240 kg) for the 2018-2019 fishing year and 3,617,120 lb (1,640,698 kg) for the 2019-2020 fishing year and subsequent fishing years.

    (A) For the period March 1 through September 30, each year, the seasonal quota is 3,001,440 lb (1,361,430 kg) for the 2016-2017 fishing year, 2,724,384 lb (1,235,760 kg) for the 2017-2018 fishing year, 2,401,152 lb (1,089,144 kg) for the 2018-2019 fishing year and 2,170,272 lb (984,419 kg) for the 2019-2020 fishing year and subsequent fishing years.

    (B) For the period October 1 through the end of February each year, the seasonal quota is 2,000,960 lb (907,620 kg) for the 2016-2017 fishing year, 1,816,256 lb (823,840 kg) for the 2017-2018 fishing year, 1,600,768 lb (726,096 kg) for the 2018-2019 fishing year and 1,446,848 lb (656,279 kg) for the 2019-2020 fishing year and subsequent fishing years.

    (C) Any unused portion of the quota specified in paragraph (b)(2)(ii)(A) of this section will be added to the quota specified in paragraph (b)(2)(ii)(B) of this section. Any unused portion of the quota specified in paragraph (b)(2)(ii)(B) of this section, including any addition of quota specified in paragraph (b)(2)(ii)(A) of this section that was unused, will become void at the end of the fishing year and will not be added to any subsequent quota.

    (iii) Quota transfers. North Carolina or Florida, in consultation with the other states in their respective zones, may request approval from the RA to transfer part or all of their respective zone's annual commercial quota to the other zone. Requests for transfer of commercial quota for king mackerel must be made by a letter signed by the principal state official with marine fishery management responsibility and expertise of the state requesting the transfer, or his/her previously named designee. The letter must certify that all pertinent state requirements have been met and identify the states involved and the amount of quota to be transferred. For the purposes of quota closures as described in § 622.8, the receiving zone's quota will be the original quota plus any transferred amount, for that fishing season only. Landings associated with any transferred quota will be included in the total landings for the Atlantic migratory group, which will be evaluated relative to the total ACL.

    (A) Within 10 working days following the receipt of the letter from the state requesting the transfer, the RA shall notify the appropriate state officials of the disposition of the request. In evaluating requests to transfer a quota, the RA shall consider whether:

    (1) The transfer would allow the overall annual quota to be fully harvested; and

    (2) The transfer is consistent with the objectives of the FMP and the Magnuson-Stevens Act.

    (B) The transfer of quota will be valid only for the fishing year for which the request was made and does not permanently alter the quotas specified in paragraphs (b)(2)(i) and (b)(2)(ii) of this section.

    (3) Transit provisions applicable in areas closed due to a quota closure for king mackerel. A vessel with a valid commercial vessel permit for king mackerel that has onboard king mackerel harvested in an open area of the EEZ may transit through areas closed to the harvest of king mackerel due to a quota closure, if fishing gear is appropriately stowed. For the purpose of paragraph (b) of this section, transit means direct and non-stop continuous course through the area. To be appropriately stowed fishing gear means—

    (i) A gillnet must be left on the drum. Any additional gillnets not attached to the drum must be stowed below deck.

    (ii) A rod and reel must be removed from the rod holder and stowed securely on or below deck. Terminal gear (i.e., hook, leader, sinker, flasher, or bait) must be disconnected and stowed separately from the rod and reel. Sinkers must be disconnected from the down rigger and stowed separately.

    (e) Restrictions applicable after a quota closure. (1) A person aboard a vessel for which a commercial permit for king or Spanish mackerel has been issued, as required under § 622.370(a)(1) or (3), may not fish for king or Spanish mackerel in the EEZ or retain king or Spanish mackerel in or from the EEZ under a bag or possession limit specified in § 622.382(a) for the closed species, migratory group, zone, or gear, except as provided for under paragraph (e)(2) of this section.

    (2) A person aboard a vessel for which valid charter vessel/headboat permits for Gulf coastal migratory pelagic fish or Atlantic coastal migratory pelagic fish and a valid commercial vessel permit for king or Spanish mackerel have been issued may continue to retain fish under a bag and possession limit specified in § 622.382(a), provided the vessel is operating as a charter vessel or headboat.

    (3) The sale or purchase of king mackerel, Spanish mackerel, or cobia of the closed species, migratory group, zone, or gear type, is prohibited, including any king or Spanish mackerel taken under the bag limits, or cobia taken under the limited-harvest species possession limit specified in § 622.383(b). The prohibition on sale/purchase during a closure for coastal migratory pelagic fish does not apply to coastal migratory pelagic fish that were harvested, landed ashore, and sold prior to the effective date of the closure and were held in cold storage by a dealer or processor.

    13. In § 622.385, revise paragraph (a) to read as follows:
    § 622.385 Commercial trip limits.

    (a) King mackerel—(1) Atlantic migratory group. The following trip limits apply to vessels for which commercial permits for king mackerel have been issued, as required under § 622.370(a)(1):

    (i) North of 29°25′ N. lat., which is a line directly east from the Flagler/Volusia County, FL, boundary, king mackerel in or from the EEZ may not be possessed on board or landed from a vessel in a day in amounts exceeding 3,500 lb (1,588 kg).

    (ii) In the area between 29°25′ N. lat., which is a line directly east from the Flagler/Volusia County, FL, boundary, and 29°25′ N. lat., which is a line directly east from the Miami-Dade/Monroe County, FL boundary king mackerel in or from the EEZ may not be possessed on board or landed from a vessel in a day in amounts not to exceed:

    (A) From March 1 through March 31—50 fish.

    (B) From April through September—75 fish, unless NMFS determines that 75 percent or more of the quota specified in 622.384(b)(2)(ii)(A) has been landed, then, 50 fish.

    (C) From October 1 through January 31—50 fish.

    (D) From February 1 through the end of February—50 fish, unless NMFS determines that less than 70 percent of the quota specified in § 622.384(b)(2)(ii)(B) has been landed, then, 75 fish.

    (2) Gulf migratory group. Commercial trip limits are established in the southern, northern, and western zones as follows. (See § 622.369(a) for descriptions of the southern, northern, and western zones.)

    (i) Southern zone—(A) Gillnet gear. (1) King mackerel in or from the EEZ may be possessed on board or landed from a vessel for which a commercial vessel permit for king mackerel and a king mackerel gillnet permit have been issued, as required under § 622.370(a)(2), in amounts not exceeding 45,000 lb (20,411 kg) per day.

    (2) King mackerel in or from the EEZ may be possessed on board or landed from a vessel that uses or has on board a run-around gillnet on a trip only when such vessel has on board a commercial vessel permit for king mackerel and a king mackerel gillnet permit.

    (3) King mackerel from the southern zone landed by a vessel for which a commercial vessel permit for king mackerel and a king mackerel gillnet permit have been issued will be counted against the run-around gillnet quota specified in § 622.384(b)(1)(iii)(B).

    (4) King mackerel in or from the EEZ harvested with gear other than run-around gillnet may not be retained on board a vessel for which a commercial vessel permit for king mackerel and a king mackerel gillnet permit have been issued.

    (B) Hook-and-line gear. King mackerel in or from the EEZ may be possessed on board or landed from a vessel with a commercial permit for king mackerel, as required by § 622.370(a)(1), and operating under the hook-and-line gear quotas in § 622.384(b)(1)(iii)(A) in amounts not exceeding 1,250 lb (567 kg) per day.

    (ii) Northern zone. King mackerel in or from the EEZ may be possessed on board or landed from a vessel for which a commercial permit for king mackerel has been issued, as required under § 622.370(a)(1), in amounts not exceeding 1,250 lb (567 kg) per day.

    (iii) Western zone. King mackerel in or from the EEZ may be possessed on board or landed from a vessel for which a commercial permit for king mackerel has been issued, as required under § 622.370(a)(1), in amounts not exceeding 3,000 lb (1,361 kg) per day.

    14. In § 622.388, revise paragraphs (a), (b), (d)(2)(i), and (f)(2)(i) to read as follows:
    § 622.388 Annual catch limits (ACLs), annual catch targets (ACTs), and accountability measures.

    (a) Gulf migratory group king mackerel—(1) Commercial sector—(i) If commercial landings, as estimated by the SRD, reach or are projected to reach the applicable quota specified in § 622.384(b)(1), the AA will file a notification with the Office of the Federal Register to close the commercial sector for that zone, or gear type for the remainder of the fishing year.

    (ii) The commercial ACL for the Gulf migratory group of king mackerel is 2.95 million lb (1.34 million kg) for the 2016-2017 fishing year, 2.84 million lb (1.29 million kg) for the 2017-2018 fishing year, 2.79 million lb (1.27 million kg) for the 2018-2019 fishing year, and 2.74 million lb (1.24 million kg) for the 2019-2020 and subsequent fishing years. This ACL is further divided into a commercial ACL for vessels fishing with hook-and-line and a commercial ACL for vessels fishing with run-around gillnets. The hook-and-line ACL (which applies to the entire Gulf) is 2,330,500 lb (1,057,097 kg) for 2016-2017 fishing year, 2,243,600 lb (1,017,680 kg) for the 2017-2018 fishing year, 2,204,100 lb (999,763 kg) for the 2018-2019 fishing year, and 2,164,600 lb (981,846 kg) for the 2019-2020 and subsequent fishing years. The run-around gillnet ACL (which applies to the southern zone) is 619,500 lb (281,000 kg) for the 2016-2017 fishing year, 596,400 lb (270,522 kg) for the 2017-2018 fishing year, 585,900 lb (265,760 kg) for the 2018-2019 fishing year, and 575,400 lb (260,997 kg) for 2019-2020 and subsequent fishing years.

    (iii) If commercial landings of Gulf migratory group king mackerel caught by run-around gillnet in the southern zone, as estimated by the SRD, exceed the commercial ACL, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for king mackerel harvested by run-around gillnet in the southern zone in the following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector. If recreational landings, as estimated by the SRD, reach or are projected to reach the recreational ACL of 6.26 million lb (2.84 million kg) for the 2016-2017 fishing year, 6.04 million lb (2.74 million kg) for the 2017-2018 fishing year, 5.92 million lb (2.69 million kg) for the 2018-2019 fishing year, and 5.81 million lb (2.64 million kg) for the 2019-2020 and subsequent fishing years, the AA will file a notification with the Office of the Federal Register to implement bag and possession limits for Gulf migratory group king mackerel of zero, unless the best scientific information available determines that a bag limit reduction is unnecessary.

    (3) For purposes of tracking the ACL, recreational landings will be monitored based on the commercial fishing year.

    (b) Atlantic migratory group king mackerel—(1) Commercial sector—(i) If commercial landings, as estimated by the SRD, reach or are projected to reach the applicable quota for the zone or season specified in § 622.384(b)(2), the AA will file a notification with the Office of the Federal Register to close the commercial sector for that zone for the remainder of the applicable fishing season or fishing year.

    (ii) In addition to the measures specified in paragraph (b)(1)(i) of this section, if the sum of the commercial and recreational landings, as estimated by the SRD, exceeds the stock ACL, as specified in paragraph (b)(3) of this section, and Atlantic migratory group king mackerel are overfished, based on the most recent status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year to reduce the commercial quota for that zone for that following year by the amount of any commercial sector overage in the prior fishing year for that zone.

    (iii) The commercial ACL for the Atlantic migratory group of king mackerel is 6.5 million lb (2.9 million kg) for the 2016-2017 fishing year, 5.9 million lb (2.7 million kg) for the 2017-2018 fishing year, 5.2 million lb (2.4 million kg) for the 2018-2019 fishing year, and 4.7 million lb (2.1 million kg) for the 2019-2020 fishing year and subsequent fishing years.

    (2) Recreational sector. (i) If the recreational landings, exceed the recreational ACL as specified in this paragraph and the sum of the commercial and recreational landings, as estimated by the SRD, exceeds the stock ACL, as specified in paragraph (b)(3) of this section, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year to reduce the bag limit by the amount necessary to ensure recreational landings may achieve the recreational ACT, but do not exceed the recreational ACL, in the following fishing year.

    The recreational ACT is 10.1 million lb (4.6 million kg) for the 2016-2017 fishing year, 9.2 million lb (4.2 million kg) for the 2017-2018 fishing year, 8.3 million lb (3.8 million kg) for the 2018-2019 fishing year, and 7.4 million lb (3.4 million kg) for the 2019-2020 fishing year and subsequent fishing years. The recreational ACL is 10.9 million lb (4.9 million kg) for the 2016-2017 fishing year, 9.9 million lb (4.5 million kg) for the 2017-2018 fishing year, 8.9 million lb (4.0 million kg) for the 2018-2019 fishing year, and 8.0 million lb (3.6 million kg) for the 2019-2020 fishing year and subsequent fishing years.

    (ii) In addition to the measures specified in paragraph (b)(2)(i) of this section, if the sum of the commercial and recreational landings, as estimated by the SRD, exceeds the stock ACL, as specified in paragraph (b)(3) of this section, and Atlantic migratory group king mackerel are overfished, based on the most recent status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year to reduce the recreational ACL and ACT for that following year by the amount of any recreational sector overage in the prior fishing year.

    (iii) For purposes of tracking the ACL, recreational landings will be evaluated based on the commercial fishing year, March through February. Recreational landings will be evaluated relative to the ACL based on a moving multi-year average of landings, as described in the FMP.

    (3) The stock ACL for Atlantic migratory group king mackerel is 17.4 million lb (7.9 million kg) for the 2016-2017 fishing year, 15.8 million lb (7.2 million kg) for the 2017-2018 fishing year, 14.1 million lb (6.4 million kg) for the 2018-2019 fishing year, and 12.7 million lb (5.8 million kg) for the 2019-2020 fishing year and subsequent fishing years.

    (d) * * *

    (2) * * *

    (i) If the recreational landings exceed the recreational ACL as specified in this paragraph and the sum of the commercial and recreational landings, as estimated by the SRD, exceeds the stock ACL, as specified in paragraph (d)(3) of this section, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year to reduce the bag limit by the amount necessary to ensure recreational landings may achieve the recreational ACT, but do not exceed the recreational ACL, in the following fishing year. The recreational ACT for the Atlantic migratory group is 2.364 million lb (1.072 million kg). The recreational ACL for the Atlantic migratory group is 2.727 million lb (1.236 million kg).

    (f) * * *

    (2) * * *

    (i) If landings of cobia that are not sold exceed the ACL specified in this paragraph and the sum of the cobia landings that are sold and not sold, as estimated by the SRD, exceeds the stock ACL, as specified in paragraph (f)(3) of this section, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year to reduce the length of the following fishing season by the amount necessary to ensure landings may achieve the applicable ACT, but do not exceed the applicable ACL in the following fishing year. The applicable ACTs for the Atlantic migratory group of cobia are 550,000 lb (249,476 kg) for 2014, 520,000 lb (235,868 kg) for 2015, and 500,000 lb (226,796 kg) for 2016 and subsequent fishing years. The applicable ACLs for the Atlantic migratory group of cobia are 670,000 lb (303,907 kg) for 2014, 630,000 lb (285,763 kg) for 2015, and 620,000 lb (281,227 kg) for 2016 and subsequent fishing years.

    15. Revise Appendix G to Part 622 to read as follows: BILLING CODE 3510-22-P Appendix G to Part 622 Coastal Migratory Pelagics Zone Illustration BILLING CODE 3510-22-P EP29DE16.017 EP29DE16.018 EP29DE16.019
    [FR Doc. 2016-31066 Filed 12-28-16; 8:45 am] BILLING CODE 3510-22-C
    81 250 Thursday, December 29, 2016 Notices DEPARTMENT OF AGRICULTURE Commodity Credit Corporation Notice of Funds Availability (NOFA); Farm-to-Fleet Feedstock Program Biofuel Production Incentive (BPI) AGENCY:

    Commodity Credit Corporation and Farm Service Agency, USDA.

    ACTION:

    Notice.

    SUMMARY:

    In support and for the purposes of the Farm-to-Fleet Program, the U.S. Department of Agriculture (USDA) Commodity Credit Corporation (CCC) is announcing that funding is available to pay a BPI to companies that are refining biofuel in the United States from certain domestically grown feedstocks converted to drop-in biofuel. If eligibility requirements are met, subject to availability of funds, the USDA Farm Service Agency (FSA) will use CCC funds to pay a per gallon incentive amount for JP-5 and F-76 blended biofuels produced from eligible feedstocks and delivered to the U.S. Department of Navy (U.S. Navy). Up to $50 million of CCC funds is available for obligation through fiscal year (FY) 2018. USDA does not expect funding to be a constraint through FY 2018; however, should there be a demand in excess of $50 million, USDA would consider requesting additional funds be made available for BPI payments. As explained in this NOFA, the BPI payment rate will range between 8.335 to 25 cents per blended gallon of biofuel depending on the blended rate; the payment rate will not be based on which eligible feedstock is used to produce the biofuel. The total BPI payment will be determined by multiplying the payment rate by the number of gallons of qualifying biofuel blend delivered under a Defense Logistics Agency (DLA) Energy contract. Biofuel vendors that deliver blended biofuel under a DLA Energy contract on behalf of the U.S. Navy that was refined in the United States and was produced from a domestically grown eligible feedstock are referred to in this NOFA as “claimants” for the BPI payment. As further specified in the Background of this NOFA and subject to the availability of funds, FSA will make a BPI payment to the claimant upon receipt of the following information: Quantity of delivered biofuel blend, identification of the U.S. produced feedstock from which the biofuel was produced, and the blend rate.

    FOR FURTHER INFORMATION CONTACT:

    Kelly Novak, (202) 720-4053.

    ADDRESSES:

    As a claimant, submit your information to request a BPI Payment to Farm Service Agency, USDA, Attn: Kelly Novak, (202) 720-4053; 1400 Independence Ave SW., Room 4765, Washington, DC 20250; or [email protected]

    SUPPLEMENTARY INFORMATION: Background

    The joint USDA and U.S. Navy Farm-to-Fleet Program was announced in December 2013 and added the purchase of biofuel blends into Department of Defense (DOD) domestic solicitations for JP-5 and F-76 fuels. Funds from USDA's CCC are used for this effort to help increase the domestic consumption of agricultural commodities in the biofuel market. The CCC Charter Act (15 U.S.C. 714c(e)) authorizes CCC to use its general powers to increase the domestic consumption of agricultural commodities (other than tobacco) by expanding or aiding in the expansion of domestic markets or by developing or aiding in the development of new and additional markets, marketing facilities, and uses for such commodities. CCC funding is available to pay a BPI for delivered blended biofuel that used certain feedstocks converted to drop-in biofuel. USDA is issuing this NOFA to improve transparency and simplify the process by which CCC funds are administered in support and for the purposes of expanding markets for bioenergy feedstocks through the increased use of eligible feedstocks to produce biofuel for the U.S. Navy. If eligibility requirements are met as specified below in the Eligibility Requirements section and subject to availability of funds, CCC will pay a per gallon incentive amount for JP-5 and F-76 blended biofuels produced from eligible feedstock.

    The BPI is administered by the Farm Service Agency (FSA); the FSA Administrator also serves as the Executive Vice-President of CCC.

    To date, the BPI has had limited use by claimants and minimal impact expanding or developing biofuel markets for agricultural commodities. As a result, through this NOFA, USDA is simplifying the use of CCC funds in the BPI. This simplification increases transparency by identifying a specific BPI payment rate. This allows claimants to quantify the BPI on a per gallon basis, thus making it easier for potential claimants to understand how the BPI funding process works when they consider submitting an offer to provide JP-5 and F-76 blended biofuels on DLA Energy domestic bulk fuel procurements.

    Those biofuel vendors that are awarded a contract by DLA Energy and deliver eligible blended F-76 or JP-5 biofuel, produced using an eligible feedstock, may submit a claim to receive a per gallon payment from FSA, subject to the availability of funds. As part of the pre-award acquisition process, DLA Energy will confirm the supplier's biofuel delivery capability, including quality review of the fuel specification (including feedstock type), ability to produce designated blended biofuel, and the specified blend rate.

    The BPI payment rate will be 8.335 cents per gallon of F-76 or JP-5 fuel that contains a minimum of 10 percent biofuel; the BPI payment rate will increase in a linear fashion; the amount of the increase is 0.8335 cents for every 1 percent biofuel content above 10 percent, up to a maximum BPI payment rate of 25 cents, per gallon. Table 1 shows examples of how the BPI payment rate will be determined based on the blended rate of the biofuel. The payment rate will not be based on which eligible feedstock is used to produce the biofuel. The total BPI payment will be determined by multiplying the BPI payment rate by the number of gallons of qualifying biofuel blend delivered under a DLA Energy contract.

    Table 1—Example of BPI Determination Based on Blended Rate of Biofuel For every 1% biofuel content above 10%, the BPI payment rate will increase 0.8335 cents, up to a maximum payment rate of 25 cents,
  • per gallon, as shown in the examples:
  • If the blended rate is: Then the BPI
  • payment rate,
  • per gallon,
  • will be:
  • 10% 8.3350 cents. 11% 9.1685 cents. 15% 12.5025 cents. 20% 16.6700 cents. 25% 20.8375 cents. 30% and up to a maximum as permitted by the MILSPEC 25.0000 cents.

    Up to $50 million is presently available for obligation through FY 2018. USDA does not expect funding to be a constraint through FY 2018; however, should there be a demand in excess of $50 million, USDA would consider requesting additional funds be made available for BPI payments.

    BPI Payment Eligibility Requirements

    For a claimant to be eligible to receive a BPI payment with CCC funds through this NOFA, all three of the following requirements must be satisfied:

    1. Delivery of a biofuel blend for use by the U.S. Navy that is contractually accepted by DLA Energy and produced in the United States from an eligible feedstock;

    2. Use of a U.S. produced eligible feedstock or feedstocks to produce the biofuel used in the blended product (see Table 2—Qualified Feedstocks below for the list of eligible and ineligible feedstocks); and

    3. Minimum of 10 percent blended biofuel to a maximum as permitted by the revision of MIL-DTL-16884 (F-76) or MIL-DTL-5624 (JP-5).

    Table 2—Qualified Feedstock or Feedstocks To Produce the Biofuel Used in the Blended Product Eligible Non-eligible Agricultural residues such as rice hulls, nut shells Food waste. Algae or Algal oil Municipal solid waste. Animal waste and by-products of animal waste including fats, oils greases (not recycled) Yard waste. Annual cover crops or oil produced from these cover crops * Camelina or camelina oil Canola or Rapeseed oil Cellulosic Biomass from crop residues (that is, stover, wheat straw, rice straw, etc.) Energy cane Eucalyptus Hybrid Poplars Jatropha Mill residues or waste Miscanthus Non-food grade corn oil Pennycress Shrub willows Slash, pre-commercial thinnings, and tree residue, forest residues Sorghum or sorghum oil (non-food grade) Sorghum, Biomass Sorghum, Energy Sunflower oil Switchgrass Other agricultural product approved by CCC * Note: Cover crops must be approved by the FSA Administrator on a case-by-case basis. Generally, however, “cover crop” means crops, including grasses, legumes, and forbs, for seasonal cover and other conservation purposes. Cover crops are primarily used for erosion control, soil health improvement, and water quality improvement. The cover crop may be terminated by natural causes, such as frost, or intentionally terminated through chemical application, crimping, rolling, tillage, or cutting. BPI Payment Claim Submission Requirements

    It is the claimant's responsibility to invoice DLA-Energy for the blended biofuel delivered under the contract to the U.S. Navy and to submit necessary documentation to FSA to receive a BPI payment. Claimant will submit documentation indicating amount of blended biofuel delivered to the U.S. Navy, the blend rate of that biofuel delivery, and the feedstock used to produce the biofuel blend, such as a signed DLA Energy Receiving Report with applicable attachments or other equivalent documentation. The claimant will provide the Energy Receiving Report or equivalent document with the information listed below to USDA for the CCC funded BPI payment. All of the following items will be included in the information provided by the claimant to USDA:

    1. The amount of the delivered blended biofuel, as the affirmed blended quantity of delivered blended biofuel, the delivery date, and the name and address of the claimant;

    2. The U.S. produced feedstock from which the biofuel was produced; and

    3. The blended rate.

    Distribution of Funds

    Following receipt and review of the complete documentation submitted to USDA by the claimant, as described above in the BPI Payment Claim Submission Requirements section, and satisfaction of the requirements specified above in the BPI Payment Eligibility Requirements section, FSA will make payments directly to claimants of the BPI for qualified biofuel, subject to the availability of funds. In the event the claimant delivers fuel that is produced from an ineligible feedstock, or otherwise fails to comply with any eligibility requirement, the claimant will not receive a payment.

    The claimant will receive the earned total BPI payment from FSA following FSA's receipt of the information, as specified above.

    Paperwork Reduction Act Requirements

    In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. chapter 35), FSA is not required to submit the information collection request to OMB for approval because the information is expected to come from less than 10 biofuel companies, which does not meet the 10 or more entities requirement, and therefore, the PRA requirements do not apply.

    Catalog of Federal Domestic Assistance

    The BPI payment is not required to be in the Catalog of Federal Domestic Assistance.

    Environmental Review

    The environmental impacts of this NOFA have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA (7 CFR part 799). As previously stated, this program uses CCC funds in coordination with DLA Energy purchases. This NOFA initiates a relatively minor change in the application of the CCC funds; the general scope of the BPI modification for DLA Energy bulk fuel solicitations, as implemented previously, is unchanged.

    The purpose of the BPI is to provide an incentive to fuel providers for biofuel that is produced from a domestic feedstock approved by CCC. FSA's participation in the program and the minor, discretionary change to the program (that is, simplifying the program by providing a per gallon incentive that varies per blend) are administrative in nature. The discretionary aspects of the program (for example, solicitation acceptance and certification of delivery, etc.) were designed and are implemented by DLA Energy and are not proposed to be substantively changed. As such, the Categorical Exclusions in 7 CFR part 799.31 apply, specifically 7 CFR 799.31(b)(6)(c) (that is, financial assistance to supplement income). No Extraordinary Circumstances (7 CFR 799.33) exist. As such, FSA has determined that this NOFA does not constitute a major Federal action that would significantly affect the quality of the human environment, individually or cumulatively. Therefore, FSA will not prepare an environmental assessment or environmental impact statement for this action.

    Val Dolcini, Executive Vice President, Commodity Credit Corporation.
    [FR Doc. 2016-31582 Filed 12-28-16; 8:45 am] BILLING CODE 3410-05-P
    DEPARTMENT OF AGRICULTURE Forest Service Sitka/Tenakee Springs/Port Alexander Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Sitka/Tenakee Springs/Port Alexander Resource Advisory Committee (RAC) will meet in Sitka, Alaska. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to provide training to the public regarding Title II of the Secure Rural Act and the process for new project proposals

    DATES:

    The meeting will be held on Febuary 16, 2017, from 5 p.m. to 7 p.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held at the Sitka Ranger District, 2108 Halibut Point Road, Sitka Alaska, Katlian Conference Room.

    Written comments may be submitted as described under SUPPLEMENTARY INFORMATION. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Sitka Ranger District, 2108 Halibut Point Road, Sitka Alaska. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Lisa Hirsch, RAC Coordinator by phone at 907-747-4214 or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday. Please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accomodation for access to the facility or procedings by contacting the person listed FOR FURTHER INFORMATION.

    SUPPLEMENTARY INFORMATION:

    Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site: https://fsplaces.fs.fed.us/fsfiles/unit/wo/secure_rural_schools.nsf/RAC/07924D017A51AEC5882575440062EFB1?OpenDocument. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by Febuary 9, 2017, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Lisa Hirsch, RAC Coordinator, 2108 Halibut Point Road, Sitka, Alaska 99835 or by email to [email protected], or via facsimile to 907-747-4253.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accommodation for access to the facility or proceedings by contacting the person listed in the section titled FOR FURTHER INFORMATION CONTACT. All reasonable accommodation requests are managed on a case by case basis.

    Dated: December 20, 2016. Perry Edwards, Designated Federal Officer.
    [FR Doc. 2016-31509 Filed 12-28-16; 8:45 am] BILLING CODE 3410-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Okanogan-Wenatchee National Forest; Okanogan, Chelan and Skagit Counties, Washington; Pack Stock Outfitter Guide Special Use Permits Supplemental Environmental Impact Statement AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice to extend the public comment period for the Pack and Saddle Stock Outfitter Guide Special Use Permit Issuance Draft Supplemental Environmental Impact Statement.

    SUMMARY:

    The Okanogan-Wenatchee National Forest is issuing this notice to advise the public of a 30-day extension to the public comment period on the Pack and Saddle Stock Outfitter Guide Special Use Permit Issuance Draft Supplemental Environmental Impact Statement (SEIS). The initial Notice of Availability was published in the Federal Register on November 25, 2016, and established a public comment period from November 25, 2016 through January 9, 2017. The Okanogan-Wenatchee National Forest is hereby extending the deadline for submitting public comments on this matter to February 8, 2017.

    DATES:

    The Okanogan-Wenatchee National Forest is accepting public comments through February 8, 2017. The forest is soliciting the views of interested persons and organizations on the adequacy of the DSEIS. All relevant comments received during the extended public commenter period ending February 8, 2017, will be considered in the preparation of the Final Supplemental Environmental Impact Statement (FSEIS).

    ADDRESSES:

    Comments may be submitted by any one of the following methods:

    Electronic Submissions: Submit all electronic public comments via the Forest Service ecosystem management database. Go to: https://cara.ecosystem-management.org/Public//CommentInput?Project=3752, and click the “Comment Now” icon, complete the required fields and enter or attach your comments.

    Mail: Written, specific comments must be submitted to Forest Supervisor, Okanogan-Wenatchee National Forest, c/o Jennifer Zbyszewski, 24 West Chewuch Road, Winthrop, WA 98862; Fax (509) 996-2208.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period may not be considered by the forest. All comments received are part of the public record and will generally be posted for public viewing without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible.

    FOR FURTHER INFORMATION CONTACT:

    Jennifer Zbyszewski, Project Team Leader, Methow Valley Ranger District, Okanogan-Wenatchee National Forest, (509) 996-4021, [email protected], or Paul Willard, Recreation Program Manager, Chelan Ranger District, Okanogan-Wenatchee National Forest, (509) 682-4960, [email protected] Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday. Electronic copies of the Draft Supplemental Environmental Impact Statement may be found on the Forest Service Web site at www.fs.usda.gov/project/?project=3752.

    Michael R. Williams, Forest Supervisor.
    [FR Doc. 2016-31574 Filed 12-28-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Newspapers Used for Publication of Legal Notices in the Pacific Northwest Region Which Includes Washington and Oregon AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of newspapers of record, Pacific Northwest Region.

    SUMMARY:

    This notice provides the list of newspapers that will be used by the Pacific Northwest Region to publish legal notices required under 36 CFR part 218 and 36 CFR part 219. The intended effect of this action is to inform interested members of the public which newspapers will be used by the Forest Service to publish legal notices for public comment, notices for draft decisions and the opportunity to file an administrative review on USDA Forest Service proposals.

    DATES:

    Publication of legal notices in the listed newspapers begins on the date of this publication. This list of newspapers will remain in effect until it is superceded by a new list, published in the Federal Register.

    ADDRESSES:

    USDA Forest Service, Pacific Northwest Region; ATTN: Regional Administrative Review Coordinator; 1220 SW. Third Avenue, (P.O. Box 3623), Portland, Oregon 97204.

    FOR FURTHER INFORMATION CONTACT:

    Debbie Anderson, Regional Administrative Review Coordinator, 503-808-2286.

    SUPPLEMENTARY INFORMATION:

    The newspapers to be used in the Pacific Northwest Region are as follows:

    Pacific Northwest Regional Office Regional Forester decisions on Oregon National Forests The Oregonian, Portland, Oregon Regional Forester decisions on Washington National Forests The Seattle Times, Seattle, Washington Columbia River Gorge National Scenic Area Area Manager decisions Hood River News, Hood River, Oregon Oregon National Forests and Grassland Deschutes National Forest Forest Supervisor decisions Bend/Fort Rock District Ranger decisions Crescent District Ranger decisions Redmond Air Center Manager decisions Sisters District Ranger decisions The Bulletin, Bend, Oregon Fremont-Winema National Forests Forest Supervisor decisions Bly District Ranger decisions Lakeview District Ranger decisions Paisley District Ranger decisions Silver Lake District Ranger decisions Chemult District Ranger decisions Chiloquin District Ranger decisions Klamath District Ranger decisions Herald and News, Klamath Falls, Oregon Malheur National Forest Forest Supervisor decisions Blue Mountain District Ranger decisions Prairie City District Ranger decisions Blue Mountain Eagle, John Day, Oregon Emigrant Creek District Ranger decisions Burns Times Herald, Burns, Oregon Mt. Hood National Forest Forest Supervisor decisions Clackamas River District Ranger decisions Zigzag District Ranger decisions Hood River District Ranger decisions Barlow District Ranger decisions The Oregonian, Portland, Oregon Ochoco National Forest and Crooked River National Grassland Forest Supervisor decisions Crooked River National Grassland Area Manager decisions Lookout Mountain District Ranger decisions Paulina District Ranger decisions The Bulletin, Bend, Oregon Rogue River-Siskiyou National Forests Forest Supervisor decisions High Cascades District Ranger decisions J. Herbert Stone Nursery Manager decisions Siskiyou Mountains District Ranger decisions Mail Tribune, Medford, Oregon Wild Rivers District Ranger decisions Grants Pass Daily Courier, Grants Pass, Oregon Gold Beach District Ranger decisions Curry County Reporter, Gold Beach, Oregon Powers District Ranger decisions The World, Coos Bay, Oregon Siuslaw National Forest Forest Supervisor decisions Corvallis Gazette-Times, Corvallis, Oregon Central Coast Ranger District—Oregon Dunes National Recreation Area District Ranger decisions The Register-Guard, Eugene, Oregon Hebo District Ranger decisions Tillamook Headlight Herald, Tillamook, Oregon Umatilla National Forest Forest Supervisor decisions North Fork John Day District Ranger decisions Heppner District Ranger decisions Pomeroy District Ranger decisions Walla Walla District Ranger decisions East Oregonian, Pendleton, Oregon Umpqua National Forest Forest Supervisor decisions Cottage Grove District Ranger decisions Diamond Lake District Ranger decisions North Umpqua District Ranger decisions Tiller District Ranger decisions Dorena Genetic Resource Center Manager decisions The News-Review, Roseburg, Oregon Wallowa-Whitman National Forest Forest Supervisor decisions Whitman District Ranger decisions Baker City Herald, Baker City, Oregon La Grande District Ranger decisions The Observer, La Grande, Oregon Hells Canyon National Recreation Area Manager decisions Eagle Cap District Ranger decisions Wallowa Valley District Ranger decisions Wallowa County Chieftain, Enterprise, Oregon Willamette National Forest Forest Supervisor decisions Middle Fork District Ranger decisions McKenzie River District Ranger decisions Sweet Home District Ranger decisions The Register Guard, Eugene, Oregon Detroit District Ranger decisions Statesman Journal, Salem, Oregon Washington National Forests Colville National Forest Forest Supervisor decisions Three Rivers District Ranger decisions Statesman-Examiner, Colville, Washington Sullivan Lake District Ranger decisions Newport District Ranger decisions The Newport Miner, Newport, Washington Republic District Ranger decisions Ferry County View, Republic, Washington Gifford Pinchot National Forest Forest Supervisor decisions Mount Adams District Ranger decisions Mount St. Helens National Volcanic Monument Manager decisions The Columbian, Vancouver, Washington Cowlitz Valley District Ranger decisions The Chronicle, Chehalis, Washington Mt. Baker-Snoqualmie National Forest Forest Supervisor decisions Darrington District Ranger decisions Skykomish District Ranger decisions Everett Herald, Everett, Washington Mt. Baker District Ranger decisions Skagit Valley Herald, Mt. Vernon, Washington (south half of the district) Bellingham Herald, Bellingham, Washington (north half of the district) Snoqualmie District Ranger decisions Snoqualmie Valley Record, North Bend, Washington (north half of district) Enumclaw Courier Herald, Enumclaw, Washington (south half of district) Okanogan-Wenatchee National Forests Forest Supervisor decisions Chelan District Ranger decisions Entiat District Ranger decisions Tonasket District Ranger decisions Wenatchee River District Ranger decisions The Wenatchee World, Wenatchee, Washington Naches District Ranger decisions Yakima Herald, Yakima, Washington Methow Valley District Ranger decisions Methow Valley News, Twisp, Washington Cle Elum District Ranger decisions Ellensburg Daily Record, Ellensburg, Washington Olympic National Forest Forest Supervisor decisions The Olympian, Olympia, Washington Hood Canal District Ranger decisions Peninsula Daily News, Port Angeles, Washington Pacific District Ranger decisions (south portion of district) The Daily World, Aberdeen, Washington Pacific District Ranger decisions (north portion of district) Peninsula Daily News, Port Angeles, Washington James M. Peña, Regional Forester.
    [FR Doc. 2016-31623 Filed 12-28-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice and Opportunity for Public Comment.

    Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

    List of Petitions Received by EDA for Certification Eligibility To Apply for Trade Adjustment Assistance [12/17/2016 through 12/23/2016] Firm name Firm address Date
  • accepted for
  • investigation
  • Product(s)
    Federal Tool & Engineering, LLC 2150 Stonebridge Road, West Bend, WI 53095 12/20/2016 The firm manufactures stamped metal components and tooling used in production of components for commercial lighting, commercial ovens, engines, power generation and lawn/snow equipment. Vance Metal Fabricators, Inc 251 Gambee Road, Geneva, NY 14456 12/21/2016 This firm is a manufacturer of a variety of different fabricated, welded and machine components that are used by OEM's in their finished products. Aztec Plastic Company 1747 West Carroll Avenue, Chicago, IL 60612 12/22/2016 The firm manufactures plastic injection molded screws and bushings made from special thermoplastic, thermosetting, and composite materials.

    Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.

    Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

    Miriam Kearse, Lead Program Analyst.
    [FR Doc. 2016-31542 Filed 12-28-16; 8:45 am] BILLING CODE 3510-WH-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-86-2016] Foreign-Trade Zone (FTZ) 38—Spartanburg County, South Carolina; Notification of Proposed Production Activity; Black & Decker (U.S.) Inc.; Subzone 38E, (Power Tools), Fort Mill, South Carolina

    Black & Decker (U.S.) Inc. (Black & Decker) submitted a notification of proposed production activity to the FTZ Board for its facility in Fort Mill, South Carolina, within Subzone 38E. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on December 15, 2016.

    Black & Decker already has authority to produce power tools and their parts and components, the packaging and kitting of power tools, and the repair and rework of power tools, parts and accessories within Subzone 38E. The current request would add finished products and foreign-status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials/components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt Black & Decker from customs duty payments on the foreign-status materials/components used in export production. On its domestic sales, Black and Decker would be able to choose the duty rates during customs entry procedures that apply to: tube expander tools; pavement breakers; crimping tools; cable cutters; caulk guns; grease guns; sink augers—cordless; drain snakes; impact wrenches; anvil subassemblies; front end mechanisms/subassemblies; nose cone subassemblies; housing subassemblies; transmission assemblies for power tools; electronic control and motor subassemblies; bulk packed motors; lasers; and, laser detectors (duty rates range from free to 3.3%) for the foreign-status materials/components noted below and in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.

    The materials/components sourced from abroad include: plastic hoses and couplers; steel pipe plugs; copper washers; machined pump housings; sink augers; grease guns; cordless crimping tools; cordless cable cutters; cordless caulk guns; steel thrust rings; impactors; expansion heads; drum covers (steel, aluminum or plastic); subassemblies—outer drum; inner drums (steel, aluminum or plastic); pump housing assemblies; purge valves; valve bodies; valve plungers; cam carriers; motors; bulk packed motors; modules for drain augers/snakes—electronic; LED housings with LED lights; safety glasses; rotary lasers, lasers; and, laser detectors (duty rates range from free to 3.3%).

    Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is February 7, 2017.

    A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Diane Finver at [email protected] or (202) 482-1367.

    Dated: December 22, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-31617 Filed 12-28-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-831] Fresh Garlic From the People's Republic of China: Initiation of Antidumping Duty New Shipper Review; 2015-2016 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) is initiating a new shipper review (NSR) with respect to Qingdao Joinseafoods Co. Ltd. and Join Food Ingredient Inc. (“Join”) in the context of the antidumping duty order on Fresh Garlic from the People's Republic of China (PRC). The period of review (POR) is November 1, 2015, through October 31, 2016.

    DATES:

    Effective December 29, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Chien-Min Yang, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5484.

    SUPPLEMENTARY INFORMATION: Background

    The Department published the antidumping duty order on fresh garlic from the PRC in the Federal Register on November 16, 1994.1 On November 30, 2016, the Department received a timely request for a NSR from Join.2 Join certified that it is the exporter and producer of the fresh garlic upon which the request for a NSR is based.3 Pursuant to section 751(a)(2)(B)(i)(I) of the Act and 19 CFR 351.214(b)(2)(i), Join certified that it did not export fresh garlic for sale to the United States during the period of investigation (POI).4 Moreover, pursuant to section 751(a)(2)(B)(i)(II) of the Act and 19 CFR 351.214(b)(2)(iii)(A), Join certified that, since the investigation was initiated, it has never been affiliated with any exporter or producer which exported the subject merchandise to the United States during the POI, including those not individually examined during the investigation.5 Further, as required by 19 CFR 351.214(b)(2)(iii)(B), it certified that its export activities are not controlled by the central government of the PRC.6 Join also certified it had no shipments of subject merchandise subsequent to the POR.7

    1See Antidumping Duty Order: Fresh Garlic from the People's Republic of China, 59 FR 59209 (November 16, 1994).

    2See Join's request for a NSR dated November 30, 2016.

    3Id. at Exhibit 1.

    4Id.

    5Id.

    6Id.

    7Id. at page 2.

    In addition to the certifications described above, pursuant to 19 CFR 351.214(b)(2)(iv), Join submitted documentation establishing the following: (1) The date of its first sale to an unaffiliated customer in the United States; (2) the date on which the fresh garlic was first entered; and (3) the volume of that shipment.8

    8Id. at Exhibit 2.

    The Department queried the database of U.S. Customs and Border Protection (CBP) in an attempt to confirm that the shipment reported by Join had entered the United States for consumption and that liquidation had been properly suspended for antidumping duties. The information which the Department examined was consistent with that provided by Join in its request.9

    9See Memorandum to the File from Chien-Min Yang, “New Shipper Review of the Antidumping Duty Order on Fresh Garlic from the People's Republic of China: Customs Entries from November 1, 2015, to October 31, 2016,” dated December 13, 2016.

    Period of Review

    Pursuant to 19 CFR 351.214(c), an exporter or producer may request a NSR within one year of the date on which its subject merchandise was first entered. Moreover, 19 CFR 351.214(d)(1) states that if the request for the review is made during the twelve-month period ending with the end of the anniversary month, the Secretary will initiate a NSR in the calendar month immediately following the anniversary month. Further, 19 CFR 315.214(g)(1)(i)(A) states that if the NSR was initiated in the month immediately following the anniversary month, the POR will be 12-month period immediately preceding the anniversary month. Join made the request for a NSR, that included all documents and information required by the statute and regulations, within one year of the date on which its fresh garlic first entered. Its request was filed in November, which is the anniversary month of the order. Therefore, the POR is November 1, 2015, through October 31, 2016. Id.

    Initiation of New Shipper Review

    Pursuant to section 751(a)(2)(B) of the Act and 19 CFR 351.214(b), and the information on the record, the Department finds that Join's request meets the threshold requirements for initiation of a NSR for shipments of fresh garlic from the PRC produced and exported by Join, and, therefore, is initiating a NSR of Join. Absent a determination that the new shipper review is extraordinarily complicated, the Department intends to issue the preliminary results within 180 days after the date on which this review is initiated and the final results within 90 days after the date on which we issue the preliminary results.10 If the information supplied by Join is found to be incorrect or insufficient during the course of this proceeding, the Department may rescind the review for Join or apply facts available pursuant to section 776 of the Act, depending on the facts on the record.

    10See section 751(a)(2)(B)(iv) of the Act.

    It is the Department's usual practice in cases involving non-market economies to require that a company seeking to establish eligibility for an antidumping duty rate separate from the country-wide rate (i.e., a separate rate) provide evidence of de jure and de facto absence of government control over the company's export activities.11 Accordingly, the Department will issue questionnaires to Join, which will include a section requesting information with regard to its export activities for the purpose of establishing its eligibility for a separate rate. The review will proceed if the responses provide sufficient indication that Join is not subject to either de jure or de facto government control with respect to its exports of fresh garlic from the PRC.

    11See Import Administration Policy Bulletin, Number: 05.1. (http://ia.ita.doc.gov/policy/bull05-1.pdf).

    On February 24, 2016, the President signed into law the “Trade Facilitation and Trade Enforcement Act of 2015,” H.R. 644, which made several amendments to section 751(a)(2)(B) of the Act. We will conduct this new shipper review in accordance with section 751(a)(2)(B) of the Act, as amended by the Trade Facilitation and Trade Enforcement Act of 2015.12

    12 The Trade Facilitation and Trade Enforcement Act of 2015 removed from section 751(a)(2)(B) of the Act the provision directing the Department to instruct Customs and Border Protection to allow an importer the option of posting a bond or security in lieu of a cash deposit during the pendency of a new shipper review.

    Interested parties requiring access to proprietary information in this proceeding should submit applications for disclosure under administrative protective order in accordance with 19 CFR 351.305 and 351.306.

    This initiation and notice are in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214 and 351.221(c)(1)(i).

    Dated: December 22, 2016. Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2016-31564 Filed 12-28-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration U.S.-Nigeria Commercial and Investment Dialogue AGENCY:

    International Trade Administration (ITA), U.S. Department of Commerce (DOC).

    ACTION:

    Notice of an opportunity to apply to participate in the U.S.-Nigeria Commercial and Investment Dialogue.

    Authority:

    22 U.S.C. 2395(b).

    SUMMARY:

    The U.S. Department of Commerce is currently seeking applications for members of the U.S. private sector to participate in the newly established U.S.-Nigeria Commercial and Investment Dialogue (CID). The purpose of the CID is to deepen the trade and investment ties between the U.S. and Nigeria and to foster sustained engagement between our governments on concrete issues of importance to our private sectors.

    DATES:

    All applications for immediate consideration for appointment must be received by the Office of Africa by 5:00 p.m. Eastern Standard Time (EST) on January 10, 2017 After that date, ITA will continue to accept applications under this notice for a period of up to three years from

    ADDRESSES:

    Please submit applications by email to [email protected], attention: Karen Burress, Office of Africa or by mail to Karen Burress, Office of Africa, 1401 Constitution Avenue NW., Suite 22004, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    The CID has two key objectives which include: (1.) Encourage and promote deeper commercial and investment ties between the U.S. and Nigerian private sectors; and (2.) examine key regulatory reforms and policy elements that can help attract U.S. businesses and investors. Currently, the CID has five key areas of focus which are infrastructure, agriculture, digital economy, investment and regulatory reform.

    The participants shall contribute information, analysis, and recommendations based on current in-country experience in the Nigerian market that address the five key areas of focus. The Department particularly seeks applicants who are active executives (Chief Executive Officer, Executive Chairman, President or comparable level of responsibility); however, for large companies, a person having substantial responsibility for the company's commercial activities in Nigeria will also be considered.

    For eligibility purposes, a “U.S. company” is a for-profit firm incorporated in the United States or with its principal place of business in the United States that is (a) majority controlled (more than 50 percent ownership interest and/or voting stock) by U.S. citizens or by another U.S. entity or (b) majority controlled (more than 50 percent ownership interest and/or voting stock) directly or indirectly by a foreign parent company. Members are not required to be a U.S. citizen; however, members may not be registered as a foreign agent under the Foreign Agents Registration Act. Additionally, no member shall represent a company that is majority owned or controlled by a foreign government entity or entities.

    Private sector participants will be selected, in accordance with applicable Department of Commerce guidelines, based on their ability to carry out the objectives of the CID as set forth above.

    Private sector participants shall serve in a representative capacity, representing the views and interests of their particular industry sector. The private sector participants are not special government employees, and will receive no compensation for their participation in the CID activities. The private sector participants participating in CID meetings and events will be responsible for their travel, living and other personal expenses. Meetings will be held twice annually on an alternating basis between Washington, DC, and Nigeria. Teleconference meetings may also be held as needed.

    To be considered, submit the following information by 5:00 p.m. EDT on January 10, 2017 to the email or mailing address listed in the ADDRESSES section:

    1. Name and title of the individual requesting consideration.

    2. The applicant's personal resume and short bio (less than 300 words).

    3. Brief statement describing how the applicant will contribute to the work of the U.S.-Nigeria Commercial and Investment Dialogue based on his or her unique experience and perspective (not to exceed 100 words).

    4. An affirmative statement that the applicant meets all eligibility criteria, including an affirmative statement that the applicant is not required to register as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.

    5. Information regarding the ownership and control of the company, including the stock holdings as appropriate, signifying compliance with the criteria set forth above.

    6. The company's size, product or service line, and major markets in which the company operates.

    7. A profile of the company's trade, investment, development, finance, partnership, or other commercial activities in or with African markets.

    Statutory Authority: This program is funded under Section 632(a) of the Foreign Assistance Act of 1961, as amended (the “FAA”), and the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2010 (Pub. L. 111-117) to carry out the provisions of the FAA and the FREEDOM Support Act, as amended.

    Dated: December 22, 2016. Fred Stewart, Director, Office of Africa, U.S. Department of Commerce.
    [FR Doc. 2016-31664 Filed 12-28-16; 8:45 am] BILLING CODE 3510-HE-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Nautical Discrepancy Reporting System AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before February 27, 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 or copies of the information collection instrument and instructions should be directed to Dawn Forsythe, 301-713-2780 ext. 144, or [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Abstract

    This request is for extension of a currently approved information collection.

    National Oceanic and Atmospheric Administration (NOAA) Office of Coast Survey is the nation's nautical chartmaker, maintaining and updating over a thousand charts covering the 3.5 million square nautical miles of coastal waters in the U.S. Exclusive Economic Zone and the Great Lakes. Coast Survey also writes and publishes the United States Coast Pilot®, a series of nine nautical books that supplement nautical charts with essential marine information that cannot be shown graphically on the charts and are not readily available elsewhere.

    Coast Survey solicits information through the online Nautical Discrepancy Reporting System (http://ocsdata.ncd.noaa.gov/idrs/discrepancy.aspx).

    Data obtained through this system is used to update U.S. nautical charts and the United States Coast Pilot.

    II. Method of Collection

    Respondents can submit discrepancy reports electronically or by telephone (888-990-6622).

    III. Data

    OMB Control Number: 0648-0007.

    Form Number: None.

    Type of Review: Regular submission (extension of a current information collection).

    Affected Public: Business or other for-profit; individuals or households; not-for-profit institutions; federal government; state, local or tribal government.

    Estimated Number of Respondents: 300.

    Estimated Time per Response: 30 minutes.

    Estimated Total Annual Burden Hours: 150 hours.

    Estimated Total Annual Cost to Public: $0 in recordkeeping/reporting costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: December 23, 2016. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2016-31614 Filed 12-28-16; 8:45 am] BILLING CODE 3510-JE-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration National Estuarine Research Reserve System AGENCY:

    Stewardship Division, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.

    ACTION:

    Notice of Public Comment Period for the Weeks Bay National Estuarine Research Reserve Management Plan revision.

    SUMMARY:

    Notice is hereby given that the Stewardship Division, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce is announcing a thirty-day public comment period for the Weeks Bay National Estuarine Research Reserve Management Plan revision. Pursuant to 15 CFR Section 921.33(c), the revised plan will bring the reserve into compliance. The Weeks Bay Reserve revised plan will replace the plan approved in 2007.

    The revised management plan outlines the administrative structure; the research/monitoring, stewardship, education, and training programs of the reserve; and the plans for future land acquisition and facility development to support reserve operations.

    The Weeks Bay Reserve takes an integrated approach to management, linking research, education, coastal training, and stewardship functions. The Alabama Department of Conservation and Natural Resources has outlined how it will administer the Reserve and its core programs by providing detailed actions that will enable it to accomplish specific goals and objectives. Since the last management plan, the Reserve has built out its core programs and monitoring infrastructure; constructed several facilities including a Resource Center that supports education, training, and outreach events; participated in more than 35 research projects and conducted over 100 coastal training program events; convened a permanent Restoration Advisory Board; and built new partnerships with organizations within the Mobile Bay of Alabama.

    With the approval of this management plan, the Weeks Bay Reserve will increase their total acreage from, 6,594 acres to 9,317. The change is attributable to the recent acquisitions of several parcels by the Reserve, totaling 933 acres, as well as the incorporation of 1,790 acres of water bottoms adjacent to the newly acquired land. These parcels have high ecological value and will enhance the Reserve's ability to provide increased opportunities for research, education, and stewardship. The revised management plan will serve as the guiding document for the expanded 9,317 acre Weeks Bay Reserve for the next five years.

    View the Weeks Bay Reserve Management Plan revision at (http://www.weeksbayreserve.com) and provide comments to the Reserve's Manager, LG Adams ([email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Hank Hodde at (251) 544-5016 or Erica Seiden at (240) 533-0781 of NOAA's National Ocean Service, Stewardship Division, Office for Coastal Management, 1305 East-West Highway, N/ORM5, 10th floor, Silver Spring, MD 20910.

    Dated: December 16, 2016. John King, Senior Project Advisor, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration.
    [FR Doc. 2016-31573 Filed 12-28-16; 8:45 am] BILLING CODE 3510-08-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF121 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Scientific and Statistical Committee (SSC) 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 17, 2017, beginning at 9 a.m.

    ADDRESSES:

    The meeting will be held at the Courtyard Marriott, Boston Logan, 225 McClellan Highway, Boston, MA 02128; phone: (617) 561-0971.

    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 SSC Committee will review information provided by the Council's Groundfish Plan Development Team (PDT) and recommend the overfishing levels (OFLs) and acceptable biological catches (ABCs) for witch flounder for fishing years 2017 and 2018. They will receive a presentation on the revisions to the Magnuson Stevens Fishery Management and Conservation Act (MSA) National Standard 1 guidelines. Also on the agenda will be an update from the Council staff on the Council's efforts to develop a worked example of an Ecosystem-Based Fishery Management approach to fisheries management for Georges Bank. Other business will be discussed as needed.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: December 23, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-31612 Filed 12-28-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration. RIN 0648-XE477 SAW-SARC 63 Public Meeting AGENCY:

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

    ACTION:

    Notice of public meeting.

    SUMMARY:

    NMFS and the Northeast Regional Stock Assessment Workshop (SAW) will convene the 63rd SAW Stock Assessment Review Committee for the purpose of reviewing the stock assessment of Ocean Quahog. The Northeast Regional SAW is a formal scientific peer-review process for evaluating and presenting stock assessment results to managers for fish stocks in the offshore U.S. waters of the northwest Atlantic. Assessments are prepared by SAW working groups and reviewed by an independent panel of stock assessment experts called the Stock Assessment Review Committee, or SARC. The public is invited to attend the presentations and discussions between the review panel and the scientists who have participated in the stock assessment process.

    DATES:

    The public portion of the Stock Assessment Review Committee Meeting will be held from February 21, 2017-February 23, 2017. The meeting will commence on February 21, 2017 at 10 a.m. Eastern Standard Time. Please see SUPPLEMENTARY INFORMATION for the daily meeting agenda.

    ADDRESSES:

    The meeting will be held in the S.H. Clark Conference Room in the Aquarium Building of the National Marine Fisheries Service, Northeast Fisheries Science Center (NEFSC), 166 Water Street, Woods Hole, MA 02543. FOR FURTHER INFORMATION CONTACT: Sheena Steiner, 508-495-2177; email: [email protected]; or, James Weinberg, 508-495-2352; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    For further information, please visit the NEFSC Web site at http://www.nefsc.noaa.gov. For additional information about the SARC meeting and the stock assessment review of Ocean Quahog, please visit the NMFS/NEFSC SAW Web page at http://www.nefsc.noaa.gov/saw/.

    Daily Meeting Agenda—SAW/SARC 63 Benchmark Stock Assessment for Ocean Quahog [Subject to change; all times are approximate and may be changed at the discretion of the SARC Chair] Tuesday, February 21, 2017: 10 a.m.-10:30 a.m Welcome Introductions James Weinberg, SAW Chair. 10:30 a.m.-12:30 p.m Ocean Quahog (OQ) Assessment Presentation Dan Hennen. 12:30 p.m.-1:30 p.m Lunch. 1:30 p.m.-3:30 p.m OQ Presentation (cont.) Dan Hennen. 3:30 p.m.-3:45 p.m Break. 3:45 p.m.-5:45 p.m OQ SARC Discussion Ed Houde, SARC Chair. 5:45 p.m.-6 p.m Public Comment Period Wednesday, February 22, 2017: 9:00 a.m.-10:45 a.m Revisit with OQ presenters Ed Houde. 10:45 a.m.-11:00 a.m Break. 11:00 a.m.-11:45 a.m OQ presentation (cont.) Ed Houde. 11:45 a.m.-12:00 p.m Public Comment. 12:00-1:15 p.m Lunch. 1:15-4:00 p.m Review/Edit Assessment Summary Report Ed Houde. 4:00 p.m.-4:15 p.m Break. 4:15 p.m.-5:00 p.m. SARC Report Writing. Thursday, February 23, 2017: 9 a.m.-5 p.m SARC Report Writing.

    The meeting is open to the public; however, during the ``SARC Report Writing'' sessions on February 22nd and 23rd, the public should not engage in discussion with the SARC.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Special requests should be directed to Sheena Steiner at the NEFSC, 508-495-2177, at least 5 days prior to the meeting date.

    Dated: December 20, 2016. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-31087 Filed 12-28-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF120 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Trawl Rationalization Program; 2017 Cost Recovery AGENCY:

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

    ACTION:

    Notice; 2017 cost recovery fee percentages and mothership (MS) pricing.

    SUMMARY:

    This action provides participants in the Pacific coast groundfish trawl rationalization program with the 2017 fee percentages and “MS pricing” needed to calculate the required payments for trawl rationalization program cost recovery fees due in 2017. It also provides a redetermination of previous years' fees. For calendar year 2017, NMFS announces the following fee percentages by sector: 3.0 percent for the Shorebased Individual Fishing Quota (IFQ) Program, 0 percent for the MS Coop Program, 0 percent for the Catcher/Processer (C/P) Coop Program. For 2017, the MS pricing to be used as a proxy by the C/P Coop Program is: $0.08/lb for Pacific whiting.

    DATES:

    Effective January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Christopher Biegel, Cost Recovery Program Coordinator, (503) 231-6291, fax (503) 872-2737, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Magnuson‐Stevens Fishery Conservation and Management Act (MSA) requires NMFS to collect fees to recover the costs directly related to the management, data collection, and enforcement of a limited access privilege program (LAPP) (16 U.S.C. 1854(d)(2)), also called “cost recovery.” The Pacific coast groundfish trawl rationalization program is a LAPP, implemented in 2011, and consists of three sectors: The Shorebased IFQ Program, the MS Coop Program, and the C/P Coop Program. In accordance with the MSA, and based on a recommended structure and methodology developed in coordination with the Pacific Fishery Management Council, NMFS began collecting mandatory fees of up to three percent of the ex‐vessel value of groundfish from each sector (Shorebased IFQ Program, MS Coop Program, and C/P Coop Program) in 2014. NMFS collects the fees to recover the incremental costs of management, data collection, and enforcement of the trawl rationalization program. Additional background can be found in the cost recovery proposed and final rules, 78 FR 7371 (February 1, 2013) and 78 FR 75268 (December 11, 2013), respectively. The details of cost recovery for the groundfish trawl rationalization program are in regulation at 50 CFR 660.115 (trawl fishery cost recovery program), § 660.140 (Shorebased IFQ Program), § 660.150 (MS Coop Program), and § 660.160 (C/P Coop Program).

    By December 31 of each year, NMFS must announce the next year's fee percentages, and the applicable MS pricing for the C/P Coop Program. NMFS calculated the 2017 fee percentages by sector using the best available information. In addition, NMFS revisited the methodology used to determine the direct program costs (DPC) attributable to each sector for fiscal years 2013, 2014, and 2015. NMFS' redetermination of the DPCs for those fiscal years resulted in a decrease in the DPCs used to determine the fee percentages for calendar years 2014, 2015, and 2016. For 2017, the fee percentages by sector, taking into account the redetermined DPCs and any adjustments, are:

    • 3.0 percent for the Shorebased IFQ Program,

    • 0 percent for the MS Coop Program,

    • 0 percent for the C/P Coop Program.

    To calculate the fee percentages, NMFS used the formula specified in regulation at § 660.115(b)(1), where the fee percentage by sector equals the lower of three percent or DPC for that sector divided by total ex-vessel value (V) for that sector multiplied by 100 (Fee percentage = the lower of 3 percent or (DPC/V) × 100).

    “DPC,” as defined in the regulations at § 660.115(b)(1)(i), are the actual incremental costs for the previous fiscal year directly related to the management, data collection, and enforcement of each sector (Shorebased IFQ Program, MS Coop Program, and C/P Coop Program). Actual incremental costs means those net costs that would not have been incurred but for the implementation of the trawl rationalization program, including both increased costs for new requirements of the program and reduced costs resulting from any program efficiencies. NMFS only included the cost of employees' time (salary and benefits) spent working on the program in calculating DPC rather than all incremental costs of management, data collection, and enforcement. NMFS is still evaluating how to incorporate additional costs and may, in coordination with the Pacific Fishery Management Council, do so in the future.

    “V”, as specified at § 660.115(b)(1)(ii), is the total ex-vessel value, as defined at § 660.111, for each sector from the previous calendar year. To calculate “V” for use in determining 2017 fee percentages, NMFS used the ex-vessel value for 2015 as reported in Pacific Fisheries Information Network (PacFIN) from electronic fish tickets. The electronic fish ticket data in PacFIN is for the Shorebased IFQ Program. Therefore, the ex-vessel value for both the MS Coop Program and the C/P Coop Program is a proxy based on the Shorebased IFQ Program ex-vessel price and on the retained catch estimates (weight) from the observer data for the MS and C/P Coop Programs.

    Ex-vessel values and amounts landed each year fluctuate, and the amount NMFS collects each year in cost recovery fees also fluctuate accordingly. When the cost recovery fees collected by NMFS are greater or less than the actual net incremental costs incurred for a given year, the fee percentage for the following year will be adjusted as specified at § 660.115(b)(1)(i).

    Redetermination of Past DPCs

    On August 10, 2016, the U.S. Court of Appeals for the Ninth Circuit issued its opinion in Glacier Fish Co. LLC v. Pritzker, 832 F.3d 1113 (9th Cir. 2016), a case involving a challenge to NMFS' authority to recover cost recovery fees from members of the C/P Coop Program and the reasonableness of NMFS' calculation of the C/P Coop Program's 2014 fee percentage. The court upheld NMFS' authority to recover cost recovery fees from members of the C/P Coop Program because the C/P coop permit is a limited access privilege and Glacier Fish Co. and other C/P coop members are reasonably considered a “holder” of that privilege. The court also concluded that NMFS' cost recovery regulations were consistent with statutory requirements. However, the court held that the calculation of the 2014 CP Coop Program fee was inconsistent with NMFS' cost recovery regulations and the court remanded to NMFS to re-determine the 2014 fee.

    In response, NMFS has reevaluated and modified the methodology used to determine the C/P Coop Program's DPC for the 2014 fee calculation. The redetermination of the C/P Coop Program's 2014 fee also took into consideration discussions with Glacier Fish Co. and other representatives of C/P Coop members with respect to what costs should be considered actual incremental costs. One key change to the C/P Coop program's 2014 fee is the elimination of all time that was originally coded as “general” time and split evenly among the three sectors. Additional costs that NMFS determined to be more appropriately categorized as non-incremental were also removed. NMFS also made some adjustments to ensure contractor and employee time was appropriately distributed among the sectors to reflect the actual incremental costs. Finally, NMFS elected to apply a similar revised methodology for all sectors for all years, resulting in a reduction in each sector's DPCs. However, the Shorebased IFQ Program DPC remained above the 3 percent cap.

    NMFS' internal process for categorizing and tracking employee time in the trawl rationalization program has been refined over the years. For example, the use of the “general” time coding option was phased out by the West Coast Region and, with the exception of limited use by the Northwest Fisheries Science Center, was no longer used as of fiscal year 2015. NMFS will continue its efforts to ensure that employee time is only tracked for time spent on tasks that would not have been incurred but for the implementation of the trawl rationalization program, taking into account reduced costs resulting from any program efficiencies. A comparison of the original DPCs and the recalculated DPCs is below.

    Initial DPC
  • (excluding
  • adjustments)
  • Redetermined DPC
  • (excluding
  • adjustments)
  • Shorebased IFQ Program: 2014 $1,877,752.00 $1,599,610.25 2015 2,028,859.04 1,936,907.83 2016 2,339,529.95 1,887,535.24 2017 2,021,490.55 N/A MS Coop Program: 2014 274,936.05 77,659.47 2015 233,300.78 129,565.98 2016 291,144.05 185,814.34 2017 167,549.51 N/A C/P Coop Program: 2014 176,460.05 12,931.29 2015 158,631.88 40,487.70 2016 184,267.26 45,080.17 2017 63,448.85 N/A

    The DPC values used to determine the 2017 fee percentages reflect the redetermined DPCs and any adjustments for past over or under payment. The adjustments can be seen here:

    2014 DPC Fees Adjustment IFQ $1,599,610.25 $1,356,285.28 N/A MS 77,659.47 347,450.65 −$269,791.18 CP 12,931.29 350,387.25 −337,455.96 2015 DPC DPC w/adjustment Fees Adjustment IFQ $1,936,907.83 N/A $1,260,450.63 N/A MS 129,565.98 −$140,225.20 94,467.65 −$234,692.85 CP 40,487.70 −296,968.26 0.00 −296,968.26 2016 DPC DPC w/adjustment Fees
  • (est)
  • Adjustment
  • (est)
  • IFQ $1,887,535.24 N/A $1,561,574.00 N/A MS 185,814.34 −$48,878.51 379,731.00 −$428,609.51 CP 45,080.17 −251,888.09 0.00 −251,888.09
    2017 DPC DPC w/adjustment IFQ $2,021,490.55 N/A MS 167,549.51 −$261,060.01 CP 63,448.85 −188,439.24

    Based on total fees paid to date and estimated fees received in 2016, the adjusted DPCs for 2017 are:

    Shorebased IFQ Program: $2,021,490.55 MS Coop Program: −$261,060.01 C/P Coop Program: −$188,439.24

    And the fee calculations using the adjusted 2017 DPCs are:

    Shorebased IFQ Program: 3.0 percent = the lower of 3 percent or ($2,021,490.55/$41,605,012.42) × 100 MS Coop Program: −6.0 percent = the lower of 3 percent or −$261,060.01/$4,373,922.34) × 100 C/P Coop Program: −1.7 percent = the lower of 3 percent or (−$188,439.24/$11,120,803.07) × 100

    As a fee cannot be set using a negative percentage, the 2017 fee percentages for the MS Coop Program and the C/P Coop Program will be set at 0.0 percent.

    MS pricing is the average price per pound that the C/P Coop Program will use to determine their fee amount due (MS pricing multiplied by the value of the aggregate pounds of all groundfish species harvested by the vessel registered to a C/P-endorsed limited entry trawl permit, multiplied by the C/P fee percentage, equals the fee amount due). In past years, MS pricing was based on the average price per pound of Pacific whiting as reported in PacFIN from the Shorebased IFQ Program. In other words, data from the IFQ fishery was used as a proxy for the MS average price per pound to determine the “MS pricing” used in the calculation for the C/P sector's fee amount due. For 2017 MS pricing, NMFS used values derived from those reported on the MS Coop Program cost recovery form from calendar year 2015 as this was determined to be the best information available. NMFS has calculated the 2017 MS pricing to be used as a proxy by the C/P Coop Program as: $0.08/lb for Pacific whiting.

    Cost recovery fees are submitted to NMFS by Fish buyers via Pay.gov (https://www.pay.gov/paygov/). Fish buyers registered with Pay.gov can login in the upper left-hand corner of the screen. Fish buyers not registered with Pay.gov can go to the cost recovery forms directly from the Web site below. Click on the link to Pacific Coast Groundfish Cost Recovery for your sector (IFQ, MS, or C/P): https://www.pay.gov/public/search/global?searchString=pacific+cost+recovery&formToken=4e5bc6b4-6ba8-4db4-9850-e73756a06775.

    As stated in the preamble to the cost recovery proposed and final rules, in the spring of each year, NMFS will release an annual report documenting the details and data used for the above calculations. The report will include information such as the fee percentage calculation, program costs, and ex-vessel value by sector. Annual reports are available at: http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish_catch_shares/rules_regulations/costrecovery.html.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: December 23, 2016. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-31624 Filed 12-28-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: National Oceanic and Atmospheric Administration (NOAA).

    Title: Natural Resource Damage Assessment Restoration Project Information Sheet.

    OMB Control Number: 0648-0497.

    Form Number(s): None.

    Type of Request: Regular (extension of a currently approved information collection).

    Number of Respondents: 47.

    Average Hours Per Response: Reports, 20 minutes; updates; 10 minutes.

    Burden Hours: 37.

    Needs and Uses: This request is for an extension of a currently approved information collection.

    The purpose of this information collection is to assist state and federal Natural Resource Trustees in more efficiently carrying out the restoration planning phase of Natural Resource Damage Assessments (NRDA), in compliance with the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321-4370d; 40 CFR 1500-1500 and other federal and local statutes and regulations as applicable. The NRDA Restoration Project Information Sheet is designed to facilitate the collection of information on existing, planned, or proposed restoration projects. This information will be used by the Natural Resource Trustees to develop potential restoration alternatives for natural resource injuries and service losses requiring restoration, during the restoration planning phase of the NRDA process.

    Affected Public: State, local, or tribal governments; individuals or households; business or other for-profits organizations; not-for-profit institutions; farms; and the federal government.

    Frequency: Annually and on occasion.

    Respondent's Obligation: Voluntary.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: December 23, 2016. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2016-31585 Filed 12-28-16; 8:45 am] BILLING CODE 3510-22-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION Academic Research Council Solicitation of Applications for Membership AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Notice of solicitation of applications.

    SUMMARY:

    The Consumer Financial Protection Act establishes the Consumer Financial Protection Bureau's (Bureau) Office of Research and assigns to it the responsibility of researching, analyzing, and reporting on topics relating to the Bureau's mission, including developments in markets for consumer financial products and services, consumer awareness, and consumer behavior. The Bureau established the Academic Research Council (Council) as a technical advisory body comprised of scholars to provide the Office of Research with guidance as it performs its responsibilities. Director Richard Cordray invites qualified individuals to apply for appointment to the Council. Appointments to the Council are typically for four years. However, the Director may amend the Council charter from time to time during the charter terms as the Director deems necessary to accomplish the purpose of the Council. The Bureau expects to announce the selection of new members in April 2017.

    DATES:

    The application will be available on January 16, 2017 here, https://goo.gl/RYLDHq. Only complete application packets received on or before 5 p.m. eastern standard time on February 14, 2017, will be given consideration for membership on the Council.

    ADDRESSES:

    Complete application packets must include a curriculum vitae or résumé for each applicant and a completed application.

    All applications for membership on the Council should be sent:

    Electronically: https://goo.gl/RYLDHq. We strongly encourage electronic submissions.

    Mail:

    • Julian Alcazar, Outreach and Engagement Specialist, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552. Submissions must be postmarked on or before February 14, 2017.

    Hand Delivery/Courier in Lieu of Mail: Julian Alcazar, Outreach and Engagement Specialist, Consumer Financial Protection Bureau, 1275 First Street NE., 1223-C, Washington, DC 20002. Submissions must be received on or before 5 p.m. eastern standard time on February 14, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information should be directed to Julian Alcazar, Outreach and Engagement Specialist, Consumer Financial Protection Bureau, (202) 435-9885.

    SUPPLEMENTARY INFORMATION:

    I. Background

    Section 1013(b)(1) of the Consumer Financial Protection Act, 12 U.S.C. 5493(b)(1), establishes the Consumer Financial Protection Bureau's (Bureau) Office of Research and assigns to it the responsibility of researching, analyzing, and reporting on topics relating to the Bureau's mission, including developments in markets for consumer financial products and services, consumer awareness, and consumer behavior. The Bureau established the Academic Research Council (Council) as a technical advisory body comprised of scholars to provide the Office of Research with guidance as it performs its responsibilities.

    The Bureau is charged with regulating “the offering and provision of consumer financial products or services under the Federal consumer financial laws,” so as to ensure that “all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive.” Pursuant to section 1021(c) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203 (Dodd-Frank Act), the Bureau's primary functions are:

    1. Conducting financial education programs;

    2. Collecting, investigating, and responding to consumer complaints;

    3. Collecting, researching, monitoring, and publishing information relevant to the function of markets for consumer financial products and services to identify risks to consumers and to the proper functioning of such markets;

    4. Supervising persons covered under the Dodd-Frank Act for compliance with Federal consumer financial law, and taking appropriate enforcement action to address violations of Federal consumer financial law;

    5. Issuing rules, orders, and guidance implementing Federal consumer financial law; and

    6. Performing such support activities as may be needed or useful to facilitate the other functions of the Bureau.

    II. Academic Research Council

    Section 1013(b)(1) of the Consumer Financial Protection Act, 12 U.S.C. 5493(b)(1), establishes the Consumer Financial Protection Bureau's Office of Research and assigns to it the responsibility of researching, analyzing, and reporting on topics relating to the Bureau's mission, including developments in markets for consumer financial products and services, consumer awareness, and consumer behavior. The Bureau established the Council as a technical advisory body comprised of scholars to provide the Office of Research with methodological and technical advice and feedback on its research work by framing research questions; suggesting new data collection strategies and methods of analysis; providing feedback, both backward and forward looking, on the Office of Research's research program; providing input into its research strategic planning process and research agenda; collaborating with the Bureau's research staff on high value research projects which will allow for transfer of specialized expertise; and supporting high quality recruitment.

    III. Qualifications

    In appointing members of the Council, the Office of Research seeks to recruit tenured academics with a world class research and publishing background, and a record of public or academic service. We are seeking prominent experts who are recognized for their professional achievements and objectivity in economics, statistics, psychology or behavioral science. In particular, academics with strong methodological and technical expertise in structural or reduced form econometrics, modeling of consumer decision-making, behavioral economics, experimental economics, program evaluation, psychology, and financial choice. The members of the Council will collectively provide a balance of expertise across these areas. You can learn more about current Academic Research Council members http://www.consumerfinance.gov/about-us/advisory-groups/academic-research-council/.

    The Bureau has a special interest in ensuring that the perspectives of women and men, all racial and ethnic groups, and individuals with disabilities are adequately represented on the Council and therefore encourages applications from qualified candidates from these groups. The Bureau also has a special interest in establishing a Council that is represented by a diversity of viewpoints and constituencies, and therefore encourages nominations for qualified candidates who:

    1. Represent the United States' geographic diversity; and

    2. Understand the interests of special populations identified in the Dodd-Frank Act, including servicemembers, older Americans, students, and traditionally underserved consumers and communities.

    IV. Application Procedures

    Any interested person may apply for membership on the Council.

    A complete application packet may include a cover letter and must include:

    1. A complete résumé or curriculum vitae for the applicant; and

    2. Completed application

    To evaluate potential sources of conflicts of interest, the Bureau will ask potential candidates to provide information related to financial holdings and/or professional affiliations, and to allow the Bureau to perform a background check. The Bureau will not review nominations and will not answer questions from internal or external parties regarding applications until the application period has closed.

    The Bureau will not entertain nominations of federally registered lobbyists and individuals who have been convicted of a felony for a position on the Council.

    Only complete applications will be given consideration for review of membership on the Council.

    Dated: December 20, 2016. Elizabeth Corbett, Acting Chief of Staff, Bureau of Consumer Financial Protection.
    [FR Doc. 2016-31398 Filed 12-28-16; 8:45 am] BILLING CODE 4810-AM-P
    CORPORATION FOR NATIONAL AND COMMUNITY SERVICE Proposed Information Collection; Comment Request AGENCY:

    Corporation for National and Community Service.

    ACTION:

    Notice.

    SUMMARY:

    The Corporation for National and Community Service (CNCS), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirement on respondents can be properly assessed.

    Currently, CNCS is soliciting comments concerning its proposed renewal of the President's Higher Education Community Service Honor Roll. The President's Higher Education Community Service Honor Roll recognizes higher education institutions that reflect the values of exemplary community service and achieve meaningful outcomes in their communities. The Honor Roll is part of the Corporation for National and Community Service's strategic commitment to engage millions of college students in service and celebrate the critical role of higher education in strengthening communities. This information collection does not result in grant funding from the Corporation for National and Community Service or other federal agencies.

    Copies of the information collection request can be obtained by contacting the office listed in the Addresses section of this notice.

    DATES:

    February 27, 2017.

    ADDRESSES:

    You may submit comments, identified by the title of the information collection activity, by any of the following methods:

    (1) By mail sent to: Corporation for National and Community Service, President's Higher Education Community Service Honor Roll. Attention: Rhonda Taylor, Director of Partnerships and Program Engagement, Room #2121 250 E Street SW., Washington, DC 20525.

    (2) By hand delivery or by courier to the CNCS mailroom at Room 4200 at the mail address given in paragraph (1) above, between 9:00 a.m. and 4:00 p.m. Eastern Time, Monday through Friday, except Federal holidays.

    (3) By email to: [email protected] Attention: Rhonda Taylor.

    (4) Electronically through www.regulations.gov.

    Individuals who use a telecommunications device for the deaf (TTY-TDD) may call 1-800-833-3722 between 8:00 a.m. and 8:00 p.m. Eastern Time, Monday through Friday.

    FOR FURTHER INFORMATION CONTACT:

    Rhonda Taylor, 202-606-6721 or via email [email protected]

    SUPPLEMENTARY INFORMATION:

    CNCS is particularly interested in comments that:

    • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;

    • Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

    • Enhance the quality, utility, and clarity of the information to be collected; and

    • Minimize the burden of the collection of information on those who are expected to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g., permitting electronic submissions of responses).

    Background

    The information collected is provided electronically by accredited institutions of higher education through the application Web site of the President's Higher Education Community Service Honor Roll.

    Current Action

    CNCS seeks to revise the current information collection. The revised collection consists of questions not only related to general community service, but also community service that relates to education, economic opportunity, and interfaith community service.

    The information collection will otherwise be used in the same manner as the existing application. CNCS also seeks to continue using the current application until the revised application is approved by OMB. The current application is due to expire on December 31, 2016.

    Type of Review: Renewal.

    Agency: Corporation for National and Community Service.

    Title: President's Higher Education Community Service Honor Roll.

    OMB Number: 3045-0120.

    Agency Number: None.

    Affected Public: The affected publics are accredited institutions of higher education.

    Total Respondents: 4,500.

    Frequency: Annual.

    Average Time per Response: Averages 10 Hours.

    Estimated Total Burden Hours: 45,000.

    Total Burden Cost (capital/startup): None.

    Total Burden Cost (operating/maintenance): None.

    Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.

    Dated: December 22, 2016. Robert L. Bisi, Senior Public Affairs Manager.
    [FR Doc. 2016-31576 Filed 12-28-16; 8:45 am] BILLING CODE 6050-28-P
    DEPARTMENT OF DEFENSE Department of the Army [Docket ID USA-2016-HQ-0038] Proposed Collection; Comment Request AGENCY:

    Department of the Army, DoD.

    ACTION:

    Notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995, the Department of the Army announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the agency's estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.

    DATES:

    Consideration will be given to all comments received by February 27, 2017.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

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

    Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate for Oversight and Compliance, Regulatory and Advisory Committee Division, 4800 Mark Center Drive, Mailbox #24, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name, docket number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at http://www.regulations.gov for submitting comments. Please submit comments on any given form identified by docket number, form number, and title.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of the Product Manager for Force Protection Systems (PdM-FPS), 5900 Putnam Road, Building 365/Suite 1, (SFAE-IEW-TF), ATTN: Mark Shuler, Fort Belvoir, VA 22060-5420, or call PdM-FPS at 703-704-2402.

    SUPPLEMENTARY INFORMATION:

    Title; Associated Form; and OMB Number: Automated Installation Entry (AIE) System; OMB Control Number 0702-0125.

    Needs and Uses: The information collection requirement is necessary to verify the identity of an individual and determine the fitness of an individual requesting and/or requiring access to installations, and issuance of local access credentials. The information collection methodology involves the employment of technological collection of data via an electronic physical access control system (PACS) which provides the capability to rapidly and electronically authenticate credentials and validate and individual's authorization to enter an installation.

    Affected Public: Individuals or Households; Business or Other For-Profit.

    Annual Burden Hours: 44,315 hours.

    Number of Respondents: 886,294.

    Responses per Respondent: 1.

    Annual Responses: 886,294.

    Average Burden per Response: 3 minutes.

    Frequency: On occasion.

    Personal data is required to support HQDA physical security/access control programs. Data is collected within the AIE system registration database to facilitate automated access control as specified in DTM 09-012, Interim Policy for DoD Physical Access Control and AR 190-13, Army Physical security. Data is employed to ensure positive identification of individuals authorized access to installations. AIE supports military personnel (Active/Reserve/Guard/retired); DoD civilian/contractor employees; corporate employees; vendors and visitors enrollment and access.

    Dated: December 23, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-31605 Filed 12-28-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary Defense Innovation Board: Notice of Federal Advisory Committee Meeting AGENCY:

    Office of the Deputy Chief Management Officer, Department of Defense (DoD).

    ACTION:

    Notice of Federal Advisory Committee Meeting.

    SUMMARY:

    The DoD is publishing this notice to announce the following Federal Advisory Committee Meeting of the Defense Innovation Board (“the Board”). This meeting is partially closed to the public.

    DATES:

    The public meeting of the Board will be held on Monday, January 9, 2017. The open portion of the meeting will begin at 9:00 a.m. and end at 10:30 a.m. (Escort is required for attendees who do not have Pentagon credentials. See guidance in the SUPPLEMENTARY INFORMATION section.) The closed portion of the meeting will be held from 11:00 a.m. to 2:30 p.m.

    ADDRESSES:

    The open portion of the meeting will be held at The Pentagon, Washington, DC, in the Pentagon Conference Center—Room B6. (Escort is required for attendees who do not have Pentagon credentials. See guidance in the SUPPLEMENTARY INFORMATION section.) The closed portion of the meeting will be held at the Pentagon, Washington, DC, in the Nunn-Lugar Conference Room.

    FOR FURTHER INFORMATION CONTACT:

    The Board's Alternate Designated Federal Officer, Michael Gable, at Defense Innovation Board, 9000 Defense Pentagon, Room 5E572, Washington, DC 20350, [email protected]

    For meeting information and to submit written comments or questions to the Board, email [email protected] Please include in the subject line “DIB January 2017 Meeting”.

    SUPPLEMENTARY INFORMATION:

    Due to circumstances beyond the control of the Department of Defense, the Defense Innovation Board is unable to provide public notification, as required by 41 CFR 102-3.150(a), for its meeting on Monday, January 9, 2017. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.

    This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C. Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140.

    Purpose of the Meeting. The mission of the Board is to examine and provide the Secretary of Defense and the Deputy Secretary of Defense independent advice and recommendations on innovative means to address future challenges in terms of integrated change to organizational structure and processes, business and functional concepts, and technology applications. The Board focuses on (a) technology and capabilities, (b) practices and operations, and (c) people and culture.

    Meeting Agenda. During the open portion of the meeting, the Board will deliberate and propose observations on how to expand and advance innovation across the Department of Defense. These findings will be based upon discussions and preliminary recommendations from the October 2016 Public Meeting, and observations since that gathering. The Board is scheduled to vote on these recommendations.

    Specifically, the Board will deliberate and vote on each of the following interim recommendations: (1) Assess Cyber Security Vulnerabilities; (2) Catalyze Innovations in Artificial Intelligence and Machine Learning; (3) Align Risk and Incentives for Acquisition; (4) Sustain and Increase Support for Promising Approaches to Innovation; (5) Promote Access of DoD Computer Code; (6) Push Software Development to the “Front Line;” (7) Modernize Information Technology; and (8) Reward Bureaucracy Busting. The Board will also deliberate on a potential new recommendation to build a data center to collect all DoD data in a central location for ease of access and analysis.

    In addition, the Board will be briefed on the Secretary's announcement to adopt the following three preliminary recommendations and comment on the Department's draft implementation planning: (1) Make computer science a core competency of the Department by increasing the focus on recruiting talented computer scientists and software engineers into the military and civilian workforce; (2) invest more broadly in machine learning through targeted challenges, prize competitions, and a virtual center of excellence model that establishes stretch goals and incentivizes academic and private sector researchers to achieve them; and (3) create a DoD Chief Innovation Officer to act as a senior advisor to the Secretary of Defense and serve as a spearhead for innovation activities.

    Lastly, the Board will discuss potential recommendations and advice for the incoming Secretary of Defense to help keep DoD imbued with a culture of innovation to better protect the nation and its allies, and stay ahead of future threats.

    During the closed portion of the meeting, the Board will present more detailed discussions of their observations and recommendations to senior leaders from the Office of the Secretary of Defense. They will also receive informational briefings from staff members in the Office of the Secretary of Defense. These presentations and resulting discussions will include classified information.

    Public Accessibility to the Meeting. Pursuant to federal statutes and regulations (5 U.S.C. 552b, and 41 CFR 102-3.140 through 102-3.165) and the availability of space, the meeting is open to the public from 9:00 a.m. to 10:30 a.m. Seating is on a first-come basis. Anyone wishing to attend the meeting must send a request to [email protected] Please include your full name, title, email address, phone number, organization, and whether you require an escort or not. The subject line should read “Registration for DIB January 2017 Meeting”. Requests for registration must be submitted in writing by January 3, 2017.

    Public attendees requiring an escort should arrive at the Pentagon Visitors Center, located near the Pentagon Metro Station's south exit (the escalators to the left upon exiting through the turnstiles) and adjacent to the Pentagon Transit Center bus terminal, with sufficient time to complete security screening no later than 8:15 a.m. on January 9, 2017. Please note that Pentagon tour groups also enter through the Visitors Center, so attendees should be prepared to stand in line. To complete security screening, you must present two forms of government-issued identification, of which, one must include a photograph. While some federal government and military employees are Common Access Card holders and are not required to have an escort, they may be required to pass through the Visitors Center to gain access to the Pentagon.

    Special Accommodations: Individuals requiring special accommodations to access the public meeting should include this information when registering so that appropriate arrangements can be made.

    Pursuant to 5 U.S.C. 552b(c)(1), the DoD has determined that the portion of the meetings from 11:00 a.m. to 2:30 p.m. shall be closed to the public. The Assistant Deputy Chief Management Officer, in consultation with the Office of the DoD General Counsel, has determined in writing that this portion of the committee's meeting will be closed as the discussions may involve classified matters of national security. Such classified material is so inextricably intertwined with the unclassified material that it cannot reasonably be segregated into separate discussions without disclosing matters that are classified SECRET or higher.

    Procedures for Providing Public Comments. Pursuant to section 10(a)(3) of the Federal Advisory Committee Act of 1972 and 41 CFR 102-3.140, the public or interested organizations may submit written comments to the Board about its approved agenda pertaining to this meeting or at any time regarding the Board's mission. Individuals submitting a written statement must submit their statement to the Executive Director at [email protected] Written comments that do not pertain to a scheduled meeting may be submitted at any time. However, if individual comments pertain to a specific topic being discussed at the planned meeting, then such comments must be received in writing not later than January 4, 2017. The Executive Director will compile all written submissions received by the deadline, and provide them to Board Members prior to the meeting. Comments received after this date may not be provided to or considered by the Board until a later date.

    Dated: December 23, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-31577 Filed 12-28-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2016-ICCD-0146] Agency Information Collection Activities; Comment Request; Loan Rehabilitation: Reasonable and Affordable Payments AGENCY:

    Federal Student Aid (FSA), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before February 27, 2017.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2016-ICCD-0146. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 224-84, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Ian Foss, 202-377-3681.

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: Loan Rehabilitation: Reasonable and Affordable Payments.

    OMB Control Number: 1845-0120.

    Type of Review: A revision of an existing information collection.

    Respondents/Affected Public: Individuals or Households.

    Total Estimated Number of Annual Responses: 35,282.

    Total Estimated Number of Annual Burden Hours: 35,282.

    Abstract: Borrowers who have defaulted on their Direct Loan or FFEL Program loans may remove those loans from default through a process called rehabilitation. Loan rehabilitation requires the borrower to make 9 payments within 10 months. The payment amount is set according to one of two formulas. The second of the two formulas uses the information that is collected in this form. The form is being revised to make it easier for borrowers to complete by either eliminating unnecessary language or simplifying language already on the form.

    Dated: December 22, 2016. Kate Mullan, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2016-31441 Filed 12-28-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2016-ICCD-0120] Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; National Professional Development Program: Grantee Performance Report AGENCY:

    Office of English Language Acquisition (OELA), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before January 30, 2017.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2016-ICCD-0120. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 226-62, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Samuel Lopez, 202-401-1423.

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: National Professional Development Program: Grantee Performance Report.

    OMB Control Number: 1885-0555.

    Type of Review: An extension of an existing information collection.

    Respondents/Affected Public: State, Local, and Tribal Governments.

    Total Estimated Number of Annual Responses: 138.

    Total Estimated Number of Annual Burden Hours: 6,900.

    Abstract: The National Professional Development (NPD) program provides professional development activities intended to improve instruction for students with limited English proficiency and assists education personnel working with such children to meet high professional standards. The NPD program office is submitting this application to request approval to collect information from NPD grantees. This data collection serves two purposes; the data are necessary to assess the performance of the NPD program on Government Performance Results Act measures, also, budget information and data on project-specific performance measures are collected from NPD grantees for project-monitoring information.

    Dated: December 22, 2016. Tomakie Washington, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2016-31467 Filed 12-28-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2016-ICCD-0117] Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Credit Enhancement for Charter School Facilities Program Performance Report AGENCY:

    Office of Innovation and Improvement (OII), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before January 30, 2017.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2016-ICCD-0117. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 226-62, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Clifton Jones, 202-205-2204.

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: Credit Enhancement for Charter School Facilities Program Performance Report.

    OMB Control Number: 1855-0010.

    Type of Review: A revision of an existing information collection.

    Respondents/Affected Public: State, Local, and Tribal Governments.

    Total Estimated Number of Annual Responses: 34.

    Total Estimated Number of Annual Burden Hours: 850.

    Abstract: The Credit Enhancement for Charter School Facilities Program and its virtually identical antecedent program, the Charter Schools Facilities Financing Demonstration Program, authorized as part of the reauthorization of the Elementary and Secondary Education Act, to have a statutory mandate for an annual report (respectively, Section 5227 and Section 10227). This reporting is a requirement in order to obtain or retain benefits according to section 5527 part b of the Elementary and Secondary Education Act of 1965. ED will use the information through this report to monitor and evaluate competitive grants. These grants are made to private, non-profits; governmental entities; and consortia of these organizations. These organizations will use the funds to leverage private capital to help charter schools construct, acquire, and renovate school facilities.

    Dated: December 22, 2016. Tomakie Washington, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2016-31466 Filed 12-28-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [ Project Nos. 2362-039, 2454-080 and 2532-079] Allete, Inc.; Notice of Application Accepted for Filing, Soliciting Comments, Protests and Motions To Intervene

    Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:

    a. Type of Proceeding: Extension of License Term.

    b. Project Nos.: P-2362-039, P-2454-080, & P-2532-079.

    c. Date Filed: November 21, 2016.

    d. Licensee: Allete, Inc.

    e. Names and Locations of Projects: Grand Rapids Project (P-2362), located on the Mississippi River in Itasca County, Minnesota. Sylvan Project (P-2454), located on the Gull and Crow Wing rivers, in Cass, Crow Wing, and Morrison counties, Minnesota. Little Falls Project (P-2532), located on the Mississippi River, in Morrison County, Minnesota.

    f. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.

    g. Licensee Contact Information: Ms. Nora Rosemore, Minnesota Power, 30 West Superior Street, Duluth, Minnesota 55802, Phone: (218) 725-2101, Email: [email protected].

    h. FERC Contact: Mr. Ashish Desai, (202) 502-8370, [email protected].

    i. Deadline for filing comments, motions to intervene and protests, is 30 days from the issuance date of this notice by the Commission. The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, and recommendations, using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. The first page of any filing should include docket numbers P-2436-039, P-2454-080, and P-2532-079.

    j. Description of Proceeding: The licensee, Allete, Inc., requests the Commission extend the term of the license for three of its projects to synchronize the license expiration dates with the licensee's two other projects located nearby, so that they could be relicensed in two groups based on their location. The licensee received a 30-year license for the Grand Rapids Project No. 2362 on February 26, 1993, effective February 1, 1993. The licensee requests the license expiration date for the Grand Rapids Project be extended from January 31, 2023 to December 31, 2023, to match the license expiration date of the licensee's nearby Prairie River Project No. 2361.

    In addition, the licensee received 30-year licenses for the Sylvan Project No. 2454 on October 29, 1993, and Little Falls Project No. 2532 on October 27, 1993, both effective January 1, 1994. The licensee requests the expiration dates for both projects be extended to March 31, 2038, to match the license expiration date of the licensee's nearby Pillager Project No. 2663. The licensee states that the consolidation of the relicensing proceedings for the five projects into two groups would reduce redundancy and allow for better stakeholder participation.

    k. This notice is available for review and reproduction at the Commission in the Public Reference Room, Room 2A, 888 First Street NE., Washington, DC 20426. The filing may also be viewed on the Commission's Web site at http://www.ferc.gov/docs-filing/elibrary.asp. Enter the Docket number (P-2362-039, P-2454-080, and P-2532-079) excluding the last three digits in the docket number field to access the notice. You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, call toll-free 1-866-208-3676 or email [email protected] For TTY, call (202) 502-8659.

    l. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.

    m. Comments, Protests, or Motions to Intervene: Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, and .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.

    n. Filing and Service of Responsive Documents: Any filing must (1) bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE” as applicable; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, motions to intervene, or protests must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). All comments, motions to intervene, or protests should relate to the license term extension request. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. If an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.

    Dated: December 22, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31539 Filed 12-28-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #2

    Take notice that the Commission received the following exempt wholesale generator filings:

    Docket Numbers: EG17-35-000.

    Applicants: Grady Wind Energy Center, LLC.

    Description: Notice of Self-Certification of Exempt Wholesale Generator Status of Grady Wind Energy Center, LLC.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5418.

    Comments Due: 5 p.m. ET 1/11/17.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-1790-014; ER10-1821-014; ER11-2029-005.

    Applicants: BP Energy Company, Cedar Creek II, LLC, Goshen Phase II LLC.

    Description: Updated Market Power Analysis for Northwest Region of BP Energy Company, et al.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5459.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER10-2759-006; ER10-2631-006; ER10-2732-012; ER10-2733-012; ER10-2734-012; ER10-2736-012; ER10-2737-012; ER10-2741-012; ER10-2749-012; ER10-2752-012; ER12-2492-008; ER12-2493-008; ER12-2494-008; ER12-2495-008; ER12-2496-008; ER13-815-004; ER14-264-003; ER16-2455-002; ER16-2456-002; ER16-2457-002; ER16-2458-002; ER16-2459-002.

    Applicants: Bridgeport Energy LLC, Emera Energy Services, Inc., Emera Energy U.S. Subsidiary No. 1, Inc., Emera Energy U.S. Subsidiary No. 2, Inc., Emera Energy Services Subsidiary No. 1 LLC, Emera Energy Services Subsidiary No. 2 LLC, Emera Energy Services Subsidiary No. 3 LLC, Emera Energy Services Subsidiary No. 4 LLC, Emera Energy Services Subsidiary No. 5 LLC, Emera Energy Services Subsidiary No. 6 LLC, Emera Energy Services Subsidiary No. 7 LLC, Emera Energy Services Subsidiary No. 8 LLC, Emera Energy Services Subsidiary No. 9 LLC, Emera Energy Services Subsidiary No. 10 LLC, Emera Energy Services Subsidiary No. 11 LLC, Emera Energy Services Subsidiary No. 12 LLC, Emera Energy Services Subsidiary No. 13 LLC, Emera Energy Services Subsidiary No. 14 LLC, Emera Energy Services Subsidiary No. 15 LLC, Emera Maine, Rumford Power Inc., Tiverton Power LLC.

    Description: Triennial Update for the Northeast Region of Bridgeport Energy LLC, et al.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5467.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER12-540-007; ER10-1346-006; ER10-1348-006; ER12-539-007.

    Applicants: APDC, Inc., Atlantic Power Energy Services (US) LLC, Frederickson Power L.P., ManChief Power Company LLC.

    Description: Triennial market power update for Northwest region of APDC, Inc., et al.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5462.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER13-1944-006.

    Applicants: PJM Interconnection, L.L.C.

    Description: Compliance filing: Errata to Correct MISO-PJM JOA section 9.4 effective May 30, 2016 to be effective 5/30/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5085.

    Comments Due: 5 p.m. ET 1/3/17.

    Docket Numbers: ER15-2589-000.

    Applicants: CPV Shore, LLC.

    Description: Report Filing: Informational Filing Regarding Planned Transfer to be effective N/A.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5241.

    Comments Due: 5 p.m. ET 1/11/17.

    Docket Numbers: ER16-771-001.

    Applicants: Midcontinent Independent System Operator, Inc., Consumers Energy Company.

    Description: Compliance filing: 2016-12-22_Consumers Energy WDS Agreements (Compliance) to be effective 4/1/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5065.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-110-001.

    Applicants: California Independent System Operator Corporation.

    Description: Compliance filing: 2016-12-22 Aliso Canyon Gas-Electric Coordination Enhancement Phase 2 Compliance to be effective 11/30/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5167.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-423-000.

    Applicants: Rubicon NYP Corp.

    Description: Amendment to November 29, 2016 Rubicon NYP Corp tariff filing [Asset Appendix B].

    Filed Date: 12/22/16.

    Accession Number: 20161222-5348.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-615-000.

    Applicants: Albany Green Energy, LLC.

    Description: Baseline eTariff Filing: Albany Green Energy LLC MBR Application Filing to be effective 2/20/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5452.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-630-000.

    Applicants: North Wind Turbines LLC.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5114.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-631-000.

    Applicants: Norwalk Power LLC.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5117.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-632-000.

    Applicants: NRG Power Marketing LLC.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5122.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-633-000.

    Applicants: Reliant Energy Northeast LLC.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5125.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-634-000.

    Applicants: RRI Energy Services, LLC.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5126.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-635-000.

    Applicants: Saguaro Power Company, A Limited Partner.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5131.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-636-000.

    Applicants: Southern California Edison Company.

    Description: § 205(d) Rate Filing: DSA 5149 Lancaster Energy Project SA No. 915 to be effective 2/21/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5138.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-637-000.

    Applicants: Pennsylvania Electric Company, Mid-Atlantic Interstate Transmission, LLC, PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Pennsylvania Electric Company and MAIT submit Service Agreement No. 4555 to be effective 1/1/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5205.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-638-000.

    Applicants: Southern California Edison Company.

    Description: § 205(d) Rate Filing: True Up of Costs for the Grand Crossing WDLA to be effective 2/23/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5304.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-639-000.

    Applicants: Trans Bay Cable LLC.

    Description: § 205(d) Rate Filing: Annual TRBAA filing to be effective 1/1/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5332.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-640-000.

    Applicants: Duke Energy Progress, LLC.

    Description: § 205(d) Rate Filing: Waynesville NITSA Amendment SA No. 303 to be effective 1/1/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5352.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-641-000.

    Applicants: Florida Power & Light Company.

    Description: Notice of Cancellation of Second Revised Service Agreement No. 194 of Florida Power & Light Company.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5465.

    Comments Due: 5 p.m. ET 1/11/17.

    Docket Numbers: ER17-642-000.

    Applicants: Florida Power & Light Company.

    Description: Notice of Cancellation of Rate Schedule No. 305\4 of Florida Power & Light Company.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5466.

    Comments Due: 5 p.m. ET 1/11/17.

    Docket Numbers: ER17-643-000.

    Applicants: New Brunswick Energy Marketing Corporation.

    Description: § 205(d) Rate Filing: Revisions to Market-Based Rate Tariff to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5437.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-644-000.

    Applicants: Talen Energy Marketing, LLC.

    Description: § 205(d) Rate Filing: Revised Market-Based Rate Tariff to be effective 2/22/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5455.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-645-000.

    Applicants: Talen Montana, LLC.

    Description: § 205(d) Rate Filing: Revised Market-Based Rate Tariff to be effective 2/22/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5456.

    Comments Due: 5 p.m. ET 1/12/17.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: December 22, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31534 Filed 12-28-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER17-582-000] Westside Solar, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization

    This is a supplemental notice in the above-referenced proceeding of Westside Solar, LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

    Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

    Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 11, 2017.

    The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

    Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: December 22, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31537 Filed 12-28-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 2496-276] Eugene Water and Electric Board; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Protests

    Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:

    a. Application Type: Application To Amend Project Boundary, Relocate Existing Substation, and Delete Portions of Existing Transmission Lines.

    b. Project No: 2496-276.

    c. Date Filed: October 18, 2016.

    d. Applicant: Eugene Water and Electric Board (EWEB).

    e. Name of Project: Leaburg-Walterville Hydroelectric Project.

    f. Location: The project comprises two developments, Leaburg and Walterville, which are both located on the Mackenzie River, a tributary to the Willamette River, in Lane County, Oregon. The project does not occupy any federal lands.

    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r

    h. Applicant Contact: Laurie Elliott, FERC License Coordinator, EWEB, 500 East 4th Avenue, P.O. Box 10148, Eugene, Oregon, (541) 685-7000, [email protected]

    i. FERC Contact: Kurt Powers, (202) 502-8949, [email protected] or Steven Sachs, (202) 502-8666, [email protected]

    j. Deadline for filing comments, motions to intervene, and protests: January 23, 2017.

    The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. The first page of any filing should include docket number P-2496-276.

    The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.

    k. Description of Request: The EWEB is seeking to modify the project boundary by expanding it to include the relocation of Leaburg's existing substation to the highly disturbed, unconstructed location referred to as the Holden Creek substation project area (approximately 2,000 feet down Highway 126 and away from the McKenzie River from its current location). Relocating the substation would allow EWEB to connect to an adjacent Bonneville Power Administration transmission line and eliminate approximately eight miles of two parallel, existing EWEB transmission lines.

    l. Locations of the Application: A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street NE., Room 2A, Washington, DC 20426, or by calling (202) 502-8371. This filing may also be viewed on the Commission's Web site at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, call 1-866-208-3676 or email [email protected], for TTY, call (202) 502-8659. A copy is also available for inspection and reproduction at the address in item (h) above. Agencies may obtain copies of the application directly from the applicant.

    m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.

    n. Comments, Protests, or Motions To Intervene: Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214, respectively. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.

    o. Filing and Service of Documents: Any filing must (1) bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE” as applicable; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person commenting, protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, motions to intervene, or protests must set forth their evidentiary basis. Any filing made by an intervenor must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 385.2010.

    Dated: December 22, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31540 Filed 12-28-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket Nos. CP16-486-000; PF16-3-000] Millennium Pipeline Company, LLC; Notice of Schedule for Environmental Review of the Eastern System Upgrade Project

    On July 29, 2016, Millennium Pipeline Company, LLC (Millennium) filed an application in Docket No. CP16-486-000 requesting a Certificate of Public Convenience and Necessity pursuant to Section 7(c) of the Natural Gas Act to construct and operate certain natural gas pipeline facilities. The proposed project is known as the Eastern System Upgrade Project (Project), and it would transport additional natural gas from Millennium's existing Corning Compressor Station to an existing interconnect with Algonquin Gas Transmission, LLC in Ramapo, New York.

    On August 11, 2016, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's Environmental Assessment (EA) for the Project. This instant notice identifies the FERC staff's planned schedule for the completion of the EA for the Project.

    Schedule for Environmental Review Issuance of EA, April 7, 2017. 90-day Federal Authorization Decision Deadline, July 6, 2017.

    If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.

    Project Description

    The proposed Project includes (i) approximately 7.8-miles of 30- and 36-inch-diameter pipeline loop in Orange County, New York; (ii) a new 22,400 horsepower (HP) compressor station in Sullivan County, New York (Highland Compressor Station); (iii) additional 22,400 HP at the existing Hancock Compressor Station in Delaware County, New York; (iv) modifications to the existing Ramapo Meter and Regulator Station in Rockland County, New York; (v) modifications to the Wagoner Interconnect in Orange County, New York; (vi) additional pipeline appurtenant facilities at the existing Huguenot and Westtown Meter and Regulator Stations in Orange County, New York; and (vii) an alternate interconnect to the 16-inch-diameter Valley Lateral at milepost 7.6 of the Project. The Project would allow Millennium to transport an additional 233,000 dekatherms per day of additional natural gas service.

    Background

    On May 11, 2016, the Commission issued a Notice of Intent to Prepare an Environmental Assessment for the Planned Eastern System Upgrade Project and Request for Comments on Environmental Issues (NOI). The NOI was issued during the pre-filing review of the Project in Docket No. PF16-3-000 and was sent to affected landowners; federal, state, and local government agencies; elected officials; environmental and public interest groups; Native American tribes; other interested parties; and local libraries and newspapers. In response to the NOI, the Commission received comments from the New York State Department of Agriculture (NYSDAM), the Delaware Tribe of Indians, the U.S. Environmental Protection Agency (EPA), environmental and public interest groups, and individual stakeholders. The primary issues raised by commentors addressed concerns specific to the Highland Compressor Station, including health risks associated with air and greenhouse gas emissions, and socioeconomic impacts. Commentors also expressed concerns regarding Project impacts on surface and groundwater; wetlands; threatened and endangered species; cultural resources and historic structures; soils; property values; safety, including strains on local emergency services; pollution prevention practices; and climate change.

    The EPA, NYSDAM, Stockbridge-Munsee Band of Mohicans, and Delaware Tribe of Indians are participating as cooperating agencies in the preparation of this EA.

    Additional Information

    In order to receive notification of the issuance of the EA and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to www.ferc.gov/docs-filing/esubscription.asp.

    Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC Web site (www.ferc.gov). Using the “eLibrary” link, select “General Search” from the eLibrary menu, enter the selected date range and “Docket Number” excluding the last three digits (i.e., CP16-486), and follow the instructions. For assistance with access to eLibrary, the helpline can be reached at (866) 208-3676, TTY (202) 502-8659, or at [email protected] The eLibrary link on the FERC Web site also provides access to the texts of formal documents issued by the Commission, such as orders, notices, and rule makings.

    Dated: December 22, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31536 Filed 12-28-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-1325-007; ER10-1330-005; ER10-1333-007; ER10-2032-006; ER10-2033-006; ER12-1946-007; ER12-2313-003; ER15-190-004; ER15-255-002; ER16-141-003; ER16-355-001; ER17-543-001.

    Applicants: CinCap V LLC, Colonial Eagle Solar, LLC, Conetoe II Solar, LLC, Duke Energy Beckjord, LLC, Duke Energy Beckjord Storage, LLC, Duke Energy Commercial Enterprises, Inc., Duke Energy Kentucky, Inc., Duke Energy Ohio, Inc., Duke Energy Renewable Services, LLC, Duke Energy SAM, LLC, Laurel Hill Wind Energy, LLC, North Allegheny Wind, LLC.

    Description: Triennial Market Power Analysis for the Northeast Region of Duke Energy Corporation subsidiaries.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5457.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER11-2552-003; ER11-2554-003; ER11-2555-002; ER11-2556-003; ER11-2557-003; ER11-2558-003.

    Applicants: Massachusetts Electric Company, Niagara Mohawk Power Corporation, New England Power Company, National Grid-Glenwood Energy Center, LLC, National Grid-Port Jefferson Energy Center, LLC, The Narragansett Electric Company.

    Description: Updated Triennial Market Power Analysis of National Grid USA.

    Filed Date: 12/20/16.

    Accession Number: 20161220-5386.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER15-644-002.

    Applicants: Idaho Power Company.

    Description: Compliance filing: Order No. 676-H Compliance Filing Effective Tariff Version Correction to be effective 5/15/2015.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5008.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER16-2602-002.

    Applicants: 4C Acquisition, LLC.

    Description: Tariff Amendment: Supplement to Application for Market-Based Rate Authorization of 4C Acquisition to be effective 1/9/2017.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5414.

    Comments Due: 5 p.m. ET 1/3/17.

    Docket Numbers: ER17-604-000.

    Applicants: NorthWestern Corporation.

    Description: § 205(d) Rate Filing: SA 591 5th Rev—NITSA with Benefis Health System to be effective 3/1/2017.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5403.

    Comments Due: 5 p.m. ET 1/11/17.

    Docket Numbers: ER17-605-000.

    Applicants: NorthWestern Corporation.

    Description: § 205(d) Rate Filing: SA 605 6th Rev—NITSA with Bonneville Power Administration to be effective 3/1/2017.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5405.

    Comments Due: 5 p.m. ET 1/11/17.

    Docket Numbers: ER17-606-000.

    Applicants: NorthWestern Corporation.

    Description: § 205(d) Rate Filing: SA 642 4th Rev—NITSA with General Mills Operations LLC to be effective 3/1/2017.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5406.

    Comments Due: 5 p.m. ET 1/11/17.

    Docket Numbers: ER17-607-000.

    Applicants: NorthWestern Corporation.

    Description: § 205(d) Rate Filing: SA 666 4th Rev—NITSA with Suiza Dairy to be effective 3/1/2017.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5408.

    Comments Due: 5 p.m. ET 1/11/17.

    Docket Numbers: ER17-608-000.

    Applicants: NorthWestern Corporation.

    Description: § 205(d) Rate Filing: SA 760 2nd Rev—NITSA with Beartooth Electric Cooperative to be effective 3/1/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5005.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-609-000.

    Applicants: NorthWestern Corporation.

    Description: § 205(d) Rate Filing: SA 767 3rd Rev—NITSA with Basin Electric Power Cooperative to be effective 3/1/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5007.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-610-000.

    Applicants: NorthWestern Corporation.

    Description: § 205(d) Rate Filing: SA 243 11th Rev—NITSA with CHS Inc. to be effective 3/1/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5009.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-611-000.

    Applicants: Pacific Gas and Electric Company.

    Description: § 205(d) Rate Filing: Amendment to SMUD Fringe Area Service Agreement (RS 244) to be effective 1/1/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5015.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-612-000.

    Applicants: Pacific Gas and Electric Company.

    Description: § 205(d) Rate Filing: Revisions to City and County of San Francisco Hunters Point WDT SA (SA 36) to be effective 12/22/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5017.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-613-000.

    Applicants: New York State Reliability Council, L.L.C., Whiteman Osterman & Hanna LLP.

    Description: Informational Filing of the Revised Installed Capacity Requirement for the New York Control Area by the New York State Reliability Council, L.L.C.

    Filed Date: 12/20/16.

    Accession Number: 20161220-5390.

    Comments Due: 5 p.m. ET 1/10/17.

    Docket Numbers: ER17-614-000.

    Applicants: Southwestern Public Service Company.

    Description: § 205(d) Rate Filing: SPS GSEC-Cntrl Ld Intrpt Equip Agrmt 691 0.0.0 to be effective 4/16/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5052.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-616-000.

    Applicants: NorthWestern Corporation.

    Description: Tariff Cancellation: Notice of Cancellation—SA 777, Agreement with Western Energy Company to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5066.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-617-000.

    Applicants: Midcontinent Independent System Operator, Inc., Consumers Energy Company.

    Description: § 205(d) Rate Filing: 2016-12-22_SA 2892 Consumers Energy-Wolverine Power Supply 2nd Rev. WDS to be effective 3/31/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5070.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-618-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Queue Position #AB2-004, Original Service Agreement No. 4584 to be effective 11/30/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5081.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-619-000.

    Applicants: GenConn Energy LLC.

    Description: § 205(d) Rate Filing: Revised Market-Based Rate Tariff to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5093.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-620-000.

    Applicants: Boston Energy Trading and Marketing LLC.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5094.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-621-000.

    Applicants: Energy Plus Holdings LLC.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5095.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-622-000.

    Applicants: GenOn Energy Management, LLC.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5097.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-623-000.

    Applicants: Rubicon NYP Corp.

    Description: Baseline eTariff Filing: Initial MBR to be effective 1/30/2017.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5099.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-624-000.

    Applicants: Green Mountain Energy Company.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5100.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-625-000.

    Applicants: Independence Energy Group LLC.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5101.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-626-000.

    Applicants: Long Beach Peakers LLC.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5102.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-627-000.

    Applicants: Mountain Wind Power, LLC.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5104.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-628-000.

    Applicants: Mountain Wind Power II LLC.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5106.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-629-000.

    Applicants: North Community Turbines LLC.

    Description: § 205(d) Rate Filing: Market-Based Rate Tariff Revisions to be effective 12/23/2016.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5111.

    Comments Due: 5 p.m. ET 1/12/17.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: December 22, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31533 Filed 12-28-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER17-583-000] Whitney Point Solar, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization

    This is a supplemental notice in the above-referenced proceeding of Whitney Point Solar, LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

    Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

    Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 11, 2017.

    The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

    Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s)