Federal Register Vol. 81, No.39,

Federal Register Volume 81, Issue 39 (February 29, 2016)

Page Range10057-10432
FR Document

81_FR_39
Current View
Page and SubjectPDF
81 FR 10282 - Sunshine Act MeetingPDF
81 FR 10289 - Sunshine Act Meeting NoticePDF
81 FR 10358 - Sunshine Act Meetings; Unified Carrier Registration Plan Board of DirectorsPDF
81 FR 10159 - Disapproval of Air Quality Implementation Plans; Puerto Rico; Attainment Demonstration for the Arecibo Lead Nonattainment AreaPDF
81 FR 10264 - Notice Announcing the Automated Commercial Environment (ACE) as the Sole CBP-Authorized Electronic Data Interchange (EDI) System for Processing Certain Electronic Entry and Entry Summary FilingsPDF
81 FR 10168 - Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Infrastructure State Implementation Plan RequirementsPDF
81 FR 10206 - Notice of Request for Extension of Approval of an Information Collection; Horse Protection RegulationsPDF
81 FR 10247 - Appraisal Subcommittee Notice of MeetingPDF
81 FR 10276 - National Register of Historic Places; Notification of Extension of Comment Period for Pending Nomination of Chi'chil Bildagoteel (Oak Flats) Historic DistrictPDF
81 FR 10262 - National Institute on Drug Abuse; Notice of Closed MeetingsPDF
81 FR 10345 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing of a Proposed Rule Change, as Modified by Amendment No. 1 Thereto, To Amend Its Rules Regarding the Auction Process for Securities Subject to an Initial Public OfferingPDF
81 FR 10283 - Mitigation Strategies for Beyond-Design-Basis External EventsPDF
81 FR 10305 - Proposed Collection; Comment RequestPDF
81 FR 10277 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
81 FR 10218 - International Affairs; U.S. Fishing Opportunities in the Northwest Atlantic Fisheries Organization Regulatory AreaPDF
81 FR 10367 - Submission for OMB Review; Comment RequestPDF
81 FR 10369 - Notice of Open Public HearingPDF
81 FR 10223 - Applications for New Awards; Educational Technology, Media, and Materials for Individuals with Disabilities-Stepping-up Technology ImplementationPDF
81 FR 10285 - Strata Energy, Inc., Ross In SituPDF
81 FR 10156 - Anchorage Regulations: Special Anchorage Areas, Marina del Rey Harbor, CaliforniaPDF
81 FR 10284 - Advisory Committee on Reactor Safeguards; Notice of MeetingPDF
81 FR 10370 - Geriatrics and Gerontology Advisory Committee; Notice of MeetingPDF
81 FR 10241 - Promoting the Availability of Diverse and Independent Sources of Video ProgrammingPDF
81 FR 10246 - Federal Advisory Committee Act; Communications Security, Reliability, and Interoperability CouncilPDF
81 FR 10222 - Submission for OMB Review; Comment RequestPDF
81 FR 10216 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
81 FR 10217 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
81 FR 10273 - Model Indian Juvenile CodePDF
81 FR 10083 - Updated Legal Authority CitationsPDF
81 FR 10231 - Agency Information Collection Activities; Comment Request; Part 601 Preferred Lender ArrangementsPDF
81 FR 10057 - Federal Long Term Care Insurance Program Eligibility; CorrectionsPDF
81 FR 10152 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meetings for the Dedicated Purpose Pool Pumps (DPPP) Working Group To Negotiate a Notice of Proposed Rulemaking (NOPR) for Energy Conservation StandardsPDF
81 FR 10290 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of Partial Amendment No. 1 and Order Granting Accelerated Approval to a Proposed Rule Change To Adopt FINRA Rule 6191(a) To Implement the Quoting and Trading Requirements of the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 10279 - Narrow Woven Ribbons With Woven Selvedge From China and Taiwan; Scheduling of Full Five-Year ReviewsPDF
81 FR 10216 - New England Fishery Management Council; Public MeetingPDF
81 FR 10217 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
81 FR 10280 - Proposed Information Collection Request Submitted for Public Comment; on the Road to Retirement SurveysPDF
81 FR 10275 - Notice of Invitation To Participate Coal Exploration License Application MTM 107855, MontanaPDF
81 FR 10275 - Establishment and Availability of Final Boundary for Crooked Wild and Scenic River, Segment B, Prineville District, Crook County, OregonPDF
81 FR 10222 - U.S. Air Force Scientific Advisory Board Notice of MeetingPDF
81 FR 10273 - Michigan Department of Natural Resources; Application for Enhancement of Survival Permit; Proposed Programmatic Candidate Conservation Agreement With Assurances for the Eastern Massasauga Rattlesnake in Michigan; CorrectionPDF
81 FR 10213 - Notice of National Advisory Council on Innovation and Entrepreneurship MeetingPDF
81 FR 10356 - 2015/2016 Generalized System of Preferences (GSP) Annual Product Review: Inviting Public Comments on Possible Actions Related to Competitive Need LimitationsPDF
81 FR 10274 - Notice of Filing of Plats of Survey; AlaskaPDF
81 FR 10271 - Endangered and Threatened Species Permit ApplicationsPDF
81 FR 10250 - Issuance of Final PublicationPDF
81 FR 10269 - Draft Programmatic Candidate Conservation Agreement With Assurances, Draft Environmental Assessment, and Receipt of Application for Enhancement of Survival Permit for the Fisher in Western WashingtonPDF
81 FR 10126 - Positive Train Control SystemsPDF
81 FR 10289 - Designation of 14 Counties as High Intensity Drug Trafficking AreasPDF
81 FR 10267 - Advisory Committee on Family Residential Centers MeetingPDF
81 FR 10247 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
81 FR 10370 - Genomic Medicine Program Advisory Committee; Notice of MeetingPDF
81 FR 10248 - Proposed Agency Information Collection Activities; Comment RequestPDF
81 FR 10249 - Submission for OMB Review; PaymentsPDF
81 FR 10086 - Drawbridge Operation Regulation; Long Creek & Sloop Channel, Hempstead, NYPDF
81 FR 10256 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Food and Drug Administration's Research and Evaluation Survey for the Public Education Campaign on Tobacco Among LGBT (RESPECT)PDF
81 FR 10256 - Draft Food and Drug Administration Tribal Consultation Policy; Availability; Request for CommentsPDF
81 FR 10366 - Proposed Collection; Comment Request; Renewal Without Change of the Requirement for Information Sharing Between Government Agencies and Financial InstitutionsPDF
81 FR 10281 - Distribution of 2014 Cable Royalty FundsPDF
81 FR 10358 - Award Management Requirements: Proposed CircularPDF
81 FR 10278 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
81 FR 10063 - Direct Farm Ownership Microloan; CorrectionPDF
81 FR 10207 - Submission for OMB Review; Comment RequestPDF
81 FR 10208 - Submission for OMB Review; Comment RequestPDF
81 FR 10289 - Proposed Submission of Information Collection for OMB Review; Comment Request; Administrative AppealsPDF
81 FR 10276 - 2016 Preliminary Fee Rate and Fingerprint FeesPDF
81 FR 10363 - Agency Information Collection Activities: Information Collection Renewal; Comment Request; Consumer Protections for Depository Institution Sales of InsurancePDF
81 FR 10277 - Certain Diaper Disposal Systems and Components Thereof, Including Diaper Refill Cassettes; Institution of InvestigationPDF
81 FR 10198 - Service Contracts and NVOCC Service ArrangementsPDF
81 FR 10188 - Ocean Common Carrier and Marine Terminal Operator Agreements Subject to the Shipping Act of 1984PDF
81 FR 10232 - Applications for New Awards; Indian Education Discretionary Grants Programs-Demonstration Grants for Indian Children ProgramPDF
81 FR 10215 - Proposed Information Collection; Comment Request; Title of Collection Simple Network Application Process and Multipurpose Application FormPDF
81 FR 10214 - Proposed Information Collection; Comment Request; Offsets in Military ExportsPDF
81 FR 10214 - Proposed Information Collection; Comment Request; Title of Collection License Exemptions and ExclusionsPDF
81 FR 10364 - Agency Information Collection Activities; Information Collection Renewal; Comment Request; Funding and Liquidity Risk ManagementPDF
81 FR 10267 - Agency Information Collection Activities: Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery; Reinstatement, Without Change; Comment Request; OMB Control No. 1653-0050PDF
81 FR 10350 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Adopt an Early Trading Session and Three New Time-in-Force InstructionsPDF
81 FR 10310 - Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Adopt an Early Trading Session and Three New Time-In Force InstructionsPDF
81 FR 10306 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt FINRA Rule 0151 (Coordination with the MSRB) and Amend FINRA Rule 0150 (Application of Rules to Exempted Securities Except Municipal Securities)PDF
81 FR 10300 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees as Applicable to the Equity Options PlatformPDF
81 FR 10308 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Sections 1206 and 1212T of the NYSE MKT Company GuidePDF
81 FR 10315 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Designation of a Longer Period for Commission Action on Proposed Rule Change To List and Trade Shares of the SPDR DoubleLine Emerging Markets Fixed Income ETF of the SSgA Active TrustPDF
81 FR 10315 - Joint Industry Plan; Notice of Filing of the Tenth Amendment to the National Market System Plan To Address Extraordinary Market Volatility by BATS Exchange, Inc., BATSY-Exchange, Inc., Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc., NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, The Nasdaq Stock Market LLC, National Stock Exchange, Inc., New York Stock Exchange LLC, NYSE MKT LLC, and NYSE Arca, Inc.PDF
81 FR 10088 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Prevention of Significant Deterioration; Fine Particulate MatterPDF
81 FR 10086 - Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WAPDF
81 FR 10239 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NSPS for Stationary Combustion Turbines (Renewal)PDF
81 FR 10239 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NSPS for Small Municipal Waste Combustors (Renewal)PDF
81 FR 10241 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NSPS for Grain Elevators (Renewal)PDF
81 FR 10181 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Prevention of Significant Deterioration; Fine Particulate Matter (PM2.5PDF
81 FR 10158 - Revisions to the Requirements for Authority To Manufacture and Distribute Postage Evidencing SystemsPDF
81 FR 10262 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of Closed MeetingsPDF
81 FR 10264 - National Institute of Neurological Disorders and Stroke; Notice of Closed MeetingPDF
81 FR 10263 - Center For Scientific Review; Notice of Closed MeetingsPDF
81 FR 10262 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
81 FR 10264 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
81 FR 10263 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 10250 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Food Additive Petitions and Investigational Food Additive ExemptionsPDF
81 FR 10260 - Requirements for Transactions With First Responders Under Section 582 of the Federal Food, Drug, and Cosmetic Act-Compliance Policy; Guidance for Industry; AvailabilityPDF
81 FR 10252 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Adverse Event Reporting; Electronic SubmissionsPDF
81 FR 10250 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Guidance for Industry and Food and Drug Administration Staff; Section 905(j) Reports: Demonstrating Substantial Equivalence for Tobacco Products and Demonstrating the Substantial Equivalence of a New Tobacco Product: Responses to Frequently Asked QuestionsPDF
81 FR 10259 - Medical Devices-Quality Systems Survival: Success Strategies for Production and Process Controls/Corrective and Preventative Action; Public WorkshopPDF
81 FR 10257 - Agency Information Collection Activities; Proposed Collection; Comment Request; National Direct-to-Consumer Advertising SurveyPDF
81 FR 10081 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
81 FR 10087 - Atlantic Ocean South of Entrance to Chesapeake Bay Off Camp Pendleton, Virginia; Firing RangePDF
81 FR 10077 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
81 FR 10211 - Notice of Intent To Revise a Currently Approved Information CollectionPDF
81 FR 10074 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 10070 - Airworthiness Directives; Fokker Services B.V. AirplanesPDF
81 FR 10105 - Expansion of Online Public File Obligations to Cable and Satellite TV Operators and Broadcast and Satellite Radio LicenseesPDF
81 FR 10268 - Agency Information Collection Activities: Affidavit of Support; Form I-134; Revision of a Currently Approved CollectionPDF
81 FR 10240 - Regional Monitoring Networks (RMNs) To Detect Changing Baselines in Freshwater Wadeable StreamsPDF
81 FR 10182 - Approval of Air Quality Implementation Plans; Missouri State Implementation Plan for the 2008 Lead StandardPDF
81 FR 10162 - Approval and Promulgation of Air Quality Implementation Plans; State of Kansas; 2015 Kansas State Implementation Plan for the 2008 Lead StandardPDF
81 FR 10153 - Use of Chemical Agents or Other Less-Than-Lethal Force in Immediate Use of Force SituationsPDF
81 FR 10057 - Livestock Mandatory Reporting: Revision of Lamb Reporting RequirementsPDF
81 FR 10205 - Notice of Request for Revision to and Extension of a Currently Approved Information Collection for Commodities Covered by the Livestock Mandatory Reporting Act of 1999PDF
81 FR 10138 - Pecans Grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas; Secretary's Decision and Referendum Order on Proposed Marketing Agreement and Order No. 986PDF
81 FR 10072 - Airworthiness Directives; The Boeing Company Model 757-200 Series Airplanes Modified by Supplemental Type Certificate (STC) ST01529SE or STC ST02278SEPDF
81 FR 10210 - El Dorado County Resource Advisory CommitteePDF
81 FR 10208 - El Dorado County Resource Advisory CommitteePDF
81 FR 10132 - Livestock Mandatory Reporting: Reauthorization of Livestock Mandatory Reporting and Revision of Swine and Lamb Reporting RequirementsPDF
81 FR 10091 - Basic Health Program; Federal Funding Methodology for Program Years 2017 and 2018PDF
81 FR 10063 - Expanded Examination Cycle for Certain Small Insured Depository Institutions and U.S. Branches and Agencies of Foreign BanksPDF
81 FR 10209 - Lake Tahoe Basin Federal Advisory Committee (LTFAC)PDF
81 FR 10209 - Southwest Idaho Resource Advisory CommitteePDF
81 FR 10210 - Southwest Idaho Resource Advisory Committee MeetingPDF
81 FR 10371 - Addition of a Subsurface Intrusion Component to the Hazard Ranking SystemPDF

Issue

81 39 Monday, February 29, 2016 Contents Agricultural Marketing Agricultural Marketing Service RULES Livestock Mandatory Reporting: Lamb Reporting Requirements, 10057-10063 2016-04047 PROPOSED RULES Reauthorization of Livestock Mandatory Reporting and Revision of Swine and Lamb Reporting Requirements, 10132-10138 2016-03956 Secretary's Decision and Referendum Order on Proposed Marketing Agreement and Order No. 986: Pecans Grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas, 10138-10152 2016-04043 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Commodities Covered by the Livestock Mandatory Reporting Act, 10205-10206 2016-04045 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Animal and Plant Health Inspection Service

See

Farm Service Agency

See

Food and Nutrition Service

See

Forest Service

See

National Institute of Food and Agriculture

AIRFORCE Air Force Department NOTICES Meetings: U.S. Air Force Scientific Advisory Board, 10222 2016-04305 Animal Animal and Plant Health Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Horse Protection Regulations, 10206-10207 2016-04377 Centers Disease Centers for Disease Control and Prevention NOTICES Issuance of Final Publication, 10250 2016-04297 Centers Medicare Centers for Medicare & Medicaid Services RULES Basic Health Program; Federal Funding Methodology for Program Years 2017 and 2018, 10091-10105 2016-03902 Coast Guard Coast Guard RULES Drawbridge Operations: Lake Washington Ship Canal, Seattle, WA, 10086 2016-04244 Long Creek and Sloop Channel, Hempstead, NY, 10086-10087 2016-04278 PROPOSED RULES Special Anchorage Areas: Marina del Rey Harbor, CA, 10156-10158 2016-04336 Commerce Commerce Department See

Economic Development Administration

See

Industry and Security Bureau

See

National Oceanic and Atmospheric Administration

Comptroller Comptroller of the Currency RULES Expanded Examination Cycle for Certain Small Insured Depository Institutions and U.S. Branches and Agencies of Foreign Banks, 10063-10070 2016-03877 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Consumer Protections for Depository Institution Sales of Insurance, 10363-10364 2016-04266 Funding and Liquidity Risk Management, 10364-10366 2016-04255 Copyright Royalty Board Copyright Royalty Board NOTICES Distribution of 2014 Cable Royalty Funds, 10281-10282 2016-04274 Defense Department Defense Department See

Air Force Department

See

Engineers Corps

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10222-10223 2016-04328 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Payments, 10249-10250 2016-04280
Economic Development Economic Development Administration NOTICES Meetings: National Advisory Council on Innovation and Entrepreneurship, 10213-10214 2016-04302 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Part 601 Preferred Lender Arrangements, 10231-10232 2016-04323 Applications for New Awards: Educational Technology, Media, and Materials for Individuals with Disabilities--Stepping-up Technology Implementation, 10223-10231 2016-04338 Indian Education Discretionary Grants Programs--Demonstration Grants for Indian Children Program, 10232-10239 2016-04260 Employee Benefits Employee Benefits Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: On the Road to Retirement Surveys, 10280-10281 2016-04315 Energy Department Energy Department PROPOSED RULES Meetings: Appliance Standards and Rulemaking Federal Advisory Committee, 10152-10153 2016-04321 Engineers Engineers Corps RULES Danger Zones and Restricted Areas: Atlantic Ocean South of Entrance to Chesapeake Bay off Camp Pendleton, VA; Firing Range, 10087-10088 2016-04215 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Virginia; Prevention of Significant Deterioration; Fine Particulate Matter, 10088-10091 2016-04245 PROPOSED RULES Addition of a Subsurface Intrusion Component to the Hazard Ranking System, 10372-10432 2016-02749 Air Quality State Implementation Plans; Approvals and Promulgations: Kansas; 2015 Kansas State Implementation Plan for the 2008 Lead Standard, 10162-10168 2016-04080 Missouri; 2008 Lead Standard, 10182-10188 2016-04083 Puerto Rico—Attainment Demonstration for the Arecibo Lead Nonattainment Area, 10159-10162 2016-04438 Rhode Island—Infrastructure Requirements, 10168-10181 2016-04405 Virginia; Prevention of Significant Deterioration; Fine Particulate Matter (PM2.5), 10181-10182 2016-04240 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: NSPS for Grain Elevators, Renewal, 10241 2016-04241 NSPS for Small Municipal Waste Combustors, Renewal, 10239 2016-04242 NSPS for Stationary Combustion Turbines, 10239-10240 2016-04243 Regional Monitoring Networks to Detect Changing Baselines in Freshwater Wadeable Streams, 10240-10241 2016-04087 Farm Service Farm Service Agency RULES Direct Farm Ownership Microloan; Correction, 10063 2016-04271 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Fokker Services B.V. Airplanes, 10070-10072 2016-04137 The Boeing Company Airplanes, 10074-10077 2016-04138 The Boeing Company Model 757 200 Series Airplanes, 10072-10074 2016-04036 Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures, 10081-10083 2016-04216 Federal Communications Federal Communications Commission RULES Expansion of Online Public File Obligations to Cable and Satellite TV Operators and Broadcast and Satellite Radio Licensees, 10105-10126 2016-04117 NOTICES Meetings: Communications Security, Reliability, and Interoperability Council, 10246-10247 2016-04330 Promoting the Availability of Diverse and Independent Sources of Video Programming, 10241-10246 2016-04331 Federal Deposit Federal Deposit Insurance Corporation RULES Expanded Examination Cycle for Certain Small Insured Depository Institutions and U.S. Branches and Agencies of Foreign Banks, 10063-10070 2016-03877 Federal Financial Federal Financial Institutions Examination Council NOTICES Meetings: Appraisal Subcommittee, 10247 2016-04376 Federal Maritime Federal Maritime Commission PROPOSED RULES Amendments to Regulations Governing Service Contracts and NVOCC Service Arrangements, 10198-10204 2016-04264 Ocean Common Carrier and Marine Terminal Operator Agreements Subject to the Shipping Act of 1984, 10188-10198 2016-04263 Federal Motor Federal Motor Carrier Safety Administration NOTICES Meetings; Sunshine Act, 10358 2016-04460 Federal Railroad Federal Railroad Administration RULES Positive Train Control Systems, 10126-10131 2016-04293 Federal Reserve Federal Reserve System RULES Expanded Examination Cycle for Certain Small Insured Depository Institutions and U.S. Branches and Agencies of Foreign Banks, 10063-10070 2016-03877 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10248-10249 2016-04282 Changes in Bank Controls: Acquisitions of Shares of a Bank or Bank Holding Company, 10247-10248 2016-04285 Federal Transit Federal Transit Administration NOTICES Circulars: Award Management Requirements, 10358-10363 2016-04273 Financial Crimes Financial Crimes Enforcement Network NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Requirement for Information Sharing Between Government Agencies and Financial Institutions, 10366-10367 2016-04275 Fish Fish and Wildlife Service NOTICES Application for Enhancement of Survival Permit: Michigan Department of Natural Resources; Proposed Programmatic Candidate Conservation Agreement With Assurances for the Eastern Massasauga Rattlesnake in Michigan; Correction, 10273 2016-04304 Endangered and Threatened Species Permit Applications, 10271-10273 2016-04298 Environmental Assessments; Availability, etc.: Draft Programmatic Candidate Conservation Agreement with Assurances, Receipt of Application for Enhancement of Survival Permit for the Fisher in Western Washington, 10269-10271 2016-04294 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Adverse Event Reporting; Electronic Submissions, 10252-10256 2016-04223 Food Additive Petitions and Investigational Food Additive Exemptions, 10250-10252 2016-04228 Guidance for Industry and Food and Drug Administration Staff; Section 905(j) Reports; Demonstrating Substantial Equivalence for Tobacco Products and Demonstrating the Substantial Equivalence of a New Tobacco Product; Responses to Frequently Asked Questions, 10250 2016-04222 National Direct-to-Consumer Advertising Survey, 10257-10259 2016-04220 Research and Evaluation Survey for the Public Education Campaign on Tobacco Among LGBT, 10256 2016-04277 Draft Tribal Consultation Policy, 10256-10257 2016-04276 Guidance for Industry: Requirements for Transactions with First Responders under Section 582 of the Federal Food, Drug, and Cosmetic Act--Compliance Policy, 10260-10261 2016-04227 Meetings: Medical Devices--Quality Systems Survival; Success Strategies for Production and Process Controls/Corrective and Preventative Action; Public Workshop, 10259-10260 2016-04221 Food and Nutrition Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10207-10208 2016-04270 Forest Forest Service NOTICES Meetings: El Dorado County Resource Advisory Committee, 10210-10211 2016-04010 Lake Tahoe Basin Federal Advisory Committee, 10209-10210 2016-03842 Southwest Idaho Resource Advisory Committee, 10209 2016-03564 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Payments, 10249-10250 2016-04280 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

Homeland Homeland Security Department See

Coast Guard

See

U.S. Citizenship and Immigration Services

See

U.S. Customs and Border Protection

See

U.S. Immigration and Customs Enforcement

Indian Affairs Indian Affairs Bureau NOTICES Model Indian Juvenile Code, 10273-10274 2016-04325 Industry Industry and Security Bureau RULES Updated Legal Authority Citations, 10083-10086 2016-04324 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Offsets in Military Exports, 10214 2016-04258 Simple Network Application Process and Multipurpose Application Form, 10215-10216 2016-04259 Title of Collection License Exemptions and Exclusions, 10214-10215 2016-04257 Interior Interior Department See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

Land Management Bureau

See

National Indian Gaming Commission

See

National Park Service

International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Narrow Woven Ribbons with Woven Selvedge from China and Taiwan; Scheduling of Full Five-Year Reviews, 10279-10280 2016-04319 Complaints: Certain Nanopores and Products Containing Same, DN 3123, 10278-10279 2016-04272 Investigations; Determinations, Modifications, and Rulings, etc.: Certain Diaper Disposal Systems and Components Thereof, Including Diaper Refill Cassettes, 10277-10278 2016-04265 Justice Department Justice Department See

Prisons Bureau

Labor Department Labor Department See

Employee Benefits Security Administration

Land Land Management Bureau NOTICES Final Boundaries: Crooked Wild and Scenic River, Segment B, Prineville District, Crook County, OR, 10275 2016-04307 Invitation to Participate Coal Exploration License Application MTM 107855, Montana, 10275-10276 2016-04308 Plats of Survey: Alaska, 10274 2016-04299 Library Library of Congress See

Copyright Royalty Board

Mississippi Mississippi River Commission NOTICES Meetings; Sunshine Act, 10282 2016-04490 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Payments, 10249-10250 2016-04280 National Indian National Indian Gaming Commission NOTICES 2016 Preliminary Fee Rate and Fingerprint Fees, 10276 2016-04267 National Institute Food National Institute of Food and Agriculture NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10211-10213 2016-04188 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 10263 2016-04234 National Heart, Lung, and Blood Institute, 10262 2016-04233 National Institute of Arthritis and Musculoskeletal and Skin Diseases, 10262 2016-04236 National Institute of Neurological Disorders and Stroke, 10264 2016-04235 National Institute on Drug Abuse, 10262-10263 2016-04362 National Oceanic National Oceanic and Atmospheric Administration NOTICES International Affairs: U.S. Fishing Opportunities in the Northwest Atlantic Fisheries Organization Regulatory Area, 10218-10222 2016-04341 Meetings: Gulf of Mexico Fishery Management Council, 10217-10218 2016-04316 Mid-Atlantic Fishery Management Council, 10216 2016-04327 New England Fishery Management Council, 10216 2016-04317 National Park National Park Service NOTICES National Register of Historic Places: Notification of Extension of Comment Period for Pending Nomination of Chi'chil Bildagoteel (Oak Flats) Historic District, 10276 2016-04373 Pending Nominations and Related Actions, 10277 2016-04342 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Guidance: Mitigation Strategies for Beyond-Design-Basis External Events, 10283-10284 2016-04353 License Amendment Applications: Strata Energy, Inc., Ross In Situ Recovery Project, 10285-10289 2016-04337 Meetings: Advisory Committee on Reactor Safeguards, 10284-10285 2016-04334 Meetings; Sunshine Act, 10282-10283 2016-04478 Office National Office of National Drug Control Policy NOTICES Designation of 14 Counties as High Intensity Drug Trafficking Areas, 10289 2016-04291 Overseas Overseas Private Investment Corporation NOTICES Meetings; Sunshine Act, 10289 2016-04476 Pension Benefit Pension Benefit Guaranty Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Administrative Appeals, 10289-10290 2016-04268 Personnel Personnel Management Office RULES Federal Long Term Care Insurance Program Eligibility; Corrections, 10057 2016-04322 Postal Service Postal Service PROPOSED RULES Requirements for Authority to Manufacture and Distribute Postage Evidencing Systems, 10158-10159 2016-04237 Prisons Prisons Bureau PROPOSED RULES Use of Chemical Agents or Other Less-Than-Lethal Force in Immediate Use of Force Situations, 10153-10155 2016-04069 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10305 2016-04351 Joint Industry Plans: Filing of the Tenth Amendment to the National Market System Plan to Address Extraordinary Market Volatility by BATS Exchange, Inc., BATS Y-Exchange, Inc., Chicago Stock Exchange, Inc., et al., 10315-10345 2016-04246 Self-Regulatory Organizations; Proposed Rule Changes: BATS Exchange, Inc., 10345-10350 2016-04358 BATS Y-Exchange, Inc., 10310-10315 2016-04251 EDGX Exchange, Inc., 10300-10305 2016-04249 Financial Industry Regulatory Authority, Inc., 10290-10299 2016-04320 NYSE MKT, LLC, 10308-10309 2016-04248 Trade Representative Trade Representative, Office of United States NOTICES 2015/2016 Generalized System of Preferences Annual Product Review, 10356-10358 2016-04301 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

Federal Transit Administration

Treasury Treasury Department See

Comptroller of the Currency

See

Financial Crimes Enforcement Network

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10367-10369 2016-04340
U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Affidavit of Support, 10268-10269 2016-04089 Customs U.S. Customs and Border Protection NOTICES Automated Commercial Environment as the Sole CBP-Authorized Electronic Data Interchange System for Processing Certain Electronic Entry and Entry Summary Filings, 10264-10267 2016-04421 Immigration U.S. Immigration and Customs Enforcement NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery; Reinstatement, Without Change, 10267-10268 2016-04253 Meetings: Advisory Committee on Family Residential Centers, 10267 2016-04286 U.S. China U.S.-China Economic and Security Review Commission NOTICES Meetings: Security Review Commission; Hearing, 10369-10370 2016-04339 Veteran Affairs Veterans Affairs Department NOTICES Meetings: Genomic Medicine Program Advisory Committee, 10370 2016-04283 Geriatrics and Gerontology Advisory Committee, 10370 2016-04333 Separate Parts In This Issue Part II Environmental Protection Agency, 10372-10432 2016-02749 Reader Aids

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

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81 39 Monday, February 29, 2016 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Parts 875 RIN 3206-AN05 Federal Long Term Care Insurance Program Eligibility; Corrections AGENCY:

U.S. Office of Personnel Management.

ACTION:

Correcting amendments.

SUMMARY:

The United States Office of Personnel Management (OPM) published a document in the Federal Register on October 30, 2015, (80 FR 66785) expanding eligibility to apply for coverage under the Federal Long Term Care Insurance Program (FLTCIP). The final rule stated that the definitions for “domestic partner” and “domestic partnership” were revised, but OPM meant to add the definitions. This correcting amendment adds those definitions to OPM's regulations.

DATES:

Effective March 30, 2016.

FOR FURTHER INFORMATION CONTACT:

Ronald Brown, Policy Analyst, (202) 606-0004, or by email to [email protected]

SUPPLEMENTARY INFORMATION:

On October 30, 2015, OPM published FLTCIP final regulations in the Federal Register to (1) Expand the definition of “qualified relative” under 5 U.S.C. 9001(5)(D) to include both same-sex and opposite-sex domestic partners of Federal and U.S. Postal Service employees and annuitants and members and retired members of the uniformed services; (2) expand the definition of “qualified relative” to include adult children of domestic partners of Federal and U.S. Postal Service employees and annuitants, and members and retired members of the uniformed services; and (3) make other technical conforming amendments. See 80 FR 66785-66787. This document amends the regulations by adding the definitions of “domestic partner” and “domestic partnership” to 5 CFR 875.101.

List of Subjects in 5 CFR Part 875

Administrative practice and procedure, Employee benefit plans, Government contracts, Government employees, Health insurance, Military personnel, Organization and functions, Retirement.

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

Accordingly, OPM is amending 5 CFR part 875 as follows:

PART 875—FEDERAL LONG TERM CARE INSURANCE PROGRAM 1. The authority citation for 5 CFR part 875 continues to read as follows: Authority:

5 U.S.C. 9008.

Subpart A—Administration and General Provisions 2. Section 875.101 is amended by adding the definitions of “Domestic partner” and “Domestic partnership” in alphabetical order to read as follows:
§ 875.101 Definitions.

Domestic partner is defined as a person in a domestic partnership with an employee, annuitant, member of the uniformed services, or retired member of the uniformed services.

Domestic partnership means:

(1) A committed relationship between two adults, of the opposite sex or same sex, in which the partners—

(i) Are each other's sole domestic partner and intend to remain so indefinitely;

(ii) Maintain a common residence, and intend to continue to do so (or would maintain a common residence but for an assignment abroad or other employment-related, financial, or similar obstacle);

(iii) Are at least 18 years of age and mentally competent to consent to a contract;

(iv) Share responsibility for a significant measure of each other's financial obligations;

(v) Are not married or joined in a civil union to anyone else;

(vi) Are not a domestic partner of anyone else;

(vii) Are not related in a way that would prohibit legal marriage in the U.S. jurisdiction in which the domestic partnership was formed;

(viii) Provide documentation demonstrating fulfillment of the requirements of paragraphs (1)(i) through (vii) of this definition as prescribed by OPM; and

(ix) Certify that they understand that willful falsification of the documentation described in paragraph (1)(viii) of this definition may lead to disciplinary action and the recovery of the cost of benefits received related to such falsification and may constitute a criminal violation under 18 U.S.C. 1001.

(2) You or your domestic partner must notify the employing office if at any time between the time of application and the time coverage is scheduled to go into effect, any of the conditions listed in paragraphs (1)(i) through (vii) of this definition are no longer met, in which case a domestic partnership is deemed terminated. Such notification must be made as soon as possible, but in no event later than thirty calendar days after such conditions are no longer met.

[FR Doc. 2016-04322 Filed 2-26-16; 8:45 am] BILLING CODE 6325--63-P
DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 59 [Doc. No. AMS-LPS-15-0071] RIN 0581-AD46 Livestock Mandatory Reporting: Revision of Lamb Reporting Requirements AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Direct final rule.

SUMMARY:

On April 2, 2001, the U.S. Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) implemented the Livestock Mandatory Reporting (LMR) program as required by the Livestock Mandatory Reporting Act of 1999 (1999 Act). The LMR program was reauthorized in October 2006 and again in September 2010. On September 30, 2015, the Agriculture Reauthorizations Act of 2015 (2015 Reauthorization Act) reauthorized the LMR program for an additional 5 years and directed the Secretary of Agriculture (Secretary) to amend the LMR lamb reporting requirements by redefining terms within the Code of Federal Regulations not later than 180 days after enactment. This direct final rule incorporates the lamb reporting changes contained within the 2015 Reauthorization Act under the USDA LMR regulations.

DATES:

Effective Date: This rule is effective May 31, 2016 unless the Agency receives substantive adverse comments on or before April 29, 2016. If any timely substantive adverse comments are received, this direct final rule will be withdrawn in part or in whole by publication of a document in the Federal Register within 30 days after the comment period ends. Pursuant to the Paperwork Reduction Act, comments on the information collection burden that would result from this direct final rule must be received by April 29, 2016.

ADDRESSES:

Comments should be submitted electronically at http://www.regulations.gov. Comments may also be sent to Michael Lynch, Director; Livestock, Poultry, and Grain Market News Division; Livestock, Poultry, and Seed Program; AMS, USDA, Room 2619-S, STOP 0252; 1400 Independence Avenue SW., Washington, DC 20250-0251; telephone (202) 720-4868; fax (202) 690-3732; or email to Mich[email protected].

Comments should reference docket number AMS-LPS-15-0071 and the date and page number of this issue of the Federal Register. Submitted comments will be available for public inspection at http://www.regulations.gov, or during regular business hours at the above address. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the Internet at the address provided above.

Comments that specifically pertain to the information collection and recordkeeping requirements of this action should also be sent to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, 725 17th Street NW., Room 725, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT:

Michael Lynch, Director; Livestock, Poultry, and Grain Market News Division; Livestock, Poultry, and Seed Program; AMS, USDA, Room 2619-S, STOP 0252; 1400 Independence Avenue SW., Washington, DC 20250-0251; telephone (202) 720-4868; fax (202) 690-3732; or email to [email protected].

SUPPLEMENTARY INFORMATION: I. Background

The 1999 Act was enacted into law on October 22, 1999, [Pub. L. 106-78; 113 Stat. 1188; 7 U.S.C. 1635-1636(i)] as an amendment to the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621 et seq.). On April 2, 2001, AMS Livestock, Poultry, and Seed Program's (LPS) Livestock, Poultry, and Grain Market News Division (LPGMN) implemented the LMR program as required by the 1999 Act. The purpose was to establish a program of easily understood information regarding the marketing of cattle, swine, lambs, and livestock products; improve the price and supply reporting services of the USDA; and encourage competition in the marketplace for livestock and livestock products. The LMR regulations (7 CFR part 59) set the requirements for certain packers or importers to electronically submit purchase and sales information of livestock and livestock products to meet this purpose.

The statutory authority for the program lapsed on September 30, 2005. In October 2006, Congress passed the Livestock Mandatory Reporting Reauthorization Act (2006 Reauthorization Act) [Pub. L. 109-296]. The 2006 Reauthorization Act re-established the regulatory authority for the continued operation of LMR through September 30, 2010. On July 15, 2008, the LMR final rule became effective (73 FR 28606, May 16, 2008).

On September 28, 2010, Congress passed the Mandatory Price Reporting Act of 2010 (2010 Reauthorization Act) [Pub. L. 111-239]. The 2010 Reauthorization Act reauthorized LMR for an additional 5 years through September 30, 2015. On January 7, 2013, the LMR final rule became effective (77 FR 50561, August 22, 2012).

On September 30, 2015, the Agriculture Reauthorizations Act of 2015 (2015 Reauthorization Act) [Pub. L. 114-54] reauthorized the LMR program for an additional 5 years and directed the Secretary to revise the LMR lamb reporting requirements by modifying the definitions of packer and importer within the Code of Federal Regulations not later than 180 days after enactment.

It is found and determined that good cause exists for implementing this direct final rule on May 31, 2016. This rule has been determined to be a “non-significant regulatory action” under section 3(f) of Executive Order 12866; and, AMS finds that under 5 U.S.C. 553(b)(3)(B) and 808(2) good cause exists to publish a direct final rule without prior publication of a notice of proposed rulemaking. The Agriculture Reauthorizations Act of 2015 directed the Secretary to revise the LMR lamb reporting requirements by redefining terms within the Code of Federal Regulations not later than 180 days after enactment which was September 30, 2015. This statutory deadline made it impracticable for AMS to publish a proposed rule prior to issuing a direct final rule. Additionally, prior notice and opportunity for comment are unnecessary because the revisions in the direct final rule are based upon lamb industry recommendations and AMS does not expect substantive public comments for this rulemaking due to the minor nature and minimal impact of the revision. The Livestock Marketing Information Center (LMIC), an independent provider of economic analyses concerning the livestock industry, conducted an analysis of the current LMR program for lamb reporting in 2013 at the request of the American Sheep Industry Association, an industry organization representing sheep producers throughout the U.S. The regulatory revisions within this rulemaking are based upon this study.1

1 Hearing to Review Reauthorization of the Livestock Mandatory Reporting Act: Hearing before the Subcommittee on Livestock and Foreign Agriculture of the Committee on Agriculture, House of Representatives, 114th Cong., 1st sess. (Serial No. 114-12). (2015). Retrieved from GPO's Federal Digital System: https://www.thefederalregister.org/fdsys/pkg/CHRG-114hhrg94372/pdf/CHRG-114hhrg94372.pdf.

This direct final rule incorporates the lamb reporting changes contained within the 2015 Reauthorization Act under the USDA LMR regulations. As part of this direct final rule, interested parties may submit comments by April 29, 2016. If AMS receives substantive adverse comments on the rule, it will evaluate the comment to determine whether they are sufficiently compelling to warrant reconsideration of the effective date of the rule. Accordingly, this rule will be effective on May 31, 2016.

Section 241 of the 1999 Act gives USDA authority to establish a mandatory lamb price reporting program that will: (1) Provide timely, accurate, and reliable market information; (2) facilitate more informed marketing decisions; and (3) promote competition in the lamb slaughtering industry. AMS established submission requirements for lamb packers and lamb importers in accordance with this authority based upon its extensive knowledge of the lamb industry gained through a program of voluntary market information reporting of lamb.

Under the current LMR regulation, the term packer includes federally inspected lamb processing plants that slaughtered or processed an average of 75,000 head of lamb during the immediately preceding 5 calendar years. Additionally, a lamb processing plant that did not slaughter or process an average of 75,000 lambs during the immediately preceding 5 calendar years was required to report information if the Secretary determined the processing plant should be considered a packer based on its capacity. According to the regulation, packers are required to report information daily on domestic sales of boxed lamb cuts each reporting day including the price and quantity for each sale, the type of sale, the USDA grade, trim specification, weight range, delivery period, the product state of refrigeration, and any branded product characteristics. USDA reports on domestic boxed lamb cut sales to the public once each reporting day.

For any calendar year, a lamb importer who imported an average of 2,500 metric tons of lamb meat products per year during the immediately preceding 5 calendar years is required to report to USDA weekly the prices received for imported lamb cuts sold on the domestic market. Additionally, the term includes those that did not import an average of 2,500 metric tons of lamb meat products during the immediately preceding 5 calendar years, if USDA determines that the person should be considered an importer based on their volume of lamb imports. In the original rule, this threshold was an average of 5,000 metric tons of lamb meat products during the immediately preceding 5 calendar years, but was subsequently lowered to 2,500 metric tons in a final rule published in 2004 (69 FR 53784, September 2, 2004). Because there are not enough daily sales of imported products to meet the confidentiality guidelines and allow USDA to publish daily reports, lamb importers are required to report information on a weekly basis for sales of imported boxed lamb cuts sold on the domestic market during the prior week including the price and quantity for each sale, the type of sale, the USDA grade, trim specification, weight range, delivery period, the product state of refrigeration, and any branded product characteristics.

Since the implementation of LMR in 2001 and its subsequent revisions, the U.S. lamb industry has become more concentrated at all levels of the production system through consolidation, impacting AMS' ability to publish certain market information in accordance with the confidentiality provisions of the 1999 Act. To help address this issue, LMIC conducted an analysis of the current LMR program for lamb reporting in 2013 at the request of the American Sheep Industry Association.2 Based on this study, recommendations were proposed to amend the current LMR regulations to improve the price and supply reporting services of AMS and better align LMR lamb reporting requirements with current industry marketing practices. These recommendations are the basis for the lamb reporting changes contained within the 2015 Reauthorization Act under the USDA LMR regulations.

2 Hearing to Review Reauthorization of the Livestock Mandatory Reporting Act: Hearing before the Subcommittee on Livestock and Foreign Agriculture of the Committee on Agriculture, House of Representatives, 114th Cong., 1st sess. (Serial No. 114-12). (2015). Retrieved from GPO's Federal Digital System: https://www.thefederalregister.org/fdsys/pkg/CHRG-114hhrg94372/pdf/CHRG-114hhrg94372.pdf.

The 2015 Reauthorization Act revised the LMR lamb reporting requirements by modifying the definitions of packer and importer contained within the Code of Federal Regulations. Under the 2015 Reauthorization Act, the term “packer” includes any person with 50 percent or more ownership in a facility that slaughtered or processed an average of 35,000 lambs during the immediately preceding 5 calendar years, or a facility that did not slaughter or process an average of 35,000 lambs during the immediately preceding 5 calendar years if the Secretary determines that the processing plant should be considered a packer after considering its capacity.

In addition, under the 2015 Reauthorization Act, the term “importer” includes any person that imported an average of 1,000 metric tons of lamb meat products per year during the immediately preceding 4 calendar years, or did not import an average 1,000 metric tons of lamb meat products during the immediately preceding 4 calendar years and the Secretary determines that the person should be considered an importer based on their volume of lamb imports.

For consistency, the establishment of the 1,000 metric tons reporting provision on lamb importers will be comparable with the 35,000 head provision defining a lamb packer for purposes of LMR. The 1,000 metric tons provision is equal to approximately 2.2 million pounds of lamb meat product (1,000 metric tons × 2,204.6 pounds = 2,204,600 pounds). The 35,000 head provision is equal to approximately 2.4 million pounds of lamb meat product based upon an average lamb carcass weight of 69 pounds (National Agricultural Statistics Service data for 2014) (35,000 head × 69 pounds = 2,415,000 pounds).

II. Requirements

As required by the 2015 Reauthorization Act, the reporting requirements for lamb are revised by modifying the definitions of packer and importer within the Code of Federal Regulations not later than 180 days after enactment. Subpart D of part 59 lists the requirements of lamb reporting beginning with § 59.300, establishing definitions for terms used throughout the subpart including those of packer and importer, which are the entities required to report under this rule. Therefore, under this direct final rule, the definition of a packer is modified within § 59.300 to include any person with 50 percent or more ownership in a facility that slaughtered or processed an average of 35,000 lambs during the immediately preceding 5 calendar years, or that did not slaughter or process an average of 35,000 lambs during the immediately preceding 5 calendar years if the Secretary determines that the processing plant should be considered a packer after considering its capacity. Additionally, under this direct final rule, the definition of an importer is modified within § 59.300 to include any person that imported an average of 1,000 metric tons of lamb meat products per year during the immediately preceding 4 calendar years, or did not import an average 1,000 metric tons of lamb meat products during the immediately preceding 4 calendar years and the Secretary determines that the person should be considered an importer based on their volume of lamb imports.

For entities that did not slaughter or process an average of 35,000 lambs during the immediately preceding 5 calendar years, AMS will project the plant's annual slaughter or production based upon the plant's estimate of annual slaughter capacity to determine which entities meet the definition of a packer as defined in these regulations.

For importers of lamb meat products, AMS will annually review import lamb volume data obtained from the U.S. Customs and Border Protection to determine which importers are required to report imported lamb information under these regulations.

III. Classification Executive Order 12866 and Executive Order 13563

This direct final rule is being issued by USDA with regard to the LMR program in conformance with Executive Orders 12866 and 13563.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives, and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

This action has been designated as a “non-significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has waived the review process for this action.

Regulatory Flexibility Act

In General. This direct final rule has been reviewed under the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612). The purpose of RFA is to consider the economic impact of a rule on small business entities. Alternatives, which would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the marketplace, have been evaluated. Regulatory action should be appropriate to the scale of the businesses subject to the action. The collection of information is necessary for the proper performance of the functions of AMS concerning the mandatory reporting of livestock information. Information is only available directly from those entities required to report under these regulations and exists nowhere else. Therefore, this direct final rule does not duplicate market information reasonably accessible to the USDA.

Objectives and Legal Basis. The objective of this direct final rule is to improve the price and supply reporting services of the USDA to encourage competition in the marketplace for lambs and lamb meat products as specifically directed by the 2015 Reauthorization Act and these regulations, as described in detail in the background section.

Estimated Number of Small Businesses. Under the 2015 Reauthorization Act, a lamb packer includes any person with 50 percent or more ownership in a facility that slaughtered or processed an average of 35,000 lambs during the immediately preceding 5 calendar years, or that did not slaughter or process an average of 35,000 lambs during the immediately preceding 5 calendar years if the Secretary determines that the processing plant should be considered a packer after considering its capacity. Additionally, under the 2015 Reauthorization Act, a lamb importer includes any person that imported an average of 1,000 metric tons of lamb meat products per year during the immediately preceding 4 calendar years, or did not import an average of 1,000 metric tons of lamb meat products during the immediately preceding 4 calendar years if the Secretary determines that the person should be considered an importer based on their volume of lamb imports. AMS estimates that approximately 1 additional company operating 1 lamb slaughtering plant and approximately 3 additional firms that import lamb carcasses and/or lamb meat are required to report market information under this final rule.

For this regulatory flexibility analysis, AMS utilized the North American Industry Classification System (NAICS), the standard used by Federal statistical agencies to classify business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy. This analysis compares the size of lamb packing companies and importing firms to the NAICS standards to determine the percentage of small businesses within the industry affected by this rule. Under these size standards, meat packing companies with 500 or less employees are considered small business entities.3 Based on this size standard and its knowledge of the lamb industry, AMS estimates that all lamb packing companies currently required to report under LMR are considered to be small businesses. As such, the additional company affected by this direct final rule under the 2015 Reauthorization Act is also considered to be a small business. Additionally, the NAICS small business size standard for meat importers is 100 or less employees.4 Based on its knowledge of the industry and previous experience with LMR, AMS estimates that the additional lamb importers affected by this direct final rule are classified as small businesses under the NAICS standard.

3 North American Industry Classification System, code 311611 for abattoirs.

4 North American Industry Classification System, code 424470 for meat and meat product merchant wholesalers.

The LMR regulations require lamb slaughter and processing plants and lamb importers of a certain size to report information to the USDA at prescribed times throughout the day and week. The LMR regulations already exempt many small businesses by the establishment of annual slaughter, processing, and import capacity thresholds. Based on figures published by the National Agricultural Statistics Service, there were 522 federally inspected lamb slaughter plants operating in the U.S. at the end of 2014. This LMR regulation requires 16 lamb packers and importers to report information (less than 2 percent of all federally inspected lamb plants and approximately 1 percent of all lamb importers). Therefore, approximately 98 percent of lamb packers and approximately 99 percent of lamb importers are exempt from reporting information by this direct final rule. As previously discussed, this final rule does not change this exemption. With regard to alternatives, if the definitions of a lamb packer and importer are not changed, AMS would continue to be hindered in reporting more accurate and reliable information on purchases of slaughter lambs and sales of domestic and imported boxed lamb cuts due to information confidentiality requirements of the 1999 Act.

Projected Reporting. The LMR regulations require the reporting of specific market information regarding the buying and selling of livestock and livestock products. This information is reported to AMS by electronic means and the adoption of this direct final rule will not affect this requirement. Electronic reporting involves the transfer of data from a packer's or importer's electronic recordkeeping system to a centrally located AMS electronic database. The packer or importer is required to organize the information in an AMS-approved format before electronically transmitting the information to AMS. Once the required information has been entered into the AMS database, it is aggregated and processed into various market reports, which are released according to the daily and weekly time schedule set forth in the LMR regulations. As an alternative, AMS also developed and made available web-based input forms for submitting data online as AMS found that some of the smaller entities covered under mandatory price reporting would benefit from such a web-based submission system. AMS estimates the total annual burden on each lamb packer to be $7,973, including $5,406 for annual costs associated with electronically submitting data, $699 for startup/annual maintenance costs, and $1,868 for the storage and maintenance of electronic files submitted to AMS. AMS estimates the total annual burden on each importer of lamb to be $2,682, including $115 for annual costs associated with electronically submitting data, $699 for startup/annual maintenance costs, and $1,868 for the storage and maintenance of electronic files submitted to AMS.

This rule does not substantially change these prior estimates. Adjusting the 75,000 head provision that establishes those lamb packers covered under the LMR regulation to 35,000 head increases the number of lamb packers required to report by 1 company; the estimated cost burden of $7,973 per packer remains the same. Likewise, the amended 2,500 metric tons provision that establishes those lamb importers covered under the LMR regulations to 1,000 metric tons increases the number of lamb importers required to report by 3; the estimated annual cost burden of $2,682 per importer remains the same.

Each packer and importer required to report information to USDA under LMR must maintain such records as are necessary to verify the accuracy of the information provided to AMS. This includes information regarding price, class, head count, weight, quality grade, yield grade, and other factors necessary to adequately describe each transaction. These records are already kept by the industry. Reporting packers and importers are required to maintain and make available the original contracts, agreements, receipts, and other records associated with any transaction relating to the purchase, sale, pricing, transportation, delivery, weighing, slaughter, or carcass characteristics of all livestock, and to maintain these records for a minimum of 2 years. Packers and importers are not required to report any other new or additional information they do not generally have available or maintain. Further, they are not required to keep any information that would prove unduly burdensome to maintain. The paperwork burden imposed on the packers and importers is further discussed in the following section entitled Paperwork Reduction Act.

In addition, AMS has not identified any relevant federal rules currently in effect that duplicate, overlap, or conflict with this rule. Professional skills required for recordkeeping under the LMR regulations are not different than those already employed by the reporting entities. Reporting is accomplished using computers or similar electronic means. This direct final rule does not affect the professional skills required for recordkeeping already employed by the reporting entities. Reporting will be accomplished using computers or similar electronic means. AMS believes the skills needed to maintain such systems are already in place in those small businesses affected by this rule.

Alternatives. This direct final rule requires lamb packing plants and lamb importers of a certain size to report information to the Secretary at prescribed times throughout the day and week. The 1999 Act and these regulations exempt the vast majority of small businesses by the establishment of slaughter, processing, and import capacity thresholds.

AMS recognizes that most of the economic impact of this direct final rule on those small entities required to report involves the manner in which information must be reported to the Secretary. However, in developing this direct final rule, AMS considered other means by which the objectives of this direct final rule could be accomplished, including reporting the required information by telephone, facsimile, and regular mail. AMS believes these alternatives are not capable of meeting the program objectives, especially timely reporting. The LMR regulations prescribe specific times that reporting entities must report to AMS and similarly prescribes specific times for publication of reports by AMS. AMS believes electronic submission to be the only method capable of allowing AMS to collect, review, process, aggregate, and publish reports while complying with the specific time-frames set forth in the 1999 Act and regulations.

To respond to concerns of smaller operations, AMS developed a web-based input form for submitting data online. Based on prior experience, AMS found that some of the smaller entities covered under mandatory price reporting would benefit from such a Web-based submission system. Accordingly, AMS developed such a system for program implementation.

Additionally, to further assist small businesses, AMS may provide for an exception to electronic reporting in emergencies, such as power failures or loss of Internet accessibility, or in cases when an alternative is agreeable between AMS and the reporting entity.

Other than these alternatives, there are no other practical and feasible alternatives to the methods of data transmission that are less burdensome to small businesses. AMS will continue to work actively with those small businesses required to report and provide the technical assistance needed, in an effort to minimize the burden on them to the maximum extent practicable.

Paperwork Reduction Act

In accordance with OMB regulations (5 CFR part 1320) that implement the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the information collection requirements included in 7 CFR part 59 were previously approved by OMB and were assigned control number 0581-0186 Livestock Mandatory Reporting Act of 1999. The purpose of this direct final rule is to amend the LMR regulations to modify the requirement for the submission of information on domestic and imported lamb sales. All other provisions of the LMR regulations remain the same.

Adjusting the 75,000 head provision that establishes those lamb packers covered under the LMR regulation to 35,000 head, increases the number of lamb packers required to report from 7 to 8; likewise, the amended 2,500 metric tons provision that establishes those lamb importers covered under the LMR regulations to 1,000 metric tons increases the number of lamb importers required to report from 5 to 8.5 This change does not substantially impact the overall total burden hours from the increase of 4 entities and 16 plants (respondents).

5 The 4 additional entities reporting under the amended requirements own multiple plants, each of which are reflected as individual respondents under the previously approved 0581-0186.

The new collective overall burden for this collection is as follows:

Estimate of Burden: Public reporting burden for this collection of information is estimated to average .172 hours per response.

Respondents: Business or other for profit entities, individuals or households, farms, and the Federal Government.

Estimated Number of Respondents: 438 respondents.

Estimated Number Responses: 139,776 responses.

Estimated Number of Responses per Respondent: 319 responses.

Estimated Total Annual Burden on Respondents: 24,055 hours.

New Estimate of Burden: Public reporting burden for this collection of information is estimated to average .23 hours per response.

Respondents: Business or other for profit entities, individuals or households, farms, and the Federal Government.

Estimated Number of Respondents: 16 respondents.

Estimated Number Responses: 1,248 responses.

Estimated Number of Responses per Respondent: 78 responses.

Estimated Total Annual Burden on Respondents: 289 hours.

Upon publication of this direct final rule, AMS will submit a Justification for Change to OMB for approval of an increase in number of respondents and an increase in burden hours for the following forms under the currently approved OMB 0581-0186 Livestock Mandatory Reporting Act of 1999: LS-121 Live Lamb Daily Report—Current Established Prices, LS-123 Live Lamb Weekly Report, LS-124 Live Lamb Weekly Report—Formula Purchases, LS-125 Lamb Premiums and Discounts Weekly Report, LS-128 Boxed Lamb Daily Report, and LS-129 Lamb Carcass Report.

AMS is committed to implementation of the Government Paperwork Elimination Act which provides for the use of information resources to improve the efficiency and effectiveness of governmental operations, including providing the public with the option of submitting information or transacting business electronically to the extent practicable. AMS believes the burden savings resulting from electronically compiling and submitting a reduced number of sales transactions to be negligible.

It is hereby found that this direct final rule, as hereinafter set forth, is consistent with and will effectuate the declared policy of the Livestock Mandatory Reporting Act of 1999 and the Agriculture Reauthorizations Act of 2015.

Executive Order 12988

This direct final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This direct final rule is not intended to have retroactive effect. Section 259 of the 1999 Act prohibits States or political subdivisions of a State to impose any requirement that is in addition to, or inconsistent with, any requirement of the 1999 Act with respect to the submission or reporting of information, or the publication of such information, on the prices and quantities of livestock or livestock products. In addition, the 1999 Act does not restrict or modify the authority of the Secretary to administer or enforce the Packers and Stockyards Act of 1921 (7 U.S.C. 181 et seq.); administer, enforce, or collect voluntary reports under the 1999 Act or any other law; or access documentary evidence as provided under Sections 9 and 10 of the Federal Trade Commission Act (15 U.S.C. 49, 50). There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this direct final rule.

Civil Rights Review

AMS has considered the potential civil rights implications of this direct final rule on minorities, women, or persons with disabilities to ensure that no person or group shall be discriminated against on the basis of race, color, national origin, gender, religion, age, disability, sexual orientation, marital or family status, political beliefs, parental status, or protected genetic information. This review included persons who are employees of the entities that are subject to this regulation. This direct final rule does not require affected entities to relocate or alter their operations in ways that could adversely affect such persons or groups. Further, this direct final rule will not deny any persons or groups the benefits of the program or subject any persons or groups to discrimination.

Executive Order 13132

This direct final rule has been reviewed under Executive Order 13132, Federalism. This Order directs agencies to construe, in regulations and otherwise, a Federal Statute to preempt State law only when the statute contains an express preemption provision. This direct final rule is required by the 1999 Act. Section 259 of the 1999 Act, Federal Preemption states, “In order to achieve the goals, purposes, and objectives of this title on a nationwide basis and to avoid potentially conflicting State laws that could impede the goals, purposes, or objectives of this title, no State or political subdivision of a State may impose a requirement that is in addition to, or inconsistent with, any requirement of this subtitle with respect to the submission or reporting of information, or the publication of such information, on the prices and quantities of livestock or livestock products.”

Prior to the passage of the 1999 Act, several States enacted legislation mandating, to various degrees, the reporting of market information on transactions of cattle, swine, and lambs conducted within that particular State. However, since the federal LMR program was implemented on April 2, 2001, these State programs are no longer in effect. Therefore, there are no federalism implications associated with this rulemaking.

Executive Order 13175

This direct final rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. AMS has considered the potential implications of this direct final rule to ensure this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.

List of Subjects in 7 CFR Part 59

Cattle, Hogs, Lamb, Livestock, Sheep.

For the reasons set forth in the preamble, title 7, part 59 is amended as follows:

PART 59—LIVESTOCK MANDATORY REPORTING 1. The authority citation for 7 CFR part 59 continues to read as follows: Authority:

7 U.S.C. 1635-1636i.

2. Section 59.300 is amended by revising the definitions for “Importer” and “Packer” to read as follows:
§ 59.300 Definitions.

Importer. The term “importer” means any person engaged in the business of importing lamb meat products with the intent to sell or ship in U.S. commerce. For any calendar year, the term includes only those that imported an average of 1,000 metric tons of lamb meat products per year during the immediately preceding 4 calendar years. Additionally, the term includes those that did not import an average 1,000 metric tons of lamb meat products during the immediately preceding 4 calendar years, if the Secretary determines that the person should be considered an importer based on their volume of lamb imports.

Packer. The term “packer” means any person with 50 percent or more ownership in a facility engaged in the business of buying lambs in commerce for purposes of slaughter, of manufacturing or preparing meat products from lambs for sale or shipment in commerce, or of marketing meats or meat products from lambs in an unmanufactured form acting as a wholesale broker, dealer, or distributor in commerce. For any calendar year, the term includes only a federally inspected lamb processing plant which slaughtered or processed the equivalent of an average of 35,000 head of lambs per year during the immediately preceding 5 calendar years. Additionally, the term includes a lamb processing plant that did not slaughter or process an average of 35,000 lambs during the immediately preceding 5 calendar years if the Secretary determines that the processing plant should be considered a packer after considering its capacity.

Dated: February 22, 2016. Elanor Starmer, Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2016-04047 Filed 2-26-16; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF AGRICULTURE Farm Service Agency 7 CFR Part 764 RIN 0560-AI33 Direct Farm Ownership Microloan; Correction AGENCY:

Farm Service Agency, USDA.

ACTION:

Correcting amendments.

SUMMARY:

In a final rule that was published and effective on January 21, 2016, we added Direct Farm Ownership Microloan (DFOML) to the existing Direct Loan Program. The final rule resulted in inadvertently omitting paragraphs that were previously in the Farm Loan Programs general eligibility requirements. The inadvertently removed paragraphs specified alternatives for demonstrating managerial ability. This document corrects that omission by revising the section in the regulations to reinsert that text.

DATES:

Effective date: February 29, 2016.

FOR FURTHER INFORMATION CONTACT:

Russ Clanton; telephone: (202) 690-0214. Persons with disabilities or who require alternative means for communication should contact the USDA Target Center at (202) 720-2600 (voice).

SUPPLEMENTARY INFORMATION: Background

The Farm Service Agency (FSA) published a final rule in the Federal Register on January 21, 2016 (81 FR 3289-3293), adding DFOML to the existing Direct Loan Program. The final rule changes to 7 CFR part 764 resulted in inadvertently omitting two paragraphs that were previously in 7 CFR 764.101(i)(4), “General Eligibility Requirements,” which specified alternatives for demonstrating managerial ability for microloans (MLs) for Operating Loan (OL) purposes.

The only changes the final rule intended to make in section 764.101 were to clarify that the references to MLs in paragraphs (i)(3) and (4) were only for MLs for OL purposes. In making the change to paragraph (i)(4), we should have specified that the change was only to the introductory text of paragraph (i)(4) because the phrase “introductory text” was not specified, it resulted in paragraphs (i)(4)(i) through (ii) being inadvertently omitted from the CFR when the changes were made as specified in the final rule. Therefore, this document corrects the regulation by reinserting the previously published text for paragraphs (i)(4)(i) through (ii).

List of Subjects in 7 CFR Part 764

Agriculture, Disaster assistance, Loan programs-agriculture, Agricultural commodities, Livestock.

For reasons discussed above, FSA amends 7 CFR part 764 as follows:

PART 764—DIRECT LOAN MAKING 1. The authority citation for part 764 continues to read as follows: Authority:

5 U.S.C. 301 and 7 U.S.C. 1989.

2. Add § 764.101(i)(4)(i) and (ii) to read as follows:
§ 764.101 General eligibility requirements.

(i) * * *

(4) * * *

(i) Certification of a past participation with an agriculture-related organization, such as, but not limited to, 4-H Club, FFA, beginning farmer and rancher development programs, or Community Based Organizations, that demonstrates experience in a related agricultural enterprise; or

(ii) A written description of a self-directed apprenticeship combined with either prior sufficient experience working on a farm or significant small business management experience. As a condition of receiving the loan, the self-directed apprenticeship requires that the applicant seek, receive, and apply guidance from a qualified person during the first cycle of production and marketing typical for the applicant's specific operation. The individual providing the guidance must be knowledgeable in production, management, and marketing practices that are pertinent to the applicant's operation, and agree to form a developmental partnership with the applicant to share knowledge, skills, information, and perspective of agriculture to foster the applicant's development of technical skills and management ability.

Val Dolcini, Administrator, Farm Service Agency.
[FR Doc. 2016-04271 Filed 2-26-16; 8:45 am] BILLING CODE 3410-05-P
DEPARTMENT OF TREASURY Office of the Comptroller of the Currency 12 CFR Part 4 [Docket ID OCC-2016-0001] RIN 1557-AE01 FEDERAL RESERVE SYSTEM 12 CFR Parts 208 and 211 [Docket No. R-1531] RIN 7100-AE45 FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 337, 347, and 390 RIN 3064-AE42 Expanded Examination Cycle for Certain Small Insured Depository Institutions and U.S. Branches and Agencies of Foreign Banks AGENCY:

Office of the Comptroller of the Currency (OCC), Treasury; Board of Governors of the Federal Reserve System (Board); and Federal Deposit Insurance Corporation (FDIC).

ACTION:

Joint interim final rules and request for comments.

SUMMARY:

The OCC, Board, and FDIC (collectively, the agencies) are jointly issuing and requesting public comment on interim final rules to implement section 83001 of the Fixing America's Surface Transportation Act (FAST Act), which was enacted on December 4, 2015. Section 83001 of the FAST Act permits the agencies to examine qualifying insured depository institutions with less than $1 billion in total assets no less than once during each 18-month period. Prior to enactment of the FAST Act, only qualifying insured depository institutions with less than $500 million in total assets were eligible for an 18-month on-site examination cycle. The interim final rules generally would allow well capitalized and well managed institutions with less than $1 billion in total assets to benefit from the extended 18-month examination schedule. In addition, the interim final rules make parallel changes to the agencies' regulations governing the on-site examination cycle for U.S. branches and agencies of foreign banks, consistent with the International Banking Act of 1978. Finally, the FDIC is integrating its regulations regarding the frequency of safety and soundness examinations for State nonmember banks and State savings associations.

DATES:

These interim final rules are effective on February 29, 2016. Comments on the rules must be received by April 29, 2016.

ADDRESSES:

OCC: Commenters are encouraged to submit comments by the Federal eRulemaking Portal or email, if possible. Please use the title “Expanded Examination Cycle for Certain Small Insured Depository Institutions and U.S. Branches and Agencies of Foreign Banks” to facilitate the organization and distribution of the comments. You may submit comments by any of the following methods:

Federal eRulemaking Portal—“regulations.gov”: Go to http://www.regulations.gov. Enter “Docket ID OCC-2016-0001” in the Search Box and click “Search.” Results can be filtered using the filtering tools on the left side of the screen. Click on “Comment Now” to submit public comments. Click on the “Help” tab on the Regulations.gov home page to get information on using Regulations.gov, including instructions for submitting public comments.

Email: [email protected]

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

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

Fax: (571) 465-4326.

Instructions: You must include “OCC” as the agency name and “Docket ID OCC-2016-0001” in your comment. In general, the OCC will enter all comments received into the docket and publish them on the Regulations.gov Web site without change, including any business or personal information that you provide, such as name and address information, email addresses, or phone numbers. Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not enclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.

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

• Viewing Comments Electronically: Go to http://www.regulations.gov. Enter “Docket ID OCC-2016-0001” in the Search box and click “Search.” Comments can be filtered by Agency using the filtering tools on the left side of the screen. Click on the “Help” tab on the Regulations.gov home page to get information on using Regulations.gov, including instructions for viewing public comments, viewing other supporting and related materials, and viewing the docket after the close of the comment period.

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

• Docket: You may also view or request available background documents and project summaries using the methods described above.

Board: You may submit comments, identified by Docket No. R-1531, by any of the following methods:

Agency Web site: http://www.federalreserve.gov. Follow the instructions for submitting comments at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.

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

Email: [email protected] Include docket number in the subject line of the message.

FAX: (202) 452-3819 or (202) 452-3102.

Mail: Robert deV. Frierson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW., Washington, DC 20551.

All public comments are available from the Board's Web site at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as submitted, unless modified for technical reasons. Accordingly, your comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper form in Room MP-500 of the Board's Martin Building (20th and C Street NW.) between 9:00 a.m. and 5:00 p.m. on weekdays.

FDIC: You may submit comments by any of the following methods:

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

Agency Web site: http://www.FDIC.gov/regulations/laws/federal/.

Mail: Robert E. Feldman, Executive Secretary, Attention: Comments/Legal ESS, Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429.

Hand Delivered/Courier: The guard station at the rear of the 550 17th Street Building NW. (located on F Street), on business days between 7:00 a.m. and 5:00 p.m.

Email: [email protected]

Instructions: Comments submitted must include “FDIC” and “RIN 3064-AE42.” Comments received will be posted without change to http://www.FDIC.gov/regulations/laws/federal/, including any personal information provided.

FOR FURTHER INFORMATION CONTACT:

OCC: Deborah Katz, Assistant Director, or Melissa J. Lisenbee, Attorney, Legislative and Regulatory Activities Division, (202) 649-5490; Scott Schainost, Midsize and Community Bank Supervision Liaison, Midsize and Community Bank Supervision, (202) 649-8173.

Board: Division of Banking Supervision and Regulation—Richard Naylor, Associate Director, (202) 728-5854; Richard Watkins, Deputy Associate Director, (202) 452-3421; Virginia Gibbs, Manager, (202) 452-2521; or Alexander Kobulsky, Supervisory Financial Analyst, (202) 452-2031; and Legal Division—Laurie Schaffer, Associate General Counsel, (202) 452-2277; Brian Chernoff, Senior Attorney, (202) 452-2952; or Mary Watkins, Attorney, (202) 452-3722.

FDIC: Thomas F. Lyons, Chief, Policy and Program Development, (202) 898-6850, Karen J. Currie, Senior Examination Specialist, (202) 898-3981, Timothy R. Millette, Program Specialist, Policy Branch Division of Risk Management and Supervision; Mark A. Mellon, Counsel, (202) 898-3884 for revisions to 12 CFR part 337; Rodney D. Ray, Counsel, (202) 898-3556 for revisions to 12 CFR part 347; Suzanne J. Dawley, Senior Attorney, (202) 898-6509 for revisions to 12 CFR part 390.

SUPPLEMENTARY INFORMATION: I. Background

Section 10(d) of the Federal Deposit Insurance Act (FDI Act) generally requires the appropriate Federal banking agency for an insured depository institution (IDI) to conduct a full-scope, on-site examination of the institution at least once during each 12-month period.1 Prior to enactment of section 83001 of the FAST Act,2 section 10(d)(4) of the FDI Act authorized the appropriate Federal banking agency to extend the on-site examination cycle for an IDI to at least once during an 18-month period if the IDI (1) had total assets of less than $500 million; (2) was well capitalized (as defined in 12 U.S.C.1831o (prompt corrective action)); (3) was found, at its most recent examination, to be well managed 3 and to have a composite condition of “outstanding” or, in the case of an institution that has total assets of not more than $100 million, “outstanding” or “good;” (4) was not subject to a formal enforcement proceeding or order by the FDIC or its appropriate Federal banking agency; and (5) had not undergone a change in control during the previous 12-month period in which a full-scope, on-site examination otherwise would have been required. Section 10(d)(10) of the FDI Act further gave the agencies discretionary authority to raise the size limit for otherwise qualifying IDIs with an “outstanding” or “good” composite rating from $100 million to an amount not to exceed $500 million in total assets if the agencies determined that the higher limit would be consistent with the principles of safety and soundness.4

1 12 U.S.C. 1820(d). Section 10(d) of the FDI Act was added by section 111 of the Federal Deposit Insurance Corporation Improvement Act of 1991.

2 Public Law 114-94, 129 Stat. 1312 (2015).

3 Depository institutions are evaluated under the Uniform Financial Institutions Rating System (commonly referred to as “CAMELS”). CAMELS is an acronym that is drawn from the first letters of the individual components of the rating system: Capital adequacy, Asset quality, Management, Earnings, Liquidity, and Sensitivity to market risk. CAMELS ratings of “1” and “2” correspond with ratings of “outstanding” and “good.” In addition to having a CAMELS composite rating of “1” or “2,” an IDI is considered to be “well managed” for the purposes of section 10(d) of the FDI Act only if the IDI also received a rating of “1” or “2” for the management component of the CAMELS rating at its most recent examination. See 72 FR 17798 (Apr. 10, 2007).

4 12 U.S.C. 1820(d)(10).

The Board and the FDIC, as the appropriate Federal banking agencies for State-chartered insured banks and savings associations, are permitted to conduct on-site examinations of such IDIs on alternating 12-month or 18-month periods with the institution's State supervisor, if the Board or FDIC, as appropriate, determines that the alternating examination conducted by the State carries out the purposes of section 10(d) of the FDI Act.5

5 12 U.S.C. 1820(d)(3).

In addition, section 7(c)(1)(C) of the International Banking Act (IBA) provides that a Federal or a State branch or agency of a foreign bank shall be subject to on-site examination by its appropriate Federal banking agency or State bank supervisor as frequently as a national or State bank would be subject to such an examination by the agency.6 The agencies previously adopted regulations to implement the examination cycle requirements of section 10(d) of the FDI Act and section 7(c)(1)(C) of the IBA, including the extended 18-month examination cycle available to qualifying small institutions and U.S. branches and agencies of foreign banks.7 The agencies have also exercised discretion under section 10(d)(10) of the FDI Act, first, in 1997 to extend the 18-month examination cycle for otherwise qualifying institutions with “good” composite ratings 8 with total assets of $250 million or less, and again in 2007 for such institutions with total assets of $500 million or less.9

6 12 U.S.C. 3105(c)(1)(C).

7See 12 CFR 4.6 and 4.7 (OCC), 12 CFR 208.64 and 211.26 (Board), 12 CFR 337.12, 390.351 and 347.211 (FDIC).

8 Corresponding to a CAMELS or Risk management, Operational controls, Compliance, and Asset quality (ROCA) rating of “2.”

9See 62 FR 6449 (Feb. 12, 1997) (interim final rule); see also 63 FR 16377 (Apr. 2, 1998) (final rule); see also 72 FR 17798 (Apr. 10, 2007) (interim final rule); see also 72 FR 54347 (Sept. 25, 2007) (final rule).

Section 83001 of the FAST Act, effective on December 4, 2015, amended section 10(d) of the FDI Act to raise, from $500 million to $1 billion, the total asset threshold below which an agency may apply an 18-month (rather than a 12-month) on-site examination cycle for IDIs with “outstanding” composite ratings, and to raise, from not more than $100 million to not more than $200 million, the total asset threshold below which an agency may apply an 18-month examination cycle to an institution with an “outstanding” or “good” composite rating.10 Section 83001 also amended section 10(d)(10) of the FDI Act to authorize the appropriate Federal banking agency to increase, by regulation, the maximum amount limitation for IDIs with “outstanding” or “good” composite ratings from not more than $200 million to not more than $1 billion if the appropriate Federal banking agency determines that the higher amount would be consistent with the principles of safety and soundness for IDIs.11

10 Public Law 114-94, 129 Stat. 1312 (2015).

11Id.

These FAST Act amendments reduce regulatory burdens on small, well capitalized, and well managed institutions and allow the agencies to better focus their supervisory resources on those IDIs and U.S. branches and agencies of foreign banks that may present capital, managerial, or other issues of supervisory concern.

II. Description of the Interim Final Rules

The agencies are adopting interim final rules to implement the FAST Act amendments to section 10(d) of the FDI Act. In particular, the agencies are amending their respective rules to raise, from $500 million to $1 billion, the total asset threshold below which an institution that meets the criteria in section 10(d) and the agencies' rules may qualify for an 18-month, on-site examination cycle. In addition, as authorized by the FAST Act, the agencies have determined that it is consistent with the principles of safety and soundness to permit institutions with total assets of $200 million or greater and not exceeding $1 billion that receive a composite CAMELS or ROCA rating of “1” or “2,” and that meet the other qualifying criteria set forth in section 10(d) and the agencies' rules to qualify for an 18-month examination cycle. The FDIC analyzed the frequency with which institutions rated a composite CAMELS rating of “1” or “2” failed within five years, versus the frequency with which institutions rated a composite CAMELS rating of “3,” “4,” or “5” failed within five years. FDIC analysis indicates that between 1985 and 2010 (using bank failure data through 2015),12 FDIC-insured depository institutions with assets less than $1 billion and a composite CAMELS rating of “1” or “2” had a five-year failure rate that was one-seventh as high as institutions with a CAMELS rating of “3,” “4,” or “5.” Moreover, the relationship between failure rates in the two ratings groups does not meaningfully change when the analysis is restricted to institutions with assets between $200 million and $500 million compared to institutions with assets between $500 million to $1 billion. This analysis suggests that extending the examination cycle for well-rated institutions with $500 million to $1 billion in assets by an additional six months, combined with the agencies' off-site monitoring activities and ability to examine an institution more frequently as necessary or appropriate, will not negatively affect the safe and sound operations of qualifying institutions or the ability of the agencies to effectively supervise and protect the safety and soundness of institutions with total assets of less than $1 billion.13 Furthermore, the agencies note that, in order to qualify for an 18-month examination cycle, any institution with total assets of less than $1 billion—including one with a CAMELS composite rating of “2”—must meet the other capital, managerial, and supervisory criteria set forth in section 10(d).

12 A list of failed institutions can be found on the FDIC's Web site at https://www.fdic.gov/bank/individual/failed/banklist.html.

13 The agencies continue to reserve the right in their regulations to examine an IDI or U.S. branch or agency of a foreign bank more frequently than is required by the FDI Act or IBA. See 12 CFR 4.6(c) and 4.7(c) (OCC), 12 CFR 208.64(c) and 211.26(c)(3) (Board), 12 CFR 337.12(c), 390.351(c), and 347.211(c) (FDIC).

Consistent with section 7(c)(1)(C) of the IBA, the agencies also are making conforming changes to their regulations governing the on-site examination cycle for the U.S. branches and agencies of foreign banks. The interim final rules permit a U.S. branch or agency of a foreign bank with total assets of less than $1 billion to qualify for an 18-month examination cycle if the U.S. branch or agency of a foreign bank received a composite ROCA rating of “1” or “2” at its most recent examination and meets the other applicable criteria.

The agencies estimate that the interim final rules will increase the number of institutions that may qualify for an extended 18-month examination cycle by approximately 617 institutions (371 of which are supervised by the FDIC, 142 by the OCC, and 104 by the Board), bringing the total number to 4,987 IDIs.14 Approximately 89 U.S. branches and agencies of foreign banks would be eligible for the extended examination cycle based on the interim final rules, an increase of 26 (1 of which is supervised by the FDIC, 3 by the OCC, and 22 by the Board).15

14 Call report data, Sept. 30, 2015.

15Id.

Consistent Treatment for Insured State Savings Associations Regarding Examination Frequency

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) provided for a substantial reorganization of the regulation of State and Federal savings associations and their holding companies.16 Beginning July 21, 2011, the powers, duties, and functions formerly performed by the Office of Thrift Supervision (OTS) were transferred to the FDIC, as to State savings associations, the OCC, as to Federal savings associations, and the Board, as to savings and loan holding companies. Section 316(b) of the Dodd-Frank Act 17 provides the manner of treatment for all orders, resolutions, determinations, regulations, and advisory materials that had been issued, made, prescribed, or allowed to become effective by the OTS. Section 316(b) provides that if such materials were in effect on the day before the transfer date, they continue in effect and are enforceable by or against the appropriate successor agency until they are modified, terminated, set aside, or superseded in accordance with applicable law by such successor agency, by any court of competent jurisdiction, or by operation of law.

16 12 U.S.C. 5301, et seq.

17 12 U.S.C. 5414(c).

Section 316(c) of the Dodd-Frank Act further directed the FDIC and the OCC to consult with one another and to publish a list of the continued OTS regulations that will be enforced by the FDIC and the OCC, respectively. On June 14, 2011, the FDIC's Board of Directors approved a “List of OTS Regulations to be Enforced by the OCC and the FDIC Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act.” This list was published by the FDIC and the OCC as a Joint Notice in the Federal Register on July 6, 2011.18

18 76 FR 39247 (July 6, 2011).

Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act 19 granted the OCC rulemaking authority relating to both State and Federal savings associations, nothing in the Dodd-Frank Act affected the FDIC's existing authority to issue regulations for State savings associations under the FDI Act and other laws as the “appropriate Federal banking agency” or under similar statutory terminology. Section 312(c) of the Dodd-Frank Act 20 amended the definition of “appropriate Federal banking agency” contained in section 3(q) of the FDI Act 21 to add State savings associations to the list of entities for which the FDIC is designated as the “appropriate Federal banking agency.” As a result, when the FDIC acts as the designated “appropriate Federal banking agency” (or under similar terminology) for State savings associations, as it does here, the FDIC is authorized to issue, modify, and rescind regulations involving such associations.

19 12 U.S.C. 5412(b)(2)(B)(i)(II).

20 12 U.S.C. 5412(c).

21 12 U.S.C. 1813(q).

As noted, on June 14, 2011, operating pursuant to this authority, the FDIC's Board of Directors reissued and re-designated certain transferring regulations of the former OTS. These transferred OTS regulations were published as new FDIC regulations in the Federal Register on August 5, 2011.22 When the FDIC republished the transferred OTS regulations as new FDIC regulations, the FDIC specifically noted that its staff would evaluate the transferred OTS rules and might later recommend incorporating the transferred OTS regulations into other FDIC rules, amending them, or rescinding them, as appropriate.

22 76 FR 47652 (Aug. 5, 2011).

Twelve CFR 390.351 implements the FDIC's examination requirements for savings associations under the authority of section 4(a) of the Home Owners' Loan Act (HOLA),23 which provides that the FDIC will examine State savings associations for safety and soundness and under section 10(d) of the FDI Act, which covers examinations of all IDIs.24

23 12 U.S.C. 1463.

24 This section was redesignated from the former OTS regulation at section 563.171 pursuant to the Dodd-Frank Act transfer of authority for State savings associations.

Section 390.351 requires full-scope, on-site examinations of State savings associations at least once each 12-month period and once each 18-month period for a State savings association with total assets of no more than $500 million that is well capitalized; was assigned a CAMELS “1” or “2” for management and was rated either a CAMELS composite “1” or “2” on its most recent examination; is not currently under a formal enforcement proceeding or order by the FDIC; and has not undergone a change in control during the preceding 12-month period.

Section 390.351 is substantively identical to section 337.12 and, therefore, redundant to section 337.12. This interim final rule rescinds and removes section 390.351. The amendment to section 337.12 in the interim final rule also reflects the authority of the FDIC under section 4(a) of HOLA to provide for the examination and safe and sound operation of State savings associations. With this amendment, all FDIC-supervised institutions, including State savings associations, will be subject to the requirements of 12 CFR 337.12.

Effective Date/Request for Comment

The agencies are issuing the interim final rules without prior notice and the opportunity for public comment and the 30-day delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA).25 Pursuant to section 553(b)(B) of the APA, general notice and the opportunity for public comment are not required with respect to a rulemaking when an “agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 26 The interim final rules implement the provisions of section 83001 of the FAST Act, which became effective on December 4, 2015. The interim final rules adopt without change the statutory increase in the total asset ceiling for the 18-month examination cycle for CAMELS and ROCA 1-rated institutions and also make available, pursuant to the statutory authority, the 18-month examination cycle for CAMELS and ROCA 2-rated institutions. Consistent with the underlying statute, the interim final rules would allow well capitalized and well managed institutions with under $1 billion in total assets to benefit from the statutorily extended 18-month examination schedule.

25 5 U.S.C. 553.

26 5 U.S.C. 553(b)(B).

The agencies believe that the public interest is best served by implementing the statutorily amended thresholds as soon as possible. Immediate implementation would reduce regulatory burdens on small, well capitalized, and well managed institutions, while also allowing the agencies to better focus their supervisory resources on those institutions that may present capital, managerial, or other issues of supervisory concern. Because the affected institutions and agencies must plan and prepare for examinations in advance, the agencies believe issuing interim final rules would provide the certainty necessary to allow the institutions and agencies to begin scheduling according to the new examination cycle period. In addition, the agencies believe that providing a notice and comment period prior to issuance of the interim final rules is unnecessary because the agencies do not expect public objection to the regulations being promulgated, as these rules implement the changes specified by Congress.27 Moreover, because the interim final rules would permit an agency to conduct an on-site examination of an institution more frequently than once every 18 months, the agencies retain the ability to maintain the current—or a more frequent—on-site examination schedule for an institution, if the relevant agency determines it would be necessary or appropriate.

27 All eleven commenters supported the agencies' 2007 interim final rules implementing section 605 of the Financial Services Regulatory Relief Act of 2006 (FSRRA), which revised section 10(d) to allow institutions with up to $500 million in total assets to qualify for an 18-month on-site examination cycle. Prior to the enactment of FSRRA, only institutions with less than $250 million were eligible for an 18-month on-site examination cycle. See 72 FR 54347 (final rule); see also 72 FR 17798 (interim rule).

Similarly, the FDIC believes there is good cause to rescind and remove section 390.351 because section 337.12 will be made immediately applicable to both insured State savings associations and insured State nonmember banks. As a result, insured State savings associations will be provided the same burden reduction benefits and appropriate supervisory focus afforded to insured State nonmember banks. For these reasons, the agencies find there is good cause consistent with the public interest to issue the rules without advance notice and comment.28

28 5 U.S.C. 553(b)(B); 553(d)(3).

The APA also requires a 30-day delayed effective date, except for (1) substantive rules which grant or recognize an exemption or relieve a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause.29 The agencies conclude that, because the rules recognize an exemption, the interim final rules are exempt from the APA's delayed effective date requirement.30 Additionally, the agencies find good cause to publish the interim final rules with an immediate effective date for the same reasons set forth above under the discussion of section 553(b)(B) of the APA.

29 5 U.S.C. 553(d).

30 5 U.S.C. 553(d)(1).

Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA),31 in determining the effective date and administrative compliance requirements for a new regulation that imposes additional reporting, disclosure, or other requirements on IDIs, each Federal banking agency must consider any administrative burdens that such regulation would place on depository institutions and the benefits of such regulation. In addition, section 302(b) of the RCDRIA requires such new regulation to take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form, with certain exceptions, including for good cause. Because the interim final rules expand eligibility for an 18-month, rather than 12-month on-site examination schedule and are burden-reducing in nature, the interim final rules do not impose additional reporting, disclosure, or other requirements on IDIs, and section 302 of the RCDRIA therefore does not apply. Nevertheless, the agencies have considered the administrative burdens that such regulations would place on depository institutions and the benefits of such regulations in determining the effective date and compliance requirements. In addition, for the same reasons set forth above under the discussion of section 553(b)(B) of the APA, the agencies find good cause would exist under section 302 of RCDRIA to publish these interim final rules with an immediate effective date.

31 12 U.S.C. 4802(a).

While the agencies believe there is good cause to issue the rules without advance notice and comment and with an immediate effective date, the agencies are interested in the views of the public and request comment on all aspects of the interim final rules.

III. Solicitation of Comments on Use of Plain Language

Section 722 of the Gramm-Leach-Bliley Act 32 requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The Federal banking agencies invite your comments on how to make these interim final rules easier to understand. For example:

32 Pub. L. 106-102, section 722, 113 Stat. 1338, 1471 (1999).

Have the agencies organized the material to suit your needs? If not, how could this material be better organized?

Are the requirements in the interim final rules clearly stated? If not, how could the interim final rules be more clearly stated?

Do the interim final rules contain language or jargon that is not clear? If so, which language requires clarification?

Would a different format (grouping and order of sections, use of headings, paragraphing) make the interim final rules easier to understand? If so, what changes to the format would make the interim final rules easier to understand?

What else could the agencies do to make the regulation easier to understand?

IV. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) 33 applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). As discussed above, consistent with section 553(b)(B) of the APA, the agencies have determined for good cause that general notice and opportunity for public comment is not necessary. Accordingly, the RFA's requirements relating to initial and final regulatory flexibility analysis do not apply. Nonetheless, the agencies observe that the extension of the periodic examination cycle for certain small institutions from 12 to 18 months should not have a significant adverse economic impact on a substantial number of small entities, and, in fact, should reduce regulatory burdens on these entities. The agencies request comment on these conclusions.

33 Pub. L. 96-354, Sept. 19, 1980, codified to 5 U.S.C. 601 et seq.

V. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 34 states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. Because the interim final rules do not create a new, or revise an existing, collection of information, no information collection request submission needs to be made to the OMB.

34 44 U.S.C. 3501-3521.

VI. The Economic Growth and Regulatory Paperwork Reduction Act

Under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA),35 the agencies are required to conduct a review at least once every 10 years to identify any outdated or otherwise unnecessary regulations. The agencies completed the last comprehensive review of their regulations under EGRPRA in 2006 and are currently conducting the next decennial review. The burden reduction evidenced in these interim final rules is consistent with the objectives of the EGRPRA review process.

35 Pub. L. 104-208, 110 Stat. 3009 (1996).

VII. OCC Unfunded Mandates Reform Act of 1995 Determination

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

List of Subjects 12 CFR Part 4

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

12 CFR Part 208

Accounting, Agriculture, Banks, banking, Confidential business information, Crime, Currency, Federal Reserve System, Flood insurance, Mortgages, Reporting and recordkeeping requirements, Safety and soundness, Securities.

12 CFR Part 211

Exports, Federal Reserve System, Foreign banking, Holding companies, Investments, Reporting and recordkeeping requirements.

12 CFR Part 337

Banks, banking, Reporting and recordkeeping requirements, Savings associations.

12 CFR Part 347

Authority delegations (Government agencies), Bank deposit insurance, Banks, banking, Credit, Foreign banking, Reporting and recordkeeping requirements, United States investments abroad.

12 CFR Part 390

Administrative practice and procedure, Advertising, Aged, Civil rights, Conflict of interests, Credit, Crime, Equal employment opportunity, Fair housing, Government employees, Individuals with disabilities, Reporting and recordkeeping requirements, Savings associations.

Office of the Comptroller of the Currency 12 CFR Chapter I Authority and Issuance

For the reasons set forth in the joint preamble, the OCC amends part 4 of chapter I of title 12 of the Code of Federal Regulations as follows:

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

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

2. Section 4.6 is revised to read as follows:
§ 4.6 Frequency of examination of national banks and Federal savings associations.

(a) General. The OCC examines national banks and Federal savings associations pursuant to authority conferred by 12 U.S.C. 481 (with respect to national banks) and 1463(a)(1) and 1464 (with respect to Federal savings associations) and the requirements of 12 U.S.C. 1820(d) (with respect to national banks and Federal savings associations). The OCC is required to conduct a full-scope, on-site examination of every national bank and Federal savings association at least once during each 12-month period.

(b) 18-month rule for certain small institutions. The OCC may conduct a full-scope, on-site examination of a national bank or a Federal savings association at least once during each 18-month period, rather than each 12-month period as provided in paragraph (a) of this section, if the following conditions are satisfied:

(1) The bank or Federal savings association has total assets of less than $1 billion;

(2) The bank or Federal savings association is well capitalized as defined in part 6 of this chapter;

(3) At the most recent examination;

(i) The bank or Federal savings association was assigned a rating of 1 or 2 for management as part of the bank's or association's rating under the Uniform Financial Institutions Rating System; and

(ii) The bank or Federal savings association was assigned a composite rating of 1 or 2 under the Uniform Financial Institutions Rating System;

(4) The bank or Federal savings association currently is not subject to a formal enforcement proceeding or order by the FDIC, OCC, OTS or the Federal Reserve System; and

(5) No person acquired control of the bank or Federal savings association during the preceding 12-month period in which a full-scope, on-site examination would have been required but for this section.

(c) Authority to conduct more frequent examinations. This section does not limit the authority of the OCC to examine any national bank or Federal savings association as frequently as the agency deems necessary.

3. Section 4.7 is revised to read as follows:
§ 4.7 Frequency of examination of Federal agencies and branches.

(a) General. The OCC examines Federal agencies and Federal branches (as these entities are defined in § 28.11 (g) and (h), respectively, of this chapter) pursuant to the authority conferred by 12 U.S.C. 3105(c)(1)(C). Except as noted in paragraph (b) of this section, the OCC will conduct a full-scope, on-site examination of every Federal branch and agency at least once during each 12-month period.

(b) 18-month rule for certain small institutions—(1) Mandatory standards. The OCC may conduct a full-scope, on-site examination at least once during each 18-month period, rather than each 12-month period as provided in paragraph (a) of this section, if the Federal branch or agency:

(i) Has total assets of less than $1 billion;

(ii) Has received a composite ROCA supervisory rating (which rates risk management, operational controls, compliance, and asset quality) of 1 or 2 at its most recent examination;

(iii) Satisfies the requirements of either paragraph (b)(1)(iii)(A) or (B) of this section:

(A) The foreign bank's most recently reported capital adequacy position consists of, or is equivalent to, common equity tier 1, tier 1 and total risk-based capital ratios that satisfy the definition of “well capitalized” set forth at 12 CFR 6.4, respectively, on a consolidated basis; or

(B) The branch or agency has maintained on a daily basis, over the past three quarters, eligible assets in an amount not less than 108 percent of the preceding quarter's average third party liabilities (determined consistent with applicable federal and state law), and sufficient liquidity is currently available to meet its obligations to third parties;

(iv) Is not subject to a formal enforcement action or order by the Federal Reserve Board, the Federal Deposit Insurance Corporation, or the OCC; and

(v) Has not experienced a change in control during the preceding 12-month period in which a full-scope, on-site examination would have been required but for this section.

(2) Discretionary standards. In determining whether a Federal branch or agency that meets the standards of paragraph (b)(1) of this section should not be eligible for an 18-month examination cycle pursuant to this paragraph (b), the OCC may consider additional factors, including whether:

(i) Any of the individual components of the ROCA rating of the Federal branch or agency is rated “3” or worse;

(ii) The results of any off-site supervision indicate a deterioration in the condition of the Federal branch or agency;

(iii) The size, relative importance, and role of a particular office when reviewed in the context of the foreign bank's entire U.S. operations otherwise necessitate an annual examination; and

(iv) The condition of the foreign bank gives rise to such a need.

(c) Authority to conduct more frequent examinations. Nothing in paragraph (a) or (b) of this section limits the authority of the OCC to examine any Federal branch or agency as frequently as the OCC deems necessary.

Federal Reserve System 12 CFR Chapter II Authority and Issuance

For the reasons set forth in the joint preamble, the Board amends parts 208 and 211 of chapter II of title 12 of the Code of Federal Regulations as follows:

PART 208—MEMBERSHIP OF STATE BANKING INSTITUTIONS IN THE FEDERAL RESERVE SYSTEM (REGULATION H) 4. The authority citation for part 208 continues to read as follows: Authority:

12 U.S.C. 24, 36, 92a, 93a, 248(a), 248(c), 321-338a, 371d, 461, 481-486, 601, 611, 1814, 1816, 1818, 1820(d)(9), 1833(j), 1828(o), 1831, 1831o, 1831p-1, 1831r-1, 1831w, 1831x, 1835a, 1882, 2901-2907, 3105, 3310, 3331-3351, 3353, and 3906-3909; 15 U.S.C. 78b, 781(b), 78l(i), 780-4(c)(5), 78q, 78q-1, 78w, 1681s, 1681w, 6801 and 6805, 31 U.S.C. 5318; 42 U.S.C. 4012a, 4104b, 4106, and 4128.

5. Amend § 208.64 by revising paragraph (b)(1) to read as follows:
§ 208.64 Frequency of examination.

(b) * * *

(1) The bank has total assets of less than $1 billion;

PART 211—INTERNATIONAL BANKING OPERATIONS (REGULATION K) 6. The authority citation for part 211 continues to read as follows: Authority:

12 U.S.C. 221 et seq., 1818, 1835a, 1841 et seq., 3101 et seq., 3901 et seq., and 5101 et seq.; 15 U.S.C. 1681s, 1681w, 6801 and 6805.

7. Amend § 211.26 by revising paragraph (c)(2)(i)(A) to read as follows:
§ 211.26 Examinations of offices and affiliates of foreign banks.

(c) * * *

(2) * * *

(i) * * *

(A) Has total assets of less than $1 billion;

Federal Deposit Insurance Corporation 12 CFR Chapter III Authority and Issuance

For the reasons set forth in the joint preamble, the Board of Directors of the FDIC amends parts 337, 347, and 390 of chapter III of title 12 of the Code of Federal Regulations as follows:

PART 337—UNSAFE AND UNSOUND BANK PRACTICES 8. The authority citation for part 337 is revised to read as follows: Authority:

12 U.S.C. 375a(4), 375b, 1463(a)(1), 1816, 1818(a), 1818(b), 1819, 1820(d), 1828(j)(2), 1831, 1831f, 5412.

9. Section 337.12 is revised to read as follows:
§ 337.12 Frequency of examination.

(a) General. The Federal Deposit Insurance Corporation examines insured state nonmember banks pursuant to authority conferred by section 10 of the Federal Deposit Insurance Act (12 U.S.C. 1820) and examines insured State savings associations pursuant to authority conferred by section 10 of the Federal Deposit Insurance Act (12 U.S.C. 1820) and section 4 of the Home Owners' Loan Act (12 U.S.C. 1463). The FDIC is required to conduct a full-scope, on-site examination of every insured state nonmember bank and insured State savings association at least once during each 12-month period.

(b) 18-month rule for certain small institutions. The FDIC may conduct a full-scope, on-site examination of an insured state nonmember bank or insured State savings association at least once during each 18-month period, rather than each 12-month period as provided in paragraph (a) of this section, if the following conditions are satisfied:

(1) The institution has total assets of less than $1 billion;

(2) The institution is well capitalized as defined in § 324.403(b)(1) of this chapter;

(3) At the most recent FDIC or applicable State agency examination, the FDIC:

(i) Assigned the institution a rating of 1 or 2 for management as part of the institution's composite rating under the Uniform Financial Institutions Rating System (commonly referred to as CAMELS); and

(ii) Assigned the institution a composite rating of 1 or 2 under the Uniform Financial Institutions Rating System (copies of which are available at the addresses specified in § 309.4 of this chapter);

(4) The institution currently is not subject to a formal enforcement proceeding or order by the FDIC, OCC, or the Board of Governors of the Federal Reserve System; and

(5) No person acquired control of the institution during the preceding 12-month period in which a full-scope, on-site examination would have been required but for this section.

(c) Authority to conduct more frequent examinations. This section does not limit the authority of the FDIC to examine any insured state nonmember bank or insured State savings association as frequently as the agency deems necessary.

PART 347—INTERNATIONAL BANKING 10. The authority citation for part 347 is revised to read as follows: Authority:

12 U.S.C. 1813, 1815, 1817, 1819, 1820(d), 1828, 3103, 3104, 3105, 3108, 3109; Title IX, Publ. L. 98-181, 97 Stat. 1153 (12 U.S.C. 3901 et seq.).

11. Amend § 347.211 by revising paragraph (b)(1)(i) to read as follows:
§ 347.211 Examination of branches of foreign banks.

(b) * * *

(1) * * *

(i) Has total assets of less than $1 billion;

PART 390—REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT SUPERVISION 12. The authority citation for part 390 continues to read in part as follows: Authority:

12 U.S.C. 1819.

Subpart S also issued under 12 U.S.C. 1462; 1462a; 1463; 1464; 1468a; 1817; 1820; 1828; 1831e; 1831o; 1831p-1; 1881-1884; 3207; 3339; 15 U.S.C. 78b, 78l; 78m; 78n; 78p; 78q; 78w; 31 U.S.C. 5318; 42 U.S.C. 4106.

§ 390.351 [Removed]
13. Remove § 390.351.
Dated: January 21, 2016. Thomas J. Curry, Comptroller of the Currency. Board of Governors of the Federal Reserve System, February 10, 2016. Robert deV. Frierson, Secretary of the Board. Dated: January 21, 2016. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary.
[FR Doc. 2016-03877 Filed 2-26-16; 8:45 am] BILLING CODE 6714-01-P; 4810-33-P; 6210-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3633; Directorate Identifier 2014-NM-097-AD; Amendment 39-18416; AD 2016-04-22] RIN 2120-AA64 Airworthiness Directives; Fokker Services B.V. Airplanes AGENCY:

Federal Aviation Administration (FAA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for all Fokker Services B.V. Model F.27 Mark 200, 300, 400, 500, 600, and 700 airplanes. This AD was prompted by a design review conducted by Fokker Services B.V. that indicated no controlled bonding provisions were present on many critical locations outside the fuel tank or connected to the fuel tank wall. This AD requires installing the additional bonding provisions, and revising the maintenance or inspection program, as applicable, by incorporating fuel airworthiness limitation items and critical design configuration control limitations. We are issuing this AD to prevent an ignition source in the fuel tank vapor space, which could result in a fuel tank explosion and consequent loss of the airplane.

DATES:

This AD becomes effective April 4, 2016.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of April 4, 2016.

ADDRESSES:

For service information identified in this final rule, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email [email protected]; Internet http://www.myfokkerfleet.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-2015-3633.

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-2015-3633; 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 street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

FOR FURTHER INFORMATION CONTACT:

Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.

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 Fokker Services B.V. Model F.27 Mark 200, 300, 400, 500, 600, and 700 airplanes. The NPRM published in the Federal Register on September 18, 2015 (80 FR 56413) (“the NPRM”).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0100, dated April 30, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F.27 Mark 200, 300, 400, 500, 600, and 700 airplanes. The MCAI states:

Prompted by an accident * * *, the FAA published Special Federal Aviation Regulation (SFAR) 88 [(66 FR 23086, May 7, 2001)], and the Joint Aviation Authorities (JAA) published Interim Policy INT/POL/25/12.

The review conducted by Fokker Services on the Fokker 27 design in response to these regulations revealed that no controlled bonding provisions are present on a number of critical locations outside the fuel tanks.

This condition, if not corrected, could create an ignition source in the fuel tank vapour space, possibly resulting in a fuel tank explosion and consequent loss of the aeroplane.

To address this potential unsafe condition, Fokker Services developed a set of bonding modifications, introduced with [a service bulletin] * * *, that do[es] not require opening of the fuel tank access panels.

More information on this subject can be found in Fokker Services All Operators Message AOF27.043#03.

For the reasons described above, this [EASA] AD requires installation of additional bonding provisions that do not require opening of the fuel tank access panels.

Required actions also include revising the maintenance or inspection program, as applicable, by incorporating fuel airworthiness limitation items and critical design configuration control limitations. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3633.

Comments

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

Conclusion

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for 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.

Related Service Information Under 1 CFR Part 51

Fokker Services B.V. has issued Fokker F27 Proforma Service Bulletin SBF27-28-072, Revision 1, dated March 6, 2014, including Fokker F27 Service Bulletin Appendix SBF27-28-072/APP01, dated July 17, 2014, including List of Drawings/Part Lists, dated July 17, 2014. The service information describes procedures for installing additional bonding provisions.

Fokker Services B.V. has also issued Fokker Manual Change Notification—Maintenance Documentation MCNM-F27-027, dated September 9, 2014. The service information describes fuel airworthiness limitations items and critical design configuration control limitations.

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 15 airplanes of U.S. registry.

We also estimate that it will take about 8 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $10,200, or $680 per product.

Authority for This Rulemaking

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

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

Regulatory Findings

We determined that this 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 the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

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

List of Subjects in 14 CFR Part 39

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

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): 2016-04-22 Fokker Services B.V.: Amendment 39-18416. Docket No. FAA-2015-3633; Directorate Identifier 2014-NM-097-AD. (a) Effective Date

This AD becomes effective April 4, 2016.

(b) Affected ADs

None.

(c) Applicability

This AD applies to Fokker Services B.V. Model F.27 Mark 200, 300, 400, 500, 600, and 700 airplanes, certificated in any category, all serial numbers.

(d) Subject

Air Transport Association (ATA) of America Code 28, Fuel.

(e) Reason

This AD was prompted by a design review conducted by Fokker Services B.V. that indicated no controlled bonding provisions were present on many critical locations outside the fuel tank or connected to the fuel tank wall. We are issuing this AD to prevent an ignition source in the fuel tank vapor space, which could result in a fuel tank explosion and consequent loss of the airplane.

(f) Compliance

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

(g) Installation

Within 24 months after the effective date of this AD, install additional bonding provisions, in accordance with the Accomplishment Instructions of Fokker F27 Proforma Service Bulletin SBF27-28-072, Revision 1, dated March 6, 2014, including Fokker F27 Service Bulletin Appendix SBF27-28-072/APP01, dated July 17, 2014, including List of Drawings/Part Lists, dated July 17, 2014.

(h) Maintenance or Inspection Program Revision

At the later of the times specified in paragraphs (h)(1) and (h)(2) of this AD: Revise the airplane maintenance or inspection program, as applicable, by incorporating the fuel airworthiness limitations items and critical design configuration control limitations as identified in Fokker Manual Change Notification—Maintenance Documentation MCNM-F27-027, dated September 9, 2014.

(1) Before further flight after accomplishing the installation required by paragraph (g) of this AD,

(2) Within 30 days after the effective date of this AD.

(i) No Alternative Actions, Intervals, and/or Critical Design Configuration Control Limitations (CDCCLs)

After the maintenance or inspection program, as applicable, has been revised as required by paragraph (h) of this AD, no alternative actions (e.g., inspections), intervals, and/or CDCCLs may be used unless the actions, intervals, and/or CDCCLs are approved as an alternative method of compliance in accordance with the procedures specified in paragraph (j)(1) of this AD.

(j) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, 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 International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149 Information may be emailed to: [email protected] 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. The AMOC approval letter must specifically reference this AD.

(2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Fokker B.V. Service's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

(k) Related Information

Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0100, dated April 30, 2014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3633.

(l) 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 this AD specifies otherwise.

(i) Fokker F27 Proforma Service Bulletin SBF27-28-072, Revision 1, dated March 6, 2014, including Fokker F27 Service Bulletin Appendix SBF27-28-072/APP01, dated July 17, 2014, including List of Drawings/Part Lists, dated July 17, 2014.

(ii) Fokker Manual Change Notification—Maintenance Documentation MCNM-F27-027, dated September 9, 2014.

(3) For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email [email protected]; Internet http://www.myfokkerfleet.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 February 18, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-04137 Filed 2-26-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-1423; Directorate Identifier 2014-NM-173-AD; Amendment 39-18418; AD 2016-04-24] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Model 757-200 Series Airplanes Modified by Supplemental Type Certificate (STC) ST01529SE or STC ST02278SE AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 757-200 series airplanes modified by particular STCs. This AD was prompted by reports of a main cargo door being blown past its full open position while on the ground during gusty wind conditions, which resulted in uncontrolled fall down to its closed position. This AD requires installing a new placard and bracket, replacing an existing placard, and replacing the main cargo door control panel. We are issuing this AD to prevent damage to the main cargo door, which could result in rapid decompression of the airplane, or injury to maintenance and ground crew during ground operations.

DATES:

This AD is effective April 4, 2016.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of April 4, 2016.

ADDRESSES:

For service information identified in this final rule, contact Precision Conversions LLC, 4900 SW Griffith Drive, Suite 133, Beaverton, OR 97005; ATTN: Steven A. Lopez; phone: 503-601-3001; email: [email protected] 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-2015-1423.

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-2015-1423; 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:

Narinder Luthra, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6513; fax: 425-917-6590; 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 certain The Boeing Company Model 757-200 series airplanes modified by particular STCs. The NPRM published in the Federal Register on June 5, 2015 (80 FR 32061) (“the NPRM”). The NPRM was prompted by reports of a main cargo door being blown past its full open position while on the ground during gusty wind conditions, which resulted in uncontrolled fall down to its closed position. The NPRM proposed to require installation of a new placard and bracket, replacement of an existing placard, and replacement of the main cargo door control panel. We are issuing this AD to prevent damage to the main cargo door, which could result in rapid decompression of the airplane, or injury to maintenance and ground crew during ground operations.

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.

Request To Revise Description of the Unsafe Condition

Precision Conversions, LLC requested that we revise the SUMMARY and Discussion sections of the NPRM and the unsafe condition section of the proposed AD. Precision Conversions, LLC stated that it was concerned by certain conclusions stated in the NPRM for which it does not believe there is a factual basis. Precision Conversions, LLC noted that the NPRM stated that wind damage to a cargo door could result in rapid decompression, leading to in-flight breakup. However, even without the accomplishment of Precision Conversions Service Bulletin PC-757-11-0023, dated August 1, 2014, Precision Conversions, LLC stated that the suggested scenario would not occur. If, during ground operations, the main cargo door were to deflect beyond the fully open position enough to be of concern, its damaged operating system would prevent the cargo door from closing as usual, which would not go unnoticed by the crew, and the airplane would not be dispatched. Thus, a potential unsafe condition would occur only on the ground, not in the air.

Precision Conversions, LLC stated that a potential for an unsafe condition does arise from the possibility of ground crew operating the main cargo door outside of the wind limits published in the aircraft maintenance manual and operations manual supplements. Precision Conversions, LLC asserted that exceeding published limits could result in damage to the door operating system and loss of control of the door, creating an unsafe condition, but only during ground operations; thus, Precision Conversions, LLC believed that the proposed language regarding rapid decompression and in-flight breakup had no basis, given the relevant factual scenario, and should not be included in the final rule. Precision Conversions, LLC requested that we revise the unsafe condition to indicate that the NPRM will “prevent wind damage to the main cargo door operating system and ensure its safe use during ground operations.”

We partially agree with the request. We disagree that a damaged door will always be detected because of human factors. We agree, however, that rapid decompression might not necessarily lead to in-flight breakup, which would depend on the decompression. We have therefore revised the SUMMARY and Discussion sections of this final rule and paragraph (e), Unsafe Condition, of this AD to remove reference to in-flight breakup, and to include injury to maintenance and ground crew during ground operations.

Statement Regarding Content of NPRM

Boeing stated that the NPRM does not address or affect any Boeing designs; therefore, Boeing can neither review the data nor comment on the content of the NPRM.

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 Precision Conversions LLC Service Bulletin PC-757-11-0023, dated August 1, 2014. The service information describes procedures for installing a new placard and bracket, replacement of an existing placard, and replacement of the main cargo door control panel. 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 9 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 6 work-hours × $85 per hour = $510 $0 * $510 $4,590 * According to the manufacturer, the kits will be provided at no charge to operators.
    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): 2016-04-24 The Boeing Company: Amendment 39-18418; Docket No. FAA-2015-1423; Directorate Identifier 2014-NM-173-AD. (a) Effective Date

    This AD is effective April 4, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 757-200 series airplanes, certificated in any category, modified by the applicable supplemental type certificate identified in paragraphs (c)(1) and (c)(2) of this AD.

    (1) ST01529SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/0af09c3701a237ee86257a5d0064b3aa/$FILE/ST01529SE.pdf).

    (2) ST02278SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/e54b5289a2e9f6ef86257b7f0056edaf/$FILE/ST02278SE.pdf).

    (d) Subject

    Air Transport Association (ATA) of America Code 11, Placards and Markings.

    (e) Unsafe Condition

    This AD was prompted by reports of a main cargo door being blown past its full open position while on the ground during gusty wind conditions, which resulted in uncontrolled fall down to its closed position. We are issuing this AD to prevent damage to the main cargo door, which could result in rapid decompression of the airplane, or injury to maintenance and ground crew during ground operations.

    (f) Compliance

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

    (g) Installation

    Within 90 days after the effective date of this AD, install a new placard and bracket, replace the existing placard, and replace the main cargo door control panel, in accordance with the Accomplishment Instructions of Precision Conversions Service Bulletin PC-757-11-0023, dated August 1, 2014.

    (h) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle 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)(1) 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.

    (i) Related Information

    For more information about this AD, contact Narinder Luthra, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6513; fax: 425-917-6590; 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) Precision Conversions Service Bulletin PC-757-11-0023, dated August 1, 2014.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Precision Conversions LLC, 4900 SW Griffith Drive, Suite 133, Beaverton, OR 97005; ATTN: Steven A. Lopez; phone: 503-601-3001; email: [email protected]

    (4) You may view this service information at 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 February 16, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-04036 Filed 2-26-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-3981; Directorate Identifier 2015-NM-053-AD; Amendment 39-18417; AD 2016-04-23] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; request for comments.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 787-8 airplanes. This AD requires an inspection of the station 337 (door number 1) outboard partitions for a tie rod and quick release pins, and to ensure that both partition supports are engaged in the structural bracket at each outboard partition, and corrective actions if necessary. This AD was prompted by reports of missing right and left outboard partition tie rods at door number 1. We are issuing this AD to detect and correct partitions with missing tie rods or release pins or with supports that are not engaged in the structural bracket. These partitions could come loose during a high-acceleration event and strike the flight attendant seats in the door 1 location, causing serious injury to the seat occupants, or could affect safe egress from the airplane.

    DATES:

    This AD is effective March 15, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of March 15, 2016.

    We must receive comments on this AD by April 14, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; 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 2016-3981.

    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-2016-3981; 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 street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Francis Smith, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone 425-917-6596; fax 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We have received reports of missing right and left outboard partition tie rods at station 337 (door number 1) on Model 787-8 airplanes as a result of a manufacturing escape (i.e., insufficient documentation to show engineering details). We are issuing this AD to detect and correct partitions with missing tie rods or release pins or with supports that are not engaged in the structural bracket. These partitions could come loose during a high-acceleration event and strike the flight attendant seats in the door 1 location, causing serious injury to the seat occupants, or could affect safe egress from the airplane.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Service Bulletin B787-81205-SB250081-00, Issue 001, dated December 9, 2014. The service bulletin describes procedures for an inspection of the station 337 outboard partitions for a tie rod and quick release pins, and also to determine that both partition supports are engaged in the structural bracket, and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    AD Requirements

    This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the AD and the Service Information.”

    The phrase “corrective actions” is used in this AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

    Differences Between the AD and the Service Information

    Boeing Service Bulletin B787-81205-SB250081-00, Issue 001, dated December 9, 2014, specifies to do the general visual inspection “in accordance with the Tasks in Table 6” of the service information. However “Table 6” does not exist. The tasks are identified in Table 4 of the service information. Therefore, this AD requires that the inspection be done in accordance with the tasks in Table 4 of the Accomplishment Instructions of Boeing Service Bulletin B787-81205-SB250081-00, Issue 001, dated December 9, 2014.

    FAA's Justification and Determination of the Effective Date

    Since there are currently no domestic operators of this product, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

    Comments Invited

    This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket Number FAA-2016-3981; Directorate Identifier 2015-NM-053-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

    Costs of Compliance

    We estimate that this AD affects 0 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
  • Inspection 3 work-hours × $85 per hour = $255 $0 $255 $0

    We estimate the following costs to do any necessary repairs that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these repairs:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Corrective action 1 work-hour × $85 per hour = $85 $1,027 $1,112

    According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    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): 2016-04-23 The Boeing Company: Amendment 39-18417; Docket No. FAA-2016-3981; Directorate Identifier 2015-NM-053-AD. (a) Effective Date

    This AD is effective March 15, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 787-8 airplanes, certificated in any category, as identified in Boeing Service Bulletin B787-81205-SB250081-00, Issue 001, dated December 9, 2014.

    (d) Subject

    Air Transport Association (ATA) of America Code 25, Equipment/furnishings.

    (e) Unsafe Condition

    This AD was prompted by reports of missing right and left outboard partition tie rods at station 337 (door number 1). We are issuing this AD to detect and correct partitions with missing tie rods or release pins or with supports that are not engaged in the structural bracket. These partitions could come loose during a high-acceleration event and strike the flight attendant seats in the door 1 location, causing serious injury to the seat occupants, or could affect safe egress from the airplane.

    (f) Compliance

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

    (g) Inspection and Corrective Actions

    Within 60 months after the effective date of this AD: Do a general visual inspection of the applicable station 337 outboard partitions for a tie rod and quick release pins, and to ensure that both partition supports are engaged in the structural bracket at each outboard partition; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Service Bulletin B787-81205-SB250081-00, Issue 001, dated December 9, 2014; except where Boeing Service Bulletin B787-81205-SB250081-00, Issue 001, dated December 9, 2014, specifies to do the general visual inspection “in accordance with the Tasks in Table 6,” this AD requires that the inspection be done in accordance with the tasks in Table 4 of the Accomplishment Instructions of Boeing Service Bulletin B787-81205-SB250081-00, Issue 001, dated December 9, 2014. Do all applicable corrective actions before further flight.

    (h) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle 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, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (i) Related Information

    For more information about this AD, contact Francis Smith, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone 425-917-6596; fax 425-917-6590; 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 Service Bulletin B787-81205-SB250081-00, Issue 001, dated December 9, 2014.

    (ii) Reserved.

    (3) For Boeing service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; 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 February 18, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-04138 Filed 2-26-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31063; Amdt. No. 3684] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

    DATES:

    This rule is effective February 29, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

    The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 29, 2016.

    ADDRESSES:

    Availability of matter incorporated by reference in the amendment is as follows:

    For Examination

    1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001;

    2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

    3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

    4. The National Archives and Records Administration (NARA).

    For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Availability

    All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

    FOR FURTHER INFORMATION CONTACT:

    Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.

    SUPPLEMENTARY INFORMATION:

    This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

    Availability and Summary of Material Incorporated by Reference

    The material incorporated by reference is publicly available as listed in the ADDRESSES section.

    The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

    The Rule

    This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

    The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

    The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

    Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 97

    Air traffic control, Airports, Incorporation by reference, Navigation (air).

    Issued in Washington, DC, on February 12, 2016. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

    PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

    2. Part 97 is amended to read as follows:
    §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35 [AMENDED]

    By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:

    * * * Effective Upon Publication AIRAC date State City Airport FDC No. FDC date Subject 31-Mar-16 WY Casper Casper/Natrona County Intl 5/0128 01/26/16 ILS OR LOC RWY 3, Amdt 7. 31-Mar-16 WY Casper Casper/Natrona County Intl 5/0129 01/26/16 VOR/DME RWY 21, Amdt 9. 31-Mar-16 WY Casper Casper/Natrona County Intl 5/0130 01/26/16 VOR/DME RWY 3, Amdt 6B. 31-Mar-16 WY Fort Bridger Fort Bridger 5/0252 01/26/16 RNAV (GPS) RWY 22, Amdt 1. 31-Mar-16 WA Olympia Olympia Rgnl 5/0275 01/26/16 ILS OR LOC RWY 17, Amdt 12A. 31-Mar-16 AK New Stuyahok New Stuyahok 5/0563 01/27/16 RNAV (GPS) RWY 14, Orig. 31-Mar-16 AK New Stuyahok New Stuyahok 5/0564 01/27/16 RNAV (GPS) RWY 32, Orig. 31-Mar-16 MT Lewistown Lewistown Muni 5/0890 01/27/16 Takeoff Minimums and (Obstacle) DP, Amdt 3A. 31-Mar-16 CO Buena Vista Central Colorado Rgnl 5/0908 01/26/16 RNAV (GPS) RWY 33, Orig-A. 31-Mar-16 UT Moab Canyonlands Field 5/1609 01/27/16 VOR-A, Amdt 10A. 31-Mar-16 TN Nashville Nashville Intl 5/1824 02/03/16 RNAV (RNP) Z RWY 2C, Amdt 2A. 31-Mar-16 TN Nashville Nashville Intl 5/1825 02/03/16 RNAV (RNP) Z RWY 2L, Amdt 2A. 31-Mar-16 TN Nashville Nashville Intl 5/1827 02/03/16 RNAV (GPS) Y RWY 2R, Amdt 2B. 31-Mar-16 NE Scribner Scribner State 5/1842 02/09/16 RNAV (GPS) RWY 35, Amdt 1A. 31-Mar-16 FL Winter Haven Winter Haven's Gilbert 5/1857 01/28/16 RNAV (GPS) RWY 5, Amdt 1A. 31-Mar-16 CA Oceanside Oceanside Muni 5/1877 02/08/16 VOR-A, Amdt 3D. 31-Mar-16 CA Oceanside Oceanside Muni 5/1879 02/08/16 GPS RWY 24, Orig-B. 31-Mar-16 CA Oceanside Oceanside Muni 5/1881 02/08/16 GPS RWY 6, Orig-B. 31-Mar-16 CA Tracy Tracy Muni 5/2063 01/28/16 RNAV (GPS) RWY 30, Orig-A. 31-Mar-16 LA New Orleans Lakefront 5/2080 02/09/16 RNAV (GPS) RWY 36L, Orig. 31-Mar-16 OR Tillamook Tillamook 5/2116 01/27/16 RNAV (GPS) RWY 13, Orig-A. 31-Mar-16 NC Raleigh/Durham Raleigh-Durham Intl 5/2439 01/28/16 VOR RWY 5R, Amdt 13C. 31-Mar-16 UT Duchesne Duchesne Muni 5/2465 01/28/16 Takeoff Minimums and (Obstacle) DP, Orig. 31-Mar-16 UT Roosevelt Roosevelt Muni 5/2474 01/28/16 Takeoff Minimums and (Obstacle) DP, Amdt 1. 31-Mar-16 MN St Paul St Paul Downtown Holman Fld 5/2707 02/08/16 RNAV (GPS) RWY 32, Orig. 31-Mar-16 AK Central Central 5/2890 01/26/16 RNAV (GPS) RWY 8, Orig. 31-Mar-16 AK Central Central 5/2891 01/26/16 RNAV (GPS) RWY 26, Orig. 31-Mar-16 AK Togiak Village Togiak 5/2972 01/28/16 NDB-B, Amdt 1. 31-Mar-16 AK Togiak Village Togiak 5/2974 01/28/16 NDB/DME-A, Amdt 1. 31-Mar-16 GA Cedartown Polk County Airport- Cornelius Moore Field 5/3368 02/03/16 RNAV (GPS) RWY 10, Orig. 31-Mar-16 GA Cedartown Polk County Airport- Cornelius Moore Field 5/3369 02/03/16 RNAV (GPS) RWY 28, Orig. 31-Mar-16 AK Gambell Gambell 5/3400 01/26/16 RNAV (GPS) RWY 16, Orig. 31-Mar-16 AK Gambell Gambell 5/3402 01/26/16 RNAV (GPS) RWY 34, Orig. 31-Mar-16 MT Helena Helena Rgnl 5/4154 01/26/16 NDB-D, Amdt 3A. 31-Mar-16 MT Helena Helena Rgnl 5/4156 01/26/16 VOR-A, Amdt 15. 31-Mar-16 AK Wales Wales 5/4651 01/27/16 RNAV (GPS) RWY 18, Orig-B. 31-Mar-16 WA Shelton Sanderson Field 5/4663 01/27/16 RNAV (GPS) RWY 5, Orig. 31-Mar-16 AK Bettles Bettles 5/5221 01/27/16 VOR/DME RWY 1, Amdt 1. 31-Mar-16 WV Wheeling Wheeling Ohio Co 5/5312 01/28/16 Takeoff Minimums and (Obstacle) DP, Amdt 3. 31-Mar-16 FL Plant City Plant City 5/5679 01/28/16 RNAV (GPS) RWY 10, Amdt 1B. 31-Mar-16 AK Minchumina Minchumina 5/5730 01/26/16 Takeoff Minimums and (Obstacle) DP, Amdt 2. 31-Mar-16 CA Tracy Tracy Muni 5/5796 01/26/16 RNAV (GPS) RWY 26, Orig. 31-Mar-16 CA Tracy Tracy Muni 5/5797 01/26/16 RNAV (GPS) RWY 12, Amdt 1B. 31-Mar-16 CA Tracy Tracy Muni 5/5798 01/26/16 VOR/DME RWY 26, Orig. 31-Mar-16 AK Point Hope Point Hope 5/6615 01/26/16 NDB RWY 1, Amdt 2B. 31-Mar-16 AK Point Hope Point Hope 5/6622 01/26/16 NDB RWY 19, Amdt 2B. 31-Mar-16 AL Tuskegee Moton Field Muni 5/6923 01/28/16 RNAV (GPS) RWY 13, Amdt 2A. 31-Mar-16 AL Tuskegee Moton Field Muni 5/6924 01/28/16 RNAV (GPS) RWY 31, Amdt 2A. 31-Mar-16 AL Tuskegee Moton Field Muni 5/6925 01/28/16 VOR-A, Amdt 4A. 31-Mar-16 CA Placerville Placerville 5/7082 01/26/16 RNAV (GPS) RWY 5, Amdt 2. 31-Mar-16 WY Jackson Jackson Hole 5/7342 01/26/16 RNAV (GPS) Z RWY 19, Amdt 1. 31-Mar-16 WY Jackson Jackson Hole 5/7343 01/26/16 RNAV (RNP) Y RWY 19, Amdt 1. 31-Mar-16 WY Jackson Jackson Hole 5/7345 01/26/16 ILS Z OR LOC/DME RWY 19, Orig. 31-Mar-16 FL Key West Key West Intl 5/7346 01/28/16 RNAV (GPS) RWY 27, Orig. 31-Mar-16 AK Seward Seward 5/7353 01/26/16 RNAV (GPS)-A, Orig. 31-Mar-16 IL Flora Flora Muni 5/7383 02/09/16 RNAV (GPS) RWY 21, Amdt 2A. 31-Mar-16 CA Oxnard Oxnard 5/7768 01/27/16 ILS OR LOC RWY 25, Amdt 13A. 31-Mar-16 CA Oxnard Oxnard 5/7772 01/27/16 VOR RWY 25, Amdt 10A. 31-Mar-16 CA Oxnard Oxnard 5/7773 01/27/16 RNAV (GPS) RWY 25, Amdt 1A. 31-Mar-16 CA Camarillo Camarillo 5/7866 01/26/16 RNAV (GPS) RWY 8, Orig. 31-Mar-16 WY Pinedale Ralph Wenz Field 5/7931 01/28/16 NDB-A, Orig. 31-Mar-16 AK Yakutat Yakutat 5/7940 01/26/16 RNAV (GPS) RWY 11, Amdt 4. 31-Mar-16 CA San Diego Brown Field Muni 5/7981 01/27/16 RNAV (GPS) RWY 8L, Amdt 1A. 31-Mar-16 AK Wainwright Wainwright 5/8173 01/28/16 NDB RWY 5, Amdt 1. 31-Mar-16 AK Homer Homer 5/8184 01/27/16 RNAV (GPS) Z RWY 22, Amdt 1B. 31-Mar-16 AK Brevig Mission Brevig Mission 5/8215 01/27/16 RNAV (GPS) RWY 12, Orig. 31-Mar-16 AK Brevig Mission Brevig Mission 5/8216 01/27/16 RNAV (GPS) RWY 30, Orig. 31-Mar-16 AK Allakaket Allakaket 5/8218 01/27/16 RNAV (GPS) RWY 23, Amdt 1. 31-Mar-16 AK Allakaket Allakaket 5/8221 01/27/16 RNAV (GPS) RWY 5, Amdt 1A. 31-Mar-16 CO Denver Front Range 5/8292 01/27/16 ILS OR LOC RWY 17, Amdt 1. 31-Mar-16 CO Denver Front Range 5/8293 01/27/16 RNAV (GPS) RWY 17, Amdt 1. 31-Mar-16 CO Denver Front Range 5/8294 01/27/16 ILS OR LOC RWY 26, Amdt 5. 31-Mar-16 CO Denver Front Range 5/8295 01/27/16 NDB RWY 26, Amdt 5. 31-Mar-16 CO Denver Front Range 5/8297 01/27/16 RNAV (GPS) RWY 26, Amdt 1. 31-Mar-16 CO Denver Front Range 5/8298 01/27/16 ILS OR LOC RWY 35, Amdt 1. 31-Mar-16 CO Denver Front Range 5/8299 01/27/16 RNAV (GPS) RWY 35, Amdt 1. 31-Mar-16 AZ Prescott Ernest A Love Field 5/8468 02/08/16 RNAV (RNP) Z RWY 3R, Amdt 1. 31-Mar-16 AZ Bullhead City Laughlin/Bullhead Intl 5/8471 01/27/16 RNAV (GPS) RWY 16, Amdt 2. 31-Mar-16 OR Sunriver Sunriver 5/8576 01/26/16 RNAV (GPS) RWY 18, Orig-C. 31-Mar-16 OR Sunriver Sunriver 5/8577 01/26/16 VOR/DME RWY 18, Amdt 1B. 31-Mar-16 TX Navasota Navasota Muni 5/8997 02/03/16 RNAV (GPS) RWY 35, Orig-A. 31-Mar-16 TX Navasota Navasota Muni 5/8999 02/03/16 VOR-A, Amdt 2. 31-Mar-16 TX Navasota Navasota Muni 5/9001 02/03/16 RNAV (GPS) RWY 17, Orig-A. 31-Mar-16 LA Slidell Slidell 5/9020 02/09/16 VOR/DME RWY 18, Amdt 4A. 31-Mar-16 LA Slidell Slidell 5/9023 02/09/16 RNAV (GPS) RWY 36, Orig-B. 31-Mar-16 LA Slidell Slidell 5/9025 02/09/16 RNAV (GPS) RWY 18, Orig-A. 31-Mar-16 IL Monee Bult Field 5/9026 02/09/16 RNAV (GPS) RWY 27, Orig. 31-Mar-16 IL Monee Bult Field 5/9027 02/09/16 RNAV (GPS) RWY 9, Orig. 31-Mar-16 CA Blythe Blythe 5/9352 01/27/16 RNAV (GPS) RWY 26, Amdt 1. 31-Mar-16 NE Lexington Jim Kelly Field 5/9468 02/03/16 RNAV (GPS) RWY 14, Amdt 1A. 31-Mar-16 WY Afton Afton Muni 5/9483 01/26/16 RNAV (GPS) RWY 34, Amdt 2. 31-Mar-16 WY Afton Afton Muni 5/9484 01/26/16 RNAV (GPS) RWY 16, Amdt 2. 31-Mar-16 CA Napa Napa County 5/9545 01/28/16 VOR RWY 6, Amdt 13. 31-Mar-16 CA Napa Napa County 5/9546 01/28/16 RNAV (GPS) Y RWY 36L, Amdt 2. 31-Mar-16 CA Napa Napa County 5/9547 01/28/16 ILS OR LOC RWY 36L, Orig-A. 31-Mar-16 CA Petaluma Petaluma Muni 5/9550 01/28/16 RNAV (GPS) RWY 29, Orig-A. 31-Mar-16 CA Groveland Pine Mountain Lake 5/9796 01/28/16 Takeoff Minimums and (Obstacle) DP, Orig. 31-Mar-16 CA Palo Alto Palo Alto 5/9799 01/27/16 VOR/DME RWY 31, Orig-D. 31-Mar-16 WA Richland Richland 5/9908 01/28/16 RNAV (GPS) RWY 26, Amdt 2. 31-Mar-16 CA Bakersfield Bakersfield Muni 6/0829 01/27/16 VOR/DME RWY 34, Amdt 1A. 31-Mar-16 CA Bakersfield Bakersfield Muni 6/0830 01/27/16 RNAV (GPS) RWY 34, Orig-A. 31-Mar-16 CA Groveland Pine Mountain Lake 6/1151 02/09/16 GPS RWY 27, Orig. 31-Mar-16 CA Groveland Pine Mountain Lake 6/1152 02/09/16 RNAV (GPS) RWY 9, Orig. 31-Mar-16 PA Ebensburg Ebensburg 6/1283 01/27/16 RNAV (GPS) RWY 25, Orig-B. 31-Mar-16 PA Ebensburg Ebensburg 6/1366 01/27/16 RNAV (GPS) RWY 7, Orig-A. 31-Mar-16 AZ Chandler Chandler Muni 6/2401 02/09/16 NDB RWY 4R, Orig-B. 31-Mar-16 MT Roundup Roundup 6/2450 02/08/16 RNAV (GPS) RWY 25, Orig-A. 31-Mar-16 MN Grand Rapids Grand Rapids/Itasca Co-Gordon Newstrom Fld 6/2954 02/09/16 ILS OR LOC RWY 34, Amdt 2. 31-Mar-16 TX Jasper Jasper County-Bell Field 6/2957 02/09/16 RNAV (GPS) RWY 36, Orig. 31-Mar-16 IL Lincoln Logan County 6/2960 02/08/16 Takeoff Minimums and (Obstacle) DP, Amdt 1. 31-Mar-16 MI Marshall Brooks Field 6/2961 02/09/16 RNAV (GPS) RWY 28, Orig-A. 31-Mar-16 MI Marshall Brooks Field 6/2962 02/09/16 VOR/DME-A, Orig. 31-Mar-16 AL Wetumpka Wetumpka Muni 6/3254 02/08/16 RNAV (GPS) RWY 27, Orig. 31-Mar-16 FL Marathon The Florida Keys Marathon 6/3260 01/27/16 NDB-A, Orig. 31-Mar-16 FL Marathon The Florida Keys Marathon 6/3261 01/27/16 RNAV (GPS) RWY 7, Orig. 31-Mar-16 FL Marathon The Florida Keys Marathon 6/3262 01/27/16 RNAV (GPS) RWY 25, Amdt 1. 31-Mar-16 FL Marathon The Florida Keys Marathon 6/3263 01/27/16 Takeoff Minimums and (Obstacle) DP, Amdt 1B. 31-Mar-16 NH Claremont Claremont Muni 6/3441 02/08/16 NDB-A, Amdt 1. 31-Mar-16 AL Wetumpka Wetumpka Muni 6/3453 02/08/16 RNAV (GPS) RWY 9, Orig. 31-Mar-16 AL Wetumpka Wetumpka Muni 6/3454 02/08/16 VOR-A, Amdt 2. 31-Mar-16 TN Camden Benton County 6/4091 02/03/16 RNAV (GPS) RWY 22, Orig-B. 31-Mar-16 TN Camden Benton County 6/4092 02/03/16 RNAV (GPS) RWY 4, Orig. 31-Mar-16 AZ Prescott Ernest A Love Field 6/4364 02/08/16 RNAV (GPS) Y RWY 3R, Orig. 31-Mar-16 GA Cairo Cairo-Grady County 6/4711 02/08/16 RNAV (GPS) RWY 13, Amdt 1A. 31-Mar-16 AZ Prescott Ernest A Love Field 6/4865 02/08/16 RNAV (GPS) RWY 12, Orig. 31-Mar-16 AZ Prescott Ernest A Love Field 6/4867 02/08/16 ILS OR LOC/DME RWY 21L, Amdt 4A. 31-Mar-16 AZ Prescott Ernest A Love Field 6/4868 02/08/16 RNAV (GPS) RWY 21L, Amdt 2A. 31-Mar-16 KY Ashland Ashland Rgnl 6/5224 01/26/16 RNAV (GPS) RWY 28, Amdt 1B. 31-Mar-16 KY Ashland Ashland Rgnl 6/5225 01/26/16 RNAV (GPS) RWY 10, Amdt 1B. 31-Mar-16 AZ Kingman Kingman 6/6420 01/28/16 VOR/DME RWY 21, Amdt 7A. 31-Mar-16 AZ Kingman Kingman 6/6421 01/28/16 RNAV (GPS) Y RWY 21, Orig-A. 31-Mar-16 AZ Kingman Kingman 6/6422 01/28/16 RNAV (GPS) RWY 3, Orig-A. 31-Mar-16 AZ Kingman Kingman 6/6423 01/28/16 RNAV (GPS) Z RWY 21, Orig-B. 31-Mar-16 UT Moab Canyonlands Field 6/7780 02/03/16 RNAV (GPS) RWY 3, Orig.
    [FR Doc. 2016-04213 Filed 2-26-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31062; Amdt. No. 3683] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

    DATES:

    This rule is effective February 29, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

    The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 29, 2016.

    ADDRESSES:

    Availability of matters incorporated by reference in the amendment is as follows:

    For Examination

    1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001.

    2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

    3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

    4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Availability

    All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

    FOR FURTHER INFORMATION CONTACT:

    Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.

    SUPPLEMENTARY INFORMATION:

    This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

    The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

    Availability and Summary of Material Incorporated by Reference

    The material incorporated by reference is publicly available as listed in the ADDRESSES section.

    The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

    The Rule

    This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

    The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

    Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 97

    Air traffic control, Airports, Incorporation by reference, Navigation (air).

    Issued in Washington, DC, on February 12, 2016. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

    PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

    2. Part 97 is amended to read as follows: Effective 31 MARCH 2016 Deadhorse, AK, Deadhorse, RNAV (RNP) Z RWY 5, Orig-C, CANCELED Deadhorse, AK, Deadhorse, RNAV (RNP) Z RWY 23, Orig-C, CANCELED Muscle Shoals, AL, Northwest Alabama Rgnl, VOR RWY 29, Amdt 27A, CANCELED El Dorado, AR, South Arkansas Rgnl at Goodwin Field, VOR RWY 22, Amdt 13D, CANCELED Washington, DC, Ronald Reagan Washington National, VOR RWY 15, Amdt 2 CANCELED Washington, DC, Ronald Reagan Washington National, VOR RWY 19, Amdt 10, CANCELED Washington, DC, Ronald Reagan Washington National, VOR/DME RWY 1, Amdt 14B, CANCELED Charles City, IA, Northeast Iowa Rgnl, LOC RWY 12, Amdt 1 Charles City, IA, Northeast Iowa Rgnl, NDB RWY 12, Amdt 1, CANCELED Charles City, IA, Northeast Iowa Rgnl, RNAV (GPS) RWY 12, Amdt 1 Charles City, IA, Northeast Iowa Rgnl, RNAV (GPS) RWY 30, Amdt 1 West Union, IA, George L Scott Muni, RNAV (GPS) RWY 17, Amdt 1 West Union, IA, George L Scott Muni, RNAV (GPS) RWY 35, Amdt 1 West Union, IA, George L Scott Muni, Takeoff Minimums and Obstacle DP, Amdt 3 Salmon, ID, Lemhi County, RNAV (GPS) RWY 17, Orig Salmon, ID, Lemhi County, RNAV (GPS)-C, Orig-B, CANCELED Salmon, ID, Lemhi County, RNAV (GPS)-D, Amdt 1 Salmon, ID, Lemhi County, VOR/DME-B, Amdt 1 Champaign/Urbana, IL, University of Illinois-Willard, RNAV (GPS) RWY 18, Orig-A, CANCELED Champaign/Urbana, IL, University of Illinois-Willard, RNAV (GPS) RWY 36, Orig-B, CANCELED Champaign/Urbana, IL, University of Illinois-Willard, VOR RWY 18, Orig-A, CANCELED Indianapolis, IN, Eagle Creek Airpark, LOC RWY 21, Amdt 4 Indianapolis, IN, Eagle Creek Airpark, RNAV (GPS) RWY 21, Amdt 1 Indianapolis, IN, Greenwood Muni, Takeoff Minimums and Obstacle DP, Amdt 4A Warsaw, IN, Warsaw Muni, VOR RWY 27, Amdt 7, CANCELED Bedford, MA, Laurence G Hanscom Fld, NDB RWY 29, Amdt 8, CANCELED Salisbury, MD, Salisbury-Ocean City Wicomico Rgnl, VOR RWY 23, Amdt 10A, CANCELED Salisbury, MD, Salisbury-Ocean City Wicomico Rgnl, VOR RWY 32, Amdt 10, CANCELED Escanaba, MI, Delta County, VOR RWY 9, Amdt 14B, CANCELED Escanaba, MI, Delta County, VOR RWY 27, Amdt 12B, CANCELED Manistee, MI, Manistee Co-Blacker, VOR RWY 28, Amdt 1B, CANCELED Litchfield, MN, Litchfield Muni, VOR/DME RWY 13, Orig-B, CANCELED Mankato, MN, Mankato Rgnl, VOR RWY 33, Amdt 8A, CANCELED St James, MN, St James Muni, NDB RWY 33, Amdt 1B St James, MN, St James Muni, RNAV (GPS) RWY 15, Amdt 1 St James, MN, St James Muni, RNAV (GPS) RWY 33, Amdt 1 Worthington, MN, Worthington Muni, VOR RWY 36, Amdt 6A, CANCELED Brookfield, MO, North Central Missouri Rgnl, RNAV (GPS) RWY 18, Orig Brookfield, MO, North Central Missouri Rgnl, RNAV (GPS) RWY 36, Amdt 2 Brookfield, MO, North Central Missouri Rgnl, Takeoff Minimums and Obstacle DP, Amdt 3 Greensboro, NC, Piedmont Triad Intl, ILS Y OR LOC/DME Y RWY 32, Orig Greensboro, NC, Piedmont Triad Intl, ILS Z OR LOC/DME Z RWY 32, Orig New Bern, NC, Coastal Carolina Regional, VOR RWY 4, Amdt 4B, CANCELED Devils Lake, ND, Devils Lake Rgnl, VOR RWY 21, Orig-B, CANCELED Mc Cook, NE, Mc Cook Ben Nelson Rgnl, VOR RWY 12, Amdt 12A, CANCELED Mc Cook, NE, Mc Cook Ben Nelson Rgnl, VOR RWY 22, Amdt 4F, CANCELED Ogallala, NE, Searle Field, VOR RWY 8, Amdt 6B, CANCELED Ogallala, NE, Searle Field, VOR RWY 26, Amdt 6B, CANCELED Ogallala, NE, Searle Field, VOR/DME RWY 8, Amdt 1B, CANCELED Sidney, NE, Sidney Muni/Lloyd W Carr Field, VOR RWY 13, Amdt 7, CANCELED Sidney, NE, Sidney, Muni/Lloyd W Carr Field, VOR RWY 31, Amdt 8, CANCELED Readington, NJ, Solberg-Hunterdon, VOR-A, Amdt 9A, CANCELED Farmington, NM, Four Corners Rgnl, VOR RWY 23, Orig, CANCELED Farmington, NM, Four Corners Rgnl, VOR RWY 25, Amdt 10, CANCELED Las Vegas, NM, Las Vegas Muni, VOR RWY 2, Amdt 11A, CANCELED Lovelock, NV, Derby Field, VOR OR GPS-C, Orig-B, CANCELED Binghamton, NY, Greater Binghamton/Edwin A Link Field, VOR RWY 10, Amdt 7, CANCELED Ithaca, NY, Ithaca Tompkins Rgnl, VOR RWY 32, Amdt 2A, CANCELED New York, NY, LaGuardia, VOR/DME-G, Amdt 2C, CANCELED Rochester, NY, Greater Rochester Intl, VOR/DME RWY 4, Amdt 4A, CANCELED Circleville, OH, Pickaway County Memorial, RNAV (GPS) RWY 1, Orig Circleville, OH, Pickaway County Memorial, RNAV (GPS) RWY 19, Orig Circleville, OH, Pickaway County Memorial, VOR RWY 19, Amdt 3 Newark, OH, Newark-Heath, NDB OR GPS RWY 9, Amdt 6A, CANCELED Ada, OK, Ada Muni, VOR/DME-A, Orig-E, CANCELED Cushing, OK, Cushing Muni, NDB RWY 36, Amdt 5, CANCELED Norman, OK, University of Oklahoma Westheimer, NDB RWY 3, Amdt 1A, CANCELED Norman, OK, University of Oklahoma Westheimer, NDB RWY 35, Orig-C, CANCELED Stillwater, OK, Stillwater Rgnl, NDB RWY 17, Amdt 1A, CANCELED North Bend, OR, Southwest Oregon Rgnl, NDB RWY 4, Amdt 6, CANCELED Bloomsburg, PA, Bloomsburg Muni, RNAV (GPS)-B, Amdt 1 Bloomsburg, PA, Bloomsburg Muni, VOR-A, Amdt 1 Hartsville, SC, Hartsville Rgnl, NDB RWY 3, Amdt 1A, CANCELED Mitchell, SD, Mitchell Muni, VOR RWY 31, Amdt 5A, CANCELED Yankton, SD, Chan Gurney Muni, VOR RWY 31, Amdt 3B, CANCELED Athens, TN, McMinn County, NDB RWY 20, Amdt 7A, CANCELED Bowie, TX, Bowie Muni, NDB RWY 35, Amdt 4, CANCELED Brownwood, TX, Brownwood Rgnl, VOR RWY 17, Amdt 11A, CANCELED Dallas, TX, Dallas Love Field, Takeoff Minimums and Obstacle DP, Amdt 16A Del Rio TX, Del Rio Intl, VOR/DME-B, Amdt 1, CANCELED Houston, TX, William P Hobby, VOR/DME RWY 35, Amdt 3A, CANCELED La Porte, TX, La Porte Muni, NDB RWY 30, Amdt 2A, CANCELED Wendover, UT, Wendover, VOR/DME-B, Amdt 2 Lynchburg, VA, Lynchburg Rgnl/Preston Glenn Fld, VOR RWY 4, Amdt 12A, CANCELED Melfa, VA, Accomack County, LOC RWY 3, Orig Auburn, WA, Auburn Muni, BLAKO ONE, Graphic DP Auburn, WA, Auburn Muni, Takeoff Minimums and Obstacle DP, Amdt 1 Kenosha, WI, Kenosha Rgnl, VOR RWY 15, Amdt 1, CANCELED Milwaukee, WI, Lawrence J Timmerman, VOR RWY 15L, Amdt 14B, CANCELED Martinsburg, WV, Eastern WV Rgnl/Shepherd Fld, Takeoff Minimums and Obstacle DP, Amdt 7
    [FR Doc. 2016-04216 Filed 2-26-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 700, 701, 702, 705, 730, 732, 734, 736, 738, 740, 742, 743, 744, 746, 747, 748, 750, 754, 756, 758, 760, 762, 764, 766, 768, 770, 772, and 774 [Docket No. 160212107-6107-01] RIN 0694-AG84 Updated Legal Authority Citations AGENCY:

    Bureau of Industry and Security, Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    This rule updates the Code of Federal Regulations (CFR) legal authority citations in the National Security Industrial Base Regulations (NSIBR) and the Export Administration Regulations (EAR). The citation updates reflect recent editorial reclassifications within the United States Code, the repeal of certain statutory authorities, the continuation of an emergency declared in an executive order, and minor stylistic edits. This is a non-substantive rule that only updates legal authority paragraphs of the NSIBR and the EAR. It does not alter any right, obligation or prohibition that applies to any person under the NSIBR or the EAR.

    DATES:

    The rule is effective February 29, 2016.

    FOR FURTHER INFORMATION CONTACT:

    William Arvin, Regulatory Policy Division, Bureau of Industry and Security, Telephone: (202) 482-2440.

    SUPPLEMENTARY INFORMATION: Background

    Authority for various parts of 15 CFR Chapter VII is based on the Defense Production Act of 1950 as amended, the Military Selective Service Act, the Export Administration Act of 1979 as amended and the Trading with the Enemy Act. This rule updates authority citations in 15 CFR Chapter VII to include the most recent applicable United States Code (“U.S.C.”) citations for those statutes. Additionally, the authority for parts 730 and 744 of that chapter rests, in part, on Executive Order 12947—Prohibiting Transactions With Respect to Terrorists Who Threaten To Disrupt the Middle East Peace Process (60 FR 5079, 3 CFR, 1995 Comp., p. 356) and on the annual notice continuing the emergency declared in that executive order. This rule updates the authority citations for those parts to cite the most recent such notice. This rule also removes citations to Section 103 of the Energy Policy and Conservation Act, which has been repealed, and adds citations to the Annual Compilation of Presidential Documents for Presidential documents that have been compiled therein. Finally, this rule makes stylistic edits to conform citations to the style prescribed in the Federal Register Document Drafting Handbook.

    The specific reasons for the revisions are as follows:

    • Parts 700, 701 and 702 to cite the most recent U.S.C. codification of the Defense Production Act of 1950 as amended;

    • Part 700 to cite the most recent U.S.C. codification of the Military Selective Service Act;

    • Parts 730 through 744 and 746 through 774 to cite the most recent U.S.C. codification of the Export Administration Act;

    • Parts 730, 738, 754 and 774 to remove the citation to Section 103 of the Energy Policy and Conservation Act, 42 U.S.C. 6212, which dealt with, inter alia, restrictions on exports of crude oil and has been repealed;

    • Parts 730, 738 and 774 to cite the most recent U.S.C. codification of the Trading With the Enemy Act;

    • Parts 730 and 744 to cite the presidential notice of January 22, 2016 continuing the emergency declared in E.O. 12947; and

    • Parts 743, 746, 747 and 750 to cite the Title 3 CFR Annual Compilation of Presidential Documents for Presidential documents that have been compiled therein.

    All other changes to the authority citations made by this rule are stylistic changes made to conform to the style of the Federal Register Document Drafting Handbook.

    This rule is purely procedural, and makes no changes other than to revise CFR authority paragraphs for the purpose of making the authority citations current and to conform to Federal Register Document Drafting Handbook style. It does not change the text of any section of Chapter VII nor does it alter any right, obligation or prohibition that applies to any person under that chapter.

    Rulemaking Requirements

    1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rule does not impose any regulatory burden on the public and is consistent with the goals of Executive Order 13563. This rule has been determined to be not significant for purposes of Executive Order 12866.

    2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule does not involve any collection of information.

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

    4. The Department finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because they are unnecessary. This rule only updates legal authority citations. It clarifies information and is non-discretionary. This rule does not alter any right, obligation or prohibition that applies to any person under the EAR. Because these revisions are not substantive changes, it is unnecessary to provide notice and opportunity for public comment. In addition, the 30-day delay in effectiveness otherwise required by 5 U.S.C. 553(d) is not applicable because this rule is not a substantive rule. Because neither the Administrative Procedure Act nor any other law requires that notice of proposed rulemaking and an opportunity for public comment be given for this rule, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no Final Regulatory Flexibility Analysis is required and none has been prepared.

    List of Subjects 15 CFR Part 700

    Administrative practice and procedure, Business and industry, Government contracts, National defense, Reporting and recordkeeping requirements, Strategic and critical materials.

    15 CFR Part 701

    Administrative practice and procedure, Arms and munitions, Business and industry, Exports, Government contracts, Reporting and recordkeeping requirements.

    15 CFR Part 702

    Business and industry, Confidential business information, Employment, National defense, Penalties, Research, Science and technology.

    15 CFR Part 705

    Administrative practice and procedure, Business and industry, Classified information, Confidential business information, Investigations, National defense.

    15 CFR Part 730

    Administrative practice and procedure, Advisory committees, Exports, Reporting and recordkeeping requirements, Strategic and critical materials.

    15 CFR Parts 732, 740, 748, 750, and 758

    Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.

    15 CFR Part 734

    Administrative practice and procedure, Exports, Inventions and patents, Research, Science and technology.

    15 CFR Parts 736, 738, 770, and 772

    Exports.

    15 CFR Part 742

    Exports, Terrorism.

    15 CFR Part 743

    Administrative practice and procedure, Reporting and recordkeeping requirements.

    15 CFR Part 744

    Exports, Reporting and recordkeeping requirements, Terrorism.

    15 CFR Parts 746 and 774

    Exports, Reporting and recordkeeping requirements.

    15 CFR Part 747

    Administrative practice and procedure, Exports, Foreign trade, Reporting and recordkeeping requirements.

    15 CFR Part 754

    Agricultural commodities, Exports, Forests and forest products, Horses, Petroleum, Reporting and recordkeeping requirements.

    15 CFR Part 756

    Administrative practice and procedure, Exports, Penalties.

    15 CFR Part 760

    Boycotts, Exports, Reporting and recordkeeping requirements.

    15 CFR Part 762

    Administrative practice and procedure, Business and industry, Confidential business information, Exports, Reporting and recordkeeping requirements.

    15 CFR Part 764

    Administrative practice and procedure, Exports, Law enforcement, Penalties.

    15 CFR Part 766

    Administrative practice and procedure, Confidential business information, Exports, Law enforcement, Penalties.

    15 CFR Part 768

    Administrative practice and procedure, Exports, Reporting and recordkeeping requirements, Science and technology.

    Accordingly, 15 CFR Chapter VII is amended as follows:

    PART 700—[AMENDED] 1. The authority citation for 15 CFR part 700 is revised to read as follows: Authority:

    50 U.S.C. 4501 et seq.; 42 U.S.C. 5195, et seq.; 50 U.S.C. 3816; 10 U.S.C. 2538; 50 U.S.C. 82; E.O. 12656, 53 FR 226, 3 CFR, 1988 Comp., p. 585; E.O. 12742, 56 FR 1079, 3 CFR, 1991 Comp., p. 309; E.O. 13603, 77 FR 16651, 3 CFR, 2012 Comp., p. 225.

    PART 701—[AMENDED] 2. The authority citation for 15 CFR part 701 is revised to read as follows: Authority:

    50 U.S.C. 4568; E.O. 12919, 59 FR 29525, 3 CFR, 1994 Comp., p. 901; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.

    PART 702—[AMENDED] 3. The authority citation for 15 CFR part 702 is revised to read as follows: Authority:

    50 U.S.C. 4501 et seq.; E.O. 13603, 77 FR 16651, 3 CFR, 2012 Comp., p. 225.

    PART 705—[AMENDED] 4. The authority citation for 15 CFR part 705 is revised to read as follows: Authority:

    19 U.S.C. 1862.

    PART 730—[AMENDED] 5. The authority citation for 15 CFR part 730 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 2151 note; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 43 U.S.C. 1354; 15 U.S.C. 1824a; 50 U.S.C. 4305; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 11912, 41 FR 15825, 3 CFR, 1976 Comp., p. 114; E.O. 12002, 42 FR 35623, 3 CFR, 1977 Comp., p. 133; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12214, 45 FR 29783, 3 CFR, 1980 Comp., p. 256; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12854, 58 FR 36587, 3 CFR, 1993 Comp., p. 179; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p. 899; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 12981, 60 FR 62981, 3 CFR, 1995 Comp., p. 419; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; E.O. 13338, 69 FR 26751, 3 CFR, 2004 Comp., p 168; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 223; Notice of May 6, 2015, 80 FR 26815 (May 8, 2015); Notice of August 7, 2015, 80 FR 48233 (August 11, 2015); Notice of September 18, 2015, 80 FR 57281 (September 22, 2015); Notice of November 12, 2015, 80 FR 70667 (November 13, 2015); Notice of January 20, 2016, 81 FR 3937 (January 22, 2016).

    PART 732—[AMENDED] 6. The authority citation for 15 CFR part 732 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 734—[AMENDED] 7. The authority citation for 15 CFR part 734 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 223; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015); Notice of November 12, 2015, 80 FR 70667 (November 13, 2015).

    PART 736—[AMENDED] 8. The authority citation for 15 CFR part 736 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 2151 note; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 26751, 3 CFR, 2004 Comp., p. 168; Notice of May 6, 2015, 80 FR 26815 (May 8, 2015); Notice of August 7, 2015, 80 FR 48233 (August 11, 2015); Notice of November 12, 2015, 80 FR 70667 (November 13, 2015).

    PART 738—[AMENDED] 9. The authority citation for 15 CFR part 738 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 43 U.S.C. 1354; 15 U.S.C. 1824a; 50 U.S.C. 4305; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 740—[AMENDED] 10. The authority citation for 15 CFR part 740 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 742—[AMENDED] 11. The authority citation for 15 CFR part 742 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; Sec. 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23, 68 FR 26459, 3 CFR, 2004 Comp., p. 320; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015); Notice of November 12, 2015, 80 FR 70667 (November 13, 2015).

    PART 743—[AMENDED] 12. The authority citation for 15 CFR part 743 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 223; 78 FR 16129; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 744—[AMENDED] 13. The authority citation for 15 CFR part 744 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015); Notice of September 18, 2015, 80 FR 57281 (September 22, 2015); Notice of November 12, 2015, 80 FR 70667 (November 13, 2015); Notice of January 20, 2016, 81 FR 3937 (January 22, 2016).

    PART 746—[AMENDED] 14. The authority citation for 15 CFR part 746 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 287c; Sec 1503, Pub. L. 108-11, 117 Stat. 559; 22 U.S.C. 6004; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 12854, 58 FR 36587, 3 CFR, 1993 Comp., p. 614; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p. 899; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 26751, 3 CFR, 2004 Comp., p 168; Presidential Determination 2003-23, 68 FR 26459, 3 CFR, 2004 Comp., p. 320; Presidential Determination 2007-7, 72 FR 1899, 3 CFR, 2006 Comp., p. 325; Notice of May 6, 2015, 80 FR 26815 (May 8, 2015); Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 747—[AMENDED] 15. The authority citation for 15 CFR part 747 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; Sec 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p. 899; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23, 68 FR 26459, 3 CFR, 2004 Comp., p. 320; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 748—[AMENDED] 16. The authority citation for 15 CFR part 748 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 750—[AMENDED] 17. The authority citation for 15 CFR part 750 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; Sec 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13637, 78 FR 16129, 3 CFR, 2013 Comp., p. 223; Presidential Determination 2003-23, 68 FR 26459, 3 CFR, 2004 Comp., p. 320; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 754—[AMENDED] 18. The authority citation for 15 CFR part 754 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 30 U.S.C. 185(s), 185(u); 43 U.S.C. 1354; 15 U.S.C. 1824a; E.O. 11912, 41 FR 15825, 3 CFR, 1976 Comp., p. 114; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 756—[AMENDED] 19. The authority citation for 15 CFR part 756 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 758—[AMENDED] 20. The authority citation for 15 CFR part 758 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 760—[AMENDED] 21. The authority citation for 15 CFR part 760 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 762—[AMENDED] 22. The authority citation for 15 CFR part 762 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 764—[AMENDED] 23. The authority citation for 15 CFR part 764 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 766—[AMENDED] 24. The authority citation for 15 CFR part 766 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 768—[AMENDED] 25. The authority citation for 15 CFR part 768 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 770—[AMENDED] 26. The authority citation for 15 CFR part 770 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 772—[AMENDED] 27. The authority citation for 15 CFR part 772 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    PART 774—[AMENDED] 28. The authority citation for 15 CFR part 774 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 43 U.S.C. 1354; 15 U.S.C. 1824a; 50 U.S.C. 4305; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    Dated: February 23, 2016. Kevin J. Wolf, Assistant Secretary for Export Administration.
    [FR Doc. 2016-04324 Filed 2-26-16; 8:45 am] BILLING CODE 3510-33-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0135] Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Montlake Bridge across the Lake Washington Ship Canal, mile 5.2, at Seattle, WA. The deviation is necessary to accommodate a bike ride by the Cascade Bicycle Club. This deviation allows the bridge to remain in the closed-to-navigation position to allow for the safe movement of event participants.

    DATES:

    This deviation is effective from 7 a.m. on April 2, 2016 to 12:30 p.m. on April 3, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0135] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Washington State Department of Transportation requested permission for the Montlake Bridge across the Lake Washington Ship Canal to remain in the closed-to-navigation position to facilitate the safe, uninterrupted roadway passage of event participants. The deviation is necessary to accommodate the grand opening of the new Evergreen Point Floating Bridge bike ride by the Cascade Bicycle Club. The Montlake Bridge in the closed position provides 30 feet of vertical clearance throughout the navigation channel, and 46 feet of vertical clearance throughout the center 60 feet of the bridge; vertical clearance references to the Mean Water Level of Lake Washington. The deviation period is from 7 a.m. to 6 p.m. on April 2, 2016, and from 6:30 a.m. to 12:30 p.m. on April 3, 2016. The normal operating schedule for the Montlake Bridge operates in accordance with 33 CFR 117.1051(e).

    Waterway usage on the Lake Washington Ship Canal ranges from commercial tug and barge to small pleasure craft. Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will be able to open for emergencies. The Lake Washington Ship Canal has no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

    In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: February 23, 2016. Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard District.
    [FR Doc. 2016-04244 Filed 2-26-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0139] Drawbridge Operation Regulation; Long Creek & Sloop Channel, Hempstead, NY AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Loop Parkway Bridge, mile 0.7, across Long Creek, and the Meadowbrook State Parkway Bridge, mile 12.8, across Sloop Channel, both at Hempstead, New York. This temporary deviation is necessary to facilitate the Dee Snider's Motorcycle Ride to Fight Hunger on Long Island.

    DATES:

    This deviation is effective from 11 a.m. to 1 p.m. on September 18, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0139] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Ms. Judy K. Leung-Yee, Project Officer, First Coast Guard District, telephone (212) 514-4330, email [email protected]

    SUPPLEMENTARY INFORMATION:

    Long Island Cares, Inc. requested and the bridge owner for both bridges, the State of New York Department of Transportation, concurred with this temporary deviation from the normal operating schedule to facilitate a public event, the Dee Snider's Motorcycle Ride to Fight Hunger.

    The Loop Parkway Bridge, mile 0.7, across Long Creek has a vertical clearance in the closed position of 21 feet at mean high water and 25 feet at mean low water. The existing bridge operating regulations are found at 33 CFR 117.799(f).

    The Meadowbrook State Parkway Bridge, mile 12.8, across Sloop Channel has a vertical clearance in the closed position of 22 feet at mean high water and 25 feet at mean low water. The existing bridge operating regulations are found at 33 CFR 117.799(h).

    Long Creek and Sloop Channel are transited by commercial fishing and recreational vessel traffic.

    Under this temporary deviation, the Loop Parkway and the Meadowbrook State Parkway Bridges may remain in the closed position between 11 a.m. and 1 p.m. on September 18, 2016.

    Vessels able to pass under the bridge in the closed position may do so at any time. The bridges will not be able to open for emergencies and there are no immediate alternate routes for vessels to pass.

    The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

    In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: February 23, 2016. C.J. Bisignano, Supervisory Bridge Management Specialist, First Coast Guard District.
    [FR Doc. 2016-04278 Filed 2-26-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers 33 CFR Part 334 Atlantic Ocean South of Entrance to Chesapeake Bay Off Camp Pendleton, Virginia; Firing Range AGENCY:

    U.S. Army Corps of Engineers, Department of Defense.

    ACTION:

    Final rule.

    SUMMARY:

    The Corps of Engineers is establishing a permanent danger zone in waters of the Atlantic Ocean south of Rudee Inlet in Virginia Beach, Virginia. The Camp Pendleton firing range supports a myriad of stakeholders that include all components of the Department of Defense, including: U.S. Army, Army National Guard, Army Reserve, U.S. Navy, Navy Reserve, U.S. Marine Corps, U.S. Marine Corps Reserve, U.S. Air Force, Air Force National Guard, Air Force Reserve, U.S. Coast Guard, and the U.S. Coast Guard Reserve, as well as many non-Department of Defense units. Camp Pendleton, VA will provide an economical, safe training environment for individual live fire exercises, and collective units to conduct the minimum requirements for weapons qualification. The danger zone will increase the level of safety to the public in the vicinity of the live firing operations by providing additional notice of the hazards present.

    DATES:

    Effective date: March 30, 2016.

    ADDRESSES:

    U.S. Army Corps of Engineers, Attn: CECW-CO (David Olson), 441 G Street NW., Washington, DC 20314-1000.

    FOR FURTHER INFORMATION CONTACT:

    Mr. David Olson, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202-761-4922, or Ms. Nicole Woodward, Corps of Engineers, Norfolk District, Regulatory Branch, at 757-201-7122.

    SUPPLEMENTARY INFORMATION:

    The proposed rule was published in the June 22, 2015, edition of the Federal Register (80 FR 35621) and the regulations.gov docket number was COE-2015-0006. In response to the proposal, three comments were received. The comments received from the Virginia Department of Historic Resources and Virginia Department of Conservation and Recreation stated that the proposed rule will have no adverse effect on historic properties and no adverse impacts on natural heritage resources. In addition, a comment was received in response to the proposal in the Federal Register objecting to the creation of a firing range and the environmental effects associated with it. This action is the establishment of a danger zone at an existing firing range which has been in use for the last century, therefore no new environmental impacts are proposed as a result of the action.

    In response to a request by the United States Navy, and pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), the Corps of Engineers is amending 33 CFR part 334 for a permanent danger zone, in waters of the Atlantic Ocean south of Rudee Inlet in Virginia Beach, Virginia. The establishment of a permanent danger zone is necessary to protect the public from hazards associated with live firing operations.

    Administrative Requirements

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

    b. Review under the Regulatory Flexibility Act. This final rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354). The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities (i.e., small businesses and small governments). The danger zone is necessary to protect public safety and satisfy Department of Defense and other government agency requirements for small arms training. Small entities can utilize navigable waters outside of the danger zone when the danger zone is activated. After considering the economic impacts of this final danger zone regulation on small entities, I certify that this action will not have a significant impact on a substantial number of small entities.

    c. Review under the National Environmental Policy Act. This rule will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement is not required. An environmental assessment has been prepared. It may be reviewed at the District office listed at the end of the FOR FURTHER INFORMATION CONTACT section, above.

    d. Unfunded Mandates Act. This rule does not impose an enforceable duty among the private sector and, therefore, is not subject to the requirements of Section 202 or 205 of the Unfunded Mandates Reform Act (Public Laws 104-4, 109 Stat. 48, 2 U.S.C. 1501 et seq.). We have also found under Section 203 of the Act, that small governments will not be significantly or uniquely affected by this rule.

    List of Subjects in 33 CFR Part 334

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

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

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

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

    2. Add § 334.405 to read as follows:
    § 334.405 South of entrance to Chesapeake Bay off Camp Pendleton, Virginia; firing range.

    (a) The danger zone. An area directly from Camp Pendleton extending offshore as denied by lines drawn as follows: Beginning at latitude 36°49′00″ N., longitude 75°58′04″ W.; thence to latitude 36°49′19″ N., longitude 75°57′41″ W.; thence to latitude 36°49′21″ N., longitude 75°57′32″ W.; thence to latitude 36°49′13″ N., longitude 75°56′44″ W.; thence to latitude 36°49′22″ N., longitude 75°55′48″ W.; thence to latitude 36°49′12″ N., longitude 75°55′46″ W.; thence to latitude 36°49′02″ N., longitude 75°55′45″ W.; thence to latitude 36°48′52″ N., longitude 75°55′45″ W.; thence to latitude 36°48′54″ N., longitude 75°56′42″ W.; thence to latitude 36°48′41″ N., longitude 75°57′28″ W.; thence to latitude 36°48′41″ N., longitude 75°57′37″ W.; thence to latitude 36°48′57″ N., longitude 75°58′04″ W. The datum for these coordinates is WGS84.

    (b) The regulations. (1) Persons and vessels shall proceed through the area with caution and shall remain therein no longer than necessary for purpose of transit.

    (2) When firing is in progress during daylight hours, red flags will be displayed at conspicuous locations on the beach. No firing will be done during the hours of darkness or low visibility.

    (3) Firing on the ranges shall be suspended as long as any persons or vessels are within the danger zone.

    (4) Lookout posts shall be manned by the activity or agency operating the firing range State Military Reservation, Camp Pendleton.

    (5) There shall be no firing on the range during periods of low visibility which would prevent the recognition of a vessel (to a distance of 7,500 yards) which is property displaying navigation lights, or which would preclude a vessel from observing the red range flags or lights.

    (c) Enforcement. The regulations in this section shall be enforced by the Adjutant General of Virginia, and such agencies as he or she may designate.

    Dated: February 17, 2016. Edward E. Belk, Jr., Chief, Operations and Regulatory Division, Directorate of Civil Works.
    [FR Doc. 2016-04215 Filed 2-26-16; 8:45 am] BILLING CODE 3720-58-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0006; FRL-9942-90-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Prevention of Significant Deterioration; Fine Particulate Matter AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Commonwealth of Virginia State Implementation Plan (SIP) submitted by the Virginia Department of Environmental Quality (VADEQ) on behalf of the Commonwealth on July 22, 2014. VADEQ's submittal revises Virginia's Prevention of Significant Deterioration (PSD) air quality preconstruction permitting program to be consistent with the federal PSD regulations regarding the use of the significant monitoring concentration (SMC) and significant impact levels (SILs) for fine particulate matter (PM2.5) emissions. EPA is approving these revisions in accordance with the requirements of the Clean Air Act (CAA).

    DATES:

    This rule is effective on April 29, 2016 without further notice, unless EPA receives adverse written comment by March 30, 2016. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0006 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the “For Further Information Contact” section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Himanshu Vyas, (215) 814-2112, or by email at [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    The CAA at section 110(a)(2)(C) requires states to develop and submit to the EPA for approval into the SIP preconstruction review and permitting programs applicable to certain new and modified stationary sources of air pollutants for attainment and nonattainment areas that cover both major and minor new sources and modifications, collectively referred to as the New Source Review (NSR) SIP. The CAA NSR SIP program is composed of three separate programs: PSD, Nonattainment New Source Review (NNSR), and Minor NSR. PSD is established in part C of title I of the CAA and applies in areas that meet the National Ambient Air Quality Standards (NAAQS)—“attainment areas,” as well as areas where there is insufficient information to determine if the area meets the NAAQS—“unclassifiable areas.” The NNSR SIP program is established in part D of title I of the CAA and applies in areas that are not in attainment of the NAAQS—“nonattainment areas.” The Minor NSR SIP program addresses construction or modification activities that do not emit, or have the potential to emit, beyond certain major source thresholds, and thus do not qualify as “major” and applies regardless of the designation of the area in which a source is located. The EPA regulations governing the criteria that states must satisfy for EPA approval of the NSR programs as part of the SIP are contained in 40 CFR 51.160-51.166.

    On October 20, 2010, EPA promulgated revisions to the existing requirements of the federal PSD permitting program as it pertains to emissions of PM2.5. 1 As relevant here for this rulemaking, those revisions included two screening tools which outlined the extent to which certain sources were required as part of a permit application to demonstrate the impact of the proposed project on ambient air quality. A SMC was established to determine whether a PSD permit application may be exempted from the 1-year air monitoring requirement for PM2.5 based on the grounds that the increase of the pollutant is de minimis and would have a limited impact on ambient air quality. Additionally, SILs were established, below which a source was presumed to have met its statutory obligation to demonstrate that the proposed project would not cause or contribute to a violation of the NAAQS. In response to a request from EPA and a petition from a third party, the United States Court of Appeals for the District of Columbia Circuit (the Court) subsequently vacated and remanded to the EPA the portions of the 2010 PSD regulations establishing the PM2.5 SMC and SILs. Sierra Club v. EPA, 705 F.3d 458, 463-64 (D.C. Cir. 2013). As a result of this decision, EPA subsequently revised its regulations to amend the SMC for PM2.5 and to remove the SILs for PM2.5 altogether. See 78 FR 73698 (December 9, 2013).2

    1See “Prevention of Significant Deterioration (PSD) for Particulate Matter less than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC).” 75 FR 64864 (October 20, 2010).

    2 Rather than remove the PM2.5 SMC in its entirety, EPA revised the value to zero micrograms per cubic meter (µg/m3) in order to be clear that there is no air quality impact level below which a permitting authority has the discretion to exempt a source from PM2.5 monitoring requirements. See 78 FR at 73699.

    Prior to the Court's decision, on August 25, 2011, VADEQ submitted a formal revision to its SIP to incorporate changes to its PM2.5 regulations in accordance with the federal PSD program in effect at that time. In light of the Court's decision, by letter dated February 13, 2013, Virginia officially withdrew from the August 25, 2011 submittal those portions of the Virginia Administrative Code (VAC) which pertained to the PM2.5 SILs and SMC. Specifically, Virginia withdrew the PM2.5 SIL regulation at paragraph A(2) of 9VAC5-80-1715 and the portion of paragraph E(1) of 9VAC5-80-1695 pertaining to the PM2.5 SMC. On February 25, 2014, EPA approved the remaining portions of VADEQ's submittal without addressing the PM2.5 SMC and SILs. See 79 FR 10377. Virginia subsequently revised the VAC to comport with EPA's December 9, 2013 rulemaking for SILs and SMC and submitted those amended regulations to EPA as a formal SIP revision on July 22, 2014.

    II. Summary of SIP Revision

    Virginia's July 22, 2014 SIP submittal consists of revisions to Virginia's PSD permitting regulations at 9VAC5-80, sections 1695 and 1715 to reflect federal requirements relating to PM2.5 SMC and SILs. Specifically, 9VAC5-80-1695E(1) establishes a SMC of 0 µg/m3 of PM2.5, and expressly states that no exemption from monitoring is available with regard to PM2.5. As previously discussed, VADEQ's PM2.5 SILs provision, formerly codified at 9VAC5-80-1715A(2) was never approved by EPA into Virginia's SIP and was subsequently removed by Virginia from the VAC. Therefore, this approval action does not include a substantive revision to 9VAC5-80-1715A. Rather, EPA's action involves approval of Virginia's administrative recodification, necessitated by the Commonwealth's revision of state regulations (i.e., the removal of the SILs from 9VAC5-80-1715). The Virginia regulations, 9VAC5-80, sections 1695 and 1715, are consistent with federal PSD requirements for PM2.5 in the CAA and its implementing regulations, including specifically 40 CFR 51.166, and were effective in Virginia on June 4, 2014.

    III. Final Action

    EPA is approving VADEQ's July 22, 2014 SIP submittal, including revised provisions of the VAC, 9VAC5-80, sections 1695 and 1715, as a revision to the Virginia SIP because the revision meets CAA requirements in the CAA and its implementing regulations. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of this Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on April 29, 2016 without further notice unless EPA receives adverse comment by March 30, 2016. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

    IV. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

    On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

    Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its PSD program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

    V. Incorporation by Reference

    In this rulemaking action, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of VADEQ rules regarding PM2.5 SILs and SMC discussed in Section III of this preamble. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or may be viewed at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    VI. Statutory and Executive Order Reviews A. General Requirements

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

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

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    B. Submission to Congress and the Comptroller General

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

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 29, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action.

    This action pertaining to Virginia's PSD requirements for PM2.5 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 12, 2016. Shawn M. Garvin, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart VV—Virginia 2. In § 52.2420, the table in paragraph (c) is amended by revising the entries under Chapter 80 for Sections 5-80-1695 and 5-80-1715 to read as follows:
    § 52.2420 Identification of plan.

    (c) * * *

    EPA-Approved Virginia Regulations and Statutes State citation Title/Subject State
  • effective
  • date
  • EPA Approval date Explanation
  • [former SIP citation]
  • *         *         *         *         *         *         * 9 VAC 5, Chapter 80 Permits for Stationary Sources [Part VIII] *         *         *         *         *         *         * Article 8 Permits—Major Stationary Sources and Major Modifications Located in Prevention of Significant Deterioration Areas *         *         *         *         *         *         * 5-80-1695 Exemptions 6/4/14 2/29/16 [Insert Federal Register Citation] Revised paragraph E(1) to add value for PM2.5. Limited approval remains in effect. *         *         *         *         *         *         * 5-80-1715 Source impact analysis 6/4/14 2/29/16 [Insert Federal Register Citation] Revised paragraph A. Limited approval remains in effect. *         *         *         *         *         *         *
    [FR Doc. 2016-04245 Filed 2-26-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 600 [CMS-2396-FN] RIN 0938-ZB21 Basic Health Program; Federal Funding Methodology for Program Years 2017 and 2018 AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Final methodology.

    SUMMARY:

    This document provides the methodology and data sources necessary to determine Federal payment amounts made in program years 2017 and 2018 to states that elect to establish a Basic Health Program under the Affordable Care Act to offer health benefits coverage to low-income individuals otherwise eligible to purchase coverage through Affordable Insurance Exchanges (hereinafter referred to as the Exchanges).

    DATES:

    These regulations are effective on January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Christopher Truffer, (410) 786-1264; or Stephanie Kaminsky (410) 786-4653.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Background II. Summary of Proposed Provisions and Analysis of and Responses to Public Comments on the Proposed Methodology A. Background B. Overview of the Funding Methodology and Calculation of the Payment Amount C. Required Rate Cells D. Sources and State Data Considerations E. Discussion of Specific Variables Used in Payment Equations F. Adjustments for American Indians and Alaska Natives G. State Option To Use 2016 or 2017 QHP Premiums for BHP Payments H. State Option To Include Retrospective State-Specific Health Risk Adjustment in Certified Methodology III. Provisions of the Final Methodology A. Overview of the Funding Methodology and Calculation of the Payment Amount B. Federal BHP Payment Rate Cells C. Sources and State Data Considerations D. Discussion of Specific Variables Used in Payment Equations E. Adjustments for American Indians and Alaska Natives F. State Option To Use 2016 or 2017 QHP Premiums for BHP Payments G. State Option To Include Retrospective State-Specific Health Risk Adjustment in Certified Methodology IV. Collection of Information Requirements V. Regulatory Impact Statement A. Overall Impact B. Unfunded Mandates Reform Act C. Regulatory Flexibility Act D. Federalism Acronyms

    To assist the reader, the following acronyms are used in this document.

    ΔAV Change in Actuarial Value APTC Advance payment of the premium tax credit ARP Adjusted reference premium AV Actuarial value BHP Basic Health Program CCIIO CMS' Center for Consumer Information and Insurance Oversight CDC Centers for Disease Control and Prevention CHIP Children's Health Insurance Program CPI-U Consumer price index for all urban consumers CSR Cost-sharing reduction EHB Essential Health Benefit FPL Federal poverty line FRAC Factor for removing administrative costs IRF Income reconciliation factor IRS Internal Revenue Service IUF Induced utilization factor QHP Qualified health plan OTA Office of Tax Analysis [of the U.S. Department of Treasury] PHF Population health factor PTC Premium tax credit PTCF Premium tax credit formula PTF Premium trend factor RP Reference premium SBE State Based Exchange TRAF Tobacco rating adjustment factor I. Background

    Section 1331 of the Patient Protection and Affordable Care Act (Pub. L. 111-148, enacted on March 23, 2010), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152, enacted on March 30, 2010) (collectively referred as the Affordable Care Act) provides states with an option to establish a Basic Health Program (BHP). In the states that elect to operate BHP, BHP will make affordable health benefits coverage available for individuals under age 65 with household incomes between 133 percent and 200 percent of the Federal poverty level (FPL) who are not otherwise eligible for Medicaid, the Children's Health Insurance Program (CHIP), or affordable employer-sponsored coverage, or for individuals whose income is below these levels but are lawfully present non-citizens ineligible for Medicaid. (For those states that have expanded Medicaid coverage under section 1902(a)(10)(A)(i)(VIII) of the Social Security Act (the Act), the lower income threshold for BHP eligibility is effectively 138 percent due to the application of a required 5 percent income disregard in determining the upper limits of Medicaid income eligibility (section 1902(e)(14)(I) of the Act)).

    BHP provides another option for states in providing affordable health benefits to individuals with incomes in the ranges previously described. States may find BHP a useful option for several reasons, including the ability to potentially coordinate standard health plans in BHP with their Medicaid managed care plans, or to potentially reduce the costs to individuals by lowering premiums or cost-sharing requirements.

    Federal funding will be available for BHP based on the amount of premium tax credit (PTC) and cost-sharing reductions (CSRs) that BHP enrollees would have received had they been enrolled in qualified health plans (QHPs) through Exchanges. These funds are paid to trust funds dedicated to BHP in each state, and the states then administer the payments to standard health plans within BHP.

    In the March 12, 2014 Federal Register (79 FR 14112), we published a final rule entitled the “Basic Health Program: State Administration of Basic Health Programs; Eligibility and Enrollment in Standard Health Plans; Essential Health Benefits in Standard Health Plans; Performance Standards for Basic Health Programs; Premium and Cost Sharing for Basic Health Programs; Federal Funding Process; Trust Fund and Financial Integrity” (hereinafter referred to as the BHP final rule) implementing section 1331 of the Affordable Care Act), which directs the establishment of BHP. The BHP final rule establishes the standards for state and Federal administration of BHP, including provisions regarding eligibility and enrollment, benefits, cost-sharing requirements and oversight activities. While the BHP final rule codifies the overall statutory requirements and basic procedural framework for the funding methodology, it does not contain the specific information necessary to determine Federal payments. We anticipated that the methodology would be based on data and assumptions that would reflect ongoing operations and experience of BHP programs, as well as the operation of the Exchanges. For this reason, the BHP final rule indicated that the development and publication of the funding methodology, including any data sources, would be addressed in a separate annual BHP Payment Notice.

    In the BHP final rule, we specified that the BHP Payment Notice process would include the annual publication of both a proposed and final BHP Payment Notice. The proposed BHP Payment Notice would be published in the Federal Register each October, and would describe the proposed methodology for the upcoming BHP program year, including how the Secretary considered the factors specified in section 1331(d)(3) of the Affordable Care Act, along with the proposed data sources used to determine the Federal BHP payment rates. The final BHP Payment Notice would be published in the Federal Register in February, and would include the final BHP funding methodology, as well as the Federal BHP payment rates for the next BHP program year. For example, payment rates published in February 2016 would apply to BHP program year 2017, beginning in January 2017. As discussed in section III.C of this methodology, and as referenced in § 600.610(b)(2), state data needed to calculate the Federal BHP payment rates for the final BHP Payment Notice must be submitted to CMS.

    As described in the BHP final rule, once the final methodology has been published, we will only make modifications to the BHP funding methodology on a prospective basis with limited exceptions. The BHP final rule provided that retrospective adjustments to the state's BHP payment amount may occur to the extent that the prevailing BHP funding methodology for a given program year permits adjustments to a state's Federal BHP payment amount due to insufficient data for prospective determination of the relevant factors specified in the payment notice. Additional adjustments could be made to the payment rates to correct errors in applying the methodology (such as mathematical errors).

    Under section 1331(d)(3)(A)(ii) of the Affordable Care Act, the funding methodology and payment rates are expressed as an amount per eligible individual enrolled in a BHP standard health plan (BHP enrollee) for each month of enrollment. These payment rates may vary based on categories or classes of enrollees. Actual payment to a state would depend on the actual enrollment of individuals found eligible in accordance with a state's certified blueprint eligibility and verification methodologies in coverage through the state BHP. A state that is approved to implement BHP must provide data showing quarterly enrollment of eligible individuals in the various Federal BHP payment rate cells. Such data should include the following:

    • Personal identifier;

    • Date of birth;

    • County of residence;

    • Indian status;

    • Family size;

    • Household income;

    • Number of person in household enrolled in BHP;

    • Family identifier;

    • Months of coverage;

    • Plan information; and

    • Any other data required by CMS to properly calculate the payment.

    In the February 24, 2015 Federal Register (80 FR 9636), we published the final payment notice entitled “Basic Health Program; Federal Funding Methodology for Program Year 2016” (hereinafter referred to as the 2016 payment methodology) that sets forth the methodology that will be used to calculate the Federal BHP payments for the 2016 program year.

    II. Summary of Proposed Provisions and Analysis of and Responses to Public Comments on the Proposed Methodology

    The following sections, arranged by subject area, include a summary of the public comments that we received, and our responses. For a complete and full description of the BHP proposed funding methodology, see the “Basic Health Program; Federal Funding Methodology for Program Years 2017 and 2018” proposed rule published in the October 22, 2015 Federal Register (80 FR 63936).

    We received a total of 5 timely comments from individuals and organizations. The public comments received ranged from general support or opposition to the BHP, but did not address the proposed methodology.

    A. Background

    In the October 22, 2015 (80 FR 63936) proposed rule, we specified the methodology of how the Federal BHP payments would be calculated. For specific discussions, please refer to the October 22, 2015 proposed rule (80 FR 63936).

    We received the following comments on the background information included in the proposed methodology:

    Comment: Some commenters expressed general opposition to or support for the BHP.

    Response: The comments were outside of the scope of the BHP payment methodology.

    Comment: Some commenters expressed general support for the BHP payment methodology.

    Response: We appreciate the comments in support of the payment methodology.

    Final Decision: We are finalizing our proposed methodology for how the Federal BHP payments will be calculated.

    B. Overview of the Funding Methodology and Calculation of the Payment Amount

    We proposed in the overview of the funding methodology to calculate the PTC and CSR as consistently as possible and in general alignment with the methodology used by Exchanges to calculate the advance payments of the PTC and CSR, and by the Internal Revenue Service (IRS) to calculate the allowable PTC. We proposed in this section 4 equations that compose the overall BHP funding methodology. For specific discussions, please refer to the October 22, 2015 proposed rule (80 FR 63936).

    We received no comments regarding the overview of the funding methodology and calculation of the payment amount. We are finalizing the BHP overview of the funding methodology and the payment amount for 2017 and 2018 as proposed.

    C. Required Rate Cells

    In this section, we proposed that a state implementing BHP provide us with an estimate of the number of BHP enrollees it will enroll in the upcoming BHP program, by applicable rate cell, to determine the Federal BHP payment amounts. For each state, we proposed using rate cells that separate the BHP population into separate cells based on the following 5 factors: Age; geographic rating area; coverage status; household size; and income. For specific discussions, please refer to the October 22, 2015 proposed rule (80 FR 63936).

    We received no comments regarding the rate cells used to calculate the Federal BHP payment amounts. We are finalizing the criteria and definitions of the rate cells to determine the Federal BHP payment amounts for 2017 and 2018.

    D. Sources and State Data Considerations

    We proposed in this section to use, to the extent possible, data submitted to the Federal government by QHP issuers seeking to offer coverage through an Exchange to determine the Federal BHP payment cell rates. However, in states operating a State Based Exchange (SBE), we proposed that such states submit required data for CMS to calculate the Federal BHP payment rates in those states. For specific discussions, please refer to the October 22, 2015 proposed rule (80 FR 63936).

    We did not receive any comments on the “Sources and State Data Considerations” section and are finalizing the BHP methodology as proposed.

    E. Discussion of Specific Variables Used in Payment Equations

    In this section, we proposed 11 specific variables to use in the payment equations that compose the overall BHP funding methodology. (10 variables are described in section III.D of this document, and the premium trend factor is described in section III.F.) For each proposed variable, we included a discussion on the assumptions and data sources used in developing the variables. For specific discussions, please refer to the October 22, 2015 proposed rule (80 FR 63936).

    We did not receive any comments on the “Specific Variables Used in Payment Equations” section and are finalizing the BHP methodology as proposed.

    F. Adjustments for American Indians and Alaska Natives

    We proposed to make several adjustments for American Indians and Alaska Natives when calculating the CSR portion of the Federal BHP payment rate to be consistent with the Exchange rules. For specific discussions, please refer to the October 22, 2015 proposed rule (80 FR 63936).

    We did not receive any comments on the “Adjustments for American Indians and Alaska Natives” section and are finalizing the BHP methodology as proposed.

    G. State Option To Use 2016 or 2017 QHP Premiums for BHP Payments

    In this section, we proposed to provide states implementing BHP with the option to use the 2016 or 2017 QHP premiums multiplied by a premium trend factor to calculate the Federal BHP payment rates instead of using the 2017 or 2018 QHP premiums, for the 2017 and 2018 BHP program years, respectively. For specific discussions, please refer to the October 22, 2015 proposed rule (80 FR 63936).

    We did not receive any comments on the “State Option to Use 2016 or 2017 QHP Premiums for BHP Payments” section and are finalizing the BHP methodology as proposed.

    H. State Option To Include Retrospective State-Specific Health Risk Adjustment in Certified Methodology

    In this section, we proposed to provide states implementing BHP the option to develop a methodology to account for the impact that including the BHP population in the Exchange would have had on QHP premiums based on any differences in health status between the BHP population and persons enrolled through the Exchange. For specific discussions, please refer to the October 22, 2015 proposed rule (80 FR 63936).

    We did not receive any comments on the “State Option to Include Retrospective State-specific Health Risk Adjustment in Certified Methodology” section and are finalizing the BHP methodology as proposed.

    III. Provisions of the Final Methodology A. Overview of the Funding Methodology and Calculation of the Payment Amount

    Section 1331(d)(3) of the Affordable Care Act directs the Secretary to consider several factors when determining the Federal BHP payment amount, which, as specified in the statute, must equal 95 percent of the value of the PTC and CSRs that BHP enrollees would have been provided had they enrolled in a QHP through an Exchange. Thus, the BHP funding methodology is designed to calculate the PTC and CSRs as consistently as possible and in general alignment with the methodology used by Exchanges to calculate the PTC and CSR components of advance payments, and by the IRS to calculate final PTCs. In general, we rely on values for factors in the payment methodology specified in statute or other regulations as available, and we have developed values for other factors not otherwise specified in statute, or previously calculated in other regulations, to simulate the values of the PTC and CSRs that BHP enrollees would have received if they had enrolled in QHPs offered through an Exchange. In accordance with section 1331(d)(3)(A)(iii) of the Affordable Care Act, the final funding methodology must be certified by the Chief Actuary of CMS, in consultation with the Office of Tax Analysis (OTA) of the Department of the Treasury, as having met the requirements of section 1331(d)(3)(A)(ii) of the Affordable Care Act.

    Section 1331(d)(3)(A)(ii) of the Affordable Care Act specifies that the payment determination shall take into account all relevant factors necessary to determine the value of the premium tax credits and CSRs that would have been provided to eligible individuals, including the age and income of the enrollee, whether the enrollment is for self-only or family coverage, geographic differences in average spending for health care across rating areas, the health status of the enrollee for purposes of determining risk adjustment payments and reinsurance payments that would have been made if the enrollee had enrolled in a qualified health plan through an Exchange, and whether any reconciliation of PTC and CSR would have occurred if the enrollee had been so enrolled. This payment methodology takes each of these factors into account. This methodology is the same as the 2016 payment methodology, with minor changes to update the value of certain factors used to calculate the payments, but with no changes in methods. These updates are explained in later sections of this notice.

    Through this notice, we are establishing a payment methodology for the 2017 and 2018 BHP program years. The same methodology will apply for both years, but the values of a number of factors will be updated for 2018, as noted throughout this notice. We reserve the right to specify a different methodology for 2018.

    The methodology will be the same methodology as used for 2015 and 2016. We have developed a methodology that the total Federal BHP payment amount would be based on multiple rate cells in each state. Each rate cell would represent a unique combination of age range, geographic area, coverage category (for example, self-only or two-adult coverage through BHP), household size, and income range as a percentage of FPL. Thus, there would be distinct rate cells for individuals in each coverage category within a particular age range who reside in a specific geographic area and are in households of the same size and income range. We note that the development of the BHP payment rates will be consistent with those states' rules on age rating. Thus, in the case of a state that does not use age as a rating factor on the Marketplace, the BHP payment rates would not vary by age.

    The rate for each rate cell would be calculated in 2 parts. The first part (as described in Equation (1)) will equal 95 percent of the estimated PTC that would have been paid if a BHP enrollee in that rate cell had instead enrolled in a QHP in the Exchange. The second part (as described in Equation (2)) will equal 95 percent of the estimated CSR payment that would have been made if a BHP enrollee in that rate cell had instead enrolled in a QHP in the Exchange. These 2 parts will be added together and the total rate for that rate cell would be equal to the sum of the PTC and CSR rates.

    To calculate the total Federal BHP payment, Equation (1) will be used to calculate the estimated PTC for eligible individuals enrolled in the BHP in each rate cell and Equation (2) will be used to calculate the estimated CSR payments for eligible individuals enrolled in the BHP in each rate cell. (Indeed, we note that throughout the payment notice, when we refer to enrollees and enrollment data, we mean data regarding individuals who are enrolled in the BHP who have been found eligible for the BHP using the eligibility and verification requirements that are applicable in the state's most recent certified Blueprint.) By applying the equations separately to rate cells based on age, income and other factors, we effectively take those factors into account in the calculation. In addition, the equations reflect the estimated experience of individuals in each rate cell if enrolled in coverage through the Exchange, taking into account additional relevant variables. Each of the variables in the equations is defined in this section, and further detail is provided later in this section of the payment notice.

    In addition, we describe how we will calculate the adjusted reference premium (ARP), which is the value of the premium accounting for specified adjustments (such as the relative health status of BHP enrollees or the projected annual increase in the premium) (described later in this section of the payment notice) that is used in Equations (1) and (2). This is defined in Equation (3a) and Equation (3b).

    Equation 1: Estimated PTC by Rate Cell

    The estimated PTC, on a per enrollee basis, will be calculated for each rate cell for each state based on age range, geographic area, coverage category, household size, and income range. The PTC portion of the rate will be calculated in a manner consistent with the methodology used to calculate the PTC for persons enrolled in a QHP, with 3 adjustments. First, the PTC portion of the rate for each rate cell will represent the mean, or average, expected PTC that all persons in the rate cell would receive, rather than being calculated for each individual enrollee. Second, the reference premium (RP) used to calculate the PTC (described in more detail later in the section) will be adjusted for BHP population health status, and in the case of a state that elects to use 2016 premiums for the basis of the BHP Federal payment, for the projected change in the premium from the 2016 to 2017, to which the rates announced in the final payment methodology would apply. These adjustments are described in Equation (3a) and Equation (3b). Third, the PTC will be adjusted prospectively to reflect the mean, or average, net expected impact of income reconciliation on the combination of all persons enrolled in BHP; this adjustment, as described in section III.D.5. of this methodology, will account for the impact on the PTC that would have occurred had such reconciliation been performed. Finally, the rate is multiplied by 95 percent, consistent with section 1331(d)(3)(A)(i) of the Affordable Care Act. We note that in the situation where the average income contribution of an enrollee would exceed the ARP, we would calculate the PTC to be equal to 0 and would not allow the value of the PTC to be negative.

    Consistent with this description, Equation (1) is defined as:

    ER29FE16.017 PTC a,g,c,h,i = Premium tax credit portion of BHP payment rate. a = Age range. g = Geographic area. c = Coverage status (self-only or applicable category of family coverage) obtained through BHP. h = Household size. i = Income range (as percentage of FPL). ARP a,g,c = Adjusted reference premium. I h,i,j = Income (in dollars per month) at each 1 percentage-point increment of FPL. j = jth percentage-point increment FPL. n = Number of income increments used to calculate the mean PTC. PTCF h,i,j = Premium Tax Credit Formula percentage. IRF = Income reconciliation factor. Equation 2: Estimated CSR Payment by Rate Cell

    The CSR portion of the rate will be calculated for each rate cell for each state based on age range, geographic area, coverage category, household size, and income range defined as a percentage of FPL. The CSR portion of the rate will be calculated in a manner consistent with the methodology used to calculate the CSR component of advance payments for persons enrolled in a QHP, as described in the “HHS Notice of Benefit and Payment Parameters for 2016”final rule published in the February 27, 2015 Federal Register (80 FR 10749), with 3 principal adjustments. (We will make a separate calculation that includes different adjustments for American Indian/Alaska Native BHP enrollees, as described in section III.D.1 of this methodology.) For the first adjustment, the CSR rate, like the PTC rate, will represent the mean expected CSR subsidy that would be paid on behalf of all persons in the rate cell, rather than being calculated for each individual enrollee. Second, this calculation will be based on the ARP, as described in section III.A.3. of this methodology. Third, this equation uses an ARP that reflects premiums charged to non-tobacco users, rather than the actual premium that is charged to tobacco users to calculate the CSR component of advance payments for tobacco users enrolled in a QHP. Accordingly, the equation will include a tobacco rating adjustment factor that would account for BHP enrollees' estimated tobacco-related health costs that are outside the premium charged to non-tobacco-users. Finally, the rate will be multiplied by 95 percent, as provided in section 1331(d)(3)(A)(i) of the Affordable Care Act.

    Consistent with the methodology previously described, Equation (2) is defined as:

    ER29FE16.018 CSR a,g,c,h,i = Cost-sharing reduction subsidy portion of BHP payment rate. a = Age range. g = Geographic area. c = Coverage status (self-only or applicable category of family coverage) obtained through BHP. h = Household size. i = Income range (as percentage of FPL). ARP a,g,c = Adjusted reference premium. TRAF = Tobacco rating adjustment factor. FRAC = Factor removing administrative costs. AV = Actuarial value of plan (as percentage of allowed benefits covered by the applicable QHP without a cost-sharing reduction subsidy). IUF h,i = Induced utilization factor. ΔAV h,i = Change in actuarial value (as percentage of allowed benefits). Equation 3a and Equation 3b: Adjusted Reference Premium Variable (Used in Equations 1 and 2)

    As part of these calculations for both the PTC and CSR components, we will calculate the value of the ARP as described below in this methodology. Consistent with the approach in previous years, we will allow states to choose between using the actual 2017 and 2018 QHP premiums or the 2016 and 2017 QHP premiums multiplied by the premium trend factor (for the 2017 and 2018 program years, respectively, and as described in section III.F). Therefore, we describe how we would calculate the ARP under each option.

    In the case of a state that elected to use the RP based on the 2017 premiums for the 2017 program year, we will calculate the value of the ARP as specified in Equation (3a). The ARP will be equal to the RP, which will be based on the second lowest cost silver plan premium in 2017, multiplied by the BHP population health factor (described in section III.D of this methodology), which will reflect the projected impact that enrolling BHP-eligible individuals in QHPs on an Exchange would have had on the average QHP premium.

    ER29FE16.019 ARP a,g,c = Adjusted reference premium. a = Age range. g = Geographic area. c = Coverage status (self-only or applicable category of family coverage) obtained through BHP. RP a,g,c = Reference premium. PHF = Population health factor.

    In the case of a state that elected to use the RP based on the 2016 premiums for the 2017 program year (as described in section III.F of this methodology), we will calculate the value of the ARP as specified in Equation (3b). The ARP will be equal to the RP, which will be based on the second lowest cost silver plan premium in 2016, multiplied by the BHP population health factor (described in section III.D of this methodology), which will reflect the projected impact that enrolling BHP-eligible individuals in QHPs on an Exchange would have had on the average QHP premium, and by the premium trend factor, which will reflect the projected change in the premium level between 2016 and 2017 (including the estimated impact of changes resulting from the transitional reinsurance program established in section 1341 of the Affordable Care Act).

    ER29FE16.020 ARP a,g,c = Adjusted reference premium. a = Age range. g = Geographic area. c = Coverage status (self-only or applicable category of family coverage) obtained through BHP. RP a,g,c = Reference premium. PHF = Population health factor. PTF = Premium trend factor.

    This methodology will also apply for the 2018 program year, using either actual 2018 QHP premiums or the 2017 QHP premiums multiplied by a premium trend factor.

    Equation 4: Determination of Total Monthly Payment for BHP Enrollees in Each Rate Cell

    In general, the rate for each rate cell will be multiplied by the number of BHP enrollees in that cell (that is, the number of enrollees that meet the criteria for each rate cell) to calculate the total monthly BHP payment. This calculation is shown in Equation 4.

    ER29FE16.021 PMT = Total monthly BHP payment. PTC a,g,c,h,i = Premium tax credit portion of BHP payment rate. CSR a,g,c,h,i = Cost-sharing reduction subsidy portion of BHP payment rate. E a,g,c,h,i = Number of BHP enrollees. a = Age range. g = Geographic area. c = Coverage status (self-only or applicable category of family coverage) obtained through BHP. h = Household size. i = Income range (as percentage of FPL). B. Federal BHP Payment Rate Cells

    The use of Federal BHP payment rate cells will be the same as in the 2015 and 2016 methodologies. We will require that a state implementing BHP provide us an estimate of the number of BHP enrollees it projects will enroll in the upcoming BHP program year, by applicable rate cell, prior to the first quarter and each subsequent quarter of program operations until actual enrollment data is available. Upon our approval of such estimates as reasonable, they will be used to calculate the prospective payment for the first and subsequent quarters of program operation until the state has provided us actual enrollment data. These data will be required to calculate the final BHP payment amount, and make any necessary reconciliation adjustments to the prior quarters' prospective payment amounts due to differences between projected and actual enrollment. Subsequent, quarterly deposits to the state's trust fund will be based on the most recent actual enrollment data submitted to us. Actual enrollment data must be based on individuals enrolled for the quarter submitted who the state found eligible and whose eligibility was verified using eligibility and verification requirements as agreed to by the state in its applicable BHP Blueprint for the quarter that enrollment data is submitted. Procedures will ensure that Federal payments to a state reflect actual BHP enrollment during a year, within each applicable category, and prospectively determined Federal payment rates for each category of BHP enrollment, with such categories defined in terms of age range, geographic area, coverage status, household size, and income range, as explained above in this section.

    We will require the use of certain rate cells as part of the methodology. For each state, we will use rate cells that separate the BHP population into separate cells based on the 5 factors described as follows:

    Factor 1—Age: We will separate enrollees into rate cells by age, using the following unchanged age ranges that capture the widest variations in premiums under Department of Health and Human Services' (HHS) Default Age Curve: 1

    1 This curve is used to implement the Affordable Care Act's 3:1 limit on age-rating in states that do not create an alternative rate structure to comply with that limit. The curve applies to all individual market plans, both within and outside the Exchange. The age bands capture the principal allowed age-based variations in premiums as permitted by this curve. More information can be found at http://www.cms.gov/CCIIO/Resources/Files/Downloads/market-reforms-guidance-2-25-2013.pdf. Both children and adults under age 21 are charged the same premium. For adults age 21-64, the age bands in this notice divide the total age-based premium variation into the three most equally-sized ranges (defining size by the ratio between the highest and lowest premiums within the band) that are consistent with the age-bands used for risk-adjustment purposes in the HHS-Developed Risk Adjustment Model. For such age bands, see Table 5, “Age-Sex Variables,” in HHS-Developed Risk Adjustment Model Algorithm Software, June 2, 2014, http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/ra-tables-03-27-2014.xlsx.

    • Ages 0-20.

    • Ages 21-34.

    • Ages 35-44.

    • Ages 45-54.

    • Ages 55-64.

    Factor 2—Geographic area: For each state, we will separate enrollees into rate cells by geographic areas within which a single RP is charged by QHPs offered through the state's Exchange. Multiple, non-contiguous geographic areas will be incorporated within a single cell, so long as those areas share a common RP.2 This provision would also be unchanged from the current method.

    2 For example, a cell within a particular state might refer to “County Group 1,” “County Group 2,” etc., and a table for the state would list all the counties included in each such group. These geographic areas are consistent with the geographic areas established under the 2014 Market Reform Rules. They also reflect the service area requirements applicable to qualified health plans, as described in 45 CFR 155.1055, except that service areas smaller than counties are addressed as explained in this methodology.

    Factor 3—Coverage status: We will separate enrollees into rate cells by coverage status, reflecting whether an individual is enrolled in self-only coverage or persons are enrolled in other-than-self-only coverage (or “family coverage”) through BHP, as provided in section 1331(d)(3)(A)(ii) of the Affordable Care Act, consistent with the current methodology. Among recipients of family coverage through BHP, separate rate cells, as explained below in this methodology, will apply based on whether such coverage involves 2 adults alone or whether it involves children.

    Factor 4—Household size: We will separate enrollees into rate cells by household size that states use to determine BHP enrollees' income as a percentage of the FPL under § 600.320 (Administration, eligibility, essential health benefits, performance standards, service delivery requirements, premium and cost sharing, allotments, and reconciliation; Determination of eligibility for and enrollment in a standard health plan), consistent with the current methodology. We will require separate rate cells for several specific household sizes. For each additional member above the largest specified size, we will publish instructions for how we will develop additional rate cells and calculate an appropriate payment rate based on data for the rate cell with the closest specified household size. We will publish separate rate cells for household sizes of 1 through 10.

    Factor 5—Income: For households of each applicable size, we will create separate rate cells by income range, as a percentage of FPL, consistent with the current methodology. The PTC that a person would receive if enrolled in a QHP varies by income, both in level and as a ratio to the FPL, and the CSR varies by income as a percentage of FPL. Thus, separate rate cells will be used to calculate Federal BHP payment rates to reflect different bands of income measured as a percentage of FPL. We will use the following income ranges, measured as a ratio to the FPL:

    • 0 to 50 percent of the FPL.

    • 51 to 100 percent of the FPL.

    • 101 to 138 percent of the FPL.3

    3 The three lowest income ranges would be limited to lawfully present immigrants who are ineligible for Medicaid because of immigration status.

    • 139 to 150 percent of the FPL.

    • 151 to 175 percent of the FPL.

    • 176 to 200 percent of the FPL.

    These rate cells will only be used to calculate the Federal BHP payment amount. A state implementing BHP will not be required to use these rate cells or any of the factors in these rate cells as part of the state payment to the standard health plans participating in BHP or to help define BHP enrollees' covered benefits, premium costs, or out-of-pocket cost-sharing levels.

    We will use averages to define Federal payment rates, both for income ranges and age ranges, rather than varying such rates to correspond to each individual BHP enrollee's age and income level. We believe that this approach will increase the administrative feasibility of making Federal BHP payments and reduce the likelihood of inadvertently erroneous payments resulting from highly complex methodologies. We believe that this approach should not significantly change Federal payment amounts, since within applicable ranges, the BHP-eligible population is distributed relatively evenly.

    C. Sources and State Data Considerations

    To the extent possible, we will continue to use data submitted to the Federal government by QHP issuers seeking to offer coverage through an Exchange to perform the calculations that determine Federal BHP payment cell rates. In this methodology, we make some clarifications regarding the submission of state data in this section, and is otherwise consistent with the current methodology.

    States operating a State Based Exchange in the individual market, however, must provide certain data, including premiums for second lowest cost silver plans, by geographic area, for CMS to calculate the Federal BHP payment rates in those states. A state operating a State Based Exchange interested in obtaining the applicable Federal BHP payment rates for its state must submit such data accurately, completely, and as specified by CMS, by no later than October 15, 2016, for CMS to calculate the applicable rates for 2017 and by October 15, 2017 for 2018. If additional state data (that is, in addition to the second lowest cost silver plan premium data) are needed to determine the Federal BHP payment rate, such data must be submitted in a timely manner, and in a format specified by CMS to support the development and timely release of annual BHP payment notices. The specifications for data collection to support the development of BHP payment rates will be published in CMS guidance and will be available at http://www.medicaid.gov/Federal-Policy-Guidance/Federal-Policy-Guidance.html.

    States must submit to CMS enrollment data on a quarterly basis and should be technologically prepared to begin submitting data at the start of their BHP. This requirement is necessary for us to implement the payment methodology that is tied to a quarterly reconciliation based on actual enrollment data.

    We make 2 additional clarifications regarding state-submitted data. First, for states that have BHP enrollees who do not file Federal tax returns (non-filers), the state must develop a methodology which they must submit to CMS at the time of their Blueprint submission to determine the enrollees' household income and household size consistently with Exchange requirements. We reserve the right to approve or disapprove the state's methodology to determine income and household size for non-filers.

    Second, as the Federal payments are determined quarterly and the enrollment data is required to be submitted by the states to CMS quarterly, we clarify that the quarterly payment would be based on the characteristics of the enrollee at the beginning of the quarter (or their first month of enrollment in BHP in each quarter). Thus, if an enrollee were to experience a change in county of residence, income, household size, or other factors related to the BHP payment determination during the quarter, the payment for the quarter would be based on the data as of the beginning of the quarter. Payments will still be made only for months that the person is enrolled in and eligible for BHP. We do not anticipate that this will have a significant effect on the Federal BHP payment. The states must maintain data that are consistent with our verification requirements, including auditable records for each individual enrolled, indicating an eligibility determination and a determination of income and other criteria relevant to the payment methodology as of the beginning of each quarter.

    As described in § 600.610 (Secretarial determination of BHP payment amount), the state is required to submit certain data in accordance with this Notice. We require that this data be collected and validated by states operating BHP and that this data be submitted to CMS.

    D. Discussion of Specific Variables Used in Payment Equations 1. Reference Premium (RP)

    To calculate the estimated PTC that would be paid if individuals enrolled in QHPs through the Exchange, we must calculate a RP because the PTC is based, in part, on the premiums for the applicable second lowest cost silver plan as explained in section III.C.4 of this methodology, regarding the Premium Tax Credit Formula (PTCF). Accordingly, for the purposes of calculating the BHP payment rates, the RP, in accordance with 26 U.S.C. 36B(b)(3)(C), is defined as the adjusted monthly premium for an applicable second lowest cost silver plan. The applicable second lowest cost silver plan is defined in 26 U.S.C. 36B(b)(3)(B) as the second lowest cost silver plan of the individual market in the rating area in which the taxpayer resides, which is offered through the same Exchange. We will use the adjusted monthly premium for an applicable second lowest cost silver plan in 2017 and 2018 as the RP (except in the case of a state that elects to use the 2016 or 2017 premium, respectively, as the basis for the Federal BHP payment, as described in section III.F of this final notice). The use of the RP and the determination of the RP is consistent with the current methodology.

    The RP will be the premium applicable to non-tobacco users. This is consistent with the provision in 26 U.S.C. 36B(b)(3)(C) that bases the PTC on premiums that are adjusted for age alone, without regard to tobacco use, even for states that allow insurers to vary premiums based on tobacco use in accordance with 42 U.S.C. 300gg(a)(1)(A)(iv).

    Consistent with the policy set forth in 26 CFR 1.36B-3(f)(6) to calculate the PTC for those enrolled in a QHP through an Exchange, we will not update the payment methodology, and subsequently the Federal BHP payment rates, in the event that the second lowest cost silver plan used as the RP, or the lowest cost silver plan, changes (that is, terminates or closes enrollment during the year).

    The applicable second lowest cost silver plan premium will be included in the BHP payment methodology by age range, geographic area, and self-only or applicable category of family coverage obtained through BHP.

    American Indians and Alaska Natives with household incomes between 100 percent and 300 percent of the FPL are eligible for a full cost sharing subsidy regardless of the plan they select (as described in sections 1402(d) and 2901(a) of the Affordable Care Act). We assume that American Indians and Alaska Natives would be more likely to enroll in bronze plans as a result, as it would reduce the amount of the premium they would pay compared to the costs of enrolling in a silver plan; thus, for American Indian/Alaska Native BHP enrollees, we will use the lowest cost bronze plan as the basis for the RP for the purposes of calculating the CSR portion of the Federal BHP payment as described further in section III.E of this methodology.

    We note that the choice of the second lowest cost silver plan for calculating BHP payments relies on several simplifying assumptions in its selection. For the purposes of determining the second lowest cost silver plan for calculating PTC for a person enrolled in a QHP through an Exchange, the applicable plan may differ for various reasons. For example, a different second lowest cost silver plan may apply to a family consisting of 2 adults, their child, and their niece than to a family with 2 adults and their children, because 1 or more QHPs in the family's geographic area might not offer family coverage that includes the niece. We believe that it would not be possible to replicate such variations for calculating the BHP payment and believe that in aggregate they would not result in a significant difference in the payment. Thus, we will use the second lowest cost silver plan available to any enrollee for a given age, geographic area, and coverage category.

    This choice of RP relies on 2 assumptions about enrollment in the Exchanges. First, we assume that all persons enrolled in BHP would have elected to enroll in a silver level plan if they had instead enrolled in a QHP through the Exchanges. It is possible that some persons would have chosen not to enroll at all or would have chosen to enroll in a different metal-level plan (in particular, a bronze level plan with a premium that is less than the PTC for which the person was eligible). We do not believe it is appropriate to adjust the payment for an assumption that some BHP enrollees would not have enrolled in QHPs for purposes of calculating the BHP payment rates, since section 1331(d)(3)(A)(ii) of the Affordable Care Act requires the calculation of such rates as if the enrollee had enrolled in a qualified health plan through an Exchange.

    Second, we assume that, among all available silver plans, all persons enrolled in BHP would have selected the second-lowest cost plan. Both this and the prior assumption allow an administratively feasible determination of Federal payment levels. They also have some implications for the CSR portion of the rate. If persons were to enroll in a bronze level plan through the Exchange, they would not be eligible for CSRs, unless they were an eligible American Indian or Alaska Native; thus, assuming that all persons enroll in a silver level plan, rather than a plan with a different metal level, would increase the BHP payment. Assuming that all persons enroll in the second lowest cost silver plan for the purposes of calculating the CSR portion of the rate may result in a different level of CSR payments than would have been paid if the persons were enrolled in different silver level plans on the Exchanges (with either lower or higher premiums). We believe that it would be difficult to project how many BHP enrollees would have enrolled in different silver level QHPs, and thus will use the second lowest cost silver plan as the basis for the RP and calculating the CSR portion of the rate. While some data is available from the Exchanges, developing projections of how persons in different income ranges choose plans and extrapolating that to other states, with different numbers of plans and different premiums, would not be an improvement upon the current methodology. For American Indian/Alaska Native BHP enrollees, we will use the lowest cost bronze plan as the basis for the RP as described further in section III.E. of this methodology.

    The applicable age bracket will be one dimension of each rate cell. We will assume a uniform distribution of ages and estimate the average premium amount within each rate cell. We believe that assuming a uniform distribution of ages within these ranges is a reasonable approach and will produce a reliable determination of the PTC and CSR components. We also believe this approach will avoid potential inaccuracies that could otherwise occur in relatively small payment cells if age distribution were measured by the number of persons eligible or enrolled.

    We will use geographic areas based on the rating areas used in the Exchanges. We will define each geographic area so that the RP is the same throughout the geographic area. When the RP varies within a rating area, we are defining geographic areas as aggregations of counties with the same RP. Although plans are allowed to serve geographic areas smaller than counties after obtaining our approval, no geographic area, for purposes of defining BHP payment rate cells, will be smaller than a county. We do not believe that this assumption will have a significant impact on Federal payment levels and it would likely simplify both the calculation of BHP payment rates and the operation of BHP.

    Finally, in terms of the coverage category, the Federal payment rates will only recognize self-only and two-adult coverage, with exceptions that account for children who are potentially eligible for BHP. First, in states that set the upper income threshold for children's Medicaid and CHIP eligibility below 200 percent of FPL (based on modified adjusted gross income), children in households with incomes between that threshold and 200 percent of FPL would be potentially eligible for BHP. Currently, the only states in this category are Arizona, Idaho, and North Dakota.4 Second, BHP would include lawfully present immigrant children with incomes at or below 200 percent of FPL in states that have not exercised the option under the sections 1903(v)(4)(A)(ii) and 2107(e)(1)(E) of the Act to qualify all otherwise eligible, lawfully present immigrant children for Medicaid and CHIP. States that fall within these exceptions would be identified based on their Medicaid and CHIP State Plans, and the rate cells would include appropriate categories of BHP family coverage for children. For example, Idaho's Medicaid and CHIP eligibility is limited to families with MAGI at or below 185 percent FPL. If Idaho implemented BHP, Idaho children with incomes between 185 and 200 percent could qualify. In other states, BHP eligibility will generally be restricted to adults, since children who are citizens or lawfully present immigrants and who live in households with incomes at or below 200 percent of FPL will qualify for Medicaid or CHIP and thus be ineligible for BHP under section 1331(e)(1)(C) of the Affordable Care Act, which limits BHP to individuals who are ineligible for minimum essential coverage (as defined in section 5000A(f) of the Internal Revenue Code of 1986).

    4 CMCS. “State Medicaid and CHIP Income Eligibility Standards Effective January 1, 2014.”

    2. Population Health Factor (PHF)

    The population health factor will be included in the methodology to account for the potential differences in the average health status between BHP enrollees and persons enrolled in the Exchange. To the extent that BHP enrollees would have been enrolled in the Exchange in the absence of BHP in a state, the exclusion of those BHP enrollees in the Exchange may affect the average health status of the overall population and the expected QHP premiums. The use and determination of the PHF as described below is consistent with the current methodology.

    We currently do not believe that there is evidence that the BHP population would have better or poorer health status than the Exchange population. At this time, there is a lack of experience available in the Exchange that limits the ability to analyze the health differences between these groups of enrollees. Exchanges have been in operation since 2014, and 2 states have operated BHP in 2015, but we do not have the data available to do the analysis necessary to make this adjustment at this time. In addition, differences in population health may vary across states. Thus, at this time, we believe that it is not feasible to develop a methodology to make a prospective adjustment to the population health factor that is reliably accurate.

    Given these analytic challenges and the limited data about Exchange coverage and the characteristics of BHP-eligible consumers that will be available by the time we establish Federal payment rates for 2017 and 2018, we believe that the most appropriate adjustment for 2017 and 2018 would be 1.00.

    In the 2015 and 2016 payment methodologies, we included an option for states to include a retrospective population health status adjustment. Similarly, for the 2017 and 2018 payment methodology we will provide states with the same option, as described further in section III.G of this methodology, to include a retrospective population health status adjustment in the certified methodology, which is subject to our review and approval. (Regardless of whether a state elects to include a retrospective population health status adjustment, we anticipate that, in future years, when additional data become available about Exchange coverage and the characteristics of BHP enrollees, we may estimate this factor differently.)

    While the statute requires consideration of risk adjustment payments and reinsurance payments insofar as they would have affected the PTC and CSRs that would have been provided to BHP-eligible individuals had they enrolled in QHPs, we will not require that a BHP program's standard health plans receive such payments. As explained in the BHP final rule, BHP standard health plans are not included in the risk adjustment program operated by HHS on behalf of states. Further, standard health plans do not qualify for payments from the transitional reinsurance program established under section 1341 of the Affordable Care Act.5 To the extent that a state operating a BHP determines that, because of the distinctive risk profile of BHP-eligible consumers, BHP standard health plans should be included in mechanisms that share risk with other plans in the state's individual market, the state would need to use other methods for achieving this goal.

    5 See 45 CFR 153.400(a)(2)(iv) (BHP standard health plans are not required to submit reinsurance contributions), 45 CFR 153.20 (definition of “Reinsurance-eligible plan” as not including “health insurance coverage not required to submit reinsurance contributions”), and 45 CFR 153.230(a) (reinsurance payments under the national reinsurance parameters are available only for “Reinsurance-eligible plans”).

    3. Income (I)

    Household income is a significant determinant of the amount of the PTC and CSRs that are provided for persons enrolled in a QHP through the Exchange. Accordingly, the BHP payment methodology incorporates income into the calculations of the payment rates through the use of income-based rate cells. The use and determination of income is consistent with the current methodology. We will define income in accordance with the definition of modified adjusted gross income in 26 U.S.C. 36B(d)(2)(B) and consistent with the definition in 45 CFR 155.300. Income will be measured relative to the FPL, which is updated periodically in the Federal Register by the Secretary under the authority of 42 U.S.C. 9902(2), based on annual changes in the consumer price index for all urban consumers (CPI-U). In this methodology, household size and income as a percentage of FPL will be used as factors in developing the rate cells. We will use the following income ranges measured as a percentage of FPL: 6

    6 These income ranges and this analysis of income apply to the calculation of the PTC. Many fewer income ranges and a much simpler analysis apply in determining the value of CSRs, as specified in this methodology.

    • 0-50 percent.

    • 51-100 percent.

    • 101-138 percent.

    • 139-150 percent.

    • 151-175 percent.

    • 176-200 percent.

    We will assume a uniform income distribution for each Federal BHP payment cell. We believe that assuming a uniform income distribution for the income ranges will be reasonably accurate for the purposes of calculating the PTC and CSR components of the BHP payment and would avoid potential errors that could result if other sources of data were used to estimate the specific income distribution of persons who are eligible for or enrolled in BHP within rate cells that may be relatively small.

    Thus, when calculating the mean, or average, PTC for a rate cell, we will calculate the value of the PTC at each 1 percentage point interval of the income range for each Federal BHP payment cell and then calculate the average of the PTC across all intervals. This calculation would rely on the PTC formula described in section III.4 of this methodology.

    As the PTC for persons enrolled in QHPs would be calculated based on their income during the open enrollment period, and that income would be measured against the FPL at that time, we will adjust the FPL by multiplying the FPL by a projected increase in the CPI-U between the time that the BHP payment rates are calculated and the QHP open enrollment period, if the FPL is expected to be updated during that time. The projected increase in the CPI-U will be based on the intermediate inflation forecasts from the most recent OASDI and Medicare Trustees Reports.7

    7 See Table IV A1 from the 2015 reports in http://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/ReportsTrustFunds/Downloads/TR2015.pdf.

    4. Premium Tax Credit Formula (PTCF)

    As is consistent with the current methodology, in Equation 1 described in section III.A.1 of this methodology, we will use the formula described in 26 U.S.C. 36B(b) to calculate the estimated PTC that would be paid on behalf of a person enrolled in a QHP on an Exchange as part of the BHP payment methodology. This formula is used to determine the contribution amount (the amount of premium that an individual or household theoretically would be required to pay for coverage in a QHP on an Exchange), which is based on (A) the household income; (B) the household income as a percentage of FPL for the family size; and (C) the schedule specified in 26 U.S.C. 36B(b)(3)(A) and shown below in this section. The difference between the contribution amount and the adjusted monthly premium for the applicable second lowest cost silver plan is the estimated amount of the PTC that would be provided for the enrollee.

    The PTC amount provided for a person enrolled in a QHP through an Exchange is calculated in accordance with the methodology described in 26 U.S.C. 36B(b)(2). The amount is equal to the lesser of the premium for the plan in which the person or household enrolls, or the adjusted premium for the applicable second lowest cost silver plan minus the contribution amount.

    The applicable percentage is defined in 26 U.S.C. 36B (b)(3)(A) and 26 CFR 1.36B-3(g) as the percentage that applies to a taxpayer's household income that is within an income tier specified in Table 1, increasing on a sliding scale in a linear manner from an initial premium percentage to a final premium percentage specified in Table 1. The methodology is unchanged, but we will update the percentages:

    Table 1—Applicable Percentage Table for CY 2016 8 In the case of household income (expressed as
  • a percent of poverty line) within the following income tier:
  • The initial
  • premium
  • percentage is—
  • The final
  • premium
  • percentage is—
  • Up to 133% 2.03% 2.03% 133% but less than 150% 3.05 4.07 150% but less than 200% 4.07 6.41 200% but less than 250% 6.41 8.18 250% but less than 300% 8.18 9.66 300% but not more than 400% 9.66 9.66

    8 IRS Revenue Procedure 2014-56, 2014-50 I.R.B. 948, Examination of returns and claims for refund, credit, or abatement; determination of correct tax liability. http://www.irs.gov/pub/irs-drop/rp-14-62.pdf.

    These are the applicable percentages for calendar year (CY) 2016 and will be used for the 2017 payment methodology. We plan to use the CY 2017 percentages when they become available for the 2018 payment methodology, as the percentages are indexed annually and published by the IRS. The applicable percentages will be updated in future years in accordance with 26 U.S.C. 36B (b)(3)(A)(ii).

    5. Income Reconciliation Factor (IRF)

    For persons enrolled in a QHP through an Exchange who receive the benefit of advance payments of the premium tax credit (APTC), there will be an annual reconciliation following the end of the year to compare the advance payments to the correct amount of PTC based on household circumstances shown on the Federal income tax return. Any difference between the latter amounts and the advance payments made during the year would either be refundable to the taxpayer (if too little APTC was paid) or charged to the taxpayer as additional tax (if too much APTC was made, subject to any limitations in statute or regulation), as provided in 26 U.S.C. 36B(f).

    Section 1331(e)(2) of the Affordable Care Act specifies that an individual eligible for BHP may not be treated as a qualified individual under section 1312 eligible for enrollment in a QHP offered through an Exchange. We are defining “eligible” to mean anyone for whom the state agency or the Exchange assesses or determines, based on the single streamlined application or renewal form, as eligible for enrollment in the BHP. Because enrollment in a QHP is a requirement for PTC for the enrolled individual's coverage, individuals determined or assessed as eligible for a BHP are not eligible to receive APTC assistance for coverage in the Exchange. Because they do not receive APTC assistance, BHP enrollees, on whom the 2017 and 2018 payment methodology is based, are not subject to the same income reconciliation as Exchange consumers. Nonetheless, there may still be differences between a BHP enrollee's household income reported at the beginning of the year and the actual income over the year. These may include small changes (reflecting changes in hourly wage rates, hours worked per week, and other fluctuations in income during the year) and large changes (reflecting significant changes in employment status, hourly wage rates, or substantial fluctuations in income). There may also be changes in household composition. Thus, we believe that using unadjusted income as reported prior to the BHP program year may result in calculations of estimated PTC that are inconsistent with the actual incomes of BHP enrollees during the year. Even if the BHP program adjusts household income determinations and corresponding claims of Federal payment amounts based on household reports during the year or data from third-party sources, such adjustments may not fully capture the effects of tax reconciliation that BHP enrollees would have experienced had they been enrolled in a QHP through an Exchange and received APTC assistance.

    Therefore, in accordance with current practice, we will include in Equation 1 an income adjustment factor that would account for the difference between calculating estimated PTC using: (a) Income relative to FPL as determined at initial application and potentially revised mid-year, under proposed § 600.320, for purposes of determining BHP eligibility and claiming Federal BHP payments; and (b) actual income relative to FPL received during the plan year, as it would be reflected on individual Federal income tax returns. This adjustment will prospectively account for the average effect of income reconciliation aggregated across the BHP population had those BHP enrollees been subject to tax reconciliation after receiving APTC assistance for coverage provided through QHPs. For 2017 and 2018, we will estimate the reconciliation effects based on tax data for 2 years, reflecting income and tax unit composition changes over time among BHP-eligible individuals.

    The OTA maintains a model that combines detailed tax and other data, including Marketplace enrollment and PTC claimed, to project Exchange premiums, enrollment, and tax credits. For each enrollee, this model compares the APTC based on household income and family size estimated at the point of enrollment with the PTC based on household income and family size reported at the end of the tax year. The former reflects the determination using enrollee information furnished by the applicant and tax data furnished by the IRS. The latter would reflect the PTC eligibility based on information on the tax return, which would have been determined if the individual had not enrolled in BHP. The ratio of the reconciled PTC to the initial estimation of PTC will be used as the income reconciliation factor in Equation (1) for estimating the PTC portion of the BHP payment rate.

    For 2017, OTA has estimated that the income reconciliation factor for states that have implemented the Medicaid eligibility expansion to cover adults up to 133 percent of the FPL will be 100.40 percent, and for states that have not implemented the Medicaid eligibility expansion and do not cover adults up to 133 percent of the FPL will be 100.35 percent. The value of the income reconciliation factor for 2017 will be 100.38 percent, which is the average of the factors, rounded to the nearest hundredth of one-percent.

    6. Tobacco Rating Adjustment Factor (TRAF)

    As described previously, the RP is estimated, for purposes of determining both the PTC and related Federal BHP payments, based on premiums charged for non-tobacco users, including in states that allow premium variations based on tobacco use, as provided in 42 U.S.C. 300gg(a)(1)(A)(iv). In contrast, as described in 45 CFR 156.430, the CSR component of the advance payments is based on the total premium for a policy, including any adjustment for tobacco use. Accordingly, we will incorporate a tobacco rating adjustment factor into Equation 2 that reflects the average percentage increase in health care costs that results from tobacco use among the BHP-eligible population and that would not be reflected in the premium charged to non-users. This factor will also take into account the estimated proportion of tobacco users among BHP-eligible consumers. The use and determination of this factor is consistent with the current methodology.

    To estimate the average effect of tobacco use on health care costs (not reflected in the premium charged to non-users), we will calculate the ratio between premiums that silver level QHPs charge for tobacco users to the premiums they charge for non-tobacco users at selected ages. To calculate estimated proportions of tobacco users, we will use data from the Centers for Disease Control and Prevention (CDC) to estimate tobacco utilization rates by state and relevant population characteristic.9 For each state, we will calculate the tobacco usage rate based on the percentage of persons by age who use cigarettes and the percentage of persons by age that use smokeless tobacco, and calculate the utilization rate by adding the 2 rates together. The data is available for 3 age intervals: 18-24; 25-44; and 45-64. For the BHP payment rate cell for persons ages 21-34, we will calculate the factor as (4/14 * the utilization rate of 18-24 year olds) plus (10/14 * the utilization rate of 25-44 year olds), which will be the weighted average of tobacco usage for persons 21-34 assuming a uniform distribution of ages; for all other age ranges used for the rate cells, we will use the age range in the CDC data in which the BHP payment rate cell age range is contained.

    9 Centers for Disease Control and Prevention, Tobacco Control State Highlights 2012: http://www.cdc.gov/tobacco/data_statistics/state_data/state_highlights/2012/index.htm.

    We will provide tobacco rating factors that may vary by age and by geographic area within each state. To the extent that the second lowest cost silver plans have a different ratio of tobacco user rates to non-tobacco user rates in different geographic areas, the tobacco rating adjustment factor may differ across geographic areas within a state. In addition, to the extent that the second lowest cost silver plan has a different ratio of tobacco user rates to non-tobacco user rates by age, or that there is a different prevalence of tobacco use by age, the tobacco rating adjustment factor may differ by age.

    7. Factor for Removing Administrative Costs (FRAC)

    The Factor for Removing Administrative Costs represents the average proportion of the total premium that covers allowed health benefits, and we will include this factor in our calculation of estimated CSRs in Equation 2. The product of the RP and the Factor for Removing Administrative Costs will approximate the estimated amount of Essential Health Benefit (EHB) claims that would be expected to be paid by the plan. This step is needed because the premium also covers such costs as taxes, fees, and QHP administrative expenses. We will set this factor equal to 0.80, which is the same percentage for the factor to remove administrative costs for calculating the CSR component of advance payments for established in the 2016 HHS Notice of Benefit and Payment Parameters. This is consistent with the current methodology.

    8. Actuarial Value (AV)

    The actuarial value is defined as the percentage paid by a health plan of the total allowed costs of benefits, as defined under § 156.20. (For example, if the average health care costs for enrollees in a health insurance plan were $1,000 and that plan has an actuarial value of 70 percent, the plan would be expected to pay on average $700 ($1,000 x 0.70) for health care costs per enrollee.) By dividing such estimated costs by the actuarial value in the methodology, we will calculate the estimated amount of total EHB-allowed claims, including both the portion of such claims paid by the plan and the portion paid by the consumer for in-network care. (To continue with that same example, we would divide the plan's expected $700 payment of the person's EHB-allowed claims by the plan's 70 percent actuarial value to ascertain that the total amount of EHB-allowed claims, including amounts paid by the consumer, is $1,000.)

    For the purposes of calculating the CSR rate in Equation 2, we will use the standard actuarial value of the silver level plans in the individual market, which is equal to 70 percent. This is consistent with the current methodology.

    9. Induced Utilization Factor (IUF)

    The induced utilization factor will be used in calculating estimated CSRs in Equation 2 to account for the increase in health care service utilization associated with a reduction in the level of cost sharing a QHP enrollee would have to pay, based on the cost-sharing reduction subsidies provided to enrollees. This is consistent with the current methodology.

    The 2016 HHS Notice of Benefit and Payment Parameters provided induced utilization factors for the purposes of calculating the cost-sharing reduction component of advance payments for 2016. In that Notice, the induced utilization factors for silver plan variations ranged from 1.00 to 1.12, depending on income. Using those utilization factors, the induced utilization factor for all persons who would qualify for BHP based on their household income as a percentage of FPL is 1.12; this would include persons with household income between 100 percent and 200 percent of FPL, lawfully present non-citizens below 100 percent of FPL who are ineligible for Medicaid because of immigration status, and American Indians and Alaska Natives with household income between 100 and 300 percent of FPL, not subject to any cost-sharing. Thus, consistent with last year, we will set the induced utilization factor equal to 1.12 for the BHP payment methodology.

    We note that for CSRs for QHPs, there will be a final reconciliation at the end of the year and the actual level of induced utilization could differ from the factor used in the rule. This methodology for BHP funding does not include any reconciliation for utilization.

    10. Change in Actuarial Value (ΔAV)

    The increase in actuarial value will account for the impact of the CSR subsidies on the relative amount of EHB claims that would be covered for or paid by eligible persons, and it is included as a factor in calculating estimated CSRs in Equation 2. This is consistent with the current methodology.

    The actuarial values of QHPs for persons eligible for CSR subsidies are defined in § 156.420(a), and eligibility for such subsidies is defined in § 155.305(g)(2)(i) through (iii). For QHP enrollees with household incomes between 100 percent and 150 percent of FPL, and those below 100 percent of FPL who are ineligible for Medicaid because of their immigration status, CSRs increase the actuarial value of a QHP silver plan from 70 percent to 94 percent. For QHP enrollees with household incomes between 150 percent and 200 percent of FPL, CSRs increase the actuarial value of a QHP silver plan from 70 percent to 87 percent.

    We will apply this factor by subtracting the standard AV from the higher AV allowed by the applicable cost-sharing reduction. For BHP enrollees with household incomes at or below 150 percent of FPL, this factor will be 0.24 (94 percent minus 70 percent); for BHP enrollees with household incomes more than 150 percent but not more than 200 percent of FPL, this factor will be 0.17 (87 percent minus 70 percent).

    E. Adjustments for American Indians and Alaska Natives

    There are several exceptions made for American Indians and Alaska Natives enrolled in QHPs through an Exchange to calculate the PTC and CSRs. Thus, we will make adjustments to the payment methodology previously described to be consistent with the Exchange rules. These adjustments are consistent with the current methodology.

    We will make the following adjustments:

    • The ARP for use in the CSR portion of the rate will use the lowest cost bronze plan instead of the second lowest cost silver plan, with the same adjustment for the population health factor (and in the case of a state that elects to use the 2016 or 2017 premiums as the basis of the Federal BHP payment, the same adjustment for the premium trend factor). American Indians and Alaska Natives are eligible for CSRs with any metal level plan, and thus we believe that eligible persons would be more likely to select a bronze level plan instead of a silver level plan. (It is important to note that this would not change the PTC, as that is the maximum possible PTC payment, which is always based on the applicable second lowest cost silver plan.)

    • The actuarial value for use in the CSR portion of the rate will be 0.60 instead of 0.70, which is consistent with the actuarial value of a bronze level plan.

    • The induced utilization factor for use in the CSR portion of the rate would be 1.15 for 2017 and 2018, which is consistent with the 2016 HHS Notice of Benefit and Payment Parameters induced utilization factor for calculating the CSR component of advance payments for persons enrolled in bronze level plans and eligible for CSRs up to 100 percent of actuarial value.

    • The change in the actuarial value for use in the CSR portion of the rate will be 0.40. This reflects the increase from 60 percent actuarial value of the bronze plan to 100 percent actuarial value, as American Indians and Alaska Natives with household incomes between 100 and 300 percent FPL are eligible to receive CSRs up to 100 percent of actuarial value.

    F. State Option To Use 2016 or 2017 QHP Premiums for BHP Payments

    In the interest of allowing states greater certainty in the total BHP Federal payments for 2017 or 2018, we will provide states the option to have their final 2017 and 2018 Federal BHP payment rates, respectively, calculated using the projected 2017 and 2018 ARP (that is, using 2016 or 2017 premium data multiplied by the premium trend factor defined below in this methodology), as described in Equation (3b). This approach and the determination of the premium trend factor is consistent with the current methodology.

    For a state that would elect to use the 2016 or 2017 premiums as the basis for the 2017 and 2018 BHP Federal payments, respectively, we will require that the state inform us no later than May 15, 2016 for the 2017 program year and May 15, 2017 for the 2018 program year. (Our experience to date has been that states have elected to use the premium data that correlates to the year of payment. If this trend continues, we will consider in future payment notices whether to eliminate the choice of the premium from the prior year moving forward.)

    For Equation (3b), we define the premium trend factor, with minor changes in calculation sources and methods, as follows:

    Premium Trend Factor (PTF): In Equation (3b), we calculate an ARP based on the application of certain relevant variables to the ARP, including a premium trend factor (PTF). In the case of a state that would elect to use the 2016 or 2017 premiums as the basis for determining the BHP payment, it is appropriate to apply a factor that would account for the change in health care costs between the year of the premium data and the BHP plan year. We define this as the premium trend factor in the BHP payment methodology. This factor will approximate the change in health care costs per enrollee, which would include, but not be limited to, changes in the price of health care services and changes in the utilization of health care services. This will provide an estimate of the adjusted monthly premium for the applicable second lowest cost silver plan that will be more accurate and reflective of health care costs in the BHP program year, which would be the year following issuance of the final Federal payment notice. In addition, we believe that it would be appropriate to adjust the trend factor for the estimated impact of changes to the transitional reinsurance program on the average QHP premium.

    For the trend factor we will use the annual growth rate in private health insurance expenditures per enrollee from the National Health Expenditure projections, developed by the Office of the Actuary in CMS (https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/NationalHealthExpendData/NationalHealthAccountsProjected.html, Table 17). For 2017, the projected increase in private health insurance premiums per enrollee is 4.4 percent.

    The adjustment for changes in the transitional reinsurance program is developed from analysis by CMS' Center for Consumer Information and Insurance Oversight (CCIIO). In unpublished analysis, CCIIO estimated that the end of the transitional reinsurance program in 2016 would contribute 4.0 percent to QHP premium increases between 2016 and 2017.

    Combining these 2 factors together, we calculate that the premium trend factor for 2017 would be 8.6 percent (1 + 0.044) × (1 + 0.040)−1 = 8.6 percent.

    States may want to consider that the increase in premiums for QHPs from 2016 to 2017 or from 2017 to 2018 may differ from the premium trend factor developed for the BHP funding methodology for several reasons. In particular, states may want to consider that the second lowest cost silver plan for 2016 or 2017 may not be the same as the second lowest cost silver plan in 2017 or 2018, respectively. This may lead to the premium trend factor being greater than or less than the actual change in the premium of the second lowest cost silver plan in 2016 compared to the premium of the second lowest cost silver plan in 2017 (or from 2017 to 2018).

    G. State Option To Include Retrospective State-Specific Health Risk Adjustment in Certified Methodology

    To determine whether the potential difference in health status between BHP enrollees and consumers in the Exchange would affect the PTC, CSRs, risk adjustment and reinsurance payments that would have otherwise been made had BHP enrollees been enrolled in coverage on the Exchange, we will continue to provide states implementing the BHP the option to propose and to implement, as part of the certified methodology, a retrospective adjustment to the Federal BHP payments to reflect the actual value that would be assigned to the population health factor (or risk adjustment) based on data accumulated during program years 2017 and 2018 for each rate cell. This is consistent with the approach in the current methodology.

    We acknowledge that there is uncertainty for this factor due to the lack of experience of QHPs on the Exchange and other payments related to the Exchange, which is why, absent a state election, we will use a value for the population health factor to determine a prospective payment rate which assumes no difference in the health status of BHP enrollees and QHP enrollees. There is considerable uncertainty regarding whether the BHP enrollees will pose a greater risk or a lesser risk compared to the QHP enrollees, how to best measure such risk, and the potential effect such risk would have had on PTC, CSRs, risk adjustment and reinsurance payments that would have otherwise been made had BHP enrollees been enrolled in coverage on the Exchange. To the extent, however, that a state would develop an approved protocol to collect data and effectively measure the relative risk and the effect on Federal payments, we will permit a retrospective adjustment that would measure the actual difference in risk between the 2 populations to be incorporated into the certified BHP payment methodology and used to adjust payments in the previous year.

    For a state electing the option to implement a retrospective population health status adjustment, we will require the state to submit a proposed protocol to CMS, which would be subject to approval by us and would be required to be certified by the Chief Actuary of CMS, in consultation with the Office of Tax Analysis, as part of the BHP payment methodology. We describe the protocol for the population health status adjustment in guidance in Considerations for Health Risk Adjustment in the Basic Health Program in Program Year 2015 (http://www.medicaid.gov/Basic-Health-Program/Downloads/Risk-Adjustment-and-BHP-White-Paper.pdf). We will require a state to submit its proposed protocol by August 1, 2016 for our approval for the 2017 program year, and by August 1, 2017 for the 2018 program year. This submission would also include descriptions of how the state would collect the necessary data to determine the adjustment, including any contracting contingences that may be in place with participating standard health plan issuers. We will provide technical assistance to states as they develop their protocols. To implement the population health status, we must approve the state's protocol no later than December 31, 2016 for the 2017 program year, and by December 31, 2017 for the 2018 program year. Finally, we will require that the state complete the population health status adjustment at the end of 2017 (or 2018) based on the approved protocol. After the end of the 2017 and 2018 program years, and once data is made available, we will review the state's findings, consistent with the approved protocol, and make any necessary adjustments to the state's Federal BHP payment amounts. If we determine that the Federal BHP payments were less than they would have been using the final adjustment factor, we would apply the difference to the state's next quarterly BHP trust fund deposit. If we determine that the Federal BHP payments were more than they would have been using the final reconciled factor, we would subtract the difference from the next quarterly BHP payment to the state.

    IV. Collection of Information Requirements

    This 2017 and 2018 methodology is mostly unchanged from the 2016 final notice published on February 24, 2015 (80 FR 9636). For states that have BHP enrollees who do not file Federal tax returns (“non-filers”), this methodology notice clarifies that the state must develop a methodology to determine the enrollee's household income and household size consistent with Exchange requirements. Since the requirement applies to fewer than 10 states, and states would not reasonably be expected to transmit the methodology to any independent entities (5 CFR 1320.3(c)(4)) the 2017 and 2018 methodology does not require additional OMB review under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Otherwise, the methodology's information collection requirements and burden estimates are not affected by this action and are approved by OMB under control number 0938-1218 (CMS-10510). With regard to state elections, protocols, certifications, and status adjustments, this action would not revise or impose any additional reporting, recordkeeping, or third-party disclosure requirements or burden on qualified health plans or on states operating State Based Exchanges.

    V. Regulatory Impact Statement A. Overall Impact

    We have examined the impacts of this methodology as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995) (UMRA), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

    A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). As noted in the BHP final rule, BHP provides states the flexibility to establish an alternative coverage program for low-income individuals who would otherwise be eligible to purchase coverage through the Exchange. Because we make no changes in methodology that would have a consequential effect on state participation incentives, or on the size of either the BHP program or offsetting PTC and CSR expenditures, the effects of the changes made in this methodology notice would not approach the $100 million threshold, and hence it is neither an economically significant rule under E.O. 12866 nor a major rule under the Congressional Review Act. The size of the BHP program depends on several factors, including the number of and which particular states choose to implement or continue BHP in 2017 or 2018, the level of QHP premiums in 2016 and 2017, the number of enrollees in BHP, and the other coverage options for persons who would be eligible for BHP. In particular, while we generally expect that many enrollees would have otherwise been enrolled in a QHP through the Exchange, some persons may have been eligible for Medicaid under a waiver or a state health coverage program. For those who would have enrolled in a QHP and thus would have received PTCs or CSRs, the Federal expenditures for BHP would be expected to be more than offset by a reduction in Federal expenditures for PTCs and CSRs. For those who would have been enrolled in Medicaid, there would likely be a smaller offset in Federal expenditures (to account for the Federal share of Medicaid expenditures), and for those who would have been covered in non-Federal programs or would have been uninsured, there likely would be an increase in Federal expenditures. None of these factors or incentives would be materially affected by the updates we have made here.

    In accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.

    1. Need for the Final Methodology Notice

    Section 1331 of the Affordable Care Act (codified at 42 U.S.C. 18051) requires the Secretary to establish a BHP, and paragraph (d)(1) specifically provides that if the Secretary finds that a state meets the requirements of the program established under section (a) [of section 1331 of the Affordable Care Act], the Secretary shall transfer to the State Federal BHP payments described in paragraph (d)(3). This methodology provides for the funding methodology to determine the Federal BHP payment amounts required to implement these provisions in program years 2017 and 2018.

    2. Alternative Approaches

    Many of the factors used in this notice are specified in statute; therefore, we are limited in the alternative approaches we could consider. One area in which we had a choice was in selecting the data sources used to determine the factors included in the methodology. Except for state-specific RPs and enrollment data, we are using national rather than state-specific data. This is due to the lack of currently available state-specific data needed to develop the majority of the factors included in the methodology. We believe the national data will produce sufficiently accurate determinations of payment rates. In addition, we believe that this approach will be less burdensome on states. In many cases, using state-specific data would necessitate additional requirements on the states to collect, validate, and report data to CMS. By using national data, we are able to collect data from other sources and limit the burden placed on the states. To RPs and enrollment data, we are using state-specific data rather than national data as we believe state-specific data will produce more accurate determinations than national averages.

    In addition, we considered whether or not to provide states the option to develop a protocol for a retrospective adjustment to the population health factor in 2017 and 2018 as we did in the 2015 and 2016 payment methodologies. We believe that providing this option again in 2017 and 2018 is appropriate and likely to improve the accuracy of the final payments.

    We also considered whether or not to require the use of 2017 and 2018 QHP premiums to develop the 2017 and 2018 Federal BHP payment rates. We believe that the payment rates can still be developed accurately using either the 2016 and 2017 QHP premiums (for the 2017 and 2018 program years, respectively) or the 2017 and 2018 program year premiums and that it is appropriate to provide the states the option, given the interests and specific considerations each state may have in operating the BHP.

    3. Transfers

    The provisions of this notice are designed to determine the amount of funds that will be transferred to states offering coverage through a BHP rather than to individuals eligible for Federal financial assistance for coverage purchased on the Exchange. We are uncertain what the total Federal BHP payment amounts to states will be as these amounts will vary from state to state due to the varying nature of state composition. For example, total Federal BHP payment amounts may be greater in more populous states simply by virtue of the fact that they have a larger BHP-eligible population and total payment amounts are based on actual enrollment. Alternatively, total Federal BHP payment amounts may be lower in states with a younger BHP-eligible population as the RP used to calculate the Federal BHP payment will be lower relative to older BHP enrollees. While state composition will cause total Federal BHP payment amounts to vary from state to state, we believe that the methodology, like the methodology used in 2015 and 2016, accounts for these variations to ensure accurate BHP payment transfers are made to each state.

    B. Unfunded Mandates Reform Act

    Section 202 of the UMRA requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation, by state, local, or tribal governments, in the aggregate, or by the private sector. In 2015, that threshold is approximately $144 million. States have the option, but are not required, to establish a BHP. Further, the methodology would establish Federal payment rates without requiring states to provide the Secretary with any data not already required by other provisions of the Affordable Care Act or its implementing regulations. Thus, neither this payment methodology nor the methodologies used in 2015 and 2016 mandate expenditures by state governments, local governments, or tribal governments.

    C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) requires agencies to prepare a final regulatory flexibility analysis to describe the impact of the final rule on small entities, unless the head of the agency can certify that the rule will not have a significant economic impact on a substantial number of small entities. The Act generally defines a “small entity” as (1) a proprietary firm meeting the size standards of the Small Business Administration (SBA); (2) a not-for-profit organization that is not dominant in its field; or (3) a small government jurisdiction with a population of less than 50,000. Individuals and states are not included in the definition of a small entity. Few of the entities that meet the definition of a small entity as that term is used in the RFA would be impacted directly by this methodology.

    Because this methodology is focused solely on Federal BHP payment rates to states, it does not contain provisions that would have a direct impact on hospitals, physicians, and other health care providers that are designated as small entities under the RFA. Accordingly, we have determined that the methodology, like the previous methodology and the final rule that established the BHP program, will not have a significant economic impact on a substantial number of small entities.

    Section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a methodology may have a significant economic impact on the operations of a substantial number of small rural hospitals. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. For the preceding reasons, we have determined that the methodology will not have a significant impact on a substantial number of small rural hospitals.

    D. Federalism

    Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a final rule that imposes substantial direct effects on states, preempts state law, or otherwise has federalism implications. The BHP is entirely optional for states, and if implemented in a state, provides access to a pool of funding that would not otherwise be available to the state. Accordingly, the requirements of the Executive Order do not apply to this final methodology notice.

    Dated: January 6, 2016. Andrew M. Slavitt, Acting Administrator, Centers for Medicare & Medicaid Services. Dated: February 10, 2016. Sylvia Burwell, Secretary, Department of Health and Human Services.
    [FR Doc. 2016-03902 Filed 2-25-16; 4:15 pm] BILLING CODE 4120-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 25, 73, and 76 [MB Docket No. 14-127; FCC 16-4] Expansion of Online Public File Obligations to Cable and Satellite TV Operators and Broadcast and Satellite Radio Licensees AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Commission expand the list of entities that will be required to post their public inspection files to the FCC's online database. In 2012, the Commission adopted online public file rules that required broadcast television stations to post public file documents to a central, FCC-hosted online database rather than maintaining paper files locally at their main studios. Our goals were to modernize the procedures television broadcasters use to inform the public about how they are serving their communities, to make information concerning broadcast service more accessible to the public, and, over time, to reduce the cost of broadcasters' compliance. This final rule document continues our modernization effort by expanding the online file to other media entities to extend the benefits of improved public access to public inspection files and, ultimately, reduce the burden of maintaining these files.

    DATES:

    Effective February 29, 2016, except for the amendments to 47 CFR 25.701, 25,702, 73.1943, 73.3526, 73.3527, 73.3580, 76.630, 76.1700, 76.1702, and 76.1709 which contain information collection requirements that have not been approved by OMB. The Commission will publish a document in the Federal Register announcing the effective date.

    FOR FURTHER INFORMATION CONTACT:

    Kim Matthews, Media Bureau, Policy Division, 202-418-2154, or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Report and Order, FCC 16-4, adopted on January 28, 2016 and released on January 29, 2016. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., Room CY-A257, Washington, DC 20554. This document will also be available via ECFS at http://fjallfoss.fcc.gov/ecfs/. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

    Paperwork Reduction Act of 1995 Analysis

    This Report and Order contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA).1 The requirements will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    1 The Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, 109 Stat. 163 (1995) (codified in Chapter 35 of title 44 U.S.C.).

    Summary of Report and Order I. Introduction

    1. In this Report and Order, we expand the list of entities that will be required to post their public inspection files to the FCC's online database. In 2012, the Commission adopted online public file rules that required broadcast television stations to post public file documents to a central, FCC-hosted online database rather than maintaining paper files locally at their main studios. Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, Second Report and Order, 77 FR 27631, May 11, 2012 (“Second Report and Order”). Our goals were to modernize the procedures television broadcasters use to inform the public about how they are serving their communities, to make information concerning broadcast service more accessible to the public, and, over time, to reduce the cost of broadcasters' compliance. This Report and Order continues our modernization effort by requiring cable operators, satellite TV (also referred to as “Direct Broadcast Satellite” or “DBS”) providers, broadcast radio licensees, and satellite radio (also referred to as “Satellite Digital Audio Radio Services” or “SDARS”) licensees to post their public file documents to the FCC-hosted online database as well. By including these services in our transition to an online public file, we continue our effort to harness the efficiencies made possible by digital technology to make public file information more readily available to the public, while at the same time minimizing the burden on covered entities of maintaining the file.

    2. As the Commission has stated, this modernization of the public inspection file is “plain common sense.” The evolution of the Internet and the spread of broadband infrastructure have transformed the way society accesses information today. It is no longer reasonable to require the public to travel to a station or headquarters' office to review the public file and make paper copies when a centralized, online file will permit review with a quick, easy, and almost costless Internet search. Moreover, an online file will permit searches by the public without requiring assistance from station or headquarters' staff, further reducing the burden of maintaining the public file.

    3. As we proposed in the Notice of Proposed Rulemaking in this proceeding, Expansion of Online Public File Obligations To Cable and Satellite TV Operators and Broadcast and Satellite Radio Licensees, Notice of Proposed Rulemaking, 80 FR 8031, Feb. 13, 2015 (“NPRM”), we take the same general approach to transitioning cable, DBS, broadcast radio, and SDARS to the online file that the Commission took with respect to television broadcasters, phasing-in and otherwise tailoring the requirements as appropriate for the different services. We also take similar measures to minimize the effort and costs entities must undertake to move their public files online. Specifically, we require entities to upload to the online file only those public file documents that are not already on file with the Commission or that the Commission does not currently maintain in its own database. In order to reduce the cost of transitioning to the online file, we follow the approach we took with respect to television stations and exempt existing political file material from the online file requirement and require only that political file documents be uploaded on a going-forward basis. In order to ease the transition to the online file for broadcast radio stations, particularly those with small staffs and limited financial resources, we commence the transition to the online file with commercial stations in top 50 markets with 5 or more full-time employees. We delay for two years, until March 1, 2018, all online file requirements for all other radio stations. With respect to smaller cable systems, we exempt systems with fewer than 1,000 subscribers from all online public file requirements given that they are exempt from most public file requirements. In addition, we delay for two years, until March 1, 2018, the requirement that cable systems with between 1,000 and 5,000 subscribers commence uploading new political file material to the online file.

    4. With minor exceptions, we do not adopt new or modified public inspection file requirements in this proceeding. Our focus is simply to adapt our existing public file requirements to an online format in a manner that appropriately reflects the differences among the services and that minimizes the burden for all affected entities.

    II. Background

    5. One of a broadcaster's fundamental public interest obligations is to air programming responsive to the needs and interests of its community of license. To ensure that stations meet this obligation, the Commission relies on viewers and listeners as an important source of information about the nature of a station's programming, operations, and compliance with Commission rules. To provide the public with access to information about station operations, the Commission's rules have long required television and radio broadcast stations to maintain a physical public inspection file, including a political file, at their respective stations or headquarters and to place in the file records that provide information about station operations. The purpose of the public inspection file requirement is to “make information to which the public already has a right more readily available, so that the public will be encouraged to play a more active part in dialogue with broadcast licensees.”

    6. The requirement that broadcasters maintain documents for public inspection dates back to 1938, when the Commission promulgated its first political file rule. In 1965, following action by Congress to allow greater public participation in the broadcast licensing process, the Commission adopted a broader public inspection file rule to enable local inspection of broadcast applications, reports, and related documents. The Commission noted that Congress' actions “zealously guarded the rights of the general public to be informed” and that the Commission's goal was to make “practically accessible to the public information to which it is entitled.”

    7. Cable, DBS, and SDARS entities also have public and political file requirements modeled, in large part, on the longstanding broadcast requirements. In 1974, the Commission adopted a public inspection file requirement for cable, including a requirement to retain political file material, noting that, “[i]f the public is to play an informed role in the regulation of cable television, it must have at least basic information about a local system's operations and proposals.” The Commission also noted that “[r]equiring cable systems to maintain a public file merely follows our policy for broadcast licensees and is necessary for similar reasons” and that “[t]hrough greater disclosure we hope to encourage a greater interaction between the Commission, the public, and the cable industry.” With respect to DBS providers, the Commission adopted public and political inspection file requirements in 1998 in conjunction with the imposition of certain public interest obligations, including political broadcasting and children's television requirements, on those entities. DBS providers were required to “abide by political file obligations similar to those requirements placed on terrestrial broadcasters and cable systems” and were also required to maintain a public file with records relating to other DBS public interest obligations. Finally, the Commission imposed equal employment opportunity and political broadcast requirements on SDARS licensees in 1997, noting that the rationale behind imposing these requirements on broadcasters applies also to satellite radio.

    8. In 2002, Congress adopted the Bipartisan Campaign Reform Act (“BCRA”) which amended the political file requirements in section 315 of the Communications Act of 1934. The amendments apply to broadcast television and radio, cable, DBS, and SDARS. BCRA essentially codified the Commission's existing political file obligations by requiring that information regarding any request to purchase advertising time made on behalf of a legally qualified candidate for public office be placed in the political file. In addition, BCRA expanded political file obligations by requiring that television, radio, cable, DBS, and SDARS entities also place in the political file information related to any advertisements that discuss a “political matter of national importance,” including the name of the person or entity purchasing the time and a list of the chief executive officers or members of the executive committee or of the board of directors of any such entity.

    A. Online Public File

    9. In 2012, the Commission replaced the decades-old requirement that commercial and noncommercial television stations maintain public files at their main studios with a requirement to post most of the documents in those files to a central, online public file hosted by the Commission. The television online public file rules were the culmination of a more than decade-long effort to make information regarding how a television broadcast station serves the public interest “easier to understand and more accessible,” “promote discussion between the licensee and its community,” and “lessen the need for government involvement in ensuring that a station is meeting its public interest obligation.”

    10. Based on commenter suggestions, in the Second Report and Order the Commission determined that each television station's entire public file would be hosted online by the Commission. The Commission took a number of steps to minimize the burden of the online file on stations. Broadcasters were required to upload only those items required to be in the public file but not otherwise filed with the Commission or available on the Commission's Web site. Any document or information required to be kept in the public file and that is required to be filed with the Commission electronically in the Consolidated Data Base System (“CDBS”) is imported to the online public file and updated by the Commission. In addition, television stations were not required to upload their existing political files to the online file; rather, stations were required only to upload new political file content on a going-forward basis. Because of privacy concerns, television stations also were not required to upload letters and emails from the public to the online file; rather, they must continue to retain them in a correspondence file at the main studio.

    11. In addition, to smooth the transition for both television stations and the Commission and to allow smaller broadcasters additional time to begin posting their political files online, the Commission phased-in the new political file posting requirement. Stations affiliated with the top four national networks (ABC, NBC, CBS, and Fox) and licensed to serve communities in the top 50 Designated Market Areas (“DMAs”) were required to begin posting their political file documents online starting August 2, 2012, but other stations were exempted from posting their political file documents online until July 1, 2014. In the Second Report and Order, the Commission also rejected several proposals in the FNPRM to increase public file requirements in conjunction with implementation of the online file. Rather, the Commission determined that stations would be required to place in their online files only material that is already required to be placed in their local files.

    12. The Commission stated in the Second Report and Order that it was deferring consideration of whether to adopt online posting requirements for radio licensees and multichannel video programming distributors (“MVPDs”) until it had gained experience with online posting of public files of television broadcasters. The Commission noted that starting the online public file process with the much smaller number of television licensees, rather than with all broadcasters and MVPDs, would “ease the initial implementation of the online public file.”

    B. Petition for Rulemaking and Notice of Proposed Rulemaking

    13. In July 2014, the Campaign Legal Center, Common Cause, and the Sunlight Foundation (collectively, “Petitioners” or “CLC et al.”) filed a joint Petition for Rulemaking requesting that the Commission initiate a rulemaking to expand to cable and satellite systems the requirement that public and political file documents be posted to the FCC's online database. The Petitioners argued that cable and satellite services have increasingly become outlets for political advertising and that the ability of satellite television providers to sell household-specific “addressable advertising” would likely accelerate that trend. Petitioners asserted that moving the television public file online has resulted in “unquestionably substantial” public benefits, which would also occur if cable and satellite systems were required to upload their public and political files online. In addition, Petitioners argued that television broadcasters experienced few problems moving to the online file, and cable and satellite systems would also likely not be burdened by the online filing requirement.

    14. On August 7, 2014, the Media Bureau issued a Public Notice seeking comment on the Petition for Rulemaking and, in addition, on whether it should initiate a rulemaking to expand online public file obligations to broadcast radio stations. See Public Notice, Commission Seeks Comment on Petition for Rulemaking Filed by the Campaign Legal Center, Common Cause, and the Sunlight Foundation Seeking Expansion of Online Public File Obligations to Cable and Satellite TV Operators, Bureau Also Seeks Comment on Expanding Online Public File Obligations to Radio Licensees, 79 FR 51136, August 27, 2014 (“Public Notice”). After reviewing the comments filed in response to the Public Notice, the Commission issued the NPRM in this proceeding proposing to expand the online file to cable operators, DBS providers, and broadcast and satellite radio licensees.

    III. Discussion

    15. The rules we adopt today will modernize the outdated procedures for providing public access to cable, DBS, broadcast radio, and SDARS public files in a manner that avoids imposing unnecessary burdens on these entities. By taking advantage of the efficiencies made possible by digital technology, we will make information that cable, DBS, and broadcast and satellite radio licensees are already required to make publicly available more accessible while also reducing costs both for the government and the private sector. The Internet is an effective, low-cost means of maintaining contact with, and distributing information to, viewers and listeners. Placing the public file online will permit 24-hour access from any location, thereby improving access to information about how cable, satellite, broadcast radio, and SDARS entities are serving their communities and meeting their public interest obligations. Maintaining this information online will also either eliminate or substantially reduce the number of public visits to stations or headquarters offices to view public file material, reducing the burden on staff who would otherwise have to assist during these visits and enabling entities to improve security and minimize risks to employees. As the Commission has stated previously, the public benefits of posting public file information online, while difficult to quantify with exactitude, are unquestionably substantial.

    16. Expansion of the online public file to cover more services is particularly important with respect to improving access to political files. While broadcast television remains the dominant medium for political advertising, the quantity of such advertising on cable and satellite television continues to increase, and the advent of technological advances such as addressable advertising is likely to further this trend. Political advertising on radio is also on the rise. Adding cable, satellite TV, and broadcast and satellite radio political file material to the existing online file database will facilitate public access to disclosure records for all these services and allow the public to view and analyze political advertising expenditures more easily in each market as well as nationwide.

    17. Similar to the approach we took to transitioning television stations to the online file, we take steps here to minimize the effort and cost that all entities must undertake to move their public files online. Entities will be required to upload to the online file only documents that are not already on file with the Commission or that the Commission maintains in its own database. Any document or information required both to be kept in the public file and to be filed with the Commission electronically in Commission databases such as CDBS or the Cable Operations and Licensing System (“COALS”) database will be imported to the online public file and updated by the Commission. In addition, entities being added to the online file will not be required to upload their existing political files to the online file; rather, they will be required only to upload new political file content on a going-forward basis. We note that the size of the political file likely correlates with an entity's political advertising revenues. Accordingly, entities with little or no political advertising revenues will likely have few obligations under our rules, while entities with more documents in their political files will likely also have greater political advertising revenues.

    18. Some commenters responding to the NPRM argue that the goal of the public inspection file requirements is to make documents available to members of the public in the station's community of license and that requiring these documents to be placed online will encourage the filing of complaints by individuals unconnected to the local community. While we agree that the public file is first and foremost a tool for community members, it is also a tool for the larger media policy community. Easy access to public file information will also assist the Commission, Congress, and researchers as they fashion public policy recommendations relating to media issues. For this reason, we also reject the suggestion of NAB that the Commission focus its enforcement efforts on complaints submitted by actual viewers and listeners about the public files of their local stations and decline to consider public file complaints from entities unrelated to the licensee's local community. The Commission will consider and fairly evaluate any complaint related to our public inspection file rules. Our primary goal, however, is to improve access to public information file material.

    A. Online File Capacity and Technical Issues

    19. The Commission has taken a number of steps to ensure that the online file will be capable of accommodating the significant increase in network traffic as well as the volume of public file material that will result from the expansion of online filing requirements. We recognize that adding cable, DBS, broadcast radio, and SDARS to the online file will greatly increase the number of users of the file and the volume of material that must be uploaded. We also recognize that there is likely to be a heavy demand on the online file during certain filing windows and in peak political seasons, when many broadcast stations take new advertising orders and modify existing orders on a daily basis. The improvements we have made to the operation of the online file will facilitate use of the database by members of the public as well as by the entities required to maintain an online file, including existing TV station users.

    20. Technical improvements to the online file. The Commission has made several technical improvements to the online file database. First, the Commission has finished the transition to cloud-based computing solutions for purposes of managing the online public file database. Cloud computing technology will not only ensure that we maintain sufficient capacity to store the increased number of public file materials in the database, it will also permit us to increase network capacity during times of high demand to relieve network congestion and avoid delays or backups in uploading documents to the database. As the Commission stated in the Second Report and Order, cloud-based computing will permit the Commission to implement an online public file that is highly available, scalable, and eliminates user wait times associated with processing documents after upload. Second, as requested by NCTA, the Commission has added to the database the ability to place a document in multiple files using a single upload. This functionality should greatly facilitate maintenance of the online file, especially for cable operators or station group owners that place similar documents in the public file for multiple cable systems or broadcast stations. Third, when entities move a document from one folder to another in the online file, the database will now display both the date the document was first uploaded to the online file as well as the date it was moved to a different online file location. This will permit entities to move files within the online file if, for example, the file was initially placed in the wrong folder or the entity is creating new or different subfolders for purposes of improving the organization of the file, while maintaining a record of the date the document was first uploaded to the online file. Fourth, the database now will permit entities easily to delete files and empty folders when documents in the file are past their retention period or the entity wishes to delete them for another reason. Entities will be able to select one or more files and/or folders for deletion at one time, permitting them to efficiently remove documents from the online file.

    21. Finally, as advocated by a number of commenters, the Commission has completed the development and implementation of an application programming interface (“API”) that can connect the online file database to third-party web hosting services and that will permit such services to efficiently load documents into the online file on behalf of client broadcast stations and other entities. We recognize that third-party web hosting services may offer valuable assistance to entities in uploading documents to the online file and otherwise maintaining the file, particularly smaller entities that may choose to outsource this effort because of cost savings and other resource constraints. The Media Bureau and the Office of the Managing Director will provide further information about the API in the near future and will conduct one or more demonstrations. The API library will also be made available for testing by covered entities and their third-party service providers prior to the effective date of the online filing requirements adopted in this proceeding. While we recognize the benefits that web hosting services may provide in assisting entities in uploading materials to the online file, we emphasize that each entity remains responsible for ensuring that its own online public file is complete. While entities are free to enter into contractual arrangements with third parties to upload information into the online file, and to require as part of those arrangements that the third party ensure compliance with the FCC's rules, we decline to relieve entities of their responsibility to ensure that their own online public file is complete and otherwise complies with our rules. While we decline to provide a safe harbor for entities that choose to engage a third party to assist with the online file, we note that our primary goal in this proceeding is to improve access to public file information. Our enforcement efforts initially will be focused on ensuring that entities understand and comply with the online file requirements adopted herein, rather than on imposing fines for minor failures to comply with the rules, particularly during the period when entities being added to the online file are becoming familiar with online filing.

    22. Links to other Web sites. With the exception of the channel lineup information that cable systems must retain in the online file, we will not permit entities to provide a link in the online file to an alternative online location where political file or other public file material may be maintained in lieu of uploading documents to the Commission's database. The Commission's online file database is intended to serve as a single source of public file material for entities required to use the file, and not as a collection of links to other Web sites. The online database is organized with folders and subfolders that provide a consistent display of public file material for entities in each service. Members of the public who access the online file will be able to locate documents more easily if they are organized in a similar manner for each service. We agree with CLC et al. that allowing entities to substitute a link to another Web site, which may follow a different organizational structure, instead of uploading documents to the online file, would likely make the file more confusing, harder to navigate, and less useful to the public. With respect to channel lineups, however, we believe it is appropriate to permit cable operators that maintain a lineup on their own Web site to provide a link to that existing online lineup in lieu of also maintaining a lineup in the Commission's online file database. Operators may elect to provide channel lineup information both in the Commission's online file as well as on their own Web sites, but will not be required to do so.

    23. We will permit those entities that maintain their own electronic public and/or political files to include in the Commission's online database a link to that private file database, in addition to uploading to the Commission's database the materials required to be retained in the online public file. Such links would provide a further source of public file information that could prove to be a useful supplement to the information available on the Commission's online database.

    24. Filing windows. We decline at this time to extend or otherwise alter our current filing windows, as advocated by several commenters. We are confident that the online file will be capable of handling the increased number of filers and the volume of material required to be uploaded as a result of the expansion of the Commission's online database. We may reconsider expanding or otherwise altering filing windows at a later time if we believe that such efforts will either assist filers in maintaining a complete, up-to-date online file or help avoid congestion in the online database.

    25. Orderly online files. Consistent with our requirement for television stations, we will require that cable, DBS, broadcast radio, and SDARS entities maintain orderly public files and remove expired contracts when and if replacement agreements are uploaded. While we otherwise do not require that files that are past their retention period or otherwise out-of-date be deleted, we urge all entities to actively manage their online files to ensure that they do not become so overgrown with out-of-date documents that it is difficult to access relevant materials. The Commission will take no action under the public file rules based on any public file document that is outside the mandatory retention period.

    B. Political File

    26. As proposed in the NPRM, cable operators, broadcast radio licensees, DBS operators, and SDARS entities will not be required to upload their existing political files to the online file. Instead, as we require with television licensees, these entities will be permitted to maintain locally those documents already in place in their political file at the time the new rules become effective, and upload documents to the online political file only on a going-forward basis. Existing political file material must be retained in the local political file at the station, cable system, or DBS or SDARS headquarters' office for the remainder of the two-year retention period, unless entities voluntarily elect to upload these materials to the online file. Given this limited two-year retention period, exempting the existing political file from the online database will require entities to continue to maintain this file locally for only a relatively short period of time after the effective date of the online political file requirements established in this order. Thus, exempting the existing political file from online posting will reduce the initial burden of moving public files online. In addition, as discussed below, with respect to smaller cable systems (those with between 1,000 and 5,000 subscribers) we are delaying for two years, until March 1, 2018, the requirement that they commence uploading new political file material to the online file. We also delay all online file requirements until March 1, 2018 for radio stations with fewer resources, which we define as all NCE stations, commercial stations in markets below the top 50 or outside all radio markets, and commercial stations in the top 50 markets with fewer than five full-time employees. We believe that providing these entities with additional time to complete their transition to the online file will ease implementation for these smaller entities and also give the Commission time to address any concerns that may arise as larger entities commence using the online file.

    27. Consistent with our current political file rules, and as proposed in the NPRM, we will require that new political file materials be uploaded to the online file “immediately absent unusual circumstances.” The contents of the political file are time-sensitive. Therefore, it is essential that there be no delay in posting political file materials to the online file. In addition, consistent with our approach to the television online file, we will create and propagate subfolders for federal and state candidate ad purchases, as appropriate, as well as issue ads that relate to a political matter of national importance. We will also provide entities with the ability to create additional subfolders and subcategories in compliance with their own practices.

    C. Voluntary Use of the Online Public File

    28. As we proposed in the NPRM, we will permit entities that are temporarily exempt from part or all online public file requirements to upload material to the online public file voluntarily before the delayed effective date of their online file requirement. For example, an NCE broadcast radio station that is not required to commence using the online file until March 1, 2018, as discussed below, could elect voluntarily to commence using the online file prior to this date. We will also permit entities to elect voluntarily to upload to the online file existing political file material that would otherwise be required to be retained in the entity's local public file until the end of the two-year retention period. To avoid any confusion regarding the location and completeness of the public and political file, any entity that voluntarily elects to commence using the online file early must ensure that the online file contains all new public file material on a going-forward basis, including all new political file material. That is, all new public and political file material must be uploaded to the online file on a going-forward basis commencing on the date the entity elects to transition to the online file. The online file database will require users to indicate that they have transitioned to the online file.

    D. Back-Up Files

    29. As proposed in the NPRM, cable, DBS, broadcast radio, and SDARS entities will not be required to maintain back-up copies of all public file materials. Instead, as we do for the existing television online file, an entity may request that the Commission create a mirror copy of its public file to ensure that, if the data in the online file are compromised, the file can be reconstituted using the back-up copy. If the Commission's online file becomes temporarily inaccessible for the uploading of new documents, we will require entities to maintain those documents and upload them to the file once it is available again for upload.

    30. As proposed in the NPRM and consistent with the approach we take with respect to television broadcasters, however, we will require cable, DBS, broadcast radio, and SDARS entities to make back-up files for the political file available to the public to ensure that they can comply with their statutory obligation to make that information available to candidates, the public, and others immediately. Entities will be required to make these backups available only if and during such rare times as the Commission's online public file is unavailable. To minimize any burden caused by this requirement, entities may choose to meet the political file back-up requirement by periodically downloading a mirror copy of the public file, including the political file, housed on the FCC's database. To ensure that the political file is complete, entities that choose this option must retain any political file records that have not yet been uploaded to the FCC's online file database or that were uploaded after their last download of a mirror copy of the online public file.

    31. These back-up files may be retained either in paper or electronic form at the entity's local public file location. Alternatively, entities may elect to make these back-up political files accessible to the public online via the entity's own Web site. Cable operators or other entities with their own electronic political files may elect to use these files as a back-up in the event the Commission's online database is unavailable.

    32. In the event the Commission's online file becomes temporarily inaccessible, we will require DBS and SDARS entities to make their back-up political files available to the public through the entity's choice of either an online method, via the entity's own Web site, or by answering questions and accommodating requests for copies of political file materials made by telephone. Copies requested by telephone may be sent by fax, email, or mail, at the caller's request. If a requester prefers access by mail, the DBS or SDARS entity may require the individual requesting documents to pay for photocopying. We believe it is necessary to require DBS and SDARS entities to provide alternative means to access back-up political file documents, either online or by telephone, as these entities provide service nationwide and are required to maintain only one public and political file for the entire U.S. at their headquarters office, making in-person access very difficult. This requirement for online or telephone access will apply only to DBS and SDARS back-up political file materials during times when the Commission's online database is unavailable. Accordingly, we do not believe this requirement will be unduly burdensome.

    E. Format

    33. As proposed in the NPRM, cable, DBS, and broadcast and satellite radio entities will be required to upload any electronic documents to the online file in their existing format to the extent feasible. The Commission will display the documents in both the uploaded format and in a pdf version. If a required document already exists in a searchable format, documents must be uploaded in that format to the extent technically feasible.

    34. We decline at this time to implement a standard format for the online file, including for political advertising data, as requested by CLC et al. As discussed above, the Commission has made a number of upgrades to its online file database to accommodate additional users and make the file easier to use. We will continue to prioritize these and other efforts to ensure that the database is reliable and user-friendly before considering further improvements.

    F. Announcements and Links

    35. We will require cable operators, DBS providers, and broadcast and satellite radio licensees that have Web sites to place a link to the online public file on their home pages, consistent with our proposal in the NPRM and our requirement for television stations. This link must connect to the first page of the entity's online public file. We will also require entities that have Web sites to include on their home page contact information for a representative who can assist any person with disabilities with issues related to the content of the public file.

    36. As proposed in the NPRM, we will not require cable, DBS, broadcast radio, or SDARS entities to make on-air announcements regarding the change in location of their public file. Consistent with the approach taken with respect to television stations in the Second Report and Order, we will require broadcast radio stations, however, to revise their on-air pre- and post-filing renewal announcements to reflect the availability of a station's renewal application on the Commission's Web site.

    G. EEO Materials

    37. As we proposed in the NPRM, we will continue to require that cable, DBS, and broadcast and satellite radio entities make their EEO materials available on their Web sites, if they have one. Similar to our requirements for television stations, entities may fulfill this Web site posting requirement by providing, on their own Web site, a link to the EEO materials on their online public file page on the Commission's Web site.The link to EEO materials must be a direct link to such materials on the FCC's Web site, and not simply a link to the first page of the entity's online public file. As discussed above, all entities that have Web sites must also place a link to the first page of their online public file on the home page of their Web site.

    H. Local Public Inspection File

    38. Entities that have fully transitioned to the online public file—that is, entities that have uploaded all public file material to the FCC's online file database including all political file material required to be retained in the public file—and that also provide online access to back-up political file material via the entity's own Web site when the FCC's online database is temporarily unavailable, will not be required to maintain a local public file. This option is not available to commercial broadcast licensees who must continue to retain a correspondence file that cannot be made available online for privacy reasons.

    39. NTCA, Verizon, and DIRECTV request that we clarify that entities do not need to maintain a local public inspection file once they have fully transitioned to the online file. We note that, unlike commercial broadcast stations who must retain a correspondence file at the station, cable, DBS, and SDARS entities will have fully transitioned to the online file once the retention period for existing political files expires. As discussed above, however, all entities must maintain a back-up file for the political file in the event the online file becomes unavailable and make this back-up file available to the public. As discussed above, we will permit entities to retain back-up political file materials either in paper or electronic form at their local file location or make such materials available to the public online via the entity's own Web site. Entities with their own Web sites must indicate clearly on that Web site either the Web site or physical address of their back-up political files. Entities that have fully transitioned to the online file and that make their back-up political file materials available online will not be required to maintain a local public file.

    40. We will require all cable and DBS operators and broadcast and satellite radio licensees to provide information in the online public file about the individual who may be contacted for questions about the file. This information must be provided when the operator or licensee first establishes its online public file and should be updated if and when staffing or location changes occur. In addition, entities that have not fully transitioned to the FCC's online public file—that is, entities that do not post online all public and political file material required to be maintained in the public inspection file—and that do not also provide online access via their own Web sites to back-up political file materials must also provide information in the FCC's online public file about the location of the entity's local public file. This information is necessary to inform the public of the location of the existing political file (until its retention period expires) and/or the location where the public can access back-up political file materials in the event the Commission's database is unavailable. All commercial broadcast licensees must include information in the FCC's online file about the location of their local public file so the public is aware of the location of the correspondence file retained by these broadcasters.

    I. Compliance Dates

    41. New Public File Materials. In order to facilitate a smooth transition to the online public file, we will provide entities a period of time after the effective date of the online file requirements adopted in this order to begin uploading files. Cable systems with 1,000 or more subscribers, DBS providers, SDARS licensees, and commercial radio broadcast stations in the top 50 markets with five or more full-time employees will be required to begin using the online public file 30 days after the Commission announces in the Federal Register that OMB has completed its review of this Order under the Paperwork Reduction Act (“PRA”) and approved the collection. Commencing on this effective date, these entities must begin uploading new public file materials to the Commission's online public file database and, with the exception of cable systems with between 1,000 and 5,000 subscribers, these entities must also upload new political file material to the Commission's online file. Entities will not be permitted to commence uploading material to the online file prior to this effective date. We decline NAB's request that we give radio stations 60 days from the effective date to commence uploading new public file material. Only commercial radio broadcast stations in the top 50 radio markets with 5 or more full-time employees are required to commence uploading documents to the online file beginning 30 days after the effective date of this Order. We believe these larger radio stations have the necessary resources to be able to commence using the online file within this time frame without imposing an undue burden.

    42. In recognition of their more limited resources, we provide more time for smaller entities to transition to the online file. Thus, as discussed further below, commercial broadcast radio stations in the top 50 markets with fewer than five full-time employees, all commercial broadcast radio stations in markets below the top 50 and outside all radio markets, and all NCE broadcast radio stations will not be required to begin uploading new public and political file material to the online file until March 1, 2018. In addition, cable systems with 1,000 or more but fewer than 5,000 subscribers will not be required to commence uploading new political file material to the online file until March 1, 2018. Cable systems with fewer than 1,000 subscribers are exempt from all online filing requirements.

    43. Existing Public File Materials. We will give cable systems with 1,000 or more subscribers, DBS providers, SDARS licensees, and commercial radio broadcast stations in the top 50 markets with five or more full-time employees six months from the effective date of the rules (i.e., six months after the Commission publishes a notice in the Federal Register announcing OMB approval under the PRA as discussed above) to complete the process of uploading to the online file their existing public file materials, with the exception of existing political files. This approach is similar to that taken by the Commission in the Second Report and Order to transition television stations to the online public file. Entities will be permitted to begin uploading existing public file materials immediately on the effective date, at the same time that they must begin posting new materials to the online public file on a going-forward basis. These entities must complete the process of uploading the existing public file—but not the existing political file, which is not required to be transitioned to the online file—within six months of the effective date. We believe that giving these entities six months to upload existing files will provide adequate time and flexibility to complete this process.

    J. Waiver

    44. While we do not believe online posting of the public file, including prospective posting of the political file, will impose an unreasonable burden on the vast majority of entities subject to the rules adopted in this Order, we recognize that there may be a few entities for which the transition to an online public inspection file may prove especially difficult. In this regard, we note that some small radio stations in remote locations may not have access to reliable Internet service or may be without Internet access altogether. In addition, there may be rare instances in which a small radio station or cable operator faces undue economic or other resource limitations that make the transition to the online public file especially challenging. If an entity believes that the transition to the online file will impose an undue hardship, it may seek a waiver of the requirements adopted in this order. An entity seeking a waiver should provide the Commission with information documenting the economic hardship the station would incur in complying with online file requirements, its technical inability to do so, or such other reasons as would warrant waiver under our general waiver standards.2

    2 As discussed below, we are phasing-in the online file requirements for radio beginning with commercial stations in the top 50 Nielsen Audio markets with 5 or more full-time employees. See, infra, para. 83. We delay online filing for all other radio stations for approximately two years, until March 1, 2018. Id. In the event a commercial radio station with between 5 and 10 full-time employees, otherwise required to transition to online filing in the first group, finds the transition especially difficult, the Commission will give careful consideration to requests by these stations for additional time to commence online filing. The Commission also will be favorably inclined to grant requests for additional time to commence online filing from very small radio stations with fewer than five full-time employees, as these stations may have limited resources and, therefore, find the transition to the online file particularly challenging.

    K. Requirements and Issues Unique to Each Service

    45. Because each service for which we are implementing online public file requirements is unique, we address each service separately below. We address any service-specific issues raised in the NPRM and by commenters, and also address the manner in which we will phase-in online file requirements for each service.

    1. Cable Public Inspection File a. Current Rules

    46. The FCC's rules regarding records to be maintained by cable systems distinguish between records that must be retained for inspection by the public and those that must be made available to Commission representatives or local franchisors only. The rules also impose different recordkeeping requirements based on the number of subscribers to the cable system. Operators of cable systems with fewer than 1,000 subscribers are exempt from many public inspection file requirements, including the political file, sponsorship identification, EEO records, and records regarding children's commercial programming. Operators of systems with between 1,000 and 5,000 subscribers must provide certain information “upon request” but must also “maintain for public inspection” a political file, while operators of systems having 5,000 or more subscribers must “maintain for public inspection” a political file and records regarding, among other things, sponsorship identification, EEO, and advertisements in children's programming. The rules state that the public inspection file must be maintained “at the office which the system operator maintains for the ordinary collection of subscriber charges, resolution of subscriber complaints, and other business or at any accessible place in the community served by the system unit(s).”

    47. Cable system political file requirements are similar to those for broadcast stations. The political file must contain a “complete and orderly record . . . of all requests for cablecast time made by or on behalf of a candidate for public office” including the disposition of such requests. The file must also show the “schedule of time purchased, when spots actually aired, the rates charged, and the classes of time purchased.” With respect to certain issue advertisements, the file must disclose the name of the purchasing organization and a list of the board of directors. These records must be filed “immediately absent unusual circumstances,” and must be retained for at least two years.

    b. Online Public File Requirements (i) Content Required To Be Maintained in the Online File

    48. As discussed above, consistent with the rules we adopted for television broadcasters and that we adopt for other entities, we will require that cable operators upload to the online public file all documents and information that are required to be in the public file but which are not also filed in COALS or maintained by the Commission on its own Web site. The Commission will import these latter documents or information into the online public file itself. As noted in the NPRM, the only document that cable operators file with the Commission that must also be retained in their public inspection file is the EEO program annual report, which the Commission will upload to the online file. We will require cable systems with 1,000 or more subscribers to upload to the online file other material currently required to be maintained for public inspection.

    49. While cable systems with 1,000 or more subscribers but fewer than 5,000 subscribers are currently required to provide certain materials to the public only “upon request,” as proposed in the NPRM we will also require these systems to place these materials in the online public file to facilitate public access to these materials, except as clarified in paragraph (ii) below. The documents these systems are currently required to make available “upon request” are those required by 47 CFR 76.1701 (sponsorship identification), 76.1702 (EEO records available for public inspection), 76.1703 (commercial records for children's programming), 76.1704 (proof-of-performance test data), and 76.1706 (signal leakage logs and repair records). We disagree with NCTA that moving from an “upon request” regime to an affirmative requirement to upload documents to the online file for these systems represents a burdensome change in regulation. While our current rules do not require that these records be maintained at a particular local site, cable operators must make this information “promptly available once a request is received.” Our decision to require instead that these records be maintained in the online file does not materially alter the burden of maintaining these records and making them available upon request and is consistent with our transition to an online public file regime.

    50. Exemption from all online file requirements for small cable systems. As we proposed in the NPRM, we will exempt cable systems with fewer than 1,000 subscribers from all online public file requirements. As noted above, these systems have far fewer public file requirements than larger systems and are not required to maintain a political file. NCTA and ACA support this exemption from online public file requirements. We decline, however, to adopt ACA's proposal that we extend to cable systems with fewer than 2,500 subscribers the same public file exemptions currently applicable to cable systems with fewer than 1,000 subscribers and, in addition, exempt systems with fewer than 2,500 subscribers from all online public file requirements. It is beyond the scope of this proceeding to consider expanding the number of cable systems that are exempt from current public inspection file requirements. Our goal is simply to adapt our existing public file requirements to an online format, while clarifying and streamlining certain requirements as necessary. We also decline to adopt ACA's proposal that we exempt systems with fewer than 15,000 subscribers and not affiliated with a multichannel video programming distributor (“MVPD”) serving more than ten percent of all MVPD subscribers from the requirement to maintain their public inspection files in the online database and instead permit these systems to make information in these files available upon request. These entities must retain records in order to be able to make them available upon request, and we believe any additional burden resulting from a requirement that they instead be posted online is minimal and is outweighed by the benefit of making information more readily accessible without requiring members of the public to make a specific request for records from each system. We also believe ACA's proposal would confuse the public about the location of public file materials.

    51. We believe that the cumulative impact of the online file requirements will not prove overly burdensome to cable systems, particularly in light of the clarification we make below that proof-of-performance and signal leakage information is exempt from the public file. As discussed above, any system for which the transition to online filing would impose an undue hardship may request a waiver.

    52. Political file. Consistent with the approach we adopted for television broadcasters, cable operators will not be required to upload their existing political files to the online file; rather, they will be permitted to maintain existing material in their physical political file and upload documents to the online political file only on a going-forward basis. This approach will minimize the burden of transitioning to the online file for cable operators while providing convenient access to the information most likely to be of interest to the public.

    53. Delay in political file requirements for small cable systems. To smooth the transition for cable operators and the Commission and to allow smaller cable systems additional time to begin posting their political files online, as proposed in the NPRM we will phase in the political file posting requirements for small cable systems. For the next two years, we will require only systems with 5,000 or more subscribers to post their new political file documents online. We temporarily exempt other cable systems from posting their political documents to their online public file until March 1, 2018. NCTA supports delaying for two years the requirement to post new political file material online for smaller cable systems, and this delay is also consistent with the additional time we gave smaller television stations to begin posting political files online in the Second Report and Order.

    54. We believe that it is appropriate to commence online political file requirements with larger cable systems with more subscribers as these systems are more likely to have the resources needed to address any implementation issues, should they arise. Allowing other systems additional time to begin uploading the political file will ease implementation for these smaller systems and also give the Commission time to address any concerns that may arise as larger cable systems transition to the online file. Applying this delay in online political file requirements to cable systems with fewer than 5,000 subscribers establishes a threshold that is clear and easy to implement. As discussed above, this 5,000 subscriber threshold is currently used in the public file rules to provide regulatory relief from certain recordkeeping requirements. Cable systems are therefore familiar with the use of this threshold in the context of public file requirements, which should help avoid confusion regarding which systems are eligible for the temporary exemption.

    55. As an alternative to the 5,000 subscriber cutoff, we sought comment in the NPRM on whether we should instead define “small cable system” for purposes of the temporary exemption from the online political file requirement as a system with fewer than 15,000 subscribers that is not affiliated with a larger operator serving more than 10 percent of all MVPD subscribers. While NCTA supports this latter definition, we believe the 5,000 subscriber cutoff is both less complicated, as it does not require calculation of the total number of MVPD subscribers as well as the percentage served by any multi-system operator, and easier to administer and implement as systems are already familiar with this cutoff in connection with public inspection file requirements. We believe that uploading new political file material to the online file will not prove significantly more burdensome than maintaining paper files, and will prove less burdensome over time as operators become more familiar with the online file.

    56. Geographic information. We will require cable operators, when first establishing their online public file, to provide a list of the five-digit ZIP codes served by the cable system. Cable operators with more than one physical system identifier (“PSID”) will be required to identify the ZIP code(s) served by each PSID. As discussed in the NPRM, the Commission currently lacks precise information about the geographic areas served by cable systems, and we believe that providing information about ZIP codes served will make the information in the online file, and especially the political file, more useful to subscribers, advertisers, candidates, and others. While we proposed in the NPRM to require operators to provide information regarding both the ZIP codes and Designated Market Areas (“DMAs”) served by each system, we will require only ZIP code information at this time. ZIP codes correlate to geographic areas that are easily identified by the Commission and the general public. In addition, zip code areas are smaller than DMAs, providing more granular data to users of the online file. Information about ZIP codes served should also be relatively easy for operators to obtain from their billing records. We note that operators will be required to identify the ZIP codes served by each cable system only when they first establish their public files on the Commission's database, and to update this information only to reflect changes. Therefore, we do not believe this requirement will be unduly burdensome.

    57. We reject the suggestion of NCTA and ACA that, instead of requiring cable operators to upload information about the geographic area served by the system, the FCC instead import that information from FCC Form 322 (Cable Community Registration). The communities identified on Form 322 often do not correspond to locations with defined political and/or geographic boundaries. In addition, while Form 322 does contain information about counties served by each system, this information is not as granular as ZIP code data, which is not available on Form 322. We also decline Verizon's suggestion that we refer to franchise areas in the online file, as we believe this information is less likely to be recognizable by the public than ZIP codes.

    58. We sought comment in the NPRM on whether, in lieu of ZIP code or DMA data, we should instead require cable operators to provide information about the census block(s) or census tract(s) served by each system. We do not require cable operators to provide this information

    59. Cable employment units. We will also require cable operators, when first establishing the online public file for each cable system, to identify the employment unit number or numbers associated with each system. This information is required to permit the Commission to associate EEO reports filed with the Commission, which are identified by employment unit number, with the system or systems covered by each report and employment unit. As cable operators will be required to provide this information only when they first establish the online public file and when any updates are required, we do not believe this requirement will be unduly burdensome.

    60. Channel lineups. We will require cable operators either to upload information regarding their current channel lineup to the online file, and keep this information current, or provide a link in their online file to the channel lineup maintained by the operator. While we recognize that cable systems may currently provide channel lineup information to subscribers in various ways in addition to putting it in the public file, we decline to eliminate the requirement that such information also be made available in the online public file, as advocated by NCTA and ACA. We agree with NCTA and ACA, however, that we should allow operators the option of including a link in the online public file to their own online channel lineups in lieu of uploading channel lineups to the online file. This option will ease the burden on cable operators who maintain their channel lineups on their own Web sites and will help ensure that the channel lineup information accessible through the online public file is up to date. We emphasize that cable systems may take advantage of the option of including a link to the cable system's channel lineup in the online file in lieu of uploading the lineup only if the link is made available to all members of the public.

    61. Headend location information. Our rules currently require the operator of every cable television system to maintain in the public inspection file the “designation and location of its principal headend.” As we proposed in the NPRM, we will not require cable operators to include principal headend location information in the online public file. Instead, operators will have the option to instead continue to retain this information in their local public file. In comments filed in response to the Public Notice, NCTA asked that we consider whether we should exclude headend location information from the online public file as it is of little interest to the general public and revealing this information in a centralized database available to Internet users “raises potentially serious security risks.” While we reserve judgment as to whether there are valid security concerns associated with posting the location of the principal headend online, we agree that the general public is unlikely to be interested in this information and, therefore, will permit operators who prefer to retain this information locally rather than posting it online to do so. We remind operators who choose not to post principal headend location information to the Commission's online public file that the local file where this information is retained must be made available for public inspection at any time during regular business hours.

    62. Commercial limits in children's programming. We decline to adopt NCTA's request that we revise our public file rules to permit cable operators to provide documentation regarding compliance with the commercial limits in children's programs only in the event of a complaint. NCTA's proposal is beyond the scope of this proceeding, which is intended to adapt our current public file rules to an online format rather than changing underlying requirements. While we recognize that our current rules require cable operators operating multiple systems carrying the same children's programs to retain in their files similar commercial limits information for these systems, we believe the transition to the online public file will significantly reduce the burden of complying with this aspect of the current children's television rules. As discussed above, the Commission has upgraded the online file database to permit entities to populate multiple files using a single upload. This feature will permit cable operators to use a single upload to post required commercial limits documentation to the online file for multiple cable systems, making compliance with the commercial limits rules easier in the online database than in the current local public file regime. In addition, as discussed above, entities are free to negotiate with third-party vendors for assistance in uploading documents to their online public inspection file using the API interface.

    63. FCC Form 325. We invited comment in the NPRM on whether the Commission should make FCC Form 325 (Annual Cable Operator Report) available in the online public file. That form is filed annually by cable systems with 20,000 or more subscribers. We decline to include FCC Form 325 in the online file at this time as these forms are not currently required to be included in the public inspection file.

    64. State and local public file requirements. We decline to adopt Verizon's request that we preempt public file requirements imposed pursuant to agreements between a cable operator and state and local franchising authorities. While such agreements may require cable operators to maintain a local file with content that may duplicate or differ from that required by the FCC's public file requirements, we do not believe it is appropriate in this proceeding to preempt such local or state requirements. We will, however, enable entities to add a separate folder to their FCC online file for content that is required to be retained by the operator for public inspection pursuant to a franchising agreement. Cable operators may choose to take advantage of this option in order to maintain in a single location all materials required to be made available to the public, pursuant to either the FCC's rules or franchising requirements. Any material uploaded to the online file solely for purposes of compliance with state or local franchise requirements must be placed in a separate folder that is clearly labeled by the operator to distinguish it from FCC public and political file materials. Entities may not place materials solely intended to comply with franchise requirements in the same folder(s) used for FCC online public and political file materials, as this could be confusing to users of the online file. However, by creating this option, we are not changing any obligations that local franchising authorities may have imposed with respect to local inspection files. If the franchising authority has a requirement to maintain a local file that would not be satisfied by posting those documents to the FCC's online file, the cable operator must continue to maintain such a local file in compliance with the franchising agreement unless the franchising authority allows it to move those files online.

    (ii) Clarification and Reorganization of the Cable Public Inspection File Rules

    65. Proof-of-performance and signal leakage information. We clarify that proof-of-performance and signal leakage information does not need to be retained in the public inspection file or uploaded to the online file. This material must be maintained and made available to the Commission and franchisor, however, upon request. We noted in the NPRM that the current recordkeeping rules regarding this information are unclear. We agree with NCTA and ACA that proof-of-performance and signal leakage information is highly technical and unlikely to be of interest to the general public and does not need to be retained in the public inspection file or be made available online. We will, however, continue to require that systems retain this information and make it available to the Commission and franchisor upon request.

    66. Reorganization of 47 CFR 76.1700. As proposed in the NPRM, we are reorganizing section 76.1700 of the rules both to reflect the online public file requirements adopted in this Order and to clarify cable public inspection file requirements. The cable recordkeeping requirements are currently spread over several rule sections in Part 76, Subpart U (Documents to be Maintained for Inspection), with some requirements contained in a separate rule subpart. While section 76.1700 currently cross references many of these recordkeeping requirements, it does not cite them all. The revised rule section 76.1700 in Appendix B cross references all cable public recordkeeping requirements and more clearly addresses which records must be maintained in the public inspection file, and therefore uploaded to the Commission's online file, versus those that must be made available only to the Commission or franchising authority.

    2. DBS Public Inspection File a. Current Rules

    67. DBS providers are required to maintain a public inspection file containing four categories of information: Information regarding compliance with the carriage obligation for noncommercial programming (the “noncommercial set-aside”); Information regarding compliance with the commercial limits in children's programming; certain EEO materials; and a political file. With respect to the noncommercial set-aside, the rules require that DBS providers “keep and permit public inspection of a complete and orderly record of,” among other things, measurements of channel capacity, a record of entities to whom noncommercial capacity is being provided, the rates paid by the entity to whom capacity is provided, and a record of entities requesting capacity and the disposition of those requests. With respect to compliance with the children's programming commercial limits, DBS providers airing children's programming must maintain records sufficient to verify compliance with the rules and “make such records available to the public.” With respect to EEO materials, DBS operators are required to maintain in their public file EEO reports and certain EEO program information.

    68. DBS providers are also required to “keep and permit public inspection of a complete and orderly political file” and to “prominently disclose the physical location of the file and the telephonic and electronic means to access” it. The file must include, among other things, records of “all requests for DBS origination time” and the schedule of time purchased, when spots actually aired, the rates charged, and the classes of time purchased for each request. These records must be placed in the file “as soon as possible” and must be retained for at least two years. Unlike broadcasters and cable systems, DBS providers must “make available via fax, email, or by mail upon telephone request, photocopies of documents in their political files and shall assist callers by answering questions about the contents of their political files.”

    b. Online Public File Requirements

    69. Similar to our existing online public file requirements for television stations and the requirements we adopt for cable, broadcast radio, and satellite radio entities, we will require DBS providers to upload to the online file only material that is not already on file at the Commission. Similar to cable operators, the only document that DBS providers file with the Commission that must also be retained in their public inspection files is the EEO program annual report, which the Commission will upload to the online file. DBS operators will be required to post to the online file channel capacity measurements and other records related to the use of and requests for noncommercial capacity, records related to compliance with children's commercial limits, certain EEO materials, and new political file material.

    70. We do not believe that requiring DBS providers to upload this material to the online file will be onerous. As compared to television and radio broadcasters and cable operators, DBS providers have the fewest number of public file requirements. We believe that the transition to an online file is particularly important for DBS because of that service's nationwide reach. Each DBS provider is required to maintain only one public and political file for the entire U.S. at its headquarters, making in-person access very difficult. Moving this material to the online database will facilitate access to the public file by viewers nationwide.

    71. Consistent with our approach for television stations and the rules we adopt for cable, broadcast radio, and satellite radio entities, we will not require DBS providers to upload their existing political files to the FCC's online file but will permit them to maintain existing material in their physical political file and upload documents to the online political file only on a going-forward basis. DBS providers must begin uploading new public and political file material to the online public file 30 days after the Commission announces in the Federal Register that OMB has completed its review of this Order under the Paperwork Reduction Act (“PRA”) and approved the collection. These entities will have six months from the effective date of the rules (i.e., six months after the Commission publishes a notice in the Federal Register announcing OMB approval under the PRA) to complete the process of uploading existing public file materials to the online file, with the exception of existing political files which entities are permitted, but not required, to upload to the Commission's online public file.

    72. We will eliminate the requirement that DBS providers honor requests by telephone for copies of political file materials if those materials are made available online. Thus, with respect to existing political file materials not required to be posted to the FCC's online database, DBS providers must continue to answer telephone inquiries regarding those materials, as well as requests for copies, unless they elect to post those existing political files to the FCC's online database. In addition, as discussed above, if the FCC's online public file database is temporarily unavailable, we will require DBS providers to make their back-up political files available to the public by, at their own choice, either an online method, via the entity's own Web site, or by answering questions and accommodating requests for copies of political file materials made by telephone. Copies requested by telephone may be sent by fax, email, or mail, at the caller's request. If a requester prefers access by mail, the DBS or SDARS entity may require the individual requesting documents to pay for photocopying.

    73. We sought comment in the NPRM on how DBS political files should be organized, particularly with respect to advertisements shown on a local or hyper-local basis. We agree with DIRECTV that DBS providers should have the flexibility to organize their political files in any manner that reasonably allows users to view their contents. DBS providers offer advertisers the option to purchase advertising both nationwide and locally, and we will permit these entities to create folders for the political file that reflect the manner in which ads were purchased and shown.

    74. DIRECTV notes that the political file rules require DBS providers to include in the political file a significant amount of information about certain political ad buyers and, in some cases, the nature of the issue being advertised. According to DIRECTV, some political advertising buyers have refused to provide this information. DIRECTV requests that the Commission clarify that political advertisers must present DBS providers with sufficient information to comply with the political file requirements. We remind DBS providers, as well as other entities subject to our political broadcasting rules, that they are responsible for ensuring that their political files are complete and accurate as required by the Communications Act and the Commission's rules.

    3. Broadcast Radio Public Inspection File a. Current Rules

    75. The public inspection file rules for radio broadcasters are generally similar to those for television broadcasters. Every permittee or licensee of an AM or FM station in the commercial or noncommercial educational broadcast service must maintain a public inspection file containing, among other things, FCC authorizations, applications, contour maps, ownership reports, EEO materials, issues/programs lists, and time brokerage (also known as “local marketing”) and joint sales agreements. The file must be maintained at the station's main studio.

    76. Radio stations are required to maintain a political file as part of their public inspection file. The political file must contain a “complete and orderly record” of requests for broadcast time made by or on behalf of a candidate for public office. The file must also show the “schedule of time purchased, when spots actually aired, the rates charged, and the classes of time purchased.” With respect to issue advertisements, stations must disclose the name of the purchasing organization and a list of the board of directors. These records must be filed “as soon as possible, meaning immediately, absent unusual circumstances,” and must be retained for at least two years.

    b. Online Public File Requirements (i) Content Required To Be Maintained in the Online File

    77. We will require radio broadcast licensees to upload to the online public file all documents and information that are required to be in the public file but that are not also filed in CDBS (or LMS) or otherwise maintained by the Commission on its own Web site. Thus, radio stations must upload citizen agreements, certain EEO materials, issues/programs lists, local public notice announcements, time brokerage agreements, joint sales agreements, materials related to FCC investigations or complaints (other than investigative information requests from the Commission), and any new political file material. The Commission will import to the online file documents and information required to be in the public file that are electronically filed in CDBS (or LMS), including authorizations, applications and related materials, ownership reports and related materials, EEO Reports, The Public and Broadcasting manual, and Letters of Inquiry and other investigative requests from the Commission, unless otherwise directed by the inquiry itself.

    78. FCC Form 302-AM. FCC Form 302-AM (Application for AM Broadcast Station License) is available for paper filing only, unlike the application for FM station licenses (FCC Form 302-FM) which must be filed electronically. We will permit AM stations that must retain Form 302-AM in their public inspection file to choose either to retain the form locally for public inspection or upload the form themselves to the Commission's online database. NAB urges the Commission to upgrade its database to reduce the unequal burden on AM stations that are unable to file forms electronically. We are working on upgrading our broadcast licensing database, including FCC Form 302-AM, but we will not make changes to the filing requirements in this item. Our focus is on moving the public inspection file to the Commission's online database; other broadcast licensing database improvements are beyond the scope of this proceeding.

    79. Political file. As proposed in the NPRM, and consistent with the approach we adopted for television broadcasters and that we adopt here for other entities, broadcast radio licensees will not be required to upload their existing political files to the online file, but instead will be permitted to maintain existing material in their local political file and upload documents to the online political file only on a going-forward basis. This approach will minimize the burden of transitioning to the online file.

    80. Delay in implementation for stations with fewer resources. In light of the unique economic circumstances faced by radio broadcasters, we believe it is appropriate to implement the online public file by imposing requirements, at first, only on stations with more resources. Some radio commenters expressed opposition to the Commission's proposal to include radio broadcasters in the online file. Some argue that the radio industry already faces significant economic challenges as the result of competition from other services that would be exacerbated by the imposition of further regulatory requirements. Others question the need to expand the online file to radio, noting the limited number of requests radio stations receive to view the public file, or noting that the Petition for Rulemaking did not address broadcast radio and advocated only that cable operators and DBS providers be added to the online file.

    81. Most radio commenters focus in particular on the impact on small stations, including small NCE stations, of including broadcast radio stations in the online file. In general, these commenters argue that many radio stations are very small with limited financial and other resources, face constant economic pressure, and would find the transition to the online file very burdensome.

    82. With respect to NCE radio stations, many commenters advocate that all such stations be permanently exempt from online filing. Many NCE radio commenters argue that these stations are prohibited from accepting paid political and issue advertising, making access to their political file records less necessary than for commercial stations. Others contend that NCE stations often have more limited financial resources and smaller staffs than commercial stations and rely on donations for the majority of their funding, making the burden of transitioning to the online file particularly challenging. If NCE stations are not exempt from online filing, the Educational Media Foundation argues they should be in the last group of stations required to transition to the online file so that any issues with the online filing process can be resolved before NCEs are required to utilize scarce resources in uploading online files.

    83. As we proposed in the NPRM, we will commence online public file requirements for radio with commercial stations in markets 1 through 50, as defined by Nielsen Audio (formerly Arbitron), that have five or more full-time employees. We will delay all mandatory online filing for other radio stations for approximately two years, until March 1, 2018. Commencing on this date, all NCE radio stations, all commercial stations in markets below the top 50 as well as those outside all markets, and all commercial top 50 market stations with fewer than five full-time employees must begin placing all new public and political file material in the online file. In addition, as of this date, these stations must have placed all their existing public file material in the online file, with the exception of their existing political file material. Stations transitioning to the online file in the second wave will have approximately two years in which to upload their existing public file material to the online file. Accordingly, we do not believe these stations need an additional six months beyond the March 1, 2018 transition date in which to upload existing public file material.

    84. We decline to permanently exempt any category of radio stations from online filing. All broadcasters have public and political inspection file requirements, and we believe that all these files should ultimately be moved to the Commission's online database to improve accessibility and, over time, reduce the covered entities' administrative costs of maintaining these files. We note that, unlike small cable systems which are exempt from the political file as well as other public file requirements, small radio stations are not exempt from the political file requirement. We also decline to categorically exempt part of the public inspection file from online filing, as proposed by some commenters, with the exception of the existing political file and the correspondence file. Our experience to date with television stations suggests that most entities will not encounter undue difficulties in completing the transition to online filing. While we recognize that some radio broadcasters face significant economic and other resource constraints, we believe that most radio stations will be capable of completing the transition to the online file and are more likely to reap benefits over time in terms of reduced administrative costs if they post their entire public and political files online. Stations that face unique economic or other impediments that make transitioning to the Commission's online file especially difficult may request a waiver.

    85. We believe that commencing online file requirements with commercial stations in the top 50 markets with 5 or more full-time employees will ensure that the first group of radio stations to transition to the online file will have sufficient financial and staff resources to address any implementation issues that may arise. Commenters who addressed this issue generally agreed that it is reasonable to phase in online filing for radio stations starting with larger, commercial stations in the top 50 markets. We believe that it is appropriate to delay online filing for other radio stations as they are likely to have fewer financial and other resources and may need additional time to prepare for their transition to the online file. As we discussed in the NPRM, radio stations with fewer than 5 full-time employees are exempt from many EEO requirements, including the requirement to file FCC Form 396 (Broadcast Equal Employment Opportunity Program Report). We believe that defining the class of small radio stations based on this EEO exemption makes sense as it is a standard with which stations are already familiar and it provides a clear, bright line test for determining which stations are temporarily exempt from online filing. In addition, information regarding the stations that are exempt from certain EEO requirements is readily available to the Commission and the public, as this information is filed with the FCC and is available on the FCC's Web site.

    86. The 5 full-time employee threshold in our EEO rules applies to station employment units. A station employment unit is defined as “a station or a group of commonly owned stations in the same market that share at least one employee.” We will apply the 5 full-time employee threshold for purposes of the temporary exemption from radio online file requirements to station employment units. Thus, where a radio station is commonly owned with one or more other radio or television stations in the same market that share at least one employee, and the station employment unit has five or more full-time employees, each radio station in the group will be considered to exceed the threshold for the temporary exemption from the online public file.

    87. We reject the suggestion that we instead use a ten or fifteen-employee threshold for purposes of the temporary exemption from online public file requirements. The commenters that advocate a standard based on a larger number of employees argue generally that this approach better reflects the economic reality of radio versus television broadcasting and will better protect against adverse impacts to smaller radio stations. We believe, however, that a top-50 market commercial station with a staff of five or more full-time employees will have sufficient resources to be able to manage the transition to the online public file in the first wave of radio stations. Stations that face undue economic or other impediments to the transition may request a waiver.

    88. We will permit radio stations that are not required to transition to the online file until March 1, 2018 voluntarily to transition to the online file before that date. As discussed above, entities that choose to transition to the online file early must upload all new public and political file documents to the online file on a going-forward basis. All commenters who addressed this issue agree that radio stations that are exempt from online filing should be permitted to use the online file voluntarily.

    89. Contour map and main studio information. The Commission will create contour maps for the online file for both AM and FM stations based on existing data. Radio stations are currently required to include in their public inspection files “any service contour maps submitted with any application” together with “any other information in the application showing service contours and/or main studio and transmitter location.” While we sought comment in the NPRM on whether we should require AM stations to upload contour maps to the online file given the complexities of AM contour mapping, we conclude that it is not necessary to require AM stations to upload contour maps. Instead, the Media Bureau will create contour maps for purposes of the online file for both AM and FM stations.

    90. As we proposed in the NPRM, we will require stations to provide information to the online file regarding the location of the station's main studio. The Commission's rules do not currently require the reporting of this information, and it is not included on contour maps. We believe that information regarding the location of the main studio will help members of the public to engage in an active dialogue with radio licensees regarding their service, which is one of the goals of this proceeding. This information is also necessary to inform the public of the location of the correspondence file and existing political file (until its retention period expires in two years), both of which will be publicly available at the station. In addition, back-up political files will be available at the main studio (unless placed on a station Web site) if the online file database becomes unavailable. Therefore, consistent with the approach we took with respect to television stations, we will require broadcast radio stations to include in the online public file the station's main studio address and telephone number, and the email address of the station's designated contact for questions about the public file. In addition, stations with a main studio located outside of their community of license must list the location of the correspondence file and existing political file, as well as the required local or toll free number.

    91. Donor Lists. NCE stations are required to retain in the public inspection file lists of donors supporting specific programs. As we proposed in the NPRM and as we required for television broadcasters in the Second Report and Order, we will require noncommercial radio broadcasters to include donor lists in their online public files. A number of NCE radio commenters argued that donor lists should not be included in the online file in order to protect the privacy of supporters of noncommercial radio broadcasting. National Religious Broadcasters and other commenters argue generally that donors will be less likely to contribute if their names are made public online rather than only in the local public file. National Religious Broadcasters also argues that donors to these stations could become targets of unwanted attention or even crime if donor information is available online.

    92. We are not persuaded that making donor information available online will affect contributions to noncommercial radio programming or create significant problems for donors. NCE television stations have been posting donor lists in their online public files and have not reported any problems. The benefits of placing the public file online, thereby facilitating public access to this information, are substantial, and we decline to exclude donor lists from this requirement on the basis of unsubstantiated claims of commercial harm. We are not requiring broadcasters to make any information publicly available that stations are not already required to make public. Moreover, unlike letters from the public, donor lists do not contain personal information other than the name of the donor. They are not required to include information about the amounts contributed, the donor's address or email, or other potentially sensitive information. Thus, we do not believe that requiring that the list of donor names be posted online, rather than maintained at the station, raises fundamental privacy concerns. Nonetheless, we recognize the concerns expressed by the National Religious Broadcasters. To the extent a licensee fears that online disclosure of donor information with respect to particular programs could discourage a donor from making contributions to the station or subject donors to unwanted attention or crime, the licensee may seek a waiver of the online posting requirement.3

    3 As with any of our rules, stations may request a waiver of the requirement to post donor information to the online public file under our general waiver standards. See 47 CFR 1.3. Waivers of the requirement to post donor lists to the online public file will be provided, on a program by program basis to stations that submit a showing that meets the general waiver standards. Any such waiver granted by the Commission will be limited to two years. A party may seek a renewal of the waiver after the two-year period. Stations who seek a waiver of the requirement to include information regarding the donors to particular programs in the online file are not required to post this donor information to the online file but may instead retain this information in the station's local public file until Commission review of the waiver request (and any further judicial review) is complete. Information regarding donors supporting particular programs must at all times be retained either in the online file or, if a waiver request has been filed or has been granted or is still under review, in the local public file. If donor information is not included in the online public file the station must include a notation in the online file that this information is available in the station's local public file.

    93. National Religious Broadcasters also argues that mandatory Internet posting of the identity of donors to NCE radio stations raises First Amendment concerns. They argue that many NCE stations rely on a talk format and carry programming addressing political or social issues that are unpopular or controversial. According to National Religious Broadcasters, the First Amendment has been held to require, in some instances, protection of the privacy of persons who support certain social or political causes, particularly from Internet disclosure. We disagree that the First Amendment requires that information regarding donors to specific NCE programs be excluded from the online file. Making such already-public records available via the Internet does not change the existing requirement that donors be disclosed in the public file; it only changes how they are disclosed. The donor list provides the only complete information regarding program sponsorship on noncommercial stations, public disclosure of which is premised on the basic concept that the public is entitled to know by whom they are being persuaded.

    (ii) Content Exempt From the Online File

    94. Letters from the public. We will exempt letters and emails from the public from the online file and instead require broadcast radio stations to retain such material at the station in a correspondence file. This is the approach we took with respect to television stations in the Second Report and Order and the approach we proposed to take with respect to radio broadcasters in the NPRM. In the Second Report and Order, the Commission determined that including letters and emails from the public in the online file could risk exposing personally identifiable information and that requiring stations to redact such information prior to uploading these documents would be overly burdensome. The Commission determined that letters and emails from the public should be maintained at the station's main studio either in a paper file or electronically on a computer. Further, the Commission clarified that, as required under the current public inspection file rules, this file should include all letters and emails from the public regarding operation of the station unless the letter writer has requested that the letter not be made public or the licensee feels that it should be excluded due to the nature of its content. Finally, the Commission determined that it would not require stations to retain social media messages in their correspondence file. We will apply these same determinations to radio broadcasters.

    95. Named State Broadcasters Associations urges us to consider eliminating the requirement that broadcasters retain letters from the public in the public inspection file, noting that this requirement does not apply to cable operators. This commenter argues that if a station could move its entire public file online and eliminate the need to host a local public file and ensure public access to it, the overall burden of maintaining the public inspection file would be reduced. Consistent with our decision regarding the television correspondence file,4 we decline to eliminate in this proceeding the requirement that commercial radio stations retain correspondence from the public, as our focus is on moving the public file to an online regime and not on changing its underlying requirements. While we recognize that our decision to require a correspondence file to be retained locally will prevent stations from realizing the full cost savings of moving their public files online, as a practical matter stations appear to receive few requests to view letters from the public, relieving to some extent the impact of the requirement to retain a local correspondence file.

    4 As noted above, however, the Commission will initiate a separate proceeding to consider whether to eliminate the correspondence file requirement for commercial broadcasters.

    4. Satellite Radio Public Inspection File a. Current Rules

    96. Licensees in the satellite radio service are required to maintain a public file with two categories of material. First, SDARS licensees are required to comply with EEO requirements similar to those imposed on broadcasters, including the requirement to file EEO reports and to maintain those reports in their public file together with other EEO program information. Second, satellite radio licensees are required to maintain a political file. In addition, SiriusXM, the current, sole U.S. SDARS licensee, is required to retain a third category of material in the public file. SiriusXM made a voluntary commitment to make capacity available for noncommercial educational and informational programming, similar to the requirement imposed on DBS providers, in connection with its merger application. As part of its approval of the merger, the Commission required that the merged entity reserve channels for educational and informational programming, offer those channels to qualified programmers, and comply with the public file requirements of section 25.701(f)(6) of the Commission's rules, which sets forth public file requirements for the noncommercial set-aside for DBS providers.

    b. Online Public File Requirements

    97. As we proposed in the NPRM, we will treat satellite radio licensees in the same manner as television, cable, DBS, and broadcast radio entities by requiring them to upload to the online file only material that is not already on file at the Commission. The only documents that DBS providers file with the Commission that must also be retained in their public inspection files are EEO forms 396 and 397. The Commission will upload these documents to the online file. We do not believe that requiring SDARS licensees to upload other public file materials to the online file will be unduly burdensome as the number of public file requirements for this service is fewer than for other services discussed in this item and because the current, sole U.S. SDARS licensee has ample financial resources to comply with this online file requirement. We also believe that, as with DBS, the transition to an online file is particularly important for satellite radio because of that service's nationwide reach and the fact that the current licensee maintains only one public and political file for the entire U.S., making in-person access very difficult.

    98. With respect to the political file, we will treat satellite radio similar to DBS, as they are both nationwide services with few licensed service providers. Similar to the requirement we adopt for the DBS political file and consistent with our approach for television stations, cable systems, and radio broadcasters, SDARS licensees will not be required to upload their existing political files to the online file but will instead be permitted to maintain existing material in their physical political file, and upload documents to the online political file only on a going-forward basis. SDARS licensees must begin uploading new public and political file material to the online public file 30 days after the Commission announces in the Federal Register that OMB has completed its review of this Order under the Paperwork Reduction Act (“PRA”) and approved the collection. These licensees will have six months from the effective date of the rules (i.e., six months after the Commission publishes a notice in the Federal Register announcing OMB approval under the PRA) to complete the process of uploading existing public file materials to the online file, with the exception of existing political files which entities are permitted, but not required, to upload to the Commission's online public file.

    99. As discussed above, if the FCC's online public file database is temporarily unavailable, we will require SDARS licensees to make their back-up political files available to the public by, at their own choice, either an online method, via the entity's own Web site, or by answering questions and accommodating requests for copies of political file materials made by telephone. We believe it is appropriate to require SDARS licensees to provide access to political file documents either online or by telephone as these entities provide service nationwide making in-person access to these files difficult for most subscribers. In addition, SDARS licensees have the option to provide online access to back-up political file materials in lieu of responding to telephone inquiries regarding these materials. Finally, similar to our decision regarding the organization of DBS political files, we will permit SDARS licensees the flexibility to organize their political files in any manner that reasonably allows users to review their contents and reflects how ads were purchased and shown.

    5. Open Video System Operators

    100. We decline at this time to require Open Video System (“OVS”) operators to use the Commission's online public inspection file. We noted in the NPRM that OVS operators have several public file obligations and sought comment on whether these entities should be required to make this information available in the online public file. No commenters addressed this issue. We may revisit the issue of OVS use of the online file at a later time.

    IV. Procedural Matters A. Final Regulatory Flexibility Act Analysis

    101. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”) an Initial Regulatory Flexibility Act Analysis (“IRFA”) was incorporated in the Notice of Proposed Rulemaking in this proceeding. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Commission received no comments on the IRFA. This Final Regulatory Flexibility Act Analysis (“FRFA”) conforms to the RFA.

    1. Need for, and Objectives of, the Second Report and Order

    102. One of a television broadcaster's fundamental public interest obligations is to air programming responsive to the needs and interests of its community of license. To ensure that stations meet this obligation, the Commission relies on viewers and listeners as an important source of information about the nature of a station's programming, operations, and compliance with Commission rules. To provide the public with access to information about station operations, the Commission's rules have long required television and radio broadcast stations to maintain a physical public inspection file, including a political file, at their respective stations or headquarters and to place in the file records that provide information about station operations. Cable operators, satellite TV (also referred to as “Direct Broadcast Satellite” or “DBS”) providers, broadcast radio licensees, and satellite radio (also referred to as “Satellite Digital Audio Radio Services” or “SDARS”) licensees also have public and political file requirements modeled, in large part, on the longstanding broadcast requirements.

    103. In 2012, the Commission adopted online public file rules for broadcast television stations that required them to post public file documents to a central, FCC-hosted online database rather than maintaining the files locally at their main studios. Our goal was to modernize the procedures television broadcasters use to inform the public about how they are serving their communities, to make information concerning broadcast service more accessible to the public and, over time, to reduce the cost of broadcasters' compliance. This Report and Order extends our modernization effort to include the public file documents that cable operators, satellite TV (also referred to as “Direct Broadcast Satellite” or “DBS”) providers, broadcast radio licensees, and satellite radio (also referred to as “Satellite Digital Audio Radio Services” or “SDARS”) licensees are required to maintain. By including these services in our transition to an online public inspection file regime, our goal is to continue our effort to harness the efficiencies made possible by digital technology to make public file information more readily available while at the same time minimizing the burden of maintaining the file.

    2. Summary of Significant Issues Raised by Public Comments in Response to the IRFA

    104. No comments were filed in response to the IRFA.

    3. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply

    105. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Below, we provide a description of such small entities, as well as an estimate of the number of such small entities, where feasible.

    106. Cable Companies and Systems. The Commission has developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Industry data shows that there were are currently 660 cable operators. Of this total, all but ten cable operators nationwide are small under this size standard. In addition, under the Commission's rate regulation rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Current Commission records show 4,629 cable systems nationwide. Of this total, 4,057 cable systems have less than 20,000 subscribers, and 572 systems have 20,000 or more subscribers, based on the same records. Thus, under this standard, we estimate that most cable systems are small entities.

    107. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” There are approximately 54 million cable video subscribers in the United States today. Accordingly, an operator serving fewer than 540,000 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that all but ten incumbent cable operators are small entities under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

    108. Direct Broadcast Satellite (DBS) Service. DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic “dish” antenna at the subscriber's location. DBS, by exception, is now included in the SBA's broad economic census category, Wired Telecommunications Carriers, which was developed for small wireline businesses. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees. Census data for 2007 shows that there were 3,188 firms that operated for that entire year. Of this total, 2,940 firms had fewer than 100 employees, and 248 firms had 100 or more employees. Therefore, under this size standard, the majority of such businesses can be considered small entities. However, the data we have available as a basis for estimating the number of such small entities were gathered under a superseded SBA small business size standard formerly titled “Cable and Other Program Distribution.” As of 2002, the SBA defined a small Cable and Other Program Distribution provider as one with $12.5 million or less in annual receipts. Currently, only two entities provide DBS service, which requires a great investment of capital for operation: DIRECTV and DISH Network. Each currently offers subscription services. DIRECTV and DISH Network each report annual revenues that are in excess of the threshold for a small business. Because DBS service requires significant capital, we believe it is unlikely that a small entity as defined under the superseded SBA size standard would have the financial wherewithal to become a DBS service provider.

    109. Radio Broadcasting. The SBA defines a radio broadcast station as a small business if such station has no more than $38.5 million in annual receipts. Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public.” According to review of the BIA Publications, Inc. Master Access Radio Analyzer Database as of November 26, 2013, about 11,331 (or about 99.9 percent) of the then number of commercial radio stations (11,341) have revenues of $35.5 million or less and thus qualify as small entities under the SBA definition. The Commission has estimated the number of licensed noncommercial radio stations to be 4,090. The Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. These stations rely primarily on grants and contributions for their operations, so we will assume that all of these entities qualify as small businesses. We note that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. This estimate, therefore, likely overstates the number of small entities that might be affected, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies.

    110. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any radio station from the definition of a small business on this basis and therefore may be over-inclusive to that extent. Also, as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the estimates of small businesses to which they apply may be over-inclusive to this extent.

    111. Satellite Radio. The rules proposed in this NPRM would affect the sole, current U.S. provider of satellite radio (“SDARS”) services, XM-Sirius, which offers subscription services. XM-Sirius reported revenue of $3.8 billion in 2013 and a net income of $377 million. In light of these figures, we believe it is unlikely that this entity would be considered small.

    4. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    112. The rule changes adopted in the Report and Order affect reporting, recordkeeping, or other compliance requirements. Cable, DBS, broadcast radio, and SDARS entities are currently required to maintain a “local” copy of their public inspection files. The Report and Order requires these entities to submit documents, including political file materials, for inclusion in an online public file hosted on the Commission's Web site. Items in the public file that are required to be filed with the Commission will be automatically imported into the entity's online public file. Entities will only be responsible for uploading to the online file items that are not required to be filed with the Commission under any other rule. The Report and Order also excludes some items from the online public file requirement, such as the existing political file, which must continue to be maintained locally until the end of the retention period unless voluntarily uploaded to the online file. Office staff will be able to upload documents to the online file in most cases; no professional skills will generally be necessary to perform that task.

    5. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

    113. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

    114. The Report and Order includes a number of measures designed to minimize the effort and cost entities must undertake to move their public files online. Specifically, we require entities to upload to the online file only public file documents that are not already on file with the Commission or that the Commission maintains in its own database. We also exempt existing political file material from the online file requirement and require only that political file documents be uploaded on a going-forward basis. In addition, with only minor exceptions—requiring cable operators to provide information about the geographic areas they serve and the employment units associated with each cable system, clarifying the documents required to be included in the cable public file, and requiring cable, DBS, broadcast radio, and SDARS entities to provide certain location and contact information for their local file—we do not adopt new or modified public inspection file requirements in this proceeding. Our goal is to adapt our existing public file requirements to an online format. While we recognize that entities may incur a modest, one-time transitional cost to upload some portions of their existing public file to the online database, we believe this initial expense will be offset by the public benefits of online disclosure. We also believe that, over time, entities will benefit from the lower costs of sending documents electronically to the Commission as opposed to creating and maintaining a paper file at the local or headquarters' office or main studio and assisting the public in accessing it.

    115. In addition, with respect to radio licensees the Report and Order commences the transition to an online file with commercial stations in larger markets with five or more full-time employees, while postponing for two years all online file requirements for other radio stations. This delay will give these stations additional time to familiarize themselves with the online filing requirements and will permit them to spread out their transition to the online file over a period of two years. The Report and Order also exempts small cable systems temporarily from the requirement to commence uploading new political file material to the online public file and exempts very small cable systems from all requirements to upload documents to the Commission's online database.

    116. Overall, we believe that the Report and Order appropriately balances the interests of the public against the interests of the entities who will be subject to the rules, including those that are smaller entities.

    6. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule

    None.

    B. Report to Congress

    117. The Commission will send a copy of this Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    C. Paperwork Reduction Act Analysis

    118. This document contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA). The requirements will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    V. Ordering Clauses

    119. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 4(i), 4(j), 303(r), 315, and 335 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), 315, and 335 this Report and Order is adopted.

    120. It is further ordered that the requirement that cable systems with 1,000 or more subscribers, DBS providers, SDARS licensees, and large market commercial radio stations with five or more full-time employees place their new public inspection file documents on the Commission-hosted online public file shall be effective 30 days after the Commission publishes a notice in the Federal Register announcing OMB approval. These entities will be responsible for placing existing public file documents into the Commission-hosted online public file within six months after the Commission published a notice in the Federal Register announcing OMB approval. Entities will not be required to place in the online public file existing political file material. Cable systems with 1,000 or more subscribers but fewer than 5,000 subscribers will not be required to place new political file material in the Commission's online file until March 1, 2018. In addition, until March 1, 2018, all NCE radio broadcast stations, commercial radio broadcast stations in the top 50 markets with fewer than five full-time employees, and all commercial radio broadcast stations in markets below the top 50 or outside all markets are exempt from all requirements to place public file materials in the online public file. As of March 1, 2018 these entities must place all existing public file material in the online public file, with the exception of existing political file material, and must begin placing all new public and political file material in the online file. Commercial broadcast radio licensees must continue to retain letters and emails from the public in the local public file and will not be permitted to upload those materials to the online public file.

    121. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    122. It is further ordered that the Commission shall send a copy of this Report and Order in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    List of Subjects 47 CFR Part 25

    Direct Broadcast Satellite, Satellite radio, Reporting and recordkeeping requirements

    47 CFR Part 73

    Radio, Recording and recordkeeping requirements

    47 CFR Part 76

    Cable television, Reporting and recordkeeping requirements.

    Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 25, 73, and 76 as follows:

    PART 25—SATELLITE COMMUNICATIONS 1. The authority citation for part 25 continues to read as follows: Authority:

    Interprets or applies sections 4, 301, 302, 303, 307, 309, 319, 332, 705, and 721 of the Communications Act, as amended, 47 U.S.C. 154, 301, 302, 303, 307, 309, 319, 332, 705, and 721, unless otherwise noted.

    2. Section 25.601 is amended by revising the last sentence to read as follows:
    § 25.601 Equal employment opportunities.

    * * * Notwithstanding other EEO provisions within these rules, a licensee or permittee of a direct broadcast satellite station operating as a broadcaster, and a licensee or permittee in the satellite DARS service, must comply with the equal employment opportunity requirements set forth in 47 CFR part 73.

    3. Section 25.701 is amended by revising the section heading, paragraph (d) introductory text, and paragraph (d)(2), removing paragraph (d)(3), and revising paragraphs (e)(3) and (f)(6) to read as follows:
    § 25.701 Other DBS Public interest obligations.

    (d) Political file. Each DBS provider shall maintain a complete and orderly political file.

    (2) All records required to be retained by this section must be placed in the political file as soon as possible and must be retained for a period of two years. After the effective date of this section, DBS providers shall place all new political file material required to be retained by this section in the online file hosted by the Commission.

    (e) * * *

    (3) DBS providers airing children's programming must maintain in the online file hosted by the Commission records sufficient to verify compliance with this rule. Such records must be maintained for a period sufficient to cover the limitations period specified in 47 U.S.C. 503(b)(6)(B).

    (f) * * *

    (6) Public file. (i) In addition to the political file requirements in § 25.701, each DBS provider shall maintain in the online file hosted by the Commission a complete and orderly record of:

    (A) Quarterly measurements of channel capacity and yearly average calculations on which it bases its four percent reservation, as well as its response to any capacity changes;

    (B) A record of entities to whom noncommercial capacity is being provided, the amount of capacity being provided to each entity, the conditions under which it is being provided and the rates, if any, being paid by the entity;

    (C) A record of entities that have requested capacity, disposition of those requests and reasons for the disposition.

    (ii) All records required by paragraph (i) of this paragraph shall be placed in the online file hosted by the Commission as soon as possible and shall be retained for a period of two years.

    (iii) Each DBS provider must also place in the online file hosted by the Commission the records required to be placed in the public inspection file by § 25.701(e) (commercial limits in children's programs) and by § 25.601 and 47 CFR part 76, subpart E (equal employment opportunity requirements) and retain those records for the period required by those rules.

    (iv) Each DBS provider must provide a link to the online public inspection file hosted on the Commission's Web site from the home page of its own Web site, if the provider has a Web site, and provide on its Web site contact information for a representative who can assist any person with disabilities with issues related to the content of the public files. Each DBS provider also must include in the online public file hosted by the Commission the address of the provider's local public file, if the provider retains documents in the local public file that are not available in the Commission's online file, and the name, phone number, and email address of the provider's designated contact for questions about the public file.

    4. Section 25.702 is added to read as follows:
    § 25.702 Other SDARS Public interest obligations.

    (a) Political broadcasting requirements. The following political broadcasting rules shall apply to all SDARS licensees: 47 CFR 73.1940 (Legally qualified candidates for public office), 73.1941 (Equal opportunities), 73.1942 (Candidate rates), and 73.1944 (Reasonable access).

    (b) Political file. Each SDARS licensee shall maintain a complete and orderly political file.

    (1) The political file shall contain, at a minimum:

    (i) A record of all requests for SDARS origination time, the disposition of those requests, and the charges made, if any, if the request is granted. The “disposition” includes the schedule of time purchased, when spots actually aired, the rates charged, and the classes of time purchased; and

    (ii) A record of the free time provided if free time is provided for use by or on behalf of candidates.

    (2) SDARS licensees shall place all records required by this section in the political file as soon as possible and shall retain the records for a period of two years. After the effective date of this section, SDARS licensees shall place all new political file material required to be retained by this section in the online public file hosted by the Commission.

    (c) Public inspection file. (1) Each SDARS applicant or licensee must also place in the online public file hosted by the Commission the records required to be placed in the public inspection file by 47 CFR 25.601 and 73.2080 (equal employment opportunities (EEO)) and retain those records for the period required by those rules.

    (2) Each SDARS licensee must provide a link to the public inspection file hosted on the Commission's Web site from the home page of its own Web site, if the licensee has a Web site, and provide on its Web site contact information for a representative who can assist any person with disabilities with issues related to the content of the public files. Each SDARS licensee also must include in the online public file the address of the licensee's local public file, if the licensee retains documents in the local public file that are not available in the Commission's online file, and the name, phone number, and email address of the licensee's designated contact for questions about the public file.

    PART 73—RADIO BROADCAST SERVICES 5. The authority citation for part 73 continues to read as follows: Authority:

    47 U.S.C. 154, 303, 334, 336, and 339.

    6. Section 73.1943 is amended by revising paragraph (d) to read as follows:
    § 73.1943 Political file.

    (d) Location of the file. A licensee or applicant must post all of the contents added to its political file after the effective date of this paragraph in the political file component of its online public file hosted by the Commission. A station must retain in its political file maintained at the station, at the location specified in § 73.3526(b) or § 73.3527(b), all material required to be included in the political file and added to the file prior to the effective date of this paragraph, unless the station elects voluntarily to place these materials in the Commission's online public file. The online political file must be updated in the same manner as paragraph (c) of this section.

    7. Section 73.3526 is amended by revising paragraph (b)(1) through (3) to read as follows:
    § 73.3526 Local public inspection file of commercial stations.

    (b) * * *

    (1) For radio licensees temporarily exempt from the online public file hosted by the Commission, as discussed in paragraph (b)(2) of this section, a hard copy of the public inspection file shall be maintained at the main studio of the station, unless the licensee elects voluntarily to place the file online as discussed in paragraph (b)(2) of this section. For all licensees, letters and emails from the public, as required by paragraph (e)(9) of this section, shall be maintained at the main studio of the station. An applicant for a new station or change of community shall maintain its file at an accessible place in the proposed community of license or at its proposed main studio.

    (2)(i) A television station licensee or applicant, and any radio station licensee or applicant not temporarily exempt as described in this paragraph, shall place the contents required by paragraph (e) of this section of its public inspection file in the online public file hosted by the Commission, with the exception of letters and emails from the public as required by paragraph (e)(9) of this section, which shall be retained at the station in the manner discussed in paragraph (b)(1) of this section; and the political file as required by paragraph (e)(6) of this section, as discussed in paragraph (b)(3) of this section. Any radio station not in the top 50 Nielsen Audio markets, and any radio station with fewer than five full-time employees, shall continue to retain the public inspection file at the station in the manner discussed in paragraph (b)(1) of this section until March 1, 2018. However, any radio station that is not required to place its public inspection file in the online public file hosted by the Commission before March 1, 2018 may choose to do so, instead of retaining the public inspection file at the station in the manner discussed in paragraph (b)(1) of this section.

    (ii) A station must provide a link to the public inspection file hosted on the Commission's Web site from the home page of its own Web site, if the station has a Web site, and provide contact information on its Web site for a station representative that can assist any person with disabilities with issues related to the content of the public files. A station also is required to include in the online public file the station's main studio address and telephone number, and the email address of the station's designated contact for questions about the public file. To the extent this section refers to the local public inspection file, it refers to the public file of an individual station, which is either maintained at the station or on the Commission's Web site, depending upon where the documents are required to be maintained under the Commission's rules.

    (3)(i) A licensee or applicant shall place the contents required by paragraph (e)(6) of this section of its political inspection file in the online public file hosted by the Commission. Political inspection file material already in existence 30 days after the effective date of this provision, if not placed in the online public file hosted by the Commission, shall continue to be retained at the station in the manner discussed in paragraph (b)(1) of this section until the end of its retention period.

    (ii) Any television station not in the top 50 DMAs, and any station not affiliated with one of the top four broadcast networks, regardless of the size of the market it serves, shall continue to retain the political file at the station in the manner discussed in paragraph (b)(1) of this section until July 1, 2014. For these stations, effective July 1, 2014, any new political file material shall be placed in the online file hosted by the Commission, while the material in the political file as of July 1, 2014, if not placed in the Commission's Web site, shall continue to be retained at the station in the manner discussed in paragraph (b)(1) of this section until the end of its retention period. However, any station that is not required to place its political file in the online file hosted by the Commission before July 1, 2014 may choose to do so, instead of retaining the political file at the station in the manner discussed in paragraph (b)(1) of this section.

    (iii) Any radio station not in the top 50 Nielsen Audio markets, and any radio station with fewer than five full-time employees, shall continue to retain the political file at the station in the manner discussed in paragraph (b)(1) of this section until March 1, 2018. For these stations, effective March 1, 2018, any new political file material shall be placed in the online public file hosted by the Commission, while the material already existing in the political file as of March 1, 2018, if not placed in the online public file hosted by the Commission, shall continue to be retained at the station in the manner discussed in paragraph (b)(1) of this section until the end of its retention period. However, any station that is not required to place its political file on the Commission's Web site before March 1, 2018, may choose to do so, instead of retaining the political file at the station in the manner discussed in paragraph (b)(1) of this section.

    8. Section 73.3527 is amended by revising paragraph (b)(1) and (2) to read as follows:
    § 73.3527 Local public inspection file of noncommercial educational stations.

    (b) * * *

    (1) For radio licensees, a hard copy of the public inspection file shall be maintained at the main studio of the station until March 1, 2018, except that, as discussed in paragraph (b)(2)(ii) of this section, any radio station may voluntarily place its public inspection file in the online public file hosted by the Commission before March 1, 2018, if it chooses to do so, instead of retaining the file at the station. An applicant for a new station or change of community shall maintain its file at an accessible place in the proposed community of license or at its proposed main studio.

    (2)(i) A noncommercial educational television station licensee or applicant shall place the contents required by paragraph (e) of this section of its public inspection file in the online public file hosted by the Commission, with the exception of the political file as required by paragraph (e)(5) of this section, which may be retained at the station in the manner discussed in paragraph (b)(1) of this section until July 1, 2014. Effective July 1, 2014, any new political file material shall be placed in the online public file hosted by the Commission, while the material in the political file as of July 1, 2014, if not placed in the Commission's online public file, shall continue to be retained at the station in the manner discussed in paragraph (b)(1) of this section until the end of its retention period. However, any noncommercial educational station that is not required to place its political file in the online public file hosted by the Commission before July 1, 2014 may choose to do so instead of retaining the political file at the station in the manner discussed in paragraph (b)(1) of this section.

    (ii) Beginning March 1, 2018, noncommercial educational radio station licensees and applicants shall place the contents required by paragraph (e) in the online public inspection file hosted by the Commission. For these stations, effective March 1, 2018, any new political file material shall be placed in the Commission's online public file, while the material in the political file as of March 1, 2018, if not placed in the Commission's online public file, shall continue to be retained at the station in the manner discussed in paragraph (b)(1) of this section until the end of its retention period. However, any radio station that is not required to place its public inspection file in the online public file hosted by the Commission before March 1, 2018, may choose to do so, instead of retaining the public inspection file at the station in the manner discussed in paragraph (b)(1).

    (iii) A station must provide a link to the online public inspection file hosted by the Commission from the home page of its own Web site, if the station has a Web site, and provide contact information for a station representative on its Web site that can assist any person with disabilities with issues related to the content of the public files. A station also is required to include in the online public file hosted by the Commission the station's main studio address and telephone number, and the email address of the station's designated contact for questions about the public file. To the extent this section refers to the local public inspection file, it refers to the public file of an individual station, which is either maintained at the station or on the Commission's Web site, depending upon where the documents are required to be maintained under the Commission's rules.

    9. Section 73.3580 is amended by revising paragraph (d)(4)(i) introductory text and paragraph (d)(4)(ii) introductory text to read as follows:
    § 73.3580 Local public notice of filing of broadcast applications.

    (d) * * *

    (4) * * *

    (i) Pre-filing announcements. During the period and beginning on the first day of the sixth calendar month prior to the expiration of the license, and continuing to the date on which the application is filed, the following announcement shall be broadcast on the 1st and 16th day of each calendar month. Stations broadcasting primarily in a foreign language should broadcast the announcements in that language.

    Radio announcement: On (date of last renewal grant) (Station's call letters) was granted a license by the Federal Communication Commission to serve the public interest as a public trustee until (expiration date).

    Our license will expire on (date). We must file an application for renewal with the FCC (date four calendar months prior to expiration date). When filed, a copy of this application will be available for public inspection at www.fcc.gov. It contains information concerning this station's performance during the last (period of time covered by the application). Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the FCC by (date first day of last full calendar month prior to the month of expiration).

    Further information concerning the FCC's broadcast license renewal process is available at (address of location of the station) or may be obtained from the FCC, Washington, DC 20554.

    Television announcement: On (date of last renewal grant) (Station's call letters) was granted a license by the Federal Communication Commission to serve the public interest as a public trustee until (expiration date).

    Our license will expire on (date). We must file an application for renewal with the FCC (date four calendar months prior to expiration date). When filed, a copy of this application will be available for public inspection at www.fcc.gov. It contains information concerning this station's performance during the last (period of time covered by the application).

    Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the FCC by (date first day of last full calendar month prior to the month of expiration).

    Further information concerning the FCC's broadcast license renewal process is available at (address of location of the station) or may be obtained from the FCC, Washington, DC 20554.

    (ii) Post-filing announcements. During the period beginning of the date on which the renewal application is filed to the sixteenth day of the next to last full calendar month prior to the expiration of the license, all applications for renewal of broadcast station licenses shall broadcast the following announcement on the 1st and 16th day of each calendar month. Stations broadcasting primarily in a foreign language should broadcast the announcements in that language.

    Television announcement: On (date of last renewal grant) (Station's call letters) was granted a license by the Federal Communications Commission to serve the public interest as a public trustee until (expiration date).

    Our license will expire on (date). We have filed an application for renewal with the FCC.

    A copy of this application is available for public inspection at www.fcc.gov. It contains information concerning this station's performance during the last (period of time covered by application).

    Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the FCC by (date first day of last full calendar month prior to the month of expiration).

    Further information concerning the FCC's broadcast license renewal process is available at (address of location of the station) or may be obtained from the FCC, Washington, DC 20554.

    Radio announcement: On (date of last renewal grant) (Station's call letters) was granted a license by the Federal Communications Commission to serve the public interest as a public trustee until (expiration date).

    Our license will expire on (date). We have filed an application for renewal with the FCC.

    A copy of this application is available for public inspection at www.fcc.gov. It contains information concerning this station's performance during the last (period of time covered by application).

    Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the FCC by (date first day of last full calendar month prior to the month of expiration).

    Further information concerning the FCC's broadcast license renewal process is available at (address of location of the station) or may be obtained from the FCC, Washington, DC 20554.

    PART 76—MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE 10. The authority citation for part 76 continues to read as follows: Authority:

    47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.

    11. Section 76.630 is amended by revising the first undesignated paragraph below paragraph (a)(2) introductory text to read as follows:
    § 76.630 Compatibility with consumer electronics equipment.

    (a) * * *

    (2) * * *

    On (date of waiver request was filed with the Commission), (cable operator's name) filed with the Federal Communications Commission a request for waiver of the rule prohibiting scrambling of channels on the basic tier of service. 47 CFR 76.630(a). The request for waiver states (a brief summary of the waiver request). A copy of the request for waiver shall be available for public inspection at www.fcc.gov.

    12. Section 76.1700 is revised to read as follows:
    § 76.1700 Records to be maintained by cable system operators.

    (a) Public inspection file. The following records must be placed in the online public file hosted by the Commission, except as indicated in paragraphs (a)(6) and (d) of this section and except that the records listed in paragraph (a)(1) of this section (political file) that are in existence 30 days after the effective date of this provision, if not placed in the online file, shall continue to be retained at the system and made available to the public in the manner discussed in paragraph (e) of this section until the end of the retention period. In addition, any cable system with fewer than 5,000 subscribers shall continue to retain the political file at the system in the manner discussed in paragraph (e) of this section until March 1, 2018. For these systems, effective March 1, 2018, any new political file material shall be placed in the online file hosted by the Commission, while the material in the political file as of March 1, 2018, if not placed on the Commission's Web site, shall continue to be retained at the system in the manner discussed in paragraph (e) of this section until the end of its retention period. However, any system that is not required to place its political file on the Commission's Web site before March 1, 2018 may choose to do so, instead of retaining the political file at the system.in the manner discussed in paragraph (e) of this section.

    (1) Political file. All requests for cablecast time made by or on behalf of a candidate for public office and all other information required to be maintained pursuant to § 76.1701;

    (2) Equal employment opportunity. All EEO materials described in § 76.1702 except for any EEO program annual reports, which the Commission will link to the electronic version of all systems' public inspection files;

    (3) Commercial records on children's programs. Sufficient records to verify compliance with § 76.225 in accordance with § 76.1703;

    (4) Performance tests (channels delivered). The operator of each cable television system shall maintain a current listing of the cable television channels which that system delivers to its subscribers in accordance with § 76.1705;

    (5) Leased access. If a cable operator adopts and enforces written policy regarding indecent leased access programming, such a policy shall be published in accordance with § 76.1707;

    (6) Principal headend. The operator of every cable system shall maintain in its public inspection file the designation and location of its principal headend in accordance with § 76.1708. Cable systems may elect not to post this information to the Commission's online file but instead retain this information in their local public file maintained in the manner discussed in paragraph (e) of this section;

    (7) Availability of signals. The operator of every cable television system shall maintain a list of all broadcast television stations carried by its system in fulfillment of the must-carry requirements in accordance with § 76.1709;

    (8) Operator interests in video programming. Cable operators shall maintain records regarding the nature and extent of their attributable interests in all video programming services as well as information regarding their carriage of such vertically integrated video programming services on cable systems in which they have an attributable interests in accordance with § 76.1710;

    (9) Sponsorship identification. Whenever sponsorship announcements are omitted pursuant to § 76.1615(f) of Subpart T, the cable television system operator shall maintain a list in accordance with § 76.1715;

    (10) Compatibility with consumer electronics equipment. Cable system operators generally may not scramble or otherwise encrypt signals carried on the basic service tier. Copies of requests for waivers of this prohibition must be available in the public inspection file in accordance with § 76.630.

    (b) Information available to the franchisor. These records must be made available by cable system operators to local franchising authorities on reasonable notice and during regular business hours, except as indicated in paragraph (d) of this section.

    (1) Proof-of-performance test data. The proof of performance tests shall be made available upon request in accordance with § 76.1704;

    (2) Complaint resolution. Cable system operators shall establish a process for resolving complaints from subscribers about the quality of the television signal delivered. Aggregate data based upon these complaints shall be made available for inspection in accordance with § 76.1713.

    (c) Information available to the Commission. These records must be made available by cable system operators to the Commission on reasonable notice and during regular business hours, except as indicated in paragraph (d) of this section.

    (1) Proof-of-performance test data. The proof of performance tests shall be made available upon request in accordance with § 76.1704;

    (2) Signal leakage logs and repair records. Cable operators shall maintain a log showing the date and location of each leakage source in accordance with § 76.1706;

    (3) Emergency alert system and activations. Every cable system shall keep a record of each test and activation of the Emergency Alert System (EAS). The test is performed pursuant to the procedures and requirements of part 11 of this chapter and the EAS Operating Handbook. The records are kept in accordance with part 11 of this chapter and § 76.1711;

    (4) Complaint resolution. Cable system operators shall establish a process for resolving complaints from subscribers about the quality of the television signal delivered. Aggregate data based upon these complaints shall be made available for inspection in accordance with § 76.1713;

    (5) Subscriber records and public inspection file. The operator of a cable television system shall make the system, its public inspection file, and its records of subscribers available for inspection upon request in accordance with § 76.1716.

    (d) Exceptions to the public inspection file requirements. The operator of every cable television system having fewer than 1,000 subscribers is exempt from the online public file and from the public record requirements contained in § 76.1701 (political file); § 76.1702 (EEO records available for public inspection); § 76.1703 (commercial records for children's programming); § 76.1704 (proof-of-performance test data); § 76.1706 (signal leakage logs and repair records); § 76.1714 (FCC rules and regulations); and § 76.1715 (sponsorship identification).

    (e) Location of records. Public file material that continues to be retained at the system shall be retained in a public inspection file maintained at the office in the community served by the system that the system operator maintains for the ordinary collection of subscriber charges, resolution of subscriber complaints, and other business and, if the system operator does not maintain such an office in the community, at any accessible place in the communities served by the system (such as a public registry for documents or an attorney's office). Public file locations will be open at least during normal business hours and will be conveniently located. The public inspection file shall be available for public inspection at any time during regular business hours for the facility where they are kept. All or part of the public inspection file may be maintained in a computer database, as long as a computer terminal capable of accessing the database is made available, at the location of the file, to members of the public who wish to review the file.

    (f) Links and contact and geographic information. A system must provide a link to the public inspection file hosted on the Commission's Web site from the home page of its own Web site, if the system has a Web site, and provide contact information on its Web site for a system representative who can assist any person with disabilities with issues related to the content of the public files. A system also is required to include in the online public file the address of the system's local public file, if the system retains documents in the local file that are not available in the Commission's online file, and the name, phone number, and email address of the system's designated contact for questions about the public file. In addition, a system must provide on the online public file a list of the five digit ZIP codes served by the system. To the extent this section refers to the local public inspection file, it refers to the public file of a physical system, which is either maintained at the location described in paragraph (e) or on the Commission's Web site, depending upon where the documents are required to be maintained under the Commission's rules.

    (g) Reproduction of records. Copies of any material in the public inspection file that is not also available in the Commission's online file shall be available for machine reproduction upon request made in person, provided the requesting party shall pay the reasonable cost of reproduction. Requests for machine copies shall be fulfilled at a location specified by the system operator, within a reasonable period of time, which in no event shall be longer than seven days. The system operator is not required to honor requests made by mail but may do so if it chooses.

    13. Section 76.1702 is amended by revising paragraph (a) to read as follows:
    § 76.1702 Equal employment opportunity.

    (a) Every employment unit with six or more full-time employees shall maintain for public inspection a file containing copies of all EEO program annual reports filed with the Commission pursuant to § 76.77 and the equal employment opportunity program information described in paragraph (b) of this section. These materials shall be placed in the Commission's online public inspection file(s), maintained on the Commission's database, for each cable system associated with the employment unit. These materials shall be placed in the Commission's online public inspection file annually by the date that the unit's EEO program annual report is due to be filed and shall be retained for a period of five years. A headquarters employment unit file and a file containing a consolidated set of all documents pertaining to the other employment units of a multichannel video programming distributor that operates multiple units shall be maintained in the online public inspection file(s), maintained on the Commission's database, for every cable system associated with the headquarters employment unit.

    14. Section 76.1709 is amended by revising paragraphs (a) and (b) to read as follows:
    § 76.1709 Availability of signals.

    (a) The operator of every cable television system shall maintain for public inspection a file containing a list of all broadcast television stations carried by its system in fulfillment of the must-carry requirements pursuant to § 76.56. Such list shall include the call sign, community of license, broadcast channel number, cable channel number, and in the case of a noncommercial educational broadcast station, whether that station was carried by the cable system on March 29, 1990.

    (b) Such records must be maintained in accordance with the provisions of § 76.1700.

    [FR Doc. 2016-04117 Filed 2-26-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 236 [Docket No. FRA-2016-0012, Notice No. 1] RIN 2130-AC56 Positive Train Control Systems AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    FRA is amending its regulations to address changes in deadlines for positive train control (PTC) system implementation required by the Positive Train Control Enforcement and Implementation Act of 2015. FRA is also making conforming amendments and removing portions of its PTC regulations that are no longer applicable.

    DATES:

    This final rule is effective April 29, 2016. Petitions for reconsideration must be received on or before April 19, 2016. Petitions for reconsideration will be posted in the docket for this proceeding. Comments on any submitted petition for reconsideration must be received on or before June 3, 2016.

    ADDRESSES:

    Petitions for reconsideration and comments on petitions for reconsideration: Any petitions for reconsideration or comments on petitions for reconsideration related to Docket No. FRA-2016-0012, may be submitted by any of the following methods:

    Web site: The Federal eRulemaking Portal, www.regulations.gov. Follow the Web site's online instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC 20590.

    Hand Delivery: Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.

    Instructions: All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all petitions received will be posted without change to www.regulations.gov including any personal information. Please see the Privacy Act heading in the “Supplementary Information” section of this document for Privacy Act information related to any submitted petitions, comments, or materials.

    Docket: For access to the docket to read background documents or comments received, go to www.regulations.gov or to Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    David Blackmore, Office of Technical Oversight, Railroad Safety Program Manager for Advanced Technology, Federal Railroad Administration, Mail Stop 25, West Building 3rd Floor, Room W35-332, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-1332); or Jason Schlosberg, Trial Attorney, Office of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-207, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-6032).

    SUPPLEMENTARY INFORMATION:

    FRA is issuing this final rule to amend certain PTC system implementation deadlines in 49 CFR part 236, subpart I, to conform with statutory changes made by the Positive Train Control Enforcement and Implementation Act of 2015, Public Law 114-73, 129 Stat. 576, 582 (Oct. 29, 2015). FRA is also making conforming amendments and removing portions of its PTC regulations that are no longer applicable.

    I. Background

    Under the Railroad Safety Improvement Act of 2008 (RSIA), Public Law 110-432, 122 Stat. 4854 (Oct. 16, 2008) (codified at 49 U.S.C. 20157), much of the railroad industry had been implementing PTC to meet a statutory deadline of December 31, 2015. Under defined circumstances, certain small railroads could also delay PTC system implementation on locomotives until after December 31, 2015. See 49 U.S.C. 20157(i)(4) (2008); 49 CFR 236.1006(b)(4).

    On October 29, 2015, the Positive Train Control Enforcement and Implementation Act of 2015 (PTCEI Act), amended RSIA to extend the PTC implementation deadline to December 31, 2018, or, alternatively December 31, 2020, and provide qualifying small railroads with an additional three years to comply from the dates in FRA's regulation at 49 CFR 236.1006(b)(4)(iii)(B). See Public Law 114-73, 129 Stat. 568, 576-82 (Oct. 29, 2015); 49 U.S.C. 20157(a)(1), (a)(2)(B), (k). Congress made further amendments in the Fixing America's Surface Transportation (FAST) Act, which clarified FRA's authority under the PTCEI Act. See Public Law 114-94, sec. 11315(d), 129 Stat. 1312, 1675 (Dec. 4, 2015) (codified at 49 U.S.C. 20157(g)).

    By statute, and delegation from the Secretary of Transportation, FRA is required to remove or revise the date-specific deadlines in the regulations or orders implementing 49 U.S.C. 20157 necessary to conform with the amendments the PTCEI and FAST Acts made. See 49 U.S.C. 20157(g)(2); 49 CFR 1.89. FRA is not required to make any changes to its regulations other than changing the dates. 49 U.S.C. 20157(g)(3) (“Nothing in the Positive Train Control Enforcement and Implementation Act of 2015, or the amendments made by such Act, shall be construed to require the Secretary to issue regulations to implement such Act or amendments”). Accordingly, the only amendments made in this final rule are the date changes and any necessary conforming amendments.

    II. Justification for Final Rule

    FRA is issuing this final rule without providing an opportunity for prior public notice and comment as the Administrative Procedure Act (APA) normally requires. See 5 U.S.C. 553. The APA authorizes agencies to dispense with certain notice and comment procedures if the agency finds for good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(3)(B). For example, an “impracticable” good cause situation might be where the federal railroad safety rules should be amended without delay if FRA determines that the safety of the traveling public is at stake. Public notice is unnecessary when the public does not need or benefit from the notice and comment, such as with a minor or technical amendment.

    In this case, FRA finds, for good cause, that notice and public comment is unnecessary, because the public would not benefit from such notice. The scope of this regulatory change is very limited; FRA is merely replacing old statutory deadlines with the new statutory deadlines and is otherwise making no substantive changes to the regulations; making conforming amendments; and removing portions of its PTC regulations that are no longer applicable.

    III. Section-by-Section Analysis

    Unless otherwise noted, all section references below refer to sections in title 49 of the Code of Federal Regulations (CFR).

    Proposed Amendments to 49 CFR Part 236 Section 236.1005 Requirements for Positive Train Control Systems

    Originally, Congress mandated PTC implementation by December 31, 2015. However, the PTCEI Act extended that deadline. In the PTCEI Act, rather than choosing a single future date, Congress elected to provide an implementation deadline of December 31, 2018, with an opportunity to extend the deadline up to December 31, 2020, for those railroads that qualify. To be eligible for such an extension, a railroad must fulfill certain statutory conditions and prerequisites and receive FRA approval.

    Because each railroad's implementation deadline may be based on a variety of currently unfulfilled conditions or prerequisites, modification of the deadlines in this rule is not merely a simple replacement of dates in the applicable regulations. To address these variables, and place the statutory requirements in a regulatory context, some regulatory explanation and conforming amendments are required. This rule text includes some of the more explicit requirements necessary to receive FRA approval for an extension beyond 2018; some of the less definitive prerequisites (i.e., training and revenue service demonstration requirements under 49 U.S.C. 20157(a)(3)(B)) remain applicable as stated in the legislative text. FRA intends that all linguistic changes to be conforming, to merely incorporate the new statutory deadlines, and not to include any additional requirements. Therefore, FRA is issuing a final rule in this proceeding. Even if FRA had issued a proposed rule, and received comments, FRA could not make any changes without violating the statute.

    To this end, FRA is striking the deadline referenced in § 236.1005(b)(1) and is adding a paragraph (b)(7) to address the new deadlines the recent legislation mandates.

    Paragraph (b)(6) currently states that no new intercity or commuter rail passenger service shall commence after December 31, 2015, until a PTC system certified under this subpart has been installed and made operative. FRA continues to believe this is a clearly necessary requirement to satisfy the statute and to ensure PTC operations for railroads commencing new operations after the statutory implementation deadline. However, per the PTCEI Act, FRA recognizes the need to change the deadline. Accordingly, FRA is amending paragraph (b)(6) by striking “2015” and replacing it with “2020.” Since that paragraph only concerns new rail passenger service commencing after the full implementation deadline, it is consistent with the PTCEI Act to change the date to 2020. However, all rail passenger operations commencing before December 31, 2020, must comply with the implementation deadlines in the PTCEI Act.

    Section 236.1006 Equipping Locomotives Operating in PTC Territory

    For the same reasons stated in the analysis of § 236.1005 above, FRA is striking the deadline in § 236.1006(b)(1) and (b)(3). For purposes of clarity and context, we are replacing the latter change with a cross-reference to new paragraph § 236.1005(b)(7).

    Paragraph (b)(2) references a number of reports that were due in prior years. Given that this regulation is now stale, it is being removed.

    Paragraph (b)(3) refers to the original deadline that has passed. Accordingly, FRA is striking the introductory phrase. Since the remaining text applies at all times, and is no longer limited to the implementation deadline, FRA does not believe it is necessary to cross-reference to § 236.1005(b)(7) or otherwise reference a deadline.

    In addition to changing the implementation deadline, the PTCEI Act also provides some flexibility for railroads that may achieve PTC System Certification earlier than others. The PTCEI Act, codified at 49 U.S.C. 20157(j)(1), provides that until 1 year after the last Class I railroad achieves PTC System Certification and full PTC system implementation, each railroad shall comply with the operational restrictions in 49 U.S.C. 20157(j)(2)-(j)(4) in lieu of those required under 49 CFR 236.567 and 236.1029. While these statutory provisions are substantively outside the scope of this rulemaking, FRA recognizes that paragraph (b)(3) also references § 236.1029. To reduce confusion, and without making any interpretation or determination about the effect of the PTCEI Act, FRA is also referencing 49 U.S.C. 20157(j). The actual applicability at any given time of either 49 U.S.C. 20157(j) or 49 CFR 236.1029 would be determined at a later date in a different forum.

    As previously noted, since the rule was first issued in 2010, FRA has provided Class II and Class III railroads a limited opportunity to delay or avoid PTC implementation on certain locomotives in prescribed circumstances. The PTCEI Act requires this rule to extend those permissible delays another 3 years from the dates in FRA's regulation at 49 CFR 236.1006(b)(4)(iii)(B). Accordingly, FRA is merely adding three years to each date referenced in paragraph (b)(4)(iii)(B).

    Section 236.1009 Procedural Requirements

    Under the existing regulations, each railroad is required to submit an annual progress report on each anniversary of its initial PTCIP filing. Since the statute was amended to require annual submission of such progress reports by March 31 of each year (see 49 U.S.C. 20157(c)(1)), FRA is amending paragraph (a)(5) to reference that new progress report deadline and to avoid confusion and potential redundant submissions. FRA notes, however, that it retains under the existing and amended statutes and regulations the authority to require more frequent reporting.

    Section 236.1011 PTC Implementation Plan Content Requirements

    For the same reasons explained above regarding the amendments to § 236.1005, FRA is amending the deadline in § 236.1011. Given that a different deadline, albeit within the statutory limits, may apply to each railroad, FRA believes a single date in the regulation is no longer appropriate. Accordingly, the amendments to this section merely cross-reference to the applicable deadline determined under § 236.1005(b)(7).

    Appendix A to Part 236—Civil Penalties

    For the same reasons as previously explained regarding the amendments to § 236.1005, FRA is amending the deadline dates referenced in Appendix A. In addition, in the new legislation, Congress reaffirmed FRA's authority to enforce the requirements of subpart I. Therefore, FRA has reviewed its related civil penalties guidance found in Appendix A. Although FRA is currently not suggesting any substantive changes to the regulations, the agency believes that some clarity is warranted. And, of course, FRA retains the authority to enforce any violations of the new legislation or regulations whether or not explicitly mentioned in Appendix A.

    List of Subjects in 49 CFR Part 236

    Penalties, Positive Train Control, Railroad safety, Reporting and recordkeeping requirements.

    The Rule

    In consideration of the foregoing, FRA hereby amends 49 CFR part 236 as follows:

    PART 236—[AMENDED] 1. The authority citation for part 236 continues to read as follows: Authority:

    49 U.S.C. 20102-20103, 20107, 20133, 20141, 20157, 20301-20303, 20306, 20501-20505, 20701-20703, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.89.

    2. In § 236.1005, revise paragraphs (b)(1) introductory text and (b)(6) and add paragraph (b)(7) to read as follows:
    § 236.1005 Requirements for Positive Train Control systems.

    (b) PTC system installation—(1) Lines required to be equipped. Except as otherwise provided in this subpart, each Class I railroad and each railroad providing or hosting intercity or commuter passenger service shall progressively equip its lines as provided in its approved PTCIP such that a PTC system certified under § 236.1015 is installed and operated by the host railroad on each:

    (6) New rail passenger service. No new intercity or commuter rail passenger service shall commence after December 31, 2020, until a PTC system certified under this subpart has been installed and made operative.

    (7) Implementation deadlines. (i) Each railroad must complete full implementation of its PTC system by December 31, 2018.

    (ii) A railroad is excepted from paragraph (b)(7)(i) of this section and must complete full implementation of its PTC system by December 31, 2020, or the date specified in its approved alternative schedule and sequence, whichever is earlier, only if the railroad:

    (A) Installs all PTC hardware and acquires all spectrum necessary to implement its PTC system by December 31, 2018;

    (B) Submits an alternative schedule and sequence providing for implementation of positive train control system as soon as practicable, but not later than December 31, 2020;

    (C) Notifies the Associate Administrator in writing that it is prepared for review of its alternative schedule and sequence under 49 U.S.C. 20157(a)(3)(B); and

    (D) Receives FRA approval of its alternative schedule and sequence.

    (iii) If a railroad meets the criteria in paragraph (b)(7)(ii) of this section, the railroad must adhere to its approved alternative schedule and sequence and any of its subsequently approved amendments or required modifications.

    3. In § 236.1006, revise paragraphs (b)(1) and (3) and (b)(4)(iii)(B) to read as follows:
    § 236.1006 Equipping locomotives operating in PTC territory.

    (b) Exceptions. (1) Each railroad required to install PTC shall include in its PTCIP specific goals for progressive implementation of onboard systems and deployment of PTC-equipped locomotives such that the safety benefits of PTC are achieved through incremental growth in the percentage of controlling locomotives operating on PTC lines that are equipped with operative PTC onboard equipment. The PTCIP shall include a brief but sufficient explanation of how those goals will be achieved, including assignment of responsibilities within the organization. The goals shall be expressed as the percentage of trains operating on PTC-equipped lines that are equipped with operative onboard PTC apparatus responsive to the wayside, expressed as an annualized (calendar year) percentage for the railroad as a whole.

    (3) A train controlled by a locomotive with an onboard PTC apparatus that has failed en route is permitted to operate in accordance with 49 U.S.C. 20157(j) or § 236.1029, as applicable.

    (4) * * *

    (iii) * * *

    (B) To the extent any movement exceeds 20 miles in length, such movement is not permitted without the controlling locomotive being equipped with an onboard PTC system after December 31, 2023, and each applicable Class II or III railroad shall report to FRA its progress in equipping each necessary locomotive with an onboard PTC apparatus to facilitate continuation of the movement. The progress reports shall be filed not later than December 31, 2020 and, if all necessary locomotives are not yet equipped, on December 31, 2022.

    4. In § 236.1009, revise paragraph (a)(5) to read as follows:
    § 236.1009 Procedural Requirements.

    (a) * * *

    (5) Each railroad filing a PTCIP shall report annually, by March 31 of each year, and until its PTC system implementation is complete, its progress towards fulfilling the goals outlined in its PTCIP under this part, including progress towards PTC system installation pursuant to § 236.1005 and onboard PTC apparatus installation and use in PTC-equipped track segments pursuant to § 236.1006, as well as impediments to completion of each of the goals.

    5. In § 236.1011, revise paragraphs (a)(6)(ii), (a)(7), and (b)(3) to read as follows:
    § 236.1011 PTC Implementation Plan content requirements.

    (a) * * *

    (6) * * *

    (ii) The schedule to equip that rolling stock by the applicable deadline under § 236.1005(b)(7);

    (7) The number of wayside devices required for each track segment and the installation schedule to complete wayside equipment installation by the applicable deadline under § 236.1005(b)(7);

    (b) * * *

    (3) Nothing in this paragraph shall be construed to create an expectation or requirement that additional rail lines beyond those required to be equipped by this subpart must be equipped or that such lines will be equipped during the period of primary implementation ending on the applicable deadline under § 236.1005(b)(7).

    5. In Appendix A to part 236: a. Revise footnote 1; b. Add footnote 2; and a. Under Subpart I—Positive Train Control Systems, revise the entries for §§ 236.1005, 236.1006, 236.1007, 236.1009, 236.1011, 236.1019, 236.1029, 236.1035, and 236.1039.

    The revisions and addition read as follows:

    Appendix A to Part 236—Civil Penalties 1 2

    1 A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a civil penalty of up to $105,000 per day for any violation where circumstances warrant. See 49 CFR part 209, Appendix A.

    2 Each plan has numerous conditions and requirements with varying degrees of importance or impact. Thus, a single recommended civil penalty amount for a violation for failure to adhere to each plan or condition is not advisable or warranted. When a violation of a plan or condition is found, FRA may consider a variety of factors to determine the appropriate civil penalty to assess, including any underlying or related violation.

    Section Violation Willful
  • violation
  • *         *         *         *         *         *         * Subpart I—Positive Train Control Systems 236.1005 Positive Train Control System Requirements: Failure to timely complete PTC system installation on track segment where PTC is required 16,000 25,000 Commencement of revenue service prior to obtaining PTC System Certification 16,000 25,000 Failure of the PTC system to perform a safety-critical function required by this section 5,000 7,500 Operating outside the limits of an approved de minimis exception 15,000 25,000 Failure to integrate a hazard detector 15,000 25,000 Non-compliant event recorder 2,500 5,000 Failure of event recorder 2,500 5,000 Failure to provide notice, obtain approval, or follow a condition for temporary rerouting when required 5,000 7,500 Exceeding the allowed percentage of controlling locomotives operating out of an initial terminal after receiving a failed initialization 5,000 7,500 236.1006 Equipping locomotives operating in PTC territory: Failure to adhere to a PTCIP. (2) (2) Operating in PTC territory a controlling locomotive without a required and operative PTC onboard apparatus 15,000 25,000 Operating with a PTC onboard apparatus that is not functioning in accordance with the applicable PTCSP.. 15,000 25,000 Failure to report as prescribed by this section 5,000 7,500 Non-compliant operation of unequipped trains in PTC territory 15,000 25,000 Failure to equip locomotives in accordance with the applicable PTCIP 15,000 25,000 Failure to comply with conditions of a yard movement exception (2) (2) Improper arrangement of the PTC system onboard apparatus 2,500 5,000 Engineer performing prohibited duties 5,000 7,500 236.1007 Additional requirements for high-speed service: Installing or operating a PTC system without the required safety-critical functional attributes of a block signal system 15,000 25,000 Operation of passenger trains at speed equal to or greater than 60 mph on non-PTC-equipped territory where required 15,000 25,000 Operation of freight trains at speed equal to or greater than 50 mph on non-PTC-equipped territory where required 15,000 25,000 Failure to fully implement incursion protection where required 5,000 7,500 236.1009 Procedural requirements: Failure to file PTCIP when required 5,000 7,500 Failure to amend PTCIP when required 5,000 7,500 Failure to obtain Type Approval when required 5,000 7,500 Failure to update NPI 5,000 7,500 Operation of PTC system without system certification 16,000 25,000 Failure to comply with FRA condition or modification (2) (2) Failure to report as required 5,000 7,500 Failure to provide FRA access 10,000 16,000 236.1011 PTCIP content requirements: Failure to install a PTC system as required 11,000 16,000 Failure to maintain a PTCIP as required (2) (2) *         *         *         *         *         *         * 236.1019 Main line track exceptions: Operations conducted in non-compliance with the passenger terminal exception 16,000 25,000 Operations conducted in non-compliance with the limited operations exception 16,000 25,000 Failure to request modification of the PTCIP or PTCSP when required 11,000 16,000 Operations conducted in violation of (c)(2) 16,000 25,000 Operations conducted in violation of (c)(3) 25,000 25,000 *         *         *         *         *         *         * 236.1029 PTC system use and en route failures: Failure to determine cause of PTC system component failure without undue delay 5,000 7,500 Failure to adjust, repair, or replace faulty PTC system component without undue delay 5,000 7,500 Failure to take appropriate action pending adjustment, repair, or replacement of faulty PTC system component 15,000 25,000 PTC territory operation with an inoperative PTC onboard apparatus 5,000 7,500 Interference with the normal functioning of safety-critical PTC system 15,000 25,000 *         *         *         *         *         *         * 236.1035 Field testing requirements: Field testing without authorization or approval 10,000 20,000 Failure to comply with FRA condition (2) (2) *         *         *         *         *         *         * 236.1039 Operations and Maintenance Manual: Failure to implement and maintain Operations and Maintenance Manual as required 3,000 6,000 Failure to make Operations and Maintenance Manual available to FRA when required 10,000 16,000 Failure to make Operations and Maintenance Manual available to persons required to performed the required tasks 15,000 25,000 Amends Operations and Maintenance Manual without FRA approval 5,000 10,000 *         *         *         *         *         *         *
    Issued in Washington, DC, on February 23, 2016. Sarah Feinberg, Administrator.
    [FR Doc. 2016-04293 Filed 2-26-16; 8:45 am] BILLING CODE 4910-06-P
    81 39 Monday, February 29, 2016 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 59 [Doc. AMS-LPS-15-0070] RIN 0581-AD45 Livestock Mandatory Reporting: Reauthorization of Livestock Mandatory Reporting and Revision of Swine and Lamb Reporting Requirements AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    On April 2, 2001, the U.S. Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) implemented the Livestock Mandatory Reporting (LMR) program as required by the Livestock Mandatory Reporting Act of 1999 (1999 Act). The LMR program was reauthorized in October 2006 and September 2010. On September 30, 2015, the Agriculture Reauthorizations Act of 2015 (2015 Reauthorization Act) reauthorized the LMR program for an additional 5 years until September 30, 2020, and directed the Secretary of Agriculture (Secretary) to amend the LMR swine reporting requirements. In addition, the lamb industry requested revisions to the lamb reporting requirements as authorized through the 1999 Act. This proposed rule would incorporate the requested lamb reporting revisions, and would incorporate the swine reporting revisions contained within the 2015 Reauthorization Act under the Agricultural Marketing Act of 1946, USDA Livestock Mandatory Reporting regulations.

    DATES:

    Comments must be received by April 29, 2016. Pursuant to the Paperwork Reduction Act (PRA), comments on the information collection burden that would result from this rule must be received by April 29, 2016.

    ADDRESSES:

    Comments should be submitted electronically at http://www.regulations.gov. Comments may also be sent to Michael Lynch, Director; Livestock, Poultry, and Grain Market News Division; Livestock, Poultry, and Seed Program; AMS, USDA, Room 2619-S, STOP 0252; 1400 Independence Avenue SW., Washington, DC 20250-0251; telephone (202) 720-4868; fax (202) 690-3732; or email to [email protected]

    Comments should reference docket number AMS-LPS-15-0070 and the date and page number of this issue of the Federal Register. Submitted comments will be available for public inspection at http://www.regulations.gov, or during regular business hours at the above address. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the Internet at the address provided above.

    Comments that specifically pertain to the information collection and recordkeeping requirements of this action should also be sent to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, 725 17th Street NW., Room 725, Washington, DC 20503.

    FOR FURTHER INFORMATION CONTACT:

    Michael Lynch, Director; Livestock, Poultry, and Grain Market News Division; Livestock, Poultry, and Seed Program; AMS, USDA, Room 2619-S, STOP 0252; 1400 Independence Avenue SW., Washington, DC 20250-0251; Telephone (202) 720-4868; Fax (202) 690-3732; or email to [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    The 1999 Act was enacted into law on October 22, 1999, [Pub. L. 106-78; 113 Stat. 1188; 7 U.S.C. 1635-1636(i)] as an amendment to the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621 et seq.). On April 2, 2001, the AMS Livestock, Poultry, and Seed Program's (LPS) Livestock, Poultry, and Grain Market News Division (LPGMN) implemented the LMR program as required by the 1999 Act. The purpose was to establish a program of easily understood information regarding the marketing of cattle, swine, lambs, and livestock products; improve the price and supply reporting services of the USDA; and encourage competition in the marketplace for livestock and livestock products. The LMR regulations (7 CFR part 59) set the requirements for packers or importers to submit purchase and sales information of livestock and livestock products to meet this purpose.

    The statutory authority for the program lapsed on September 30, 2005. In October 2006, Congress passed the Livestock Mandatory Reporting Reauthorization Act (2006 Reauthorization Act) [Pub. L. 109-296]. The 2006 Reauthorization Act re-established the regulatory authority for the continued operation of LMR through September 30, 2010. On July 15, 2008, the LMR final rule became effective (73 FR 28606, May 16, 2008).

    On September 28, 2010, Congress passed the Mandatory Price Reporting Act of 2010 (2010 Reauthorization Act) [Pub. L. 111-239]. The 2010 Reauthorization Act reauthorized LMR for an additional 5 years through September 30, 2015. On January 7, 2013, the LMR final rule became effective (77 FR 50561, August 22, 2012).

    On September 30, 2015, the Agriculture Reauthorizations Act of 2015 (2015 Reauthorization Act) [Pub. L. 114-54] was enacted which reauthorized the LMR program for an additional 5 years through September 30, 2020, and amended the reporting requirements for reporting of swine purchase types and late afternoon swine purchases. In addition, at the request of the lamb industry, this proposed rule includes amended definitions for packer owned lambs and lambs committed for delivery, and a provision for adding lamb pelts as a reporting requirement.

    This proposed rule would incorporate the swine reporting revisions contained within the 2015 Reauthorization Act and the lamb reporting revisions as proposed by the lamb industry, under the USDA LMR regulations.

    II. Proposed Revisions

    Under the LMR regulations, certain cattle, swine and lamb packers and processors, and lamb importers are required to report purchases of livestock for slaughter and sales of meat products to AMS. This proposed rule would amend the LMR regulations for swine reporting and lamb reporting requirements as described below.

    Swine

    The swine reporting requirement revisions within this proposed rule are authorized through the 2015 Reauthorization Act. This proposed rule would minimally increase the reporting burden for swine packers.

    Currently, swine packers are required to report purchase data by four types of purchase: Negotiated purchase, other market formula purchase, swine or pork market formula purchase, or other purchase arrangement. A negotiated purchase is a cash or spot market purchase by a packer under which the base price for the swine is determined by seller-buyer interaction and agreement on a delivery day; and the swine are scheduled for delivery to the packer not more than 14 days after the date on which the swine are committed to the packer. Other market formula purchase is a purchase of swine by a packer in which the pricing mechanism is a formula price based on any market other than the market for swine, pork, or a pork product; and includes a formula purchase in a case where the price formula is based on one or more futures or options contracts. A swine or pork market formula purchase is a purchase of swine by a packer in which the pricing mechanism is a formula price based on a market for swine, pork, or a pork product, other than a future or option for swine, pork, or pork product. Other purchase arrangement is a purchase of swine by a packer that is not a negotiated purchase, swine or pork market formula purchase, or other market formula purchase; and does not involve packer-owned swine.

    The 2015 Reauthorization Act amended the swine reporting requirements, subpart C of part 59, by adding an additional purchase type definition for negotiated formula purchases of swine, which requires swine packers to report swine purchased on a negotiated formula basis as a separate purchase type. As defined in § 59.200, the term “negotiated formula” is a swine or pork market formula purchase under which the formula is determined by negotiation on a lot-by-lot basis, and swine are scheduled for delivery to the packer not later than 14 days after the date on which the formula is negotiated and swine are committed to the packer. Packers would be required to report any swine purchased in this manner as a negotiated formula purchase.

    Adding a negotiated formula purchase type would provide market participants with more specific information about the various purchase methods used in the daily marketing of swine and a better understanding of the marketplace concerning formulated prices and spot negotiated prices.

    Currently, packers are required to report purchase data for barrows and gilts for a morning report not later than 10 a.m. central time, and an afternoon report not later than 2 p.m. central time. The information to be reported is the same for the morning and afternoon reports and includes an estimate of the total number of barrows and gilts purchased by each type of purchase, the total number of barrows and gilts purchased, and the base price paid for all negotiated purchases of barrows and gilts and the base price paid for each type of purchase of barrows and gilts other than through a negotiated purchase. This information must be submitted for all covered transactions made up to within one half hour of each specified reporting time. Packers completing transactions during the half hour prior to the previous reporting time report those transactions at the next prescribed reporting time.

    The 2015 Reauthorization Act directed the Secretary to include in the morning and afternoon daily reports for the following day, the purchase information for any barrows and gilts purchased or priced after the afternoon reporting time of the current reporting day. Under this proposed rule, the required information to be reported would remain the same for the morning and afternoon reports; however, the LMR regulations for the morning report requirements under § 59.202 would be amended to require packers to report purchase data for barrows and gilts purchased after 1:30 p.m. central time of the previous reporting day and up to that time of the reporting day for the total number of barrows and gilts purchased, and the base price paid for all negotiated purchases of barrows and gilts and the base price paid for each type of purchase of barrows and gilts other than through a negotiated purchase. Under this proposed rule, the LMR regulations for the afternoon reporting requirements would remain unchanged. The inclusion of the late in the day swine purchase information in the following day's reports would increase the volume of barrows and gilts shown in the daily morning and afternoon purchase reports and better represent the daily market conditions.

    Lamb

    Since the implementation of LMR in 2001 and its subsequent revisions, the U.S. lamb industry has become more concentrated at all levels of the production system through consolidation, impacting AMS' ability to publish certain market information in accordance with the confidentiality provisions of the 1999 Act. To help address this issue, the Livestock Marketing Information Center, an independent provider of economic analyses concerning the livestock industry, conducted an analysis of the current LMR program for lamb reporting in 2013 at the request of the American Sheep Industry Association, an industry organization representing sheep producers throughout the U.S.1 Based on this study, recommendations were proposed to amend the current LMR regulations to improve the price and supply reporting services of AMS and better align LMR lamb reporting requirements with current industry marketing practices. These recommendations are the basis for the lamb reporting changes as proposed by the lamb industry for this proposed rule.

    1 Hearing to Review Reauthorization of the Livestock Mandatory Reporting Act: Hearing before the Subcommittee on Livestock and Foreign Agriculture of the Committee on Agriculture, House of Representatives, 114th Cong., 1st sess. (Serial No. 114-12). (2015). Retrieved from GPO's Federal Digital System: https://www.thefederalregister.org/fdsys/pkg/CHRG-114hhrg94372/pdf/CHRG-114hhrg94372.pdf.

    Proposed revisions to the lamb reporting requirements, subpart D of part 59, include an amended definition under § 59.300 for the term “packer-owned lambs.” Currently, the term “packer-owned lambs” includes lambs owned by a packer for at least 14 days immediately before slaughter. The amended definition would cover those lambs that are owned by a packer for at least 28 days immediately before slaughter. Proposed revisions to the lamb reporting requirements also include a new definition under § 59.300 for the term “lambs committed” and require packers under § 59.302 to report quantity and delivery period for all lambs committed to be delivered to the packer. The term “lambs committed” means lambs intended to be delivered to a packer beginning on the date of an agreement to sell the lambs. In 2008 (73 FR 28606, May 16, 2008), a different definition for the term “lambs committed” was deleted in the LMR regulations at the request of the lamb industry because it was not applicable at the time. However, since that time, lamb industry supply and demand related issues underscored the need for market participants to be more informed of specific types of lamb market data not available through other USDA agencies. Therefore, packers would report “lambs committed” and “packer-owned lambs” under the updated definitions in this proposed rule to meet this industry request and improve transparency in the marketplace. These revisions would minimally increase the reporting burden for lamb packers.

    Under this proposed rule, lamb reporting requirements would also be amended to require packers under § 59.302 to report price, volume, and classification descriptors for all lamb pelts from lambs purchased on a negotiated purchase, formula marketing arrangement, or forward contract basis. As would be defined under this proposed rule in § 59.300, the term “pelt” means the skin and attached wool from a sheep or lamb carcass. In recent years, consolidation within the lamb packing and pelt processing industries has presented increased challenges for AMS in reporting consistent weekly market information on a voluntary basis for pelts marketed from the lamb packers to the pelt processors. Under this proposed rule, packers would be required to report weekly prices and volumes paid to the producer for each specific classification category of pelts in a given lot. This requirement would provide lamb producers more accurate information on the total value of lambs marketed for slaughter while minimally increasing the reporting burden for lamb packers.

    Appendices

    The final section of this document contains four appendices. These appendices will not appear in the Code of Federal Regulations. Appendices A and B list the forms that would be used by swine and lamb packers required to report information under the LMR program. Appendix C provides a description of the forms, while appendix D contains the actual reporting forms. Amendments to two swine reporting forms, LS-118 Swine Prior Day Report and LS-119 Swine Daily Report, were made to include the new purchase type proposed under this rule, “negotiated formula purchase.” Only one form for swine reporting, LS-119 Swine Daily Report, requires an amendment to the description of the form to include the reporting of the late afternoon purchased barrows and gilts from the previous reporting day in the following reporting day's daily reports, as contained in appendix C. Amendments to one lamb reporting form, LS-123 Lamb Weekly Report, were made to include the volume and delivery period information needed for reporting lambs committed for delivery. In addition, a new form, LS-133 Lamb Pelts Weekly Report, was created to facilitate the reporting of information on lamb pelts.

    III. Classification Executive Order 12866 and Executive Order 13563

    This proposed rule is being issued by USDA with regard to the LMR program in conformance with Executive Orders 12866 and 13563.

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives, and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

    This action has been designated as a “non-significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has waived the review process for this action.

    Regulatory Flexibility Act

    In General. This proposed rule has been reviewed under the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612). The purpose of RFA is to consider the economic impact of a rule on small business entities. Alternatives, which would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the marketplace, have been evaluated. Regulatory action should be appropriate to the scale of the businesses subject to the action. The collection of information is necessary for the proper performance of the functions of AMS concerning the mandatory reporting of livestock information. Information is only available directly from those entities required to report under these regulations and exists nowhere else. Therefore, this proposed rule does not duplicate market information reasonably accessible to the USDA.

    Objectives and Legal Basis. The objective of this proposed rule is to improve the price and supply reporting services of the USDA in order to encourage competition in the marketplace for swine and lambs as specifically directed by the 2015 Reauthorization Act and the lamb industry requested revisions as authorized through the 1999 Act and these regulations, as described in detail in the background section.

    Estimated Number of Small Businesses. For this regulatory flexibility analysis, AMS utilized the North American Industry Classification System (NAICS), which is the standard used by federal statistical agencies to classify business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy. This analysis compares the size of meat packing companies to the NAICS standards to determine the percentage of small businesses within the industry affected by this proposed rule. Under these size standards, meat packing companies with 500 or less employees are considered small business entities.2

    2 North American Industry Classification System, code 311611 for abattoirs.

    This proposed rule would amend the reporting requirements for swine packers by adding a new purchase type for negotiated formula purchases of barrows and gilts, and including late afternoon purchases of barrows and gilts from the previous reporting day in the morning and afternoon daily reports of the current reporting day. For swine packers, this proposed rule would apply only to federally inspected swine processing facilities that slaughtered an average of at least 100,000 swine per year during the immediately preceding 5 calendar years and a person that slaughtered an average of at least 200,000 sows, boars, or combination thereof per year during the immediately preceding 5 calendar years. Additionally, in the case of a swine processing plant or person that did not slaughter swine during the immediately preceding 5 calendar years, it would be considered a packer if the Secretary determines the processing plant or person should be considered a packer under this subpart after considering its capacity.

    Approximately 36 individual pork packing companies representing a total of 55 individual plants are required to report information to AMS. Based on the NAICS size standard for meat packing companies with 500 or less employees, AMS estimates that 24 of these 36 pork packing companies would be considered small businesses, representing 27 individual plants that are required to report. The figure of 55 plants required to report represents 8.9 percent of the federally inspected swine plants in the United States. The remaining 91.1 percent of swine plants, nearly all estimated to qualify as small business, are exempt from mandatory reporting.

    To implement the swine reporting changes in this proposed rule, AMS estimated the total annual burden on each swine packer to be $108 which includes the annual share of initial startup costs of $415. There is no annual cost increase associated with electronically submitting data or for the storage and maintenance of electronic files submitted to AMS due to the changes in this proposed rule.

    For lamb reporting, this proposed rule would require packers to report quantity and delivery period for all lambs committed to be delivered to the packer beginning on the date of an agreement to sell the lambs. In addition, lamb packers would be required to report price, volume, and classification descriptors for all lamb pelts from lambs purchased from producers. Under the 2015 Reauthorization Act, a lamb packer includes any person with 50 percent or more ownership in a facility that slaughtered or processed an average of 35,000 lambs during the immediately preceding 5 calendar years, or that did not slaughter or process an average of 35,000 lambs during the immediately preceding 5 calendar years if the Secretary determines that the processing plant should be considered a packer after considering its capacity.

    The LMR regulations require 10 lamb packers to report information, which is less than 2 percent of all federally inspected lamb plants. Therefore, approximately 98 percent of lamb packers are exempt from reporting information by this proposed rule. Based on the NAICS size standard for meat packing companies with 500 or less employees and its knowledge of the lamb industry, AMS estimates that all lamb packing companies currently required to report under LMR would be considered small businesses. To implement the lamb reporting changes in this proposed rule, AMS estimated the total annual burden on each lamb packer to be $216 which includes the annual share of initial startup costs of $830. There is no annual cost increase associated with electronically submitting data, or for the storage and maintenance of electronic files submitted to AMS due to the changes in this proposed rule.

    Projected Reporting. The LMR regulations require the reporting of specific market information regarding the buying and selling of livestock and livestock products. This information is reported to AMS by electronic means and the adoption of this proposed rule will not affect this requirement. Electronic reporting involves the transfer of data from a packer's or importer's electronic recordkeeping system to a centrally located AMS electronic database. The packer or importer is required to organize the information in an AMS-approved format before electronically transmitting the information to AMS. Once the required information has been entered into the AMS database, it is aggregated and processed into various market reports which are released according to the daily and weekly time schedule set forth in the LMR regulations. As an alternative, AMS also developed and made available web-based input forms for submitting data online as AMS found that some of the smaller entities covered under mandatory price reporting would benefit from such a web-based submission system.

    Each packer and importer required to report information to USDA under LMR must maintain such records as are necessary to verify the accuracy of the information provided to AMS. This includes information regarding price, class, head count, weight, quality grade, yield grade, and other factors necessary to adequately describe each transaction. These records are already kept by the industry. Reporting packers and importers are required to maintain and make available the original contracts, agreements, receipts, and other records associated with any transaction relating to the purchase, sale, pricing, transportation, delivery, weighing, slaughter, or carcass characteristics of all livestock, and to maintain these records for a minimum of 2 years. Packers and importers are not required to report any other new or additional information they do not generally have available or maintain. Further, they are not required to keep any information that would prove unduly burdensome to maintain.

    In addition, AMS has not identified any relevant federal rules currently in effect that duplicate, overlap, or conflict with this rule. Professional skills required for recordkeeping under the LMR regulations are not different than those already employed by the reporting entities. Reporting is accomplished using computers or similar electronic means. This proposed rule does not affect the professional skills required for recordkeeping already employed by the reporting entities. Reporting will be accomplished using computers or similar electronic means. AMS believes the skills needed to maintain such systems are already in place in those small businesses affected by this rule.

    Alternatives. This proposed rule would require swine and lamb packing plants of a certain size to report information to the Secretary at prescribed times throughout the day and week. The 1999 Act and these regulations exempt the vast majority of small businesses by the establishment of slaughter, processing, and import capacity thresholds.

    AMS recognizes that most of the economic impact of this proposed rule on those small entities required to report involves the manner in which information must be reported to the Secretary. However, in developing this proposed rule, AMS considered other means by which the objectives of this proposed rule could be accomplished, including reporting the required information by telephone, facsimile, and regular mail. AMS believes electronic submission to be the only method capable of allowing AMS to collect, review, process, aggregate, and publish reports while complying with the specific time-frames set forth in the Act and regulation.

    To respond to concerns of smaller operations, AMS developed a web-based input form for submitting data online. Based on prior experience, AMS found that some of the smaller entities covered under mandatory price reporting would benefit from such a web-based submission system. Accordingly, AMS developed such a system for program implementation.

    Additionally, to further assist small businesses, AMS may provide for an exception to electronic reporting in emergencies, such as power failures or loss of Internet accessibility, or in cases when an alternative is agreeable between AMS and the reporting entity.

    Other than these alternatives, there are no other practical and feasible alternatives to the methods of data transmission that are less burdensome to small businesses. AMS will work actively with those small businesses required to report and minimize the burden on them to the maximum extent practicable.

    Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), we have included the changes in reporting and recordkeeping requirements for 7 CFR part 59 associated with this action into the program's request for an extension of a currently approved information collection for OMB 0581-0186 (Commodities Covered by the Livestock Mandatory Reporting Act of 1999).

    Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect. Section 259 of the 1999 Act prohibits States or political subdivisions of a State to impose any requirement that is in addition to, or inconsistent with, any requirement of the 1999 Act with respect to the submission or reporting of information, or the publication of such information, on the prices and quantities of livestock or livestock products. In addition, the 1999 Act does not restrict or modify the authority of the Secretary to administer or enforce the Packers and Stockyards Act of 1921 (7 U.S.C. 181 et seq.); administer, enforce, or collect voluntary reports under the 1999 Act or any other law; or access documentary evidence as provided under Sections 9 and 10 of the Federal Trade Commission Act (15 U.S.C. 49, 50). There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this proposed rule.

    Civil Rights Review

    AMS has considered the potential civil rights implications of this proposed rule on minorities, women, or persons with disabilities to ensure that no person or group shall be discriminated against on the basis of race, color, national origin, gender, religion, age, disability, sexual orientation, marital or family status, political beliefs, parental status, or protected genetic information. This review included persons who are employees of the entities that are subject to this regulation. This proposed rule does not require affected entities to relocate or alter their operations in ways that could adversely affect such persons or groups. Further, this proposed rule will not deny any persons or groups the benefits of the program or subject any persons or groups to discrimination.

    Executive Order 13132

    This proposed rule has been reviewed under Executive Order 13132, Federalism. This Order directs agencies to construe, in regulations and otherwise, a Federal Statute to preempt State law only when the statute contains an express preemption provision. This proposed rule is required by the 1999 Act. Section 259 of the 1999 Act, Federal Preemption states, “In order to achieve the goals, purposes, and objectives of this title on a nationwide basis and to avoid potentially conflicting State laws that could impede the goals, purposes, or objectives of this title, no State or political subdivision of a State may impose a requirement that is in addition to, or inconsistent with, any requirement of this subtitle with respect to the submission or reporting of information, or the publication of such information, on the prices and quantities of livestock or livestock products.”

    Prior to the passage of the 1999 Act, several States enacted legislation mandating, to various degrees, the reporting of market information on transactions of cattle, swine, and lambs conducted within that particular State. However, since the federal LMR program was implemented on April 2, 2001, these State programs are no longer in effect. Therefore, there are no federalism implications associated with this rulemaking.

    Executive Order 13175

    This proposed rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. AMS has considered the potential implications of this proposed rule to ensure this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.

    List of Subjects in 7 CFR Part 59

    Cattle, Hogs, Lamb, Livestock, Sheep, Swine.

    For the reasons set forth in the preamble, it is proposed that title 7, part 59 be amended as follows:

    PART 59—LIVESTOCK MANDATORY REPORTING 1. The authority citation for 7 CFR part 59 continues to read as follows: Authority:

    7 U.S.C. 1635-1636i.

    2. Amend § 59.200 by: a. Adding a definition for “Negotiated formula purchase;” b. Revising the definition of “Other purchase arrangement;” and c. Revising paragraphs (3) and (4) and adding paragraph (5) in the definition of “Type of purchase.”

    The additions and revisions read as follows:

    § 59.200 Definitions.

    Negotiated formula purchase. The term “negotiated formula purchase” means a swine or pork market formula purchase under which:

    (1) The formula is determined by negotiation on a lot-by-lot basis; and

    (2) The swine are scheduled for delivery to the packer not later than 14 days after the date on which the formula is negotiated and swine are committed to the packer.

    Other purchase arrangement. The term “other purchase arrangement” means a purchase of swine by a packer that is not a negotiated purchase, swine or pork market formula purchase, negotiated formula purchase, or other market formula purchase; and does not involve packer-owned swine.

    Type of purchase. * * *

    (3) A swine or pork market formula purchase;

    (4) Other purchase arrangement; and

    (5) A negotiated formula purchase.

    3. Amend § 59.202 by revising paragraphs (b)(2) through (4) to read as follows:
    § 59.202 Mandatory daily reporting for barrows and gilts.

    (b) * * *

    (2) The total number of barrows and gilts, and barrows and gilts that qualify as packer-owned swine, purchased since 1:30 p.m. central time of the previous reporting day and up to that time of the reporting day through each type of purchase;

    (3) All purchase data for base market hogs purchased since 1:30 p.m. central time of the previous reporting day and up to that time of the reporting day through negotiated purchases;

    (4) All purchase data for base market hogs purchased through each type of purchase other than negotiated purchase since 1:30 p.m. central time of the previous reporting day and up to that time of the reporting day, unless such information is unavailable due to pricing that is determined on a delayed basis. The packer shall report information on such purchases on the first reporting day or scheduled reporting time on a reporting day after the price has been determined.

    4. Amend § 59.300 by adding in alphabetical order a definition for “Lambs committed,” revising the definition for “Packer-owned lambs,” and adding in alphabetical order a definition for “Pelt” to read as follows:
    § 59.300 Definitions.

    Lambs committed. The term “lambs committed” means lambs that are intended to be delivered to a packer beginning on the date of an agreement to sell the lambs.

    Packer-owned lambs. The term “packer-owned lambs” means lambs that a packer owns for at least 28 days immediately before slaughter.

    Pelt. The term “pelt” means the skin and attached wool from a sheep or lamb carcass.

    5. Amend § 59.302 by redesignating paragraphs (a)(6) and (7) as paragraphs (a)(7) and (8), adding new paragraphs (a)(6) and (9), and revising paragraph (b) to read as follows:
    § 59.302 Mandatory weekly reporting for lambs.

    (a) * * *

    (6) The quantity (quoted in number of head) and delivery period for all committed lambs;

    (9) The following pelt information for lambs purchased through a negotiated purchase, formula marketing arrangement, or forward contract:

    (i) The quantity (quoted in number of head) of pelts;

    (ii) The source of the pelts (packer owned or producer owned lambs);

    (iii) The price paid to the producer;

    (iv) The length of wool (shorn or unshorn);

    (v) The pelt classification (Supreme, Premium, Standard, Fair, Mixed Class, Damaged, and Puller).

    (b) Publication. The Secretary shall make available to the public the information obtained in paragraphs (a)(1) through (6) and (a)(8) of this section on the second reporting day of the current slaughter week and information obtained in paragraphs (a)(7) and (9) of this section on the first reporting day of the current slaughter week.

    Dated: February 19, 2016. Elanor Starmer, Acting Administrator, Agricultural Marketing Service. Note:

    The following Appendices will not appear in the Code of Federal Regulations.

    Appendix A to Subpart C—Swine Mandatory Reporting Forms Swine

    The following 2 forms would be used by entities required to report electronically transmitted mandatory market information on swine to AMS.

    LS-118—Swine Prior Day Report LS-119—Swine Daily Report
    Appendix B to Subpart D—Lamb Mandatory Reporting Forms Lamb

    The following 2 forms would be used by entities required to report electronically transmitted mandatory market information on lambs and lamb pelts to AMS.

    LS-123—Live Lamb Weekly Report LS-133—Lamb Pelts Weekly Report
    Appendix C—Mandatory Reporting Guideline

    The following mandatory reporting form guidelines will be used by entities required to report electronically transmitted mandatory market information to AMS.

    The first 10 fields of each mandatory reporting form provide the following information: Identification number (plant establishment ID number), company name (name of parent company), plant street address (street address for plant), plant city (city where plant is located), plant state (state where plant is located), plant zip code (zip code where plant is located), contact name (the name of the corporate representative contact at the plant), phone number (full phone number for the plant including area code), reporting date (date the information was submitted (mm/dd/yyyy), and reporting time (the submission time corresponding to the 10 a.m. and the 2 p.m. reporting requirements, if applicable).

    (a) Swine Mandatory Reporting Forms. (See Appendix D for samples.)

    (1) LS-118—Swine Prior Day Report.

    (i) Slaughtered swine lot identification (11). Enter code used to identify the lot of slaughtered swine to the packer.

    (ii) Slaughtered swine class code (12). Enter the code that best describes the type of slaughtered swine in the lot.

    (iii) Slaughtered swine purchase type code (13). Enter the code that describes the type of purchase for the slaughtered swine in the lot.

    (iv) Slaughtered swine head count (14). Enter the quantity of slaughtered swine in the lot in number of head.

    (v) Slaughtered swine base price (15). Enter the base price established on that day for the lot of slaughtered swine in dollars per one hundred pounds.

    (vi) Slaughtered swine average net price (16). Enter the average net price established on that day for the lot of slaughtered swine in dollars per one hundred pounds.

    (vii) Slaughtered swine average live weight (17). Enter the average live weight of the lot of swine in pounds if slaughtered swine were purchased on a live basis, otherwise leave blank.

    (viii) Slaughtered swine average carcass weight (18). Enter the average carcass weight of the lot of slaughtered swine in pounds.

    (ix) Slaughtered swine average sort loss (19). Enter the average sort loss for the lot of slaughtered swine in dollars per one hundred pounds.

    (x) Slaughtered swine average backfat (20). Enter the average backfat measurement for the lot of slaughtered swine in inches rounded to the nearest tenth of an inch.

    (xi) Slaughtered swine average loin depth (21). Enter the average loin depth measurement for the lot of slaughtered swine in inches rounded to the nearest tenth of an inch.

    (xii) Slaughtered swine average lean percentage (22). Enter the average lean percentage for the lot of slaughtered swine.

    (xiii) Purchased swine lot identification (23). Enter code used to identify the lot of purchased swine to the packer.

    (xiv) Purchased swine ownership code (24). Enter code which best describes the source of the purchased swine whether packer-owned, purchased from another packer, or all other swine.

    (xv) Purchased swine class code (25). Enter the code that best describes the type of purchased swine.

    (xvi) Purchased swine purchase type code (26). Enter the code that describes the type of purchase for the purchased swine.

    (xvii) Purchased swine head count (27). Enter the quantity of purchased swine in the lot.

    (xviii) Purchased swine average live weight (28). Enter the average live weight of the lot of swine in pounds if swine were purchased on a live basis, otherwise leave blank.

    (xix) Purchased swine base price (29). Enter the base price established on that day for the lot of purchased swine in dollars per one hundred pounds.

    (xx) Purchased swine origin (30). Enter the 2-letter postal abbreviation for the State in which the swine were fed to slaughter weight.

    (xxi) Scheduled swine (31-44). Enter the number of head of purchase commitment swine that were scheduled for delivery for each of the next 14 days. Enter the total quantity currently scheduled for each day at the time of reporting for each submission.

    (2) LS-119—Swine Daily Report.

    (i) Purchased swine lot identification (11). Enter code used to identify the lot of purchased swine to the packer.

    (ii) Purchased swine purchase type code (12). Enter the code that describes the type of purchase for the swine in the lot.

    (iii) Purchased swine average live weight (13). Enter the average live weight of the lot of swine in pounds if swine were purchased on a live basis, otherwise leave blank.

    (iv) Purchased swine class code (14). Enter the code that best describes the type of swine in the lot.

    (v) Purchased swine head count (15). Enter the quantity of swine in the lot in number of head.

    (vi) Purchased swine base price (16). Enter the base price established on that day for the lot of swine in dollars per one hundred pounds.

    (vii) Purchased swine origin (17). Enter the 2-letter postal abbreviation for the State in which the swine were fed to slaughter weight.

    (viii) Packer-sold swine purchases (18-25, 34-35). Enter the best estimate of the total number of packer-sold swine expected to be purchased throughout the reporting day for each purchase type and the total number of packer-sold swine purchased since 1:30 p.m. central of the previous reporting day up to that time of the reporting day for each purchase type.

    (ix) All other swine purchases (26-33, 36-37). Enter the best estimate of the total number of all other swine expected to be purchased throughout the reporting day for each purchase type and the total number of all other swine purchased since 1:30 p.m. central of the previous reporting day up to that time of the reporting day for each purchase type.

    (b) Lamb Mandatory Reporting Forms. (See Appendix D for samples.)

    (1) LS-123—Live Lamb Weekly Report.

    (i) Packer-Owned lot identification (11). Enter code used to identify the lot of packer-owned lambs to the packer.

    (ii) Packer-Owned source (12). Enter “1”, domestic, if packer-owned lambs are from within the 50 States or “2”, imported, if lambs are from outside of the 50 States.

    (iii) Packer-Owned head count (13). Enter the quantity of packer-owned lambs in the lot in number of head.

    (iv) Packer-Owned actual carcass weight range (14a 14b). Enter the lowest (14a) and highest (14b) actual carcass weights for lambs in the lot in pounds.

    (v) Packer-Owned actual average carcass weight (15). Enter the actual average carcass weight of the lot of packer-owned lambs in pounds.

    (vi) Packer-Owned average dressing percentage (16). Enter the average dressing percentage of the lot of packer-owned lambs.

    (vii) Percentage yield grade 3 or better (17). Enter the percentage of packer-owned lambs in the lot of a yield grade of 3 or better.

    (viii) Quality grade percentage (18). Enter the percentage of packer-owned lambs in the lot of a quality grade of Choice or better.

    (ix) Prior week slaughtered lambs head counts (19-24). Enter the total number of head of lambs slaughtered for the prior week that were purchased through forward contracts, the total number of head for lambs purchased through formula arrangements, and the total number of head of lambs purchased through negotiated cash, categorized by domestic or imported sources. Enter this information once per each week's submission.

    (x) Forward contract purchases lot identification (25). Enter code used to identify forward contracted lambs to the packer.

    (xi) Forward contract purchases head count (26). Enter quantity of forward contracted lambs in the lot in number of head.

    (xii) Forward contract purchases basis level (27). Enter the agreed upon adjustment to a future price to establish the final price of the forward contracted lambs in dollars per one hundred pounds.

    (xiii) Forward contract purchases delivery month (28). Enter the delivery month of the lambs purchased through forward contracts as a 3-letter abbreviation.

    (xiv) Committed lambs (29). Enter quantity of lambs committed to be delivered to the packer in number of head.

    (xv) Committed delivery month (30). Enter the delivery month of the lambs committed for delivery to the packer as a 3-letter abbreviation.

    (xvi) Committed delivery year (31). Enter the delivery year of the lambs committed for delivery to the packer as a 4-digit number.

    (2) LS-133—Lamb Pelts Weekly Report.

    (i) Lot identification (11). Enter code used to identify the lot of pelts.

    (ii) Source (12). Enter “1”, packer owned, if the pelts were from packer owned lambs or “2”, producer owned, if the pelts are from producer owned lambs.

    (iii) Length of Wool (13). Enter “1”, unshorn. Enter “2”, shorn.

    (iv) Price (14). Enter the price per piece paid by the packer for each classification category of pelts in the lot.

    (v) Volume (15). Enter the quantity in number of pieces or pelts in each classification category of the lot.

    (vi) Classification (16). Enter the classification code that describes the classification category for the pelts in the lot.

    Appendix D—Mandatory Reporting Forms

    The swine and lamb mandatory forms follow the docket.

    [FR Doc. 2016-03956 Filed 2-26-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 986 [Docket No. AO-FV-15-0139; AMS-FV-15-0023; FV15-986-1] Pecans Grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas; Secretary's Decision and Referendum Order on Proposed Marketing Agreement and Order No. 986 AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule and referendum order.

    SUMMARY:

    This Secretary's Decision proposes the issuance of a marketing agreement and order (order) under the Agricultural Marketing Agreement Act of 1937 to cover pecans grown in the states of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas, and provides growers with the opportunity to vote in a referendum to determine if they favor its establishment. The proposed order would provide authority to collect industry data and to conduct research and promotion activities. In addition, the order would provide authority for the industry to recommend grade, quality and size regulation, as well as pack and container regulation, subject to approval by the Department of Agriculture (USDA). The program would be financed by assessments on pecan handlers and would be locally administered, under USDA oversight, by a Council of seventeen growers and shellers (handlers) nominated by the industry and appointed by USDA.

    DATES:

    The referendum will be conducted from March 9 through March 30, 2016. Ballot materials will be sent to all known pecan growers in the proposed fifteen-state production area. To be eligible to vote, a grower must have produced a minimum average, annual amount of 50,000 pounds of inshell pecans between August 1, 2011 and July 31, 2015, or must own a minimum of 30 pecan acres.

    ADDRESSES:

    Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Schmaedick, Senior Marketing Specialist; Telephone: (202) 557-4783, Fax: (435) 259-1502, or Michelle Sharrow, Rulemaking Branch Chief; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected] or [email protected]

    Small businesses may request information on this proceeding by contacting Antoinette Carter, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Prior documents in this proceeding: Notice of Hearing issued on June 26, 2015, and published in the July 2, 2015, issue of the Federal Register (80 FR 38021); Recommended Decision and Opportunity to File Written Exceptions issued on October 20, 2015, and published in the October 28, 2015, issue of the Federal Register (80 FR 66372).

    This administrative action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Order 12866, 13563, and 13175. Notice of this rulemaking action was provided to tribal governments through USDA's Office of Tribal Relations; no comments have been received.

    Preliminary Statement

    This Secretary's Decision is issued pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act,” and the applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900). The proposed marketing order is authorized under section 8(c) of the Act.

    The proposed marketing agreement and order are based on the record of a public hearing held July 20 through July 21, 2015, in Las Cruces, New Mexico; July 23 through July 24, 2015, in Dallas, Texas; and, July 27 through July 29, 2015, in Tifton, Georgia. The hearing was held to receive evidence on the proposed marketing order from growers, handlers, and other interested parties located throughout the proposed production area. Notice of this hearing was published in the Federal Register on July 2, 2015.

    A request for public hearing on the proposed program was submitted to USDA on May 22, 2015, by the American Pecan Board (Board), a proponent group established in 2013 to represent the interests of growers and handlers throughout the proposed fifteen-state production area. A subsequent, modified draft of the proposed regulatory text was submitted on June 10, 2015.

    Witnesses at the hearing explained that the provisions of this proposal aim to assist the industry in addressing a number of challenges, namely: A lack of organized representation of industry-wide interests in a single organization; a lack of accurate data to assist the industry in its analysis of production, demand and prices; a lack of coordinated domestic promotion or research; and a forecasted increase in production as a result of new plantings. Witnesses believed that these factors combined have resulted in the under-performance of the pecan industry compared to other nut industries.

    Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on October 20, 2015, filed with the Hearing Clerk, USDA, a Recommended Decision and Opportunity to File Written Exceptions thereto by November 27, 2015. No exceptions were filed. That document also announced AMS's intent to request approval of new information collection requirements to implement the program. Written comments on the proposed information collection requirements were due by December 28, 2015. None were filed.

    USDA is providing two additional conforming changes to the proposed order language as published in the Recommended Decision. These conforming changes replace the word “redefining” in § 986.55 (c)(6) with “reestablishment,” and the word “redefining” in § 986.33(b) with “reestablishment,” thereby conforming to the terminology used in § 986.58. The regulatory text included in this Secretary's Decision reflects these changes.

    Further, USDA is providing a correction to the Regulatory Flexibility Act (RFA) analysis published in the Recommended Decision. The RFA incorrectly referenced a Small Business Administration (SBA) threshold of $7 million in annual receipts to identify small handler entities, while hearing testimony correctly identified a $7.5 million threshold. The RFA included in this Secretary's Decision uses the correct SBA threshold of $7.5 million.

    The material issues presented on the record of hearing and addressed in the Recommended Decision are as follows:

    1. Whether the handling of pecans produced in the proposed production area is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce;

    2. Whether the economic and marketing conditions are such that they justify a need for a Federal marketing agreement and order which would tend to effectuate the declared policy of the Act;

    3. What the definition of the production area and the commodity to be covered by the order should be;

    4. What the identity of the persons and the marketing transactions to be regulated should be;

    5. What the specific terms and provisions of the order should be, including:

    (a) The definitions of terms used therein which are necessary and incidental to attain the declared objectives and policy of the Act and order;

    (b) The establishment, composition, maintenance, procedures, powers and duties of an administrative Council for pecans that would be the local administrative agency for assisting USDA in the administration of the order;

    (c) The authority to incur expenses and the procedure to levy assessments on handlers to obtain revenue for paying such expenses;

    (d) The authority to conduct research and promotion activities;

    (e) The authority to recommend grade, quality and size regulation, as well as pack and container regulation, for pecans grown and handled in the proposed production area;

    (f) The establishment of requirements for handler reporting and recordkeeping;

    (g) The requirement for compliance with all provisions of the order and with any regulation issued under it;

    (h) An exemption for handlers of non-commercial quantities of pecans;

    (i) The requirement for periodic continuance referenda; and

    (j) Additional terms and conditions as set forth in § 986.88 through § 986.93, and § 986.97 through § 986.99 that are common to marketing agreements only.

    Small Business Considerations

    Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, the AMS has prepared this final regulatory flexibility analysis.

    The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions so that small businesses will not be unduly or disproportionately burdened. Small agricultural producers have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $750,000. Small agricultural service firms, which include handlers that would be regulated under the proposed pecan order, are defined as those with annual receipts of less than $7,500,000.

    Interested persons were invited to present evidence at the hearing on the probable regulatory and informational impact of the proposed pecan marketing order program on small businesses. The record evidence is that while the program would impose some costs on the regulated parties, those costs would be outweighed by the benefits expected to accrue to the U. S. pecan industry.

    Specific evidence on the number of large and small pecan farms (above and below the SBA threshold figure of $750,000 in annual sales) was not presented at the hearing. However, percentages can be estimated based on record evidence.

    The 2014 season average grower prices per pound for improved and native seedling pecans were $2.12 and $0.88, respectively. A weighted grower price of $1.85 is computed by applying as weights the percentage split between improved and native acreage on a representative U.S. pecan farm, which are 78 and 22 percent, respectively. The average yield on the representative farm is 1,666.67 pounds per acre. Multiplying the $1.85 price by the average yield gives a total revenue per acre figure of $3,080. Dividing the $750,000 SBA annual sales threshold figure by the revenue per acre figure of $3,080 gives an estimate of 243 acres as the size of farm that would have annual sales about equal to $750,000, given the previous assumptions. Any farm of that size or larger would qualify as a large farm under the SBA definition.

    Data presented in the record show that about 52 percent of commercial U.S. pecan farms have 250 or more acres of pecans. Since the 243 acre estimate above is close to 250 acres, it can be extrapolated that 52 percent is a reasonable approximation of the proportion of large farms and 48 percent is the proportion of small pecan farms. According to the record, this estimate does not include “backyard” production.

    According to record evidence, there are an estimated 250 handlers in the U.S. Of these handlers, which include accumulators, there are an estimated 50 commercially viable shellers with production over 1 million pounds of inshell pecans operating within the proposed production area. Fourteen of these shellers meet the SBA definition for large business entity and the remaining 36 are small business entities.

    Record evidence indicates that implementing the proposed order would not represent a disproportionate burden on small businesses. An economic impact study of the proposed authority for generic promotion presented at the hearing provided that the proposed program would likely benefit all industry participants.

    Impact of Generic Promotion Through a Marketing Order

    The record shows that generic promotion over a wide variety of agricultural products stimulates product demand and translates into higher prices for growers than would have been the case without promotion.

    Promotional impact studies of other tree nuts (almonds and walnuts), and of Texas pecans, show price increases as high as 6 percent, but the record indicates that 0 to 3 percent is a more representative range. Since the other tree nut promotion programs are well-established, the record shows that a representative middle (most likely) scenario would be a price increase from promotion of 1.5 percent for the early years of a new pecan promotion program. Low and high scenarios were 0.5 and 3.0 percent, respectively.

    The record indicates that an analytical method used historical yearly prices from 1997 to 2014 in a simulation covering that period to obtain an expected average price without promotion. In a subsequent step, the simulation applied a demand increase of 1.5 percent to the entire distribution of prices to represent the impact of promotion. The projected increases in grower prices from promotion for improved and native pecans were 6.3 and 3.6 cents per pound, respectively, as shown in Table 1. These two price increase projections represent a range of results. Based on a range of simulated price increases as high as 3 percent, the low and high price increase projections for improved pecans were 4.0 and 9.6 cents, respectively. For native varieties, the results ranged from 2.7 to 4.2 cents.

    The record indicates that a key analytical step was developing an example farm with specific characteristics to explain market characteristics and marketing order impacts. An important characteristic of this “representative farm” is the acreage allocation between improved and native pecans of 78 and 22 percent, respectively. This is similar to the proportion of the U.S. pecan crop in recent years allocated to improved and native varieties. Average yield per acre of the representative farm (covering all states and varieties) is 1,666.67 pounds per acre.

    The acreage split of 78 and 22 percent are used as weights to compute weighted average prices (combining improved and native pecans) of 5.7 and 2.3 cents, respectively, as shown in the fourth column of Table 1.

    The record shows that the proposed initial ranges of marketing order assessments per pound are 2 to 3 cents for improved pecans and 1 to 2 cents for native pecans. The midpoints of these ranges (2.5 and 1.5 cents, respectively) are used to compute a benefit-cost ratio from promotion, with a weighted average assessment cost of 2.3 cents, as shown in Table 2. Assessments would be collected from handlers, not growers, but for purposes of this analysis, it is assumed that 100 percent of the assessment cost would be passed through to growers.

    Table 1 shows that dividing the projected benefit of 5.7 cents per pound (weighted price increase from promotion) by the estimated assessment cost of 2.3 cents (weighted assessment rate per pound), yields a benefit-cost ratio of 2.5. Each dollar spent on pecan promotion through a Federal marketing order is expected to result in $2.50 in increased revenue to the pecan growers of the United States.

    Table 1—Estimated Benefit-Cost Ratio of Pecan Promotion Through a Federal Marketing Order Improved pecans Native pecans Weighted Benefit: Projected price increase from pecan promotion (cents per pound) 6.3 3.6 5.7 Cost: FMO Assessment rate (cents per pound) 2.5 1.5 2.3 Benefit-cost ratio 2.52 2.40 2.50 * Weights for improved and native pecans are 78% and 22%, respectively, which is the acreage allocation of a representative U.S. pecan farm, according to the record.

    Examining potential costs and benefits from promotion across different farm sizes is done in Table 2. Record evidence showed that the minimum size of a commercial pecan farm is 30 acres, and that a representative average yield across the entire production area is 1,666.67 pounds per acre. This combination of acreage and yield results in a minimum threshold level of commercial production of 50,000 pounds. Witnesses stated that expenditures for the minimum necessary level of inputs for commercial pecan production cannot be justified for any operation smaller than this.

    In Table 2, a very small farm is defined as being at the minimum commercial threshold level of 30 acres and 50,000 pounds. Small and large farms are represented by farm size levels of 175 and 500 acres, respectively. Multiplying those acreage levels by the average yield for the entire production area gives total annual production level estimates of 291,667 and 833,335 pounds, respectively.

    Multiplying the 2014 grower price per pound of $2.14 by the 291,677 pounds of production from the small farm (175 acres) yields an annual crop value estimate of about $618,000. This computation shows that the small farm definition from the record is consistent with the SBA definition of a small farm (annual sales value of up to $750,000).

    Table 2 shows for the three representative pecan farm sizes the allocation of total production levels between improved and native varieties (78 and 22 percent, respectively).

    Although marketing order assessments are paid by handlers, not growers, it is nevertheless useful to estimate the impact on growers, based on the assumption that handlers may pass part or all of the assessment cost onto growers from whom they purchase pecans. To compute the marketing order burden for each farm size, the improved and native production quantities are multiplied by 2.5 and 1.5 cents per pound of improved and native pecans, respectively. For the representative small farm (175 acres), summing the improved and native assessments yields a total annual assessment cost of $6,650. For the large farm, the total assessment cost is $19,000.

    A parallel computation is made to obtain the total dollar benefit for each farm size. The improved and native quantities for the representative farm sizes are multiplied by the corresponding projected price increases of 6.3 and 3.6 cents. Summing the improved and native benefits for the small and large farm size yields projected annual total benefits for the small and large representative farm sizes of $16,643 and $47,550, respectively. The results of dividing the benefits for each farm size by the corresponding costs is 2.5, which equals the benefit-cost ratio shown in Table 2.

    Table 2—Costs and Benefits of Promotion for Three Sizes of Representative U.S. Pecan Farms Very small farm Small farm Large farm Representative Pecan Farms: Acres and Production: Acres per farm 30 175 500 Production on Representative Farms (Acres multiplied by estimated U.S. average yield of 1666.67 pounds per acre) 50,000 291,667 833,335 Improved pecan production (78% of farm acres) 39,000 227,500 650,001 Native pecan production (22% of farm acres) 11,000 64,167 183,334 Cost per farm: Grower burden of proposed program represented as cost per pound: Improved (2.5 cents) $975 $5,688 $16,250 Native (1.5 cents) $165 $963 $2,750 Total Estimated Cost per Farm $1,140 $6,650 $19,000 Benefit per farm: Price increase per pound from pecan promotion multiplied by improved and native production: Improved (6.3 cents) $2,457 $14,333 $40,950 Native (3.6 cents) $396 $2,310 $6,600 Total Estimated Benefit per Farm $2,853 $16,643 $47,550

    The computations in Table 2 provide an illustration, based on evidence from the record, that there would be no disproportionate impact on smaller size farms from establishing a marketing order and implementing a promotion program. Costs are assessed per pound and thus represent an equal burden regardless of size. The projected benefits from promotion are realized through increases in price per pound and are thus distributed proportionally among different sizes of farms.

    All of the grower and handler witnesses, both large and small, testified that the projected price increases from promotion of pecans (6.3 and 3.6 cents per pound for improved and native pecans, respectively) were reasonable estimates of the benefits from generic promotion of pecans. A number of them expressed the view that the price increase estimates were conservative and that, over time, the price impact would be larger.

    As mentioned above, marketing order assessments are paid by handlers, not growers. However, since handlers may pass some or all of the assessment cost onto growers, it is useful to provide this illustration of potential impact on both growers and handlers.

    Using the most recent three years of prices as examples of typical U.S. annual grower prices, Table 3 summarizes evidence from the record that shows the proposed marketing order assessment rates as percentages of grower and handler prices received. Based on record evidence that a representative handler margin is 57.5 cents per pound, handler prices are estimated by summing the grower price and handler margin.

    Table 3—Proposed Marketing Order Assessment Rates as a Percentage of Prices for Pecans Received by Growers and Handlers Grower and handler prices 2012 2013 2014 Assessment rates *** Assessment rates as a % of prices
  • received
  • 2012
  • (%)
  • 2013
  • (%)
  • 2014
  • (%)
  • Grower price * Improved $1.73 $1.90 $2.12 $0.025 1.4 1.3 1.2 Native 0.88 0.92 0.88 0.015 1.7 1.6 1.7 Handler price ** Improved 2.31 2.48 2.70 0.025 1.08 1.01 0.93 Native 1.46 1.50 1.46 0.015 1.03 1.00 1.03 * Season average grower price per pound from NASS/USDA. ** Grower price plus average handler margin of 57.5 cents per pound, based on hearing evidence. *** Midpoints of proposed initial marketing order assessment rates: Improved (2 to 3 cents); Native (1 to 2 cents). For growers this represents the cost of the marketing order burden and for handlers this represents the cost of the assessment paid.

    For both improved and native pecans, using 2012 to 2014 prices as examples, Table 3 shows that the potential burden of the proposed program can be calculated at between 1 and 2 percent of operating expenses for growers and are approximately 1 percent of operating expenses for handlers. Grower and handler witnesses, both large and small, covering both improved and native pecans, testified that the proposed initial marketing order assessment rates would not represent a significant burden to their businesses and that the benefits of the proposed generic promotion program substantially outweigh the cost. Sheller witnesses (large and small) that would likely become handlers under a Federal marketing order testified that the additional recordkeeping required to collect assessments to send to the marketing order board (American Pecan Council) would not be a significant additional burden and that the benefits would substantially outweigh the costs. Several witnesses stated that one reason that collecting the assessments would have only a minor impact is that they already perform similar functions for promotion and other pecan-related programs (or other commodity programs) organized under state law.

    Additional Marketing Order Program Benefits

    Statements of support for additional benefits that could come from a Federal marketing order came from grower and handler witnesses, both large and small, covering both improved and native pecans. The additional benefits cited included: (1) Additional and more accurate market information, including data on production, inventory, and total supplies, (2) funding of research on health and nutrition aspects of pecans, improved technology relating to the pecan supply chain and crop health, consumer trends, and other topics, and (3) uniform, industry-wide quality standards for pecans, as well as packaging standards and shipping protocols. Witnesses testified that the burden of funding and participating in marketing order programs with these features would be minor, and that the benefits would substantially outweigh the costs.

    The proposed order would impose some reporting and recordkeeping requirements on handlers. However, testimony indicated that the expected burden that would be imposed with respect to these requirements would be negligible. Most of the information that would be reported to the Council is already compiled by handlers for other uses and is readily available. Reporting and recordkeeping requirements issued under other tree nut programs impose an average annual burden on each regulated handler of about 8 hours. It is reasonable to expect that a similar burden may be imposed under this proposed marketing order on the estimated 250 handlers of pecans in the proposed production area.

    The record evidence also indicates that the benefits to small as well as large handlers are likely to be greater than would accrue under the alternatives to the order proposed herein; namely, no marketing order.

    In determining that the proposed order and its provisions would not have a disproportionate economic impact on a substantial number of small entities, all of the issues discussed above were considered. Based on hearing record evidence and USDA's analysis of the economic information provided, the proposed order provisions have been carefully reviewed to ensure that every effort has been made to eliminate any unnecessary costs or requirements.

    Although the proposed order may impose some additional costs and requirements on handlers, it is anticipated that the order will help to strengthen demand for pecans. Therefore, any additional costs would be offset by the benefits derived from expanded sales benefiting handlers and growers alike. Accordingly, it is determined that the proposed order would not have a disproportionate economic impact on a substantial number of small handlers or growers.

    Finally, the Act requires that, prior to the issuance of a marketing order, a referendum be conducted among the affected growers to determine if they favor issuance of the order.

    Paperwork Reduction Act

    In compliance with OMB regulations (5 CFR part 1320) which implement the Paperwork Reduction Act of 1995 (Pub. L. 104-13), the ballot material that will be used in conducting the referendum has been submitted to and approved by OMB. The forms to be used for nomination and selection of the initial administrative committee have also been reviewed and approved by OMB.

    Any additional information collection and recordkeeping requirements that may be imposed under the order would be submitted to OMB for approval. Those requirements would not become effective prior to OMB approval.

    Civil Justice Reform

    The marketing agreement and order proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. If adopted, the proposed order would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this proposal.

    The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Department a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted there from. A handler is afforded the opportunity for a hearing on the petition. After the hearing, the USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Department's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

    Findings and Conclusions

    The findings and conclusions, rulings, and general findings and determinations included in the Recommended Decision set forth in the October 28, 2015, issue of the Federal Register (80 FR 66372), and as further revised in this Secretary's Decision, are hereby approved and adopted.

    Rulings on Exceptions

    In arriving at the findings and conclusions and the regulatory provisions of this decision, all exceptions to the proposed order were carefully considered in conjunction with the record evidence. To the extent that the findings and conclusions and the regulatory provisions of this decision are at variance with the exceptions, such exceptions are denied.

    Marketing Agreement and Order

    Annexed hereto and made a part hereof is the document entitled “Order Regulating the Handling of Pecans Grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas.” This document has been decided upon as the detailed and appropriate means of effectuating the foregoing findings and conclusions.

    It is hereby ordered, That this entire decision be published in the Federal Register.

    Referendum Order

    It is hereby directed that a referendum be conducted in accordance with the procedure for the conduct of referenda (7 CFR 900.400-407) to determine whether the issuance of the annexed order regulating the handling of pecans grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas is approved or favored by producers, as defined under the terms of the order, who during the representative period were engaged in the production of pecans in the production area.

    The representative period for the conduct of such referendum is hereby determined to be August 1, 2014, through July 31, 2015.

    The agents of the Secretary to conduct such referendum are hereby designated to be Christian Nissen and Jennie Varela, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1124 First Street South, Winter Haven, Florida 33880; telephone: (863) 324-3375; or fax: (863) 291-8614, or Email: [email protected] or [email protected], respectively.

    Order Regulating the Handling of Pecans Grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas.1

    1 This order shall not become effective unless and until the requirements of § 900.14 of the rules of practice and procedure governing proceedings to formulate marketing agreements and marketing orders have been met.

    Findings and Determinations

    Pursuant to the provisions of the Agricultural Marketing Agreement of 1937, as amended (7 U.S.C. 601 et seq.)and the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon a proposed marketing agreement and order regulation the handling of pecans grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas.

    Upon the basis of evidence introduced at such hearing and the record thereof, it is found that:

    (1) The proposed marketing agreement and order, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;

    (2) The proposed marketing agreement and order regulate the handling of pecans grown in the proposed production area in the same manner as, and are applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing agreement and order upon which a hearing has been held;

    (3) The proposed marketing agreement and order are limited in its application to the smallest regional production area that is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;

    (4) The proposed marketing agreement and order prescribe, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of pecans grown in the proposed production area; and

    (5) All handling of pecans grown in the proposed production area as defined in the proposed marketing agreement and order is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

    Order Relative to Handling

    It is therefore ordered, That on and after the effective date hereof, all handling of pecans grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas, shall be in conformity to, and in compliance with, the terms and conditions of the said order as hereby proposed to be amended as follows:

    The provisions of the proposed marketing agreement and order contained in the Recommended Decision issued on October 20, 2015, and published in the Federal Register on October 28, 2015 (80 FR 66372), and as further revised in this decision, shall be and are the terms and provisions of this proposed agreement and order and are set forth in full herein. Sections 986.97 through 986.99 apply only to the proposed marketing agreement and not the proposed order.

    List of Subjects in 7 CFR Part 986

    Marketing agreements, Pecans, Reporting and recordkeeping requirements.

    For the reasons set out in the preamble, The Agricultural Marketing Service proposes to add 7 CFR part 986 to read as follows:

    PART 986—PECANS GROWN IN THE STATES OF ALABAMA, ARKANSAS, ARIZONA, CALIFORNIA, FLORIDA, GEORGIA, KANSAS, LOUISIANA, MISSOURI, MISSISSIPPI, NORTH CAROLINA, NEW MEXICO, OKLAHOMA, SOUTH CAROLINA, AND TEXAS Subpart A—Order Regulating Handling of Pecans Definitions Sec. 986.1 Accumulator. 986.2 Act. 986.3 Affiliation. 986.4 Blowouts. 986.5 To certify. 986.6 Confidential data or information. 986.7 Container. 986.8 Council. 986.9 Crack. 986.10 Cracks. 986.11 Custom harvester. 986.12 Department or USDA. 986.13 Disappearance. 986.14 Farm Service Agency. 986.15 Fiscal year. 986.16 Grade and size. 986.17 Grower. 986.18 Grower-cleaned production. 986.19 Handler. 986.20 To handle. 986.21 Handler inventory. 986.22 Handler-cleaned production. 986.23 Hican. 986.24 Inshell pecans. 986.25 Inspection service. 986.26 Inter-handler transfer. 986.27 Merchantable pecans. 986.28 Pack. 986.29 Pecans. 986.30 Person. 986.31 Production area. 986.32 Proprietary capacity. 986.33 Regions. 986.34 Representative period. 986.35 Secretary. 986.36 Sheller. 986.37 Shelled pecans. 986.38 Stick-tights. 986.39 Trade supply. 986.40 Unassessed inventory. 986.41 Varieties. 986.42 Warehousing. 986.43 Weight. Administrative Body 986.45 American Pecan Council. 986.46 Council nominations and voting. 986.47 Alternate members. 986.48 Eligibility. 986.49 Acceptance. 986.50 Term of office. 986.51 Vacancy. 986.52 Council expenses. 986.53 Powers. 986.54 Duties. 986.55 Procedure. 986.56 Right of the Secretary. 986.57 Funds and other property. 986.58 Reapportionment and reestablishment of regions. Expenses, Assessments and Marketing Policy 986.60 Budget. 986.61 Assessments. 986.62 Inter-handler transfers. 986.63 Contributions. 986.64 Accounting. 986.65 Marketing policy. Authorities Relating To Research, Promotion, Data Gathering, Packaging, Grading, Compliance and Reporting 986.67 Recommendations for regulations. 986.68 Authority for research and promotion activities. 986.69 Authorities regulating handling. 986.70 Handling for special purposes. 986.71 Safeguards. 986.72 Notification of regulation. Reports, Books and Other Records 986.75 Reports of handler inventory. 986.76 Reports of merchantable pecans handled. 986.77 Reports of pecans received by handlers. 986.78 Other handler reports. 986.79 Verification of reports. 986.80 Certification of reports. 986.81 Confidential information. Administrative Provisions 986.86 Exemptions. 986.87 Compliance. 986.88 Duration of immunities. 986.89 Separability. 986.90 Derogation. 986.91 Liability. 986.92 Agents. 986.93 Effective time. 986.94 Termination. 986.95 Proceedings after termination. 986.96 Amendments. 986.97 Counterparts. 986.98 Additional participants. 986.99 Order with marketing agreement. Subpart B—[Reserved] Authority:

    7 U.S.C. 601-674.

    Subpart A—Order Regulating Handling of Pecans Definitions
    § 986.1 Accumulator.

    Accumulator means a person who compiles inshell pecans from other persons for the purpose of resale or transfer.

    § 986.2 Act.

    Act means Public Act No. 10, 73d Congress, as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 et seq.).

    § 986.3 Affiliation.

    Affiliation. This term normally appears as “affiliate of” or “affiliated with,” and means a person such as a grower or sheller who is: A grower or handler that directly, or indirectly through one or more intermediaries, owns or controls, or is controlled by, or is under common control with the grower or handler specified; or a grower or handler that directly, or indirectly through one or more intermediaries, is connected in a proprietary capacity, or shares the ownership or control of the specified grower or handler with one or more other growers or handlers. As used in this part, the term “control” (including the terms “controlling,” “controlled by,” and “under the common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a handler or a grower, whether through voting securities, membership in a cooperative, by contract or otherwise.

    § 986.4 Blowouts.

    Blowouts mean lightweight or underdeveloped inshell pecan nuts that are considered of lesser quality and market value.

    § 986.5 To certify.

    To certify means the issuance of a certification of inspection of pecans by the inspection service.

    § 986.6 Confidential data or information.

    Confidential data or information submitted to the Council consists of data or information constituting a trade secret or disclosure of the trade position, financial condition, or business operations of a particular entity or its customers.

    § 986.7 Container.

    Container means a box, bag, crate, carton, package (including retail packaging), or any other type of receptacle used in the packaging or handling of pecans.

    § 986.8 Council.

    Council means the American Pecan Council established pursuant to § 986.45, American Pecan Council.

    § 986.9 Crack.

    Crack means to break, crack, or otherwise compromise the outer shell of a pecan so as to expose the kernel inside to air outside the shell.

    § 986.10 Cracks.

    Cracks refer to an accumulated group or container of pecans that have been cracked in harvesting or handling.

    § 986.11 Custom harvester.

    Custom harvester means a person who harvests inshell pecans for a fee.

    § 986.12 Department or USDA.

    Department or USDA means the United States Department of Agriculture.

    § 986.13 Disappearance.

    Disappearance means the difference between the sum of grower-cleaned production and handler-cleaned production (whether from improved orchards or native and seedling groves) and the sum of inshell and shelled merchantable pecans reported on an inshell weight basis.

    § 986.14 Farm Service Agency.

    Farm Service Agency or FSA means that agency of the U.S. Department of Agriculture.

    § 986.15 Fiscal year.

    Fiscal year means the twelve months from October 1 to September 30, both inclusive, or any other such period deemed appropriate by the Council and approved by the Secretary.

    § 986.16 Grade and size.

    Grade and size means any of the officially established grades of pecans and any of the officially established sizes of pecans as set forth in the United States standards for inshell and shelled pecans or amendments thereto, or modifications thereof, or other variations of grade and size based thereon recommended by the Council and approved by the Secretary.

    § 986.17 Grower.

    (a) Grower is synonymous with producer and means any person engaged within the production area in a proprietary capacity in the production of pecans if such person:

    (1) Owns an orchard and harvests its pecans for sale (even if a custom harvester is used); or

    (2) Is a lessee of a pecan orchard and has the right to sell the harvest (even if the lessee must remit a percentage of the crop or rent to a lessor).

    (b) The term “grower” shall only include those who produce a minimum of 50,000 pounds of inshell pecans during a representative period (average of four years) or who own a minimum of 30 pecan acres according to the FSA, including acres calculated by the FSA based on pecan tree density. In the absence of any FSA delineation of pecan acreage, the regular definition of an acre will apply. The Council may recommend changes to this definition subject to the approval of the Secretary.

    § 986.18 Grower-cleaned production.

    Grower-cleaned production means production harvested and processed through a cleaning plant to determine volumes of improved pecans, native and seedling pecans, and substandard pecans to transfer to a handler for sale.

    § 986.19 Handler.

    Handler means any person who handles inshell or shelled pecans in any manner described in § 986.20.

    § 986.20 To handle.

    To handle means to receive, shell, crack, accumulate, warehouse, roast, pack, sell, consign, transport, export, or ship (except as a common or contract carrier of pecans owned by another person), or in any other way to put inshell or shelled pecans into any and all markets in the stream of commerce either within the area of production or from such area to any point outside thereof. The term “to handle” shall not include: Sales and deliveries within the area of production by growers to handlers; grower warehousing; custom handling (except for selling, consigning or exporting) or other similar activities paid for on a fee-for-service basis by a grower who retains the ownership of the pecans; or transfers between handlers.

    § 986.21 Handler inventory.

    Handler inventory means all pecans, shelled or inshell, as of any date and wherever located within the production area, then held by a handler for their account.

    § 986.22 Handler-cleaned production.

    Handler-cleaned production is production that is received, purchased or consigned from the grower by a handler prior to processing through a cleaning plant, and then subsequently processed through a cleaning plant so as to determine volumes of improved pecans, native and seedling pecans, and substandard pecans.

    § 986.23 Hican.

    Hican means a tree resulting from a cross between a pecan and some other type of hickory (members of the genus Carya) or the nut from such a hybrid tree.

    § 986.24 Inshell pecans.

    Inshell pecans are nuts whose kernel is maintained inside the shell.

    § 986.25 Inspection Service.

    Inspection service means the Federal-State Inspection Service or any other inspection service authorized by the Secretary.

    § 986.26 Inter-handler transfer.

    Inter-handler transfer means the movement of inshell pecans from one handler to another inside the production area for the purposes of additional handling. Any assessments or requirements under this part with respect to inshell pecans so transferred may be assumed by the receiving handler.

    § 986.27 Merchantable pecans.

    (a) Inshell. Merchantable inshell pecans mean all inshell pecans meeting the minimum grade regulations that may be effective pursuant to § 986.69, Authorities regulating handling.

    (b) Shelled. Merchantable shelled pecans means all shelled pecans meeting the minimum grade regulations that may be effective pursuant to § 986.69, Authorities regulating handling.

    § 986.28 Pack.

    Pack means to clean, grade, or otherwise prepare pecans for market as inshell or shelled pecans.

    § 986.29 Pecans.

    (a) Pecans means and includes any and all varieties or subvarieties of Genus: Carya, Species: illinoensis, expressed also as Carya illinoinensis (syn. C. illinoenses) including all varieties thereof, excluding hicans, that are produced in the production area and are classified as:

    (1) Native or seedling pecans harvested from non-grafted or naturally propagated tree varieties;

    (2) Improved pecans harvested from grafted tree varieties bred or selected for superior traits of nut size, ease of shelling, production characteristics, and resistance to certain insects and diseases, including but not limited to: Desirable, Elliot, Forkert, Sumner, Creek, Excel, Gracross, Gratex, Gloria Grande, Kiowa, Moreland, Sioux, Mahan, Mandan, Moneymaker, Morrill, Cunard, Zinner, Byrd, McMillan, Stuart, Pawnee, Eastern and Western Schley, Wichita, Success, Cape Fear, Choctaw, Cheyenne, Lakota, Kanza, Caddo, and Oconee; and

    (3) Substandard pecans that are blowouts, cracks, stick-tights, and other inferior quality pecans, whether native or improved, that, with further handling, can be cleaned and eventually sold into the stream of commerce.

    (b) The Council, with the approval of the Secretary, may recognize new or delete obsolete varieties or sub-varieties for each category.

    § 986.30 Person.

    Person means an individual, partnership, corporation, association, or any other business unit.

    § 986.31 Production area.

    Production area means the following fifteen pecan-producing states within the United States: Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Mississippi, Missouri, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas.

    § 986.32 Proprietary capacity.

    Proprietary capacity means the capacity or interest of a grower or handler that, either directly or through one or more intermediaries or affiliates, is a property owner together with all the appurtenant rights of an owner, including the right to vote the interest in that capacity as an individual, a shareholder, member of a cooperative, partner, trustee or in any other capacity with respect to any other business unit.

    § 986.33 Regions.

    (a) Regions within the production area shall consist of the following:

    (1) Eastern Region, consisting of: Alabama, Florida, Georgia, North Carolina, South Carolina

    (2) Central Region, consisting of: Arkansas, Kansas, Louisiana, Mississippi, Missouri, Oklahoma, Texas

    (3) Western Region, consisting of: Arizona, California, New Mexico

    (b) With the approval of the Secretary, the boundaries of any region may be changed pursuant to § 986.58, Reapportionment and reestablishment of regions.

    § 986.34 Representative period.

    Representative period is the previous four fiscal years for which a grower's annual average production is calculated, or any other period recommended by the Council and approved by the Secretary.

    § 986.35 Secretary.

    Secretary means the Secretary of Agriculture of the United States, or any other officer or employee of the United States Department of Agriculture who is, or who may be, authorized to perform the duties of the Secretary of Agriculture of the United States.

    § 986.36 Sheller.

    Sheller refers to any person who converts inshell pecans to shelled pecans and sells the output in any and all markets in the stream of commerce, both within and outside of the production area; Provided, That the term “sheller” shall only include those who shell more than 1 million pounds of inshell pecans in a fiscal year. The Council may recommend changes to this definition subject to the approval of the Secretary.

    § 986.37 Shelled pecans.

    Shelled pecans are pecans whose shells have been removed leaving only edible kernels, kernel pieces or pecan meal. Shelled pecans are synonymous with pecan meats.

    § 986.38 Stick-tights.

    Stick-tights means pecans whose outer shuck has adhered to the shell causing their value to decrease or be discounted.

    § 986.39 Trade supply.

    Trade supply means the quantity of merchantable inshell or shelled pecans that growers will supply to handlers during a fiscal year for sale in the United States and abroad or, in the absence of handler regulations § 986.69 setting forth minimum grade regulations for merchantable pecans, the sum of handler-cleaned and grower-cleaned production.

    § 986.40 Unassessed inventory.

    Unassessed inventory means inshell pecans held by growers or handlers for which no assessment has been paid to the Council.

    § 986.41 Varieties.

    Varieties mean and include all cultivars, classifications, or subdivisions of pecans.

    § 986.42 Warehousing.

    Warehousing means to hold assessed or unassessed inventory.

    § 986.43 Weight.

    Weight means pounds of inshell pecans, received by handler within each fiscal year; Provided, That for shelled pecans the actual weight shall be multiplied by two to obtain an inshell weight.

    Administrative Body
    § 986.45 American Pecan Council.

    The American Pecan Council is hereby established consisting of 17 members selected by the Secretary, each of whom shall have an alternate member nominated with the same qualifications as the member. The 17 members shall include nine (9) grower seats, six (6) sheller seats, and two (2) at-large seats allocated to one accumulator and one public member. The grower and sheller nominees and their alternates shall be growers and shellers at the time of their nomination and for the duration of their tenure. Grower and sheller members and their alternates shall be selected by the Secretary from nominees submitted by the Council. The two at-large seats shall be nominated by the Council and appointed by the Secretary.

    (a) Each region shall be allocated the following member seats:

    (1) Eastern Region: three (3) growers and two (2) shellers;

    (2) Central Region: three (3) growers and two (2) shellers;

    (3) Western Region: three (3) growers and two (2) shellers.

    (b) Within each region, the grower and sheller seats shall be defined as follows:

    (1) Grower seats: Each region shall have a grower Seat 1 and Seat 2 allocated to growers whose acreage is equal to or exceeds 176 pecan acres. Each region shall also have a grower Seat 3 allocated to a grower whose acreage is less than 176 pecan acres.

    (2) Sheller seats: Each region shall have a sheller Seat 1 allocated to a sheller who handles more than 12.5 million pounds of inshell pecans in the fiscal year preceding nomination, and a sheller Seat 2 allocated to a sheller who handles less than or equal to 12.5 million pounds of inshell pecans in the fiscal year preceding nomination.

    (c) The Council may recommend, subject to the approval of the Secretary, revisions to the above requirements for grower and sheller seats to accommodate changes within the industry.

    § 986.46 Council nominations and voting.

    Nomination of Council members and alternate members shall follow the procedure set forth in this section, or as may be changed as recommended by the Council and approved by the Secretary. All nominees must meet the requirements set forth in §§ 986.45, American Pecan Council, and 986.48, Eligibility, or as otherwise identified by the Secretary, to serve on the Council.

    (a) Initial members. Nominations for initial Council members and alternate members shall be conducted by the Secretary by either holding meetings of shellers and growers, by mail, or by email, and shall be submitted on approved nomination forms. Eligibility to cast votes on nomination ballots, accounting of nomination ballot results, and identification of member and alternate nominees shall follow the procedures set forth in this section, or by any other criteria deemed necessary by the Secretary. The Secretary shall select and appoint the initial members and alternate members of the Council.

    (b) Successor members. Subsequent nominations of Council members and alternate members shall be conducted as follows:

    (1) Call for nominations. (i) Nominations for the grower member seats for each region shall be received from growers in that region on approved forms containing the information stipulated in this section.

    (ii) If a grower is engaged in producing pecans in more than one region, such grower shall nominate in the region in which they grow the largest volume of their production.

    (iii) Nominations for the sheller member seats for each region shall be received from shellers in that region on approved forms containing the information stipulated in this section.

    (iv) If a sheller is engaged in handling in more than one region, such sheller shall nominate in the region in which they shelled the largest volume in the preceding fiscal year.

    (2) Voting for nominees. (i) Only growers, through duly authorized officers or employees of growers, if applicable, may participate in the nomination of grower member nominees and their alternates. Each grower shall be entitled to cast only one nomination ballot for each of the three grower seats in their region.

    (ii) If a grower is engaged in producing pecans in more than one region, such grower shall cast their nomination ballot in the region in which they grow the largest volume of their production. Notwithstanding this stipulation, such grower may vote their volume produced in any or all of the three regions.

    (iii) Only shellers, through duly authorized officers or employees of shellers, if applicable, may participate in the nomination of the sheller member nominees and their alternates. Each sheller shall be entitled to cast only one nomination ballot for each of the two sheller seats in their region.

    (iv) If a sheller is engaged in handling in more than one region, such sheller shall cast their nomination ballot in the region in which they shelled the largest volume in the preceding fiscal year. Notwithstanding this stipulation, such sheller may vote their volume handled in all three regions.

    (v) If a person is both a grower and a sheller of pecans, such person may not participate in both grower and sheller nominations. Such person must elect to participate either as a grower or a sheller.

    (3) Nomination procedure for grower seats. (i) The Council shall mail to all growers who are on record with the Council within the respective regions a grower nomination ballot indicating the nominees for each of the three grower member seats, along with voting instructions. Growers may cast ballots on the proper ballot form either at meetings of growers, by mail, or by email as designated by the Council. For ballots to be considered, they must be submitted on the proper forms with all required information, including signatures.

    (ii) On the ballot, growers shall indicate their vote for the grower nominee candidates for the grower seats and also indicate their average annual volume of inshell pecan production for the preceding four fiscal years.

    (iii) Seat 1 (growers with equal to or more than 176 acres of pecans). The nominee for this seat in each region shall be the grower receiving the highest volume of production (pounds of inshell pecans) votes from the respective region, and the grower receiving the second highest volume of production votes shall be the alternate member nominee for this seat. In case of a tie vote, the nominee shall be selected by a drawing.

    (iv) Seat 2 (growers with equal to or more than 176 acres of pecans). The nominee for this seat in each region shall be the grower receiving the highest number of votes from their respective region, and the grower receiving the second highest number of votes shall be the alternate member nominee for this seat. In case of a tie vote, the nominee shall be selected by a drawing.

    (v) Seat 3 (grower with less than 176 acres of pecans). The nominee for this seat in each region shall be the grower receiving the highest number of votes from the respective region, and the grower receiving the second highest number of votes shall be the alternate member nominee for this seat. In case of a tie vote, the nominee shall be selected by a drawing.

    (4) Nomination procedure for sheller seats. (i) The Council shall mail to all shellers who are on record with the Council within the respective regions the sheller ballot indicating the nominees for each of the two sheller member seats in their respective regions, along with voting instructions. Shellers may cast ballots on approved ballot forms either at meetings of shellers, by mail, or by email as designated by the Council. For ballots to be considered, they must be submitted on the approved forms with all required information, including signatures.

    (ii) Seat 1 (shellers handling more than 12.5 million lbs. of inshell pecans in the preceding fiscal year). The nominee for this seat in each region shall be assigned to the sheller receiving the highest number of votes from the respective region, and the sheller receiving the second highest number of votes shall be the alternate member nominee for this seat. In case of a tie vote, the nominee shall be selected by a drawing.

    (iii) Seat 2 (shellers handling equal to or less than 12.5 million lbs. of inshell pecans in the preceding fiscal year). The nominee for this seat in each region shall be assigned to the sheller receiving the highest number of votes from the respective region, and the sheller receiving the second highest number of votes shall be the alternate member nominee for this seat. In case of a tie vote, the nominee shall be selected by a drawing.

    (5) Reports to the Secretary. Nominations in the foregoing manner received by the Council shall be reported to the Secretary on or before 15 of each July of any year in which nominations are held, together with a certified summary of the results of the nominations and other information deemed by the Council to be pertinent or requested by the Secretary. From those nominations, the Secretary shall select the fifteen grower and sheller members of the Council and an alternate for each member, unless the Secretary rejects any nomination submitted. In the event the Secretary rejects a nomination, a second nomination process may be conducted to identify other nominee candidates, the resulting nominee information may be reported to the Secretary after July 15 and before September 15. If the Council fails to report nominations to the Secretary in the manner herein specified, the Secretary may select the members without nomination. If nominations for the public and accumulator at-large members are not submitted by September 15 of any year in which their nomination is due, the Secretary may select such members without nomination.

    (6) At-large members. The grower and sheller members of the Council shall select one public member and one accumulator member and respective alternates for consideration, selection and appointment by the Secretary. The public member and alternate public member may not have any financial interest, individually or corporately, or affiliation with persons vested in the pecan industry. The accumulator member and alternate accumulator member must meet the criteria set forth in § 986.1, Accumulator, and may reside or maintain a place of business in any region.

    (7) Nomination forms. The Council may distribute nomination forms at meetings, by mail, by email, or by any other form of distribution recommended by the Council and approved by the Secretary.

    (i) Grower nomination forms. Each nomination form submitted by a grower shall include the following information:

    (A) The name of the nominated grower;

    (B) The name and signature of the nominating grower;

    (C) Two additional names and respective signatures of growers in support of the nomination;

    (D) Any other such information recommended by the Council and approved by the Secretary.

    (ii) Sheller nomination forms. Each nomination form submitted by a sheller shall include the following:

    (A) The name of the nominated sheller;

    (B) The name and signature of the nominating sheller;

    (C) One additional name and signature of a sheller in support of the nomination;

    (D) Any other such information recommended by the Council and approved by the Secretary.

    (8) Changes to the nomination and voting procedures.

    The Council may recommend, subject to the approval of the Secretary, a change to these procedures should the Council determine that a revision is necessary.

    § 986.47 Alternate members.

    (a) Each member of the Council shall have an alternate member to be nominated in the same manner as the member.

    (b) An alternate for a member of the Council shall act in the place and stead of such member in their absence or in the event of their death, removal, resignation, or disqualification, until the next nomination and elections take place for the Council or the vacancy has been filled pursuant to § 986.48, Eligibility.

    (c) In the event any member of the Council and their alternate are both unable to attend a meeting of the Council, any alternate for any other member representing the same group as the absent member may serve in the place of the absent member.

    § 986.48 Eligibility.

    (a) Each grower member and alternate shall be, at the time of selection and during the term of office, a grower or an officer, or employee, of a grower in the region and in the classification for which nominated.

    (b) Each sheller member and alternate shall be, at the time of selection and during the term of office, a sheller or an officer or employee of a sheller in the region and in the classification for which nominated.

    (c) A grower can be a nominee for only one grower member seat. If a grower is nominated for two grower member seats, he or she shall select the seat in which he or she desires to run, and the grower ballot shall reflect that selection.

    (d) Any member or alternate member who at the time of selection was employed by or affiliated with the person who is nominated shall, upon termination of that relationship, become disqualified to serve further as a member and that position shall be deemed vacant.

    (e) No person nominated to serve as a public member or alternate public member shall have a financial interest in any pecan grower or handling operation.

    § 986.49 Acceptance.

    Each person to be selected by the Secretary as a member or as an alternate member of the Council shall, prior to such selection, qualify by advising the Secretary that if selected, such person agrees to serve in the position for which that nomination has been made.

    § 986.50 Term of office.

    (a) Selected members and alternate members of the Council shall serve for terms of four years: Provided, That at the end of the first four (4) year term and in the nomination and selection of the second Council only, four of the grower member and alternate seats and three of the sheller member and alternate seats shall be seated for terms of two years so that approximately half of the memberships' and alternates' terms expire every two years thereafter. Member and alternate seats assigned two-year terms for the seating of the second Council only shall be as follows:

    (1) Grower member Seat 2 in all regions shall be assigned a two-year term;

    (2) Grower member Seat 3 in all regions shall, by drawing, identify one member seat to be assigned a two-year term; and,

    (3) Sheller Seat 2 in all regions shall be assigned a two-year term.

    (b) Council members and alternates may serve up to two consecutive, four-year terms of office. Subject to section (c) below, in no event shall any member or alternate serve more than eight consecutive years on the Council as either a member or an alternate. However, if selected, an alternate having served up to two consecutive terms may immediately serve as a member for two consecutive terms without any interruption in service. The same is true for a member who, after serving for up to two consecutive terms, may serve as an alternate if nominated without any interruption in service. A person having served the maximum number of terms as set forth above may not serve again as a member or an alternate for at least twelve consecutive months. For purposes of determining when a member or alternate has served two consecutive terms, the accrual of terms shall begin following any period of at least twelve consecutive months out of office.

    (c) Each member and alternate member shall continue to serve until a successor is selected and has qualified.

    (d) A term of office shall begin as set forth in the by-laws or as directed by the Secretary each year for all members.

    (e) The Council may recommend, subject to approval of the Secretary, revisions to the start day for the term of office, the number of years in a term, and the number of terms a member or an alternate can serve.

    § 986.51 Vacancy.

    Any vacancy on the Council occurring by the failure of any person selected to the Council to qualify as a member or alternate member due to a change in status making the member ineligible to serve, or due to death, removal, or resignation, shall be filled, by a majority vote of the Council for the unexpired portion of the term. However, that person shall fulfill all the qualifications set forth in this part as required for the member whose office that person is to fill. The qualifications of any person to fill a vacancy on the Council shall be certified in writing to the Secretary. The Secretary shall notify the Council if the Secretary determines that any such person is not qualified.

    § 986.52 Council expenses.

    The members and their alternates of the Council shall serve without compensation, but shall be reimbursed for the reasonable and necessary expenses incurred by them in the performance of their duties under this part.

    § 986.53 Powers.

    The Council shall have the following powers:

    (a) To administer the provisions of this part in accordance with its terms;

    (b) To make bylaws, rules and regulations to effectuate the terms and provisions of this part;

    (c) To receive, investigate, and report to the Secretary complaints of violations of this part; and

    (d) To recommend to the Secretary amendments to this part.

    § 986.54 Duties.

    The duties of the Council shall be as follows:

    (a) To act as intermediary between the Secretary and any handler or grower;

    (b) To keep minute books and records which will clearly reflect all of its acts and transactions, and such minute books and records shall at any time be subject to the examination of the Secretary;

    (c) To furnish to the Secretary a complete report of all meetings and such other available information as he or she may request;

    (d) To appoint such employees as it may deem necessary and to determine the salaries, define the duties, and fix the bonds of such employees;

    (e) To cause the books of the Council to be audited by one or more certified public accountants at least once for each fiscal year and at such other times as the Council deems necessary or as the Secretary may request, and to file with the Secretary three copies of all audit reports made;

    (f) To investigate the growing, shipping and marketing conditions with respect to pecans and to assemble data in connection therewith;

    (g) To investigate compliance with the provisions of this part; and,

    (h) To recommend by-laws, rules and regulations for the purpose of administering this part.

    § 986.55 Procedure.

    (a) The members of the Council shall select a chairman from their membership, and shall select such other officers and adopt such rules for the conduct of Council business as they deem advisable.

    (b) The Council may provide for meetings by telephone, or other means of communication, and any vote cast at such a meeting shall be confirmed promptly in writing. The Council shall give the Secretary the same notice of its meetings as is given to members of the Council.

    (c) Quorum. A quorum of the Council shall be any twelve voting Council members. The vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the Council; Provided, That:

    (1) Actions of the Council with respect to the following issues shall require a two-thirds (12 members) concurring vote of the Council:

    (i) Establishment of or changes to by-laws;

    (ii) Appointment or administrative issues relating to the program's manager or chief executive officer;

    (iii) Budget;

    (iv) Assessments;

    (v) Compliance and audits;

    (vi) Reestablishment of regions and reapportionment or reallocation of Council membership;

    (vii) Modifying definitions of grower and sheller;

    (viii) Research or promotion activities under § 986.68;

    (ix) Grade, quality and size regulation under § 986.69(a)(1) and (2);

    (x) Pack and container regulation under § 986.69(a)(3); and,

    (2) Actions of the Council with respect to the securing of commercial bank loans for the purpose of financing start-up costs of the Council and its activities or securing financial assistance in emergency situations shall require a unanimous vote of all members present at an in-person meeting; Provided, That in the event of an emergency that warrants immediate attention sooner than a face-to-face meeting is possible, a vote for financing may be taken. In such event, the Council's first preference is a videoconference and second preference is phone conference, both followed by written confirmation of the members attending the meeting.

    § 986.56 Right of the Secretary.

    The members and alternates for members and any agent or employee appointed or employed by the Council shall be subject to removal or suspension by the Secretary at any time. Each and every regulation, decision, determination, or other act shall be subject to the continuing right of the Secretary to disapprove of the same at any time, and, upon such disapproval, shall be deemed null and void, except as to acts done in reliance thereon or in compliance therewith prior to such disapproval by the Secretary.

    § 986.57 Funds and other property.

    (a) All funds received pursuant to any of the provisions of this part shall be used solely for the purposes specified in this part, and the Secretary may require the Council and its members to account for all receipts and disbursements.

    (b) Upon the death, resignation, removal, disqualification, or expiration of the term of office of any member or employee, all books, records, funds, and other property in their possession belonging to the Council shall be delivered to their successor in office or to the Council, and such assignments and other instruments shall be executed as may be necessary to vest in such successor or in the Council full title to all the books, records, funds, and other property in the possession or under the control of such member or employee pursuant to this subpart.

    § 986.58 Reapportionment and reestablishment of regions.

    The Council may recommend, subject to approval of the Secretary, reestablishment of regions, reapportionment of members among regions, and may revise the groups eligible for representation on the Council. In recommending any such changes, the following shall be considered:

    (a) Shifts in acreage within regions and within the production area during recent years;

    (b) The importance of new production in its relation to existing regions;

    (c) The equitable relationship between Council apportionment and regions;

    (d) Changes in industry structure and/or the percentage of crop represented by various industry entities; and

    (e) Other relevant factors.

    Expenses, Assessments and Marketing Policy
    § 986.60 Budget.

    As soon as practicable before the beginning of each fiscal year, and as may be necessary thereafter, the Council shall prepare a budget of income and expenditures necessary for the administration of this part. The Council may recommend a rate of assessment calculated to provide adequate funds to defray its proposed expenditures. The Council shall present such budget to the Secretary with an accompanying report showing the basis for its calculations, and all shall be subject to Secretary approval.

    § 986.61 Assessments.

    (a) Each handler who first handles inshell pecans shall pay assessments to the Council. Assessments collected each fiscal year shall defray expenses which the Secretary finds reasonable and likely to be incurred by the Council during that fiscal year. Each handler's share of assessments paid to the Council shall be equal to the ratio between the total quantity of inshell pecans handled by them as the first handler thereof during the applicable fiscal year, and the total quantity of inshell pecans handled by all regulated handlers in the production area during the same fiscal year. The payment of assessments for the maintenance and functioning of the Council may be required under this part throughout the period it is in effect irrespective of whether particular provisions thereof are suspended or become inoperative. Handlers may avail themselves of an inter-handler transfer, as provided for in § 986.62, Inter-handler transfers.

    (b) Based upon a recommendation of the Council or other available data, the Secretary shall fix three base rates of assessment for inshell pecans handled during each fiscal year. Such base rates shall include one rate of assessment for any or all varieties of pecans classified as native and seedling; one rate of assessment for any or all varieties of pecans classified as improved; and one rate of assessment for any pecans classified as substandard.

    (c) Upon implementation of this part and subject to the approval of the Secretary, initial assessment rates per classification shall be set within the following prescribed ranges: Native and seedling classified pecans shall be assessed at one-cent to two-cents per pound; improved classified pecans shall be assessed at two-cents to three-cents per pound; and, substandard classified pecans shall be assessed at one-cent to two-cents per pound. These assessment ranges shall be in effect for the initial four years of the order.

    (d) Subsequent assessment rates shall not exceed two percent of the aggregate of all prices in each classification across the production area based on Council data, or the average of USDA reported average price received by growers for each classification, in the preceding fiscal year as recommended by the Council and approved by the Secretary. After four years from the implementation of this part, the Council may recommend, subject to the approval of the Secretary, revisions to this calculation or assessment ranges.

    (e) The Council, with the approval of the Secretary, may revise the assessment rates if it determines, based on information including crop size and value, that the action is necessary, and if the revision does not exceed the assessment limitation specified in this section and is made prior to the final billing of the assessment.

    (f) In order to provide funds for the administration of the provisions of this part during the first part of a fiscal year, before sufficient operating income is available from assessments, the Council may accept the payment of assessments in advance and may also borrow money for such purposes; Provided, That no loan may amount to more than 50 percent of projected assessment revenue projected for the year in which the loan is secured, and the loan must be repaid within five years.

    (g) If a handler does not pay assessments within the time prescribed by the Council, the assessment may be increased by a late payment charge and/or an interest rate charge at amounts prescribed by the Council with approval of the Secretary.

    (h) On August 31 of each year, every handler warehousing inshell pecans shall be identified as the first handler of those pecans and shall be required to pay the assessed rate on the category of pecans in their possession on that date. The terms of this paragraph may be revised subject to the recommendation of the Council and approval by the Secretary.

    (i) On August 31 of each year, all inventories warehoused by growers from the current fiscal year shall cease to be eligible for inter-handler transfer treatment. Instead, such inventory will require the first handler that handles such inventory to pay the assessment thereon in accordance with the prevailing assessment rates at the time of transfer from the grower to the said handler. The terms of this paragraph may be revised subject to the recommendation of the Council and approval by the Secretary.

    § 986.62 Inter-handler transfers.

    Any handler inside the production area, except as provided for in § 986.61 (h) and (i), Assessments, may transfer inshell pecans to another handler inside the production area for additional handling, and any assessments or other marketing order requirements with respect to pecans so transferred may be assumed by the receiving handler. The Council, with the approval of the Secretary, may establish methods and procedures, including necessary reports, to maintain accurate records for such transfers. All inter-handler transfers will be documented by forms or electronic transfer receipts approved by the Council, and all forms or electronic transfer receipts used for inter-handler transfers shall require that copies be sent to the selling party, the receiving party, and the Council. Such forms must state which handler has the assessment responsibilities.

    § 986.63 Contributions.

    The Council may accept voluntary contributions. Such contributions may only be accepted if they are free from any encumbrances or restrictions on their use and the Council shall retain complete control of their use. The Council may receive contributions from both within and outside of the production area.

    § 986.64 Accounting.

    (a) Assessments collected in excess of expenses incurred shall be accounted for in accordance with one of the following:

    (1) Excess funds not retained in a reserve, as provided in paragraph (a)(2) of this section shall be refunded proportionately to the persons from whom they were collected; or

    (2) The Council, with the approval of the Secretary, may carry over excess funds into subsequent fiscal periods as reserves: Provided, That funds already in reserves do not equal approximately three fiscal years' expenses. Such reserve funds may be used:

    (i) To defray expenses during any fiscal period prior to the time assessment income is sufficient to cover such expenses;

    (ii) To cover deficits incurred during any fiscal period when assessment income is less than expenses;

    (iii) To defray expenses incurred during any period when any or all provisions of this part are suspended or are inoperative; and

    (iv) To cover necessary expenses of liquidation in the event of termination of this part.

    (b) Upon such termination, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Secretary may determine to be appropriate. To the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.

    (c) All funds received by the Council pursuant to the provisions of this part shall be used solely for the purposes specified in this part and shall be accounted for in the manner provided for in this part. The Secretary may at any time require the Council and its members to account for all receipts and disbursements.

    (d) Upon the removal or expiration of the term of office of any member of the Council, such member shall account for all receipts and disbursements and deliver all property and funds in their possession to the Council, and shall execute such assignments and other instruments as may be necessary or appropriate to vest in the Council full title to all of the property, funds, and claims vested in such member pursuant to this part.

    (e) The Council may make recommendations to the Secretary for one or more of the members thereof, or any other person, to act as a trustee for holding records, funds, or any other Council property during periods of suspension of this subpart, or during any period or periods when regulations are not in effect and if the Secretary determines such action appropriate, he or she may direct that such person or persons shall act as trustee or trustees for the Council.

    § 986.65 Marketing policy.

    By the end of each fiscal year, the Council shall make a report and recommendation to the Secretary on the Council's proposed marketing policy for the next fiscal year. Each year such report and recommendation shall be adopted by the affirmative vote of at least two-thirds (2/3) of the members of the Council and shall include the following and, where applicable, on an inshell basis:

    (a) Estimate of the grower-cleaned production and handler-cleaned production in the area of production for the fiscal year;

    (b) Estimate of disappearance;

    (c) Estimate of the improved, native, and substandard pecans;

    (d) Estimate of the handler inventory on August 31, of inshell and shelled pecans;

    (e) Estimate of unassessed inventory;

    (f) Estimate of the trade supply, taking into consideration imports, and other factors;

    (g) Preferable handler inventory of inshell and shelled pecans on August 31 of the following year;

    (h) Projected prices in the new fiscal year;

    (i) Competing nut supplies; and

    (j) Any other relevant factors.

    Authorities Relating to Research, Promotion, Data Gathering, Packaging, Grading, Compliance and Reporting
    § 986.67 Recommendations for regulations.

    Upon complying with § 986.65, Marketing policy, the Council may propose regulations to the Secretary whenever it finds that such proposed regulations may assist in effectuating the declared policy of the Act.

    § 986.68 Authority for research and promotion activities.

    The Council, with the approval of the Secretary, may establish or provide for the establishment of production research, marketing research and development projects, and marketing promotion, including paid generic advertising, designed to assist, improve, or promote the marketing, distribution, and consumption or efficient production of pecans including product development, nutritional research, and container development. The expenses of such projects shall be paid from funds collected pursuant to this part.

    § 986.69 Authorities regulating handling.

    (a) The Council may recommend, subject to the approval of the Secretary, regulations that:

    (1) Establish handling requirements or minimum tolerances for particular grades, sizes, or qualities, or any combination thereof, of any or all varieties or classifications of pecans during any period;

    (2) Establish different handling requirements or minimum tolerances for particular grades, sizes, or qualities, or any combination thereof for different varieties or classifications, for different containers, for different portions of the production area, or any combination of the foregoing, during any period;

    (3) Fix the size, capacity, weight, dimensions, or pack of the container or containers, which may be used in the packaging, transportation, sale, preparation for market, shipment, or other handling of pecans; and

    (4) Establish inspection and certification requirements for the purposes of paragraphs (a)(1) through (3) of this section.

    (b) Regulations issued hereunder may be amended, modified, suspended, or terminated whenever it is determined:

    (1) That such action is warranted upon recommendation of the Council and approval by the Secretary, or other available information; or

    (2) That regulations issued hereunder no longer tend to effectuate the declared policy of the Act.

    (c) The authority to regulate as put forward in this subsection shall not in any way constitute authority for the Council to recommend volume regulation, such as reserve pools, producer allotments, or handler withholding requirements which limit the flow of product to market for the purpose of reducing market supply.

    (d) The Council may recommend, subject to the approval of the Secretary, rules and regulations to effectuate this subpart.

    § 986.70 Handling for special purposes.

    Regulations in effect pursuant to § 986.69, Authorities regulating handling, may be modified, suspended, or terminated to facilitate handling of pecans for:

    (a) Relief or charity;

    (b) Experimental purposes; and

    (c) Other purposes which may be recommended by the Council and approved by the Secretary.

    § 986.71 Safeguards.

    The Council, with the approval of the Secretary, may establish through rules such requirements as may be necessary to establish that shipments made pursuant to § 986.70, Handling for special purposes, were handled and used for the purpose stated.

    § 986.72 Notification of regulation.

    The Secretary shall promptly notify the Council of regulations issued or of any modification, suspension, or termination thereof. The Council shall give reasonable notice thereof to industry participants.

    Reports, Books and Other Records
    § 986.75 Reports of handler inventory.

    Each handler shall submit to the Council in such form and on such dates as the Council may prescribe, reports showing their inventory of inshell and shelled pecans.

    § 986.76 Reports of merchantable pecans handled.

    Each handler who handles merchantable pecans at any time during a fiscal year shall submit to the Council in such form and at such intervals as the Council may prescribe, reports showing the quantity so handled and such other information pertinent thereto as the Council may specify.

    § 986.77 Reports of pecans received by handlers.

    Each handler shall file such reports of their pecan receipts from growers, handlers, or others in such form and at such times as may be required by the Council with the approval of the Secretary.

    § 986.78 Other handler reports.

    Upon request of the Council made with the approval of the Secretary each handler shall furnish such other reports and information as are needed to enable the Council to perform its duties and exercise its powers under this part.

    § 986.79 Verification of reports.

    For the purpose of verifying and checking reports filed by handlers on their operations, the Secretary and the Council, through their duly authorized representatives, shall have access to any premises where pecans and pecan records are held. Such access shall be available at any time during reasonable business hours. Authorized representatives of the Council or the Secretary shall be permitted to inspect any pecans held and any and all records of the handler with respect to matters within the purview of this part. Each handler shall maintain complete records on the receiving, holding, and disposition of all pecans. Each handler shall furnish all labor necessary to facilitate such inspections at no expense to the Council or the Secretary. Each handler shall store all pecans held by him in such manner as to facilitate inspection and shall maintain adequate storage records which will permit accurate identification with respect to inspection certificates of respective lots and of all such pecans held or disposed of theretofore. The Council, with the approval of the Secretary, may establish any methods and procedures needed to verify reports.

    § 986.80 Certification of reports.

    All reports submitted to the Council as required in this part shall be certified to the Secretary and the Council as to the completeness and correctness of the information contained therein.

    § 986.81 Confidential information.

    All reports and records submitted by handlers to the Council, which include data or information constituting a trade secret or disclosing the trade position, or financial condition or business operations of the handler shall be kept in the custody of one or more employees of the Council and shall be disclosed to no person except the Secretary.

    § 986.82 Books and other records.

    Each handler shall maintain such records of pecans received, held and disposed of by them as may be prescribed by the Council for the purpose of performing its duties under this part. Such books and records shall be retained and be available for examination by authorized representatives of the Council and the Secretary for the current fiscal year and the preceding three (3) fiscal years.

    Additional Provisions
    § 986.86 Exemptions.

    (a) Any handler may handle inshell pecans within the production area free of the requirements of this part if such pecans are handled in quantities not exceeding 1,000 inshell pounds during any fiscal year.

    (b) Any handler may handle shelled pecans within the production area free of the requirements of this part if such pecans are handled in quantities not exceeding 500 shelled pounds during any fiscal year.

    (c) Mail order sales are not exempt sales under this part.

    (d) The Council, with the approval of the Secretary, may establish such rules, regulations, and safeguards, and require such reports, certifications, and other conditions, as are necessary to ensure compliance with this part.

    § 986.87 Compliance.

    Except as provided in this subpart, no handler shall handle pecans, the handling of which has been prohibited by the Secretary in accordance with provisions of this part, or the rules and regulations thereunder.

    § 986.88 Duration of immunities.

    The benefits, privileges, and immunities conferred by virtue of this part shall cease upon termination hereof, except with respect to acts done under and during the existence of this part.

    § 986.89 Separability.

    If any provision of this part is declared invalid, or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remaining provisions and the applicability thereof to any other person, circumstance, or thing shall not be affected thereby.

    § 986.90 Derogation.

    Nothing contained in this part is or shall be construed to be in derogation of, or in modification of, the rights of the Secretary or of the United States to exercise any powers granted by the Act or otherwise, or, in accordance with such powers, to act in the premises whenever such action is deemed advisable.

    § 986.91 Liability.

    No member or alternate of the Council nor any employee or agent thereof, shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any party under this part or to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member, alternate, agent or employee, except for acts of dishonesty, willful misconduct, or gross negligence. The Council may purchase liability insurance for its members and officers.

    § 986.92 Agents.

    The Secretary may name, by designation in writing, any person, including any officer or employee of the USDA or the United States to act as their agent or representative in connection with any of the provisions of this part.

    § 986.93 Effective time.

    The provisions of this part and of any amendment thereto shall become effective at such time as the Secretary may declare, and shall continue in force until terminated in one of the ways specified in § 986.94.

    § 986.94 Termination.

    (a) The Secretary may at any time terminate this part.

    (b) The Secretary shall terminate or suspend the operation of any or all of the provisions of this part whenever he or she finds that such operation obstructs or does not tend to effectuate the declared policy of the Act.

    (c) The Secretary shall terminate the provisions of this part applicable to pecans for market or pecans for handling at the end of any fiscal year whenever the Secretary finds, by referendum or otherwise, that such termination is favored by a majority of growers; Provided, That such majority of growers has produced more than 50 percent of the volume of pecans in the production area during such fiscal year. Such termination shall be effective only if announced on or before the last day of the then current fiscal year.

    (d) The Secretary shall conduct a referendum within every five-year period beginning from the implementation of this part, to ascertain whether continuance of the provisions of this part applicable to pecans are favored by two-thirds by number or volume of growers voting in the referendum. The Secretary may terminate the provisions of this part at the end of any fiscal year in which the Secretary has found that continuance of this part is not favored by growers who, during an appropriate period of time determined by the Secretary, have been engaged in the production of pecans in the production area: Provided, That termination of this part shall be effective only if announced on or before the last day of the then current fiscal year.

    (e) The provisions of this part shall, in any event, terminate whenever the provisions of the Act authorizing them cease to be in effect.

    § 986.95 Proceedings after termination.

    (a) Upon the termination of this part, the Council members serving shall continue as joint trustees for the purpose of liquidating all funds and property then in the possession or under the control of the Council, including claims for any funds unpaid or property not delivered at the time of such termination.

    (b) The joint trustees shall continue in such capacity until discharged by the Secretary; from time to time accounting for all receipts and disbursements; delivering all funds and property on hand, together with all books and records of the Council and of the joint trustees to such person as the Secretary shall direct; and, upon the request of the Secretary, executing such assignments or other instruments necessary and appropriate to vest in such person full title and right to all of the funds, property, or claims vested in the Council or in said joint trustees.

    (c) Any funds collected pursuant to this part and held by such joint trustees or such person over and above the amounts necessary to meet outstanding obligations and the expenses necessarily incurred by the joint trustees or such other person in the performance of their duties under this subpart, as soon as practicable after the termination hereof, shall be returned to the handlers pro rata in proportion to their contributions thereto.

    (d) Any person to whom funds, property, or claims have been transferred or delivered by the Council, upon direction of the Secretary, as provided in this part, shall be subject to the same obligations and duties with respect to said funds, property, or claims as are imposed upon said joint trustees.

    § 986.96 Amendments.

    Amendments to this part may be proposed from time to time by the Council or by the Secretary.

    § 986.97 Counterparts.

    Handlers may sign an agreement with the Secretary indicating their support for this marketing order. This agreement may be executed in multiple counterparts by each handler. If more than fifty percent of the handlers, weighted by the volume of pecans handled during an appropriate period of time determined by the Secretary, enter into such an agreement, then a marketing agreement shall exist for the pecans marketing order. This marketing agreement shall not alter the terms of this part. Upon the termination of this part, the marketing agreement has no further force or effect.

    § 986.98 Additional parties.

    After this part becomes effective, any handler may become a party to the marketing agreement if a counterpart is executed by the handler and delivered to the Secretary.

    § 986.99 Order with marketing agreement.

    Each signatory handler hereby requests the Secretary to issue, pursuant to the Act, an order for regulating the handling of pecans in the same manner as is provided for in this agreement.

    Subpart B—[Reserved] Dated: February 22, 2016. Elanor Starmer, Acting Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-04043 Filed 2-26-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF ENERGY 10 CFR Part 430 [Docket Number EERE-2015-BT-STD-0008] RIN 1904-AD52 Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meetings for the Dedicated Purpose Pool Pumps (DPPP) Working Group To Negotiate a Notice of Proposed Rulemaking (NOPR) for Energy Conservation Standards AGENCY:

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

    ACTION:

    Notice of proposed rulemaking; public meetings.

    SUMMARY:

    The Department of Energy (DOE) announces public meetings and webinars for the DPPP Working Group. The Federal Advisory Committee Act requires that agencies publish notice of an advisory committee meeting in the Federal Register.

    On July 30, 2015, ASRAC met and unanimously passed the recommendation to form a dedicated purpose pool pumps (DPPP) working group to meet and discuss and, if possible, reach consensus on proposed Federal rules that would apply to this equipment. The ASRAC Charter allowed for 3 months of working group meetings to establish the scope, metric, definitions, and test procedure for dedicated purpose pool pumps and decide on a path forward at that time. The working group met this requirement and now more time is required to discuss potential energy conservation standards for this equipment. On January 20, 2016, ASRAC met and recommended that the DPPP Working Group continue its work to develop and recommend potential energy conservation standards for this equipment. This notice announces the next series of meetings for this working group.

    DATES:

    See SUPPLEMENTARY INFORMATION section for meeting dates.

    ADDRESSES:

    The meetings will be held at U.S. Department of Energy, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585 unless otherwise stated in the SUPPLEMENTARY INFORMATION section. Individuals will also have the opportunity to participate by webinar. To register for the webinars and receive call-in information, please register at DOE's Web site https://www1.eere.energy.gov/buildings/appliance_standards/rulemaking.aspx/ruleid/14.

    FOR FURTHER INFORMATION CONTACT:

    Mr. John Cymbalsky, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-1692. Email: [email protected]

    Ms. Johanna Jochum, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-9496. Email: [email protected].

    SUPPLEMENTARY INFORMATION:

    DOE will host public meetings and webinars on the below dates. Meetings will be hosted at DOE's Forrestal Building, unless otherwise stated.

    • March 21, 2016; 9:00 a.m.-5:00 p.m. at 955 L'Enfant Plaza, 8th Floor • March 22, 2016; 9:00 a.m.-5:00 p.m. at Navigant, 1200 19th St. NW., #700, Washington, DC 20036 • April 18, 2016; 9:00 a.m.-5:00 p.m. at DOE's Forrestal Building, Room 6E-069 • April 19, 2016; 9:00 a.m.-5:00 p.m. at DOE's Forrestal Building, Room 6A-110

    Members of the public are welcome to observe the business of the meeting and, if time allows, may make oral statements during the specified period for public comment. To attend the meeting and/or to make oral statements regarding any of the items on the agenda, email [email protected] . In the email, please indicate your name, organization (if appropriate), citizenship, and contact information. Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If you are a foreign national, and wish to participate in the public meeting, please inform DOE as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email: [email protected] so that the necessary procedures can be completed. Anyone attending the meeting will be required to present a government photo identification, such as a passport, driver's license, or government identification. Due to the required security screening upon entry, individuals attending should arrive early to allow for the extra time needed.

    Due to the REAL ID Act implemented by the Department of Homeland Security (DHS) recent changes have been made regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required.

    DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, Louisiana, New York, American Samoa, Maine, Oklahoma, Arizona, Massachusetts, Washington, and Minnesota.

    Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced Driver's License or Enhanced ID-Card issued by the states of Minnesota, New York or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); A military ID or other Federal government issued Photo-ID card.

    Docket: The docket is available for review at www.regulations.gov, including Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials. All documents in the docket are listed in the www.regulations.gov index. However, not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure.

    Issued in Washington, DC, on February 19, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-04321 Filed 2-26-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF JUSTICE Bureau of Prisons 28 CFR Part 552 [BOP-1167-P] RIN 1120-AB67 Use of Chemical Agents or Other Less-Than-Lethal Force in Immediate Use of Force Situations AGENCY:

    Bureau of Prisons, Justice.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document, the Bureau of Prisons (Bureau) proposes to amend its regulation on the use of chemical agents or other less-than-lethal force to provide that such use is authorized for staff in immediate use of force (emergency) situations.

    DATES:

    Written comments must be submitted on or before April 29, 2016.

    ADDRESSES:

    Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street NW., Washington, DC 20534.

    FOR FURTHER INFORMATION CONTACT:

    Sarah N. Qureshi, Rules Unit, Office of General Counsel, Bureau of Prisons, phone (202) 353-8248.

    SUPPLEMENTARY INFORMATION:

    Posting of Public Comments. Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

    If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

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

    Personal identifying information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the “For Additional Information” paragraph.

    Discussion

    In this document, the Bureau of Prisons (Bureau) proposes to amend its regulations to explicitly authorize staff to utilize chemical agents or other less-than-lethal force in immediate use of force (emergency) situations. We also make a few minor edits for clarification and organization. We describe the proposed changes in further detail below.

    At the outset, we note that we are replacing the term “weapons” with the term “devices” both in the title and the body of the regulation. This is consistent with terminology used in Department of Justice policy describing the use of less-than-lethal force.

    § 552.25 Use of Less-Than-Lethal Devices, Including Chemical Agents—New Paragraph (a)

    Currently § 552.25 allows the Warden to authorize the use of less-than-lethal devices, including chemical agents, when the situation is such that a delay in action would constitute a serious hazard to the inmate or others, or would result in a major disturbance or serious property damage, and the inmate is either armed and/or barricaded; or cannot be approached without a danger to self or others. The Warden may delegate his authority to one or more supervisors on duty and physically present, but not below the position of Lieutenant.

    In addition, under current § 552.21(d), the use of less-than-lethal devices could also be appropriate “where the facts and circumstances known to the staff member would warrant a person using sound correctional judgment to reasonably believe other action is necessary (as a last resort) to prevent serious physical injury, or serious property damage which would immediately endanger the safety of staff, inmates, or others.” Although this language indicates that a staff member in a situation where he or she reasonably believed action was necessary could use less-than-lethal force to “prevent serious physical injury, or serious property damage which would immediately endanger the safety of staff, inmates or others,” use of less-than-lethal devices, including chemical agents, by staff in immediate use of force (emergency) situations is not explicitly authorized.

    The Bureau therefore proposes to amend § 552.25 by adding a new paragraph (a), clearly indicating that “Staff are authorized to use chemical agents or other less-than-lethal devices in immediate use of force situations pursuant to this subpart.”

    Current BOP regulations already define the parameters for immediate use of force situations. Section 552.21(a)currently defines “immediate use of force,” stating that “[st]aff may immediately use force and/or apply restraints when the behavior described in § 552.20 constitutes an immediate, serious threat to the inmate, staff, others, property, or to institution security and good order.” Section 552.20 authorizes Bureau staff to use force only as a last alternative, and only to the extent necessary to address the inmate behavior which threatens the safety, security and good order of the facility, or protection of the public.

    Bureau of Prisons staff frequently respond to critical incidents and dangerous situations in Bureau facilities. Several incidents in recent years have resulted in injury to Bureau staff. Inmate attacks on staff continue to escalate, evolve and diversify, recent attacks have proceeded quickly, with more planning than in previous dangerous encounters. Sudden violent large-scale incidents involving large numbers of inmates, require immediate action. Measures are therefore necessary to ensure that staff are clearly authorized to promptly and safely control inmates during violent situations and mitigate the risk of serious bodily harm. This rule change would directly authorize staff to carry less-than-lethal devices for deployment in immediate use of force (emergency) situations.

    The goal of the proposed rule is to increase the safety of staff and inmates when staff respond to incidents involving violence, and to prevent injury to staff and inmates due to an assault or serious resistance to staff control. The rule will provide staff with immediate access to a less-than lethal-device, enabling quick containment of incidents, reducing opportunities for injuries to staff and inmates. Currently, responders to dangerous encounters do not have self-protection capability without direct physical contact with involved inmates. There have been occasions where disruptive inmates have resisted control techniques by responding staff. In some instances, inmates armed with weapons have turned their attacks on staff. Staff have also responded to critical incidents on recreation yards which were not successfully interrupted by verbal commands and the non-immediate discharge of one or more less-than-lethal devices and warning shots. These dangers increase the potential for assaults and injury, both to staff and to other inmates, and pose a general risk to the safety and security of the facility.

    The use of less-than-lethal devices has become accepted throughout the law enforcement community. Correctional staff at the majority of state and local correctional facilities routinely carry and utilize less-than-lethal devices to protect themselves from inmate attacks and prevent dangerous encounters from escalating. Several of these state agencies have allowed line staff to utilize less-than-lethal devices for more than a decade.

    National Institute of Justice (NIJ) studies of the use of chemical agents published in 1997 (Evaluation of Pepper Spray. NJC 162358, February 1997, by Steven M. Edwards, John Granfield, and Jamie Onnen (8 pages).) and 2003 (The Effectiveness and Safety of Pepper Spray. NJC 195739, April 2003, by National Institute of Justice (19 pages).) documented similar increases in compliance and reductions in injuries in community law enforcement situations. Although the study did not examine use of chemical agents in correctional settings, the long term studies by NIJ show that the use of force complaints, injuries to officers, and injuries to aggressive persons have fallen significantly anywhere less-than-lethal force is an option.

    Based on the above information and the authority already provided in § 552.21(d), the Bureau conducted a limited test of the usefulness and effectiveness of staff use of less-than-lethal devices (Oleoresin Capsicum [OC, or MK-4]) in select Bureau facilities. During the period from October 15, 2012 to March 14, 2013, the Bureau found that the average containment time in facilities using OC in immediate use of force situations was 2.93 minutes, as compared to the 5.48 minutes in facilities which did not use any less-than lethal weapon in immediate use of force situations. In other words, the use of OC resulted in an average containment time that was a full 2.55 minutes faster.

    We therefore make this change to increase the safety of staff and inmates when staff respond to incidents involving violence, and to prevent injury to staff and inmates due to an assault or serious resistance to staff control, by providing staff with immediate access to a less-than lethal-device, thereby enabling quick containment of incidents and reducing opportunities for injuries to staff and inmates.

    § 552.25 Use of Less-Than-Lethal Devices, Including Chemical Agents—Paragraph (b)

    The Bureau also proposes to redesignate current § 552.25(a) and (b) into paragraph (b) and (c), respectively. The only changes made are non-substantive conforming changes to accommodate new paragraph (a), as described above. The wording and intent of this language remains the same.

    Executive Orders 12866 and 13563—Regulatory Review

    This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review” section 1(b), Principles of Regulation and in accordance with Executive Order 13563 “Improving Regulation and Regulatory Review” section 1(b) General Principles of Regulation.

    The Department of Justice has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has been reviewed by the Office of Management and Budget. This rule is a delegation of authority from the Director of BOP to explicitly authorize the use of less-than-lethal devices in immediate use of force (emergency) situations.

    Further, both Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has assessed the costs and benefits of this regulation and believes that the regulatory approach selected maximizes net benefits.

    Executive Order 13132

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

    Regulatory Flexibility Act

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

    Unfunded Mandates Reform Act of 1995

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

    Small Business Regulatory Enforcement Fairness Act of 1996

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

    List of Subjects in 28 CFR Part 571.

    Prisoners.

    Kathleen M. Kenney, Assistant Director/General Counsel, Federal Bureau of Prisons.

    Under rulemaking authority vested in the Attorney General in 5 U.S.C. 301, 28 U.S.C. 509, 510, and delegated to the Director, Bureau of Prisons in 28 CFR 0.96, we propose to amend 28 CFR part 552, chapter V, subchapter C, as follows:

    Subchapter C—Institutional Management PART 552—CUSTODY 1. The authority citation for part 552 continues to read as follows: Authority:

    5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99.

    2. Revise § 552.25 to read as follows:
    § 552.25 Use of less-than-lethal devices, including chemical agents.

    (a) Staff are authorized to use chemical agents or other less-than-lethal devices in immediate use of force situations pursuant to this subpart.

    (b) For situations other than immediate use of force situations, the Warden may authorize the use of less-than-lethal devices, including those containing chemical agents, only when a delay in bringing the situation under control would constitute a serious hazard to the inmate or others, or would result in a major disturbance or serious property damage, and the situation is such that the inmate:

    (1) Is armed and/or barricaded; or

    (2) Cannot be approached without danger to self or others.

    (c) The Warden may delegate the authority under paragraph (b) to one or more supervisors on duty and physically present, but not below the position of Lieutenant.

    [FR Doc. 2016-04069 Filed 2-26-16; 8:45 am] BILLING CODE 4410-05-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [Docket No. USCG-2014-0142] RIN 1625-AA01 Anchorage Regulations: Special Anchorage Areas, Marina del Rey Harbor, California AGENCY:

    Coast Guard, DHS.

    ACTION:

    Supplemental notice of proposed rulemaking.

    SUMMARY:

    On May 28, 2014, the Coast Guard published a notice of proposed rulemaking (NPRM) to disestablish the special anchorage in Marina del Rey Harbor, California. Based on the comments received in response to that NPRM, we are now proposing to amend the shape and reduce the size of the special anchorage in Marina del Rey Harbor, California. Additionally, we propose to clarify the language in the note section of the existing regulation. This SNPRM would leave sufficient navigable water on adjacent sides of the anchorage for vessel traffic, effectively removing this special anchorage area from a location where it could endanger vessel traffic.

    DATES:

    Comments and related material must be received by the Coast Guard on or before April 14, 2016.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2014-0142 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Lieutenant Van Vu, Waterways Management Division, U.S. Coast Guard District 11, telephone (510) 437-2978, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NOAA National Oceanic and Atmospheric Administration NPRM Notice of proposed rulemaking SNPRM Supplemental notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    The legal basis for the proposed rule is: 33 U.S.C. 471, 1221, through 1236, and 2071; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 0170.1, which collectively authorized the Coast Guard to define anchorage areas. A special anchorage area is a designated water area within which vessels less than 65 feet (20 meters) in length are not required to: Sound signals required by Rule 35 of the Inland Navigation Rules (33 CFR 83.35); or exhibit the white anchor lights or shapes required by Rule 30 of the Inland Navigation Rules (33 CFR 83.30). By regulation, special anchorage areas should be well removed from the fairways and located where general navigation will not endanger or be endangered by unlighted vessels (33 CFR 109.10).

    This supplemental notice of proposed rulemaking (SNPRM) is intended to reduce the size of the anchorage. The amended anchorage will leave sufficient navigable water on adjacent sides of the anchorage for vessel traffic, effectively removing the anchorage from a location where it could endanger vessel traffic. The proposed rule would better accommodate transiting vessels and create a clearly defined area for anchored vessels, thus improving navigation safety.

    A. Regulatory History and Information

    In 1967, the Coast Guard placed the regulation for a special anchorage area in the main channel of Marina del Rey in 33 CFR, as anchorage regulations were transferred from the Army Corp of Engineers to the Coast Guard (32 FR 17726, 17737, Dec. 12, 1967). The specific regulations and boundaries for this special anchorage area are defined by coordinates in 33 CFR 110.111.

    On May 28, 2014, we published a notice of proposed rulemaking (NPRM) entitled Anchorage Regulations: Special Anchorage Area, Marina del Rey, California, in the Federal Register (79 FR 30509) to disestablish the anchorage. The purpose was to align the regulations with the current and future configuration of the main channel and docking facilities. On November 4, 2014, we published a notice for a public meeting (79 FR 65361). The meeting was held in Marina del Rey, CA on November 20, 2014. At the public meeting, we heard from six speakers. For greater public participation, all comments submitted to the public docket as late as January 5, 2015 were considered. In addition to the six speakers at the public meeting, we received comments in 44 written submissions to the docket. Based on all comments received we have prepared this supplemental notice of proposed rulemaking (SNPRM) which proposes to maintain the anchorage but amend the boundaries and reduce the size of the anchorage.

    B. Discussion of Comments on NPRM and Changes

    The Coast Guard received 44 written submissions to the docket and heard from six speakers at the public meeting regarding the NRPM to disestablish the anchorage. All written submissions thru the portal, the recorded transcript of the public meeting and all other documents pertaining to this topic are available in the public docket for this rulemaking, where indicated under ADDRESSES.

    Below, we have summarized the received comments and our response to these comments.

    The Coast Guard received 31 comments to keep the anchorage as is or to establish an alternate anchorage at another location in the harbor. The Coast Guard understands the commenters' concern of the need for a safe refuge for transiting recreational vessels during storms or other dangerous conditions. Thus, we are proposing a smaller anchorage as an option for mariners.

    The Coast Guard received eight comments for a public hearing and additional time for public comment. We held a public meeting in Marina Del Rey on November 20, 2014 and considered comments received until January 5, 2015.

    The Coast Guard received nine comments in support of removing the anchorage. Some of those comments indicated that vessels anchoring in the existing anchorage in the main channel create an unsafe situation. Other comments reported mariners rarely use the anchorage and there is little knowledge of its existence. The special anchorage is clearly marked on the chart with reference to the applicable regulation. A copy of the National Oceanic and Atmospheric Administration (NOAA) Office of Coast Survey Chart number 18744 has been posted to the docket to illustrate this point. The Coast Guard has determined the current special anchorage area encompassing the entire channel width at the north end of the harbor could cause an unsafe situation. In this SNPRM, the Coast Guard is proposing a smaller special anchorage area which will allow vessel traffic to pass safely on all sides.

    The Coast Guard received two comments and questions at the public meeting in November concerning proposed projects located outside of the anchorage area. The Coast Guard indicated these comments addressed areas and subjects outside the anchorage that would not impact the existing anchorage and were beyond the scope of the proposed rulemaking.

    III. Discussion of SNPRM Proposed Rule

    This proposed rule would decrease the size of the current anchorage in Marina del Rey harbor. Currently, it is a trapezoid-shaped anchorage of approximately 0.48 square nautical miles. The Coast Guard proposes to change the shape of the anchorage from a trapezoid to a rectangle and decrease its size from approximately 0.48 to 0.11 square nautical miles. The revised anchorage would be moved to the middle of the channel across from Burton Chace Park, with its northern boundary line approximately from the midpoint of basin G extending south to the midpoint of Basin H. The anchorage dimensions would be 1154 feet in length and 365 feet in width. The distance from the closest shore side dock to the anchorage boundary would be approximately 243 feet. The anchorage boundaries are described, using precise coordinates, in the proposed regulatory text at the end of this document.

    This proposed rule would also amend the note section for 33 CFR 110.111 to clarify the purpose of the anchorage, as well as the types of vessels eligible to use the anchorage. It would also reflect that the Marina del Rey Harbor Master, Los Angeles County, prescribes local regulations for mooring and boating activities in this harbor, rather than the Director, Department of Small Craft Harbors, Los Angeles County, which is obsolete. This updated note will clarify the role of the Marina del Rey Harbor Master in the administration of the special anchorage.

    IV. Regulatory Analyses

    We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

    A. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

    We expect the economic impact of this proposed rule would not be significant to the maritime and local community. The existing anchorage is currently used only in emergency circumstances, and this proposed change will not significantly reduce the number of vessels using the anchorage.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This proposed rule may affect the following entities, some of which might be small entities: The owners or operator of recreational vessels that have a need to anchor in Marina del Rey special anchorage.

    This proposed rule would not have a significant impact on a substantial number of small entities. Although this rule would decrease the size of the special anchorage area, the proposed dimensions provide sufficient space for vessels to anchor when authorized by the Harbor Master, without presenting a hazard to vessels transiting in the channel.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Government

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

    Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the amendment of a currently-existing anchorage area. Normally such actions are categorically excluded from further review under paragraph 34(f) of Figure 2-1 of the Commandant Instruction M16475.1D. A preliminary environmental analysis checklist and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. As demonstrated by this SNPRM, your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal erulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instruction.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

    Documents mentioned in this SNPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    We plan to hold a public meeting to receive oral comments on this SNPRM and will announce the date, time, and location in a separate document published in the Federal Register. If you signed up for docket email alerts mentioned in the paragraph above, you will receive an email notice when the public meeting notice is published and placed in the docket.

    List of Subjects in 33 CFR Part 110

    Anchorage grounds.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 110 as follows:

    PART 110—ANCHORAGE REGULATIONS 1. The authority citation for part 110 continues to read as follows: Authority:

    33 U.S.C. 471, 1221 through 1236, 2071; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

    2. Revise § 110.111 to read as follows:
    § 110.111 Marina del Rey Harbor, Calif.

    An area in the main channel encompassed within the following described boundaries: Beginning at the northeasterly corner in position latitude 33°58′41.6″ N., longtitude 118°26′50.8″ W.; thence southerly to latitude 33°58′30.2″ N., longtitude 118°26′50.8″ W.; thence westerly to latitude 33°58′30.2″ N., longtitude 118°26′55.1″ W.; thence northerly to latitude 33°58′41.6″ N., longtitude 118°26′55.1″ W.; thence easterly to the point of origin. All coordinates referenced North American Datum 1983.

    Note to § 110.111:

    The Marina Del Rey Harbor Master, Los Angeles County prescribes local regulations for mooring and boating activities in this area.

    Dated: February 8, 2016. J. A. Servidio, Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard District.
    [FR Doc. 2016-04336 Filed 2-26-16; 8:45 am] BILLING CODE 9110-04-P
    POSTAL SERVICE 39 CFR Part 501 Revisions to the Requirements for Authority To Manufacture and Distribute Postage Evidencing Systems AGENCY:

    Postal ServiceTM.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Postal Service proposes to revise its rules concerning PC postage payment methodology by adding supplementary information to clarify the revenue assurance guidelines.

    DATES:

    Submit comments on or before March 30, 2016.

    ADDRESSES:

    Mail or deliver written comments to the Manager, Payment Technology, U.S. Postal Service®, 475 L'Enfant Plaza SW., Room 3500, Washington, DC 20260. You may inspect and photocopy all written comments at the Payment Technology office by appointment only between the hours of 9 a.m. and 4 p.m., Monday through Friday by calling 1-202-268-7613 in advance. Email and faxed comments are not accepted.

    FOR FURTHER INFORMATION CONTACT:

    Marlo Kay Ivey, Business Systems Analyst, Payment Technology, U.S. Postal Service, (202) 268-7613.

    SUPPLEMENTARY INFORMATION:

    On July 17, 2015, the United States Postal Service published a final rule to revise the rules concerning authorization to manufacture and distribute postage evidencing systems and to reflect new revenue assurance practices. (See 80 FR 42392-42393.) Postage collection under the new rules will start on December 31, 2016. This document proposes minor additional changes to the rules in support of our efforts to collect the appropriate revenue on mail pieces in a more automated fashion. If this proposal is adopted, the proposed clarifying changes will also be implemented on December 31, 2016. The revenue assurance guidelines can be found in 39 CFR 501.16, and on https://ribbs.usps.gov in the site index of Automated Package Verification (APV) documents, named APV Standard Operating Procedure (SOP).

    List of Subjects in 39 CFR Part 501

    Administrative practice and procedure.

    Accordingly, for the reasons stated, the Postal Service proposes to amend 39 CFR part 501 as follows:

    PART 501—AUTHORIZATION TO MANUFACTURE AND DISTRIBUTE POSTAGE EVIDENCING SYSTEMS 1. The authority citation for 39 CFR part 501 continues to read as follows: Authority:

    5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 410, 2601, 2605, Inspector General Act of 1978, as amended (Pub. L. 95-452, as amended); 5 U.S.C. App. 3.

    2. In § 501.16, revise paragraph (i) to read as follows:
    § 501.16 PC postage payment methodology.

    (i) Revenue Assurance. (1) The provider must support business practices to assure Postal Service revenue and accurate payment from customers. For purposes of this paragraph and the Automated Package Verification (APV) Standard Operating Procedure (SOP) document available at https://ribbs.usps.gov, references to “provider” and “PC Postage Vendor” shall include postage resellers when such resellers transmit postage revenue to the Postal Service in any manner other than through a PC Postage provider. With respect to such transactions, the resellers, and not the PC Postage providers who provides the labels, are responsible for complying with these regulations. A “reseller” is an entity that obtains postage through a provider and is authorized to resell such postage to its customers pursuant to an agreement with the Postal Service.

    (2) Specifically, the provider is required to pay the Postage Adjustment or to notify the customer and adjust the balance in the postage evidencing system or otherwise facilitate postage corrections to address any postage discrepancies as directed by the Postal Service no later than 60 days after initial notification by the Postal Service, subject to the applicable notification periods and dispute mechanisms available to customers for these corrections. Postage Adjustment is defined as a difference between the postage paid for a service offered by the Postal Service and the current published/negotiated rate indicating the postage due to the Postal Service for the weight, packaging, dimensions and zone of the mail piece as applicable. The Postal Service will supply the provider with the necessary detail to justify the correction and amount of the postage correction to be used in the adjustment process. The provider must pay the postage adjustment or supply customers with visibility into identified postage correction, facilitate a payment adjustment from the customer in the amount equivalent to the identified postage discrepancies to the extent possible, and enable customers to submit electronic disputes of such postage discrepancies to the Postal Service. Further if the Customer does not have funds sufficient to cover the amount of the discrepancies or the postage discrepancies have not been resolved, the provider may be required to temporarily suspend or permanently shut down the customer's ability to print PC Postage as described in Domestic Mail Manual (DMM) 604.4.

    (3) If the provider incorrectly programmed postage rates, delayed programming postage rate changes or otherwise provided systems or software, which caused customers to pay incorrect postage amounts, within two calendar weeks of the provider being made aware of such error, the provider shall correct the error and, in the event that the amount of collected revenue is less than the amount of revenue that should have been collected absent the error, (i) pay the Postal Service for the postage deficiency and (ii) provide the Postal Service with a detailed breakdown of how the error affected the provider's collection of revenue.

    (4) Except as may otherwise expressly be agreed to by contract, the provider is responsible for ensuring that:

    (i) All customers pay (and the Postal Service receives) the current published prices that are available to mailers who purchase postage through an approved PC Postage provider; and

    (ii) Payments to the Postal Service (or the log files necessary for the Postal Service to collect payments directly from customers) are complete and accurate and are initiated or transmitted, as applicable, to the Postal Service each day.

    (5) Each PC Postage Provider:

    (i) Is responsible for ensuring that customers are informed, understand and agree that they may be charged for deficient payment before they complete their initial transactions;

    (ii) Shall comply with applicable laws and ensure that its systems, software, interfaces, communications and other properties that are used to sell or market postal products accurately describe such products;

    (iii) Shall cover any costs that the Postal Service may incur as a result of any act or omission of such provider or its employees, contractors or representatives in connection with its role as a PC Postage provider; and

    (iv) In performing its obligations hereunder, shall comply with the APV SOP and all agreed to interface documentation (as updated from time to time).

    Stanley F. Mires, Attorney, Federal Compliance.
    [FR Doc. 2016-04237 Filed 2-26-16; 8:45 am] BILLING CODE P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R02-OAR-2016-0061, FRL-9943-03-Region 2] Disapproval of Air Quality Implementation Plans; Puerto Rico; Attainment Demonstration for the Arecibo Lead Nonattainment Area AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to disapprove a State Implementation Plan, submitted by the Commonwealth of Puerto Rico to the EPA on January 30, 2015, for the purpose of providing for attainment of the 2008 Lead National Ambient Air Quality Standards in the Arecibo 2008 Lead nonattainment area. While the SIP includes all of the required elements for the Arecibo Area, the EPA proposes disapproval because the dispersion modeling analysis does not demonstrate attainment of the lead standard.

    DATES:

    Comments must be received on or before March 30, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R02-OAR-2016-0061 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Mazeeda Khan, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-3715, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. What action is the EPA proposing? II. What is the background information for this proposal? III. What is included in Puerto Rico's proposed SIP submittal? IV. What is the EPA's analysis of Puerto Rico's attainment plan submittal? a. Modeling Approach b. Modeling Results V. What are the consequences of a disapproved SIP? a. What are the Act's provisions for sanctions? b. What federal implementation plan provisions apply if a State fails to submit an approvable plan? c. What are the ramifications regarding conformity? VI. What are the EPA's conclusions? VII. Statutory and Executive Order Reviews a. Executive Order 12866: Regulatory Planning and Review b. Paperwork Reduction Act c. Regulatory Flexibility Act d. Unfunded Mandates Reform Act e. Executive Order 13132: Federalism f. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments g. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks h. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use i. National Technology Transfer Advancement Act I. What action is the EPA proposing?

    The Environmental Protection Agency (EPA) is proposing to disapprove Puerto Rico's State Implementation Plan (SIP), as submitted through the Puerto Rico Environmental Quality Board (PREQB) to the EPA on January 30, 2015, for the purpose of demonstrating attainment of the 2008 Lead National Ambient Air Quality Standards (NAAQS) in the Arecibo 2008 Lead nonattainment area (hereafter referred to as the “Arecibo Area” or “Area”). The Arecibo Area is comprised of a portion of Arecibo County in Puerto Rico with a 4 kilometer radius surrounding The Battery Recycling Company, Inc. (hereafter referred to as “TBRCI”). Puerto Rico's lead attainment plan for the Arecibo Area includes a base year emissions inventory, a modeling demonstration of lead attainment, an analysis of reasonably available control measures (RACM)/reasonably available control technology (RACT), a reasonable further progress (RFP) plan, and contingency measures.

    The EPA proposes to determine that Puerto Rico's attainment plan for the 2008 Lead NAAQS for the Arecibo Area does not meet the applicable requirements of the Act. The EPA is proposing to disapprove Puerto Rico's attainment plan for the Arecibo Area because the dispersion modeling analysis does not demonstrate attainment of the lead standard in all areas, as discussed in Section IV of this proposed rulemaking.

    II. What is the background information for this proposal?

    On November 12, 2008 (73 FR 66964), the EPA revised the Lead NAAQS, lowering the level from 1.5 micrograms per cubic meter (μg/m3) to 0.15 μg/m3 calculated over a three-month rolling average. The EPA established the 2008 Lead NAAQS based on significant evidence and numerous health studies demonstrating that serious health effects are associated with exposures to lead emissions.

    Following promulgation of a new or revised NAAQS, the EPA is required by the Clean Air Act (CAA) to designate areas throughout the United States as attaining or not attaining the NAAQS; this designation process is described in section 107(d)(1) of the CAA. On November 22, 2010 (75 FR 71033), the EPA promulgated initial air quality designations for the 2008 Lead NAAQS, which became effective on December 31, 2010, based on air quality monitoring data for calendar years 2007-2009, where there was sufficient data to support a nonattainment designation. Designations for all remaining areas were completed on November 22, 2011 (76 FR 72097), which became effective on December 31, 2011, based on air quality monitoring data for calendar years 2008-2010. Effective on December 31, 2011, the Arecibo Area was designated as nonattainment for the 2008 Lead NAAQS, based on air quality monitoring data from June 2010. This designation triggered a requirement for Puerto Rico to submit a SIP revision by July 1, 2013 with a plan for how the Area would attain the 2008 Lead NAAQS, as expeditiously as practicable, but no later than December 31, 2016.

    III. What is included in Puerto Rico's proposed SIP submittal?

    In accordance with section 172(c) of the CAA and 40 CFR 51.117, Puerto Rico's attainment plan for the Arecibo Area includes: (1) An emissions inventory for the plan's base year (2011); and (2) an attainment demonstration. The attainment demonstration includes: Technical analyses that locate, identify and quantify sources of emissions contributing to violations of the 2008 Lead NAAQS; a modeling analysis of an emissions control strategy for TBRCI facility that does not attain the Lead NAAQS by the attainment year (2016); and contingency measures required under section 172(c)(9) of the CAA.

    IV. What is the EPA's analysis of Puerto Rico's attainment plan submittal?

    The CAA requirements (see, e.g., section 172(c)(4)) and the Lead SIP regulations found at 40 CFR 51.117) require states to employ atmospheric dispersion modeling for the demonstration of attainment of the Lead NAAQS for areas in the vicinity of point sources listed in 40 CFR 51.117(a)(1), as expeditiously as practicable. Section 302(d) of the CAA includes the Commonwealth of Puerto Rico in the definition of the term “State.” The demonstration must also meet the requirements of 40 CFR 51.112 and 40 CFR part 51, App. W, and include inventory data, modeling results, and emissions reduction analyses on which the Commonwealth has based its projected attainment. All these requirements comprise the “attainment plan” that is required for lead nonattainment areas.

    The Puerto Rico modeling analysis was prepared using the EPA's preferred dispersion modeling system, the American Meteorological Society/Environmental Protection Agency Regulatory Model (AERMOD) consisting of the AERMOD model and two data input preprocessors AERMET, and AERMAP, consistent with the EPA's Modeling Guidance 1 and 40 CFR 51.117. More detailed information on the AERMOD Modeling system and other modeling tools and documents can be found on the EPA Technology Transfer Network Support Center for Regulatory Atmospheric Modeling (SCRAM) (http://www.the EPA.gov/ttn/scram/) and in Puerto Rico's January 30, 2015 SIP submittal, in the docket for this proposed action (EPA-R04-OAR-2014-0220) on the www.regulations.gov Web site. A brief description of the modeling used to support the Commonwealth of Puerto Rico's attainment demonstration is provided below.

    1 40 CFR part 51 Appendix W (The EPA's Guideline on Air Quality Models) (November 2005) located at http://www.epa.gov/ttn/scram/guidance/guide/appw_05.pdf.

    a. Modeling Approach

    The following is an overview of the air quality modeling approach used in Puerto Rico's SIP submittal on January 30, 2015.

    AERMOD pre-processors, AERMET and AERMAP were used to process one year of site-specific meteorological data from 1992-1993 collected at the PREPA Cambalache station, based on PREQB's land use classifications, in combination with meteorological data from the San Juan station for substitution of the site-specific missing data.

    TBRCI emissions points were divided into stack, area source and volume source fugitive emissions. The volume source is the main process building. The area source was selected for the modeling of the emissions generated from the vehicle movement between the carbon, scrap and soda ash storage areas.

    The EPA LEADPOST processor is used for the calculation of the Lead rolling 3-month average using the monthly modeling results. Lead background concentration was omitted because the PREQB does not have an Arecibo Lead air quality monitor that is not affected by the emissions from TBRCI facility that would be representative of the Arecibo area. The PREQB addressed this issue by using a multi-source modeling scenario with projected or controlled emissions to 2016 of the facilities in the six municipalities (Arecibo, Barceloneta, Ciales, Florida Hatillo and Utuado), including the Arecibo airport.

    The PREQB developed the 2011 base year and the 2016 control strategy emissions inventory for input into the air quality model to perform the dispersion modeling. The 2016 emissions inventory was used in the multi-source modeling scenario (see modeling protocol).

    b. Modeling Results

    The Lead NAAQS compliance results of the AERMOD modeling are summarized in Table 1 below. As can be seen in Table 1, the maximum 3-month rolling average predicted impact with the meteorological data (2006-2010) is more than the 2008 Lead NAAQS of 0.15 μg/m3 for one set of AERMOD modeling runs. Output from the LEADPOST processor which details all of the concentrations can be found in the body of the January 30, 2015 submittal.

    Table 1—Summary of Modeling Results Pollutant Avg. time Maximum monthly
  • predicted
  • impact
  • (μg/m3)
  • Background conc.
  • (μg/m3)
  • Maximum 3-high avg.
  • predicted
  • impact
  • (μg/m3)
  • NAAQS
  • (μg/m3)
  • Impact greater than NAAQS
    Pb 3-month rolling 0.34729 0.0 0.3313 0.15 Yes.

    The post-control, which includes the RACM and RACT analysis, resulted in a predicted impact of 0.33 μg/m3. This data indicates the control scenario of total full enclosure of TBRCI will not result in the emission reductions necessary to show attainment.

    The EPA has reviewed the modeling that Puerto Rico submitted to support the attainment demonstration for the Arecibo Area and has determined that this modeling is consistent with CAA requirements, Appendix W and the EPA guidance for lead attainment demonstration modeling. However, the modeling analysis does not demonstrate attainment with the Lead NAAQS. Therefore, the EPA proposes to disapprove Puerto Rico's Lead SIP for the Arecibo Area. The EPA understands that the PREQB is in the process of revising the attainment demonstration modeling to demonstrate attainment in the Arecibo area, and address this deficiency.

    V. What are the consequences of a disapproved SIP?

    This section explains the consequences of a disapproval of a SIP under the CAA. The CAA provides for the imposition of sanctions and the promulgation of a federal implementation plan (FIP) if the Commonwealth fails to submit a plan revision that corrects the deficiencies identified by the EPA in its disapproval.

    a. What are the Act's provisions for sanctions?

    If the EPA disapproves a required SIP or component of a SIP, such as the Attainment Demonstration SIP, CAA § 179(a) provides for the imposition of sanctions unless the deficiency is corrected within 18 months of the final rulemaking of disapproval. The first sanction would apply 18 months after the EPA disapproves the SIP. Under the EPA's sanctions regulations, 40 CFR 52.31, the first sanction would be 2:1 offsets for sources subject to the new source review requirements under CAA § 173. If the Commonwealth fails to submit a SIP for which the EPA proposes full or conditional approval 6 months after the first sanction is imposed, the second sanction will apply. The second sanction is a limitation on the receipt of Federal highway funds in the nonattainment area. The EPA also has authority under CAA § 110(m) to sanction a broader area, but is not proposing to take such action in today's rulemaking.

    b. What federal implementation plan provisions apply if a State fails to submit an approvable plan?

    In addition to sanctions, if the EPA finds that a State/Commonwealth failed to submit the required SIP revision or disapproves the required SIP revision, or a portion thereof, the EPA must promulgate a FIP no later than 2 years from the date of the finding if the deficiency has not been corrected within that time period.

    c. What are the ramifications regarding conformity?

    One consequence of the EPA's disapproval of a control strategy SIP is a conformity freeze whereby affected metropolitan planning organizations (MPOs) cannot make new conformity determinations on long range transportation plans and transportation improvement programs (TIPs). If we finalize the disapproval of the attainment demonstration SIP, a conformity freeze will be in place as of the effective date of the disapproval. (40 CFR 93.120(a)(2)) This means that no transportation plan, TIP, or project not in the first four years of the currently conforming transportation plan and TIP or that meet the requirements of 40 CFR 93.104(f) during a 12-month lapse grace period 2 may be found to conform until another attainment demonstration SIP is submitted and the motor vehicle emissions budgets are found adequate or the attainment demonstration is approved. In addition, if the highway funding sanction is implemented, the conformity status of the transportation plan and TIP will lapse on the date of implementation of the highway sanctions. During a conformity lapse, only projects that are exempt from transportation conformity (e.g., road resurfacing, safety projects, reconstruction of bridges without adding travel lanes, bicycle and pedestrian facilities), transportation control measures that are in the approved SIP and project phases that were approved prior to the start of the lapse can proceed during the lapse. No new project-level approvals or conformity determinations can be made and no new transportation plan or TIP may be found to conform until another attainment demonstration SIP is submitted and the motor vehicle emissions budget is found adequate.

    2 Additional information on the implementation of the lapse grace period can be found in the final transportation conformity rule published on January 24 , 2008. (73 FR 4423-4425).

    VI. What are the EPA's conclusions?

    The EPA is proposing to disapprove Puerto Rico's Lead attainment plan for the Arecibo Area. The EPA has determined that the SIP does not meet the applicable requirements of the CAA. Therefore, the EPA is proposing to disapprove Puerto Rico's January 30, 2015 SIP submittal since the modelling analysis does not demonstrate attainment of the NAAQS.

    Since the time that Puerto Rico submitted the SIP to the EPA, the PREQB formally revoked TBRCI's operating and construction permits on August 19, 2015. The EPA understands that Puerto Rico is in the process of revising the attainment demonstration modeling to address this change in TBRCI's operating status. Therefore, while we are proposing disapproval, the EPA fully expects Puerto Rico to submit a new Attainment Demonstration SIP to reflect this change in TBRCI's operating status in the Arecibo Area. If the Attainment Demonstration SIP is submitted to the EPA as a SIP revision, the EPA will review it and, if it is approvable, will withdraw the proposed disapproval.

    VII. Statutory and Executive Order Reviews a. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget.

    b. Paperwork Reduction Act

    This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

    c. Regulatory Flexibility Act

    I certify that this action will not have a significant impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This action will not impose any requirements on small entities. This action merely disapproves Puerto Rico's Lead SIP as not meeting Federal requirements and imposes no additional requirements beyond those imposed by the plan.

    d. Unfunded Mandates Reform Act

    This action does not impose any additional enforceable duty beyond that which is required by Puerto Rico law because this rule disapproves a SIP revision and it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

    e. Executive Order 13132: Federalism

    This action also does not have Federalism implications because it does not have substantial direct effects on the Commonwealth, on the relationship between the national government and the Commonwealth, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely disapproves the Puerto Rico Lead SIP and does not alter the relationship or the distribution of power and responsibilities established in the CAA.

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

    This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (59 FR 22951, November 9, 2000);

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

    This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it disapproves the Puerto Rico Lead SIP.

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

    Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

    i. National Technology Transfer Advancement Act

    In reviewing SIP submissions, the EPA's role is to approve state or commonwealth choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the Commonwealth to use voluntary consensus standards (VCS), the EPA has no authority to disapprove a commonwealth submission for failure to use VCS. It would thus be inconsistent with applicable law for the EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

    List of Subjects in 40 Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Reporting and Recordkeeping requirements.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: February 22, 2016. Judith Enck, Regional Administrator, Region 2.
    [FR Doc. 2016-04438 Filed 2-26-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2015-0708; FRL-9942-78-Region 7] Approval and Promulgation of Air Quality Implementation Plans; State of Kansas; 2015 Kansas State Implementation Plan for the 2008 Lead Standard AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) proposes to grant full approval of Kansas's attainment demonstration State Implementation Plan (SIP) for the lead National Ambient Air Quality Standard (NAAQS) nonattainment area of Salina, Saline County, Kansas, received by EPA on February 25, 2015. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008. EPA believes that the SIP submitted by the state satisfies the applicable requirements of the Clean Air Act identified in EPA's Final Rule published in the Federal Register on October 15, 2008, and will bring the designated portions of Salina, Kansas, into attainment of the 0.15 microgram per cubic meter (μg/m3) lead NAAQS.

    DATES:

    Comments must be received on or before March 30, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0708, to http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Publicly available docket materials are available either electronically in www.regulations.gov or at the EPA, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219. The Regional Office's official hours of business are Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding legal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

    FOR FURTHER INFORMATION CONTACT:

    Stephanie Doolan, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7719, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” or “our” refer to EPA.

    Table of Contents I. What is being addressed in this document? II. Have the requirements for the approval of a SIP revision been met? III. What action is EPA taking? IV. Background V. Technical Review of the Attainment Demonstration SIP for the 2008 Lead NAAQS A. Facility Description B. Model Selection, Meteorological and Emissions Inventory Input Data C. Control Strategy D. Modeling Results E. Reasonably Available Control Measures (RACM) Including Reasonably Available Control Technology (RACT) and Reasonable Further Progress (RFP) F. Attainment Demonstration G. New Source Review (NSR) H. Contingency Measures I. Enforceability VI. Proposed Action VII. Statutory and Executive Order Reviews I. What is being addressed in this document?

    In this document, EPA is addressing Kansas' attainment demonstration State Implementation Plan (SIP) for the lead National Ambient Air Quality Standard (NAAQS) nonattainment area in portions of Salina, Saline County, Kansas. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008. EPA believes that the SIP submitted by the state satisfies the applicable requirements of the CAA identified in EPA's Final Rule (73 FR 66964, October 15, 2008), and will bring the area into attainment of the 0.15 microgram per cubic meter (μg/m3) lead NAAQS.

    II. Have the requirements for the approval of a SIP revision been met?

    The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the Clean Air Act (CAA), including section 110 and implementing regulations.

    III. What action is EPA taking?

    EPA is proposing to grant full approval of Kansas' attainment demonstration SIP for the 2008 lead NAAQS. EPA is proposing this action in order to solicit comments. Final rulemaking will occur after consideration of any comments received.

    IV. Background

    EPA established the NAAQS for lead on October 5, 1978 (43 FR 46246). On October 15, 2008, EPA established a new lead NAAQS of 0.15 μg/m3 in air, measured as a rolling three-month average. (73 FR 66964). On November 22, 2011, portions of Salina, Saline County, Kansas, were designated as nonattainment for the 2008 lead NAAQS. (76 FR 72097). Under sections 191(a) and 192(a)of the CAA, Kansas is required to submit to EPA an attainment demonstration SIP revision for lead and to demonstrate the nonattainment area will reach attainment of the 2008 lead NAAQS no later than five years from the date of the nonattainment area designation.

    V. Technical Review of the Attainment Demonstration SIP for the 2008 Lead NAAQS A. Facility Description

    There are two lead-emitting sources contributing to the Salina lead nonattainment area: Exide Technologies (Exide) and Metlcast Products (Metlcast). A description of the operation of these two facilities is presented below.

    1. Exide Process Description

    The Exide facility in Salina, Kansas, manufactures lead acid batteries for automobiles, trucks, and watercraft. Lead emissions result from breaking open used batteries, re-melting the lead, and reformulating new batteries. The lead is released in particulate form and generally captured within building structures or by air pollution control equipment; however, some lead particulates escape to the ambient air, despite facility process enclosures and the efficiency of air pollution control equipment. The facility reports lead emissions greater than 0.5 tons per year (tpy).

    The production operations at the facility consist of seven pasting lines, five ball mills and ten oxide mills with emissions controlled by 15 process baghouses, 16 battery assembly lines, and 41 lead reclaim pots with emissions controlled for 29 of those pots by five baghouses. Lead alloy ingots are charged to a melting pot, from which the molten lead flows into molds that form the battery grids. Paste is made in a batch process. A mixture of lead oxide powder, water, and sulfuric acid produces a positive paste, and the same ingredients in a slightly difference proportion with the addition of an expander make the negative paste. Pasting machines then force pastes into the interstices of the grids, which are then made into plates. The pasted plates are then cured through alternating cycles of steaming and drying. From the ovens, the cured plates are loaded into the assembly process where they are automatically stacked in an alternating positive/negative order. Emissions from the battery manufacturing process are controlled by baghouses.

    2. Metlcast Process Description

    The Metlcast facility is located to the north of the Exide facility, near the violating lead monitor. The Metlcast facility uses three electric induction furnaces to cast gray iron. The scrap metal used to produce the gray iron most likely has varying amounts of lead, depending on the source of the scrap. When heated, the lead is driven off the molten metal in the form of particulates. Elemental lead and lead compounds in the form of particulates are captured by the facility's air pollution control equipment; however, some lead-contaminated particulates escape to the ambient air.

    B. Model Selection, Meteorological and Emissions Inventory Input Data

    Exide conducted air dispersion modeling to evaluate the effectiveness of the proposed control strategy. Kansas reviewed the results of the air model which demonstrates attainment of the 2008 Lead NAAQS and the results form the basis of the attainment SIP. EPA conducted an independent review of the modeling. The results of the modeling will be discussed in more detail in section V.C. of this document.

    The model, AERMOD, was utilized and is EPA's preferred model for demonstrating attainment of the lead NAAQS. AERMOD estimates the combined ambient impact of sources by simulating Gaussian dispersion of emissions plumes. Emission rates, wind speed and direction, atmospheric mixing heights, terrain, plume rise from stack emissions, initial dispersion characteristics of fugitive sources, particle size and density are all factors considered by the model when estimating ambient impacts. Exide conducted the dispersion modeling in accordance with “Air Quality Dispersion Modeling Protocol for SIP Attainment Demonstration,” dated March 2013. Results of the modeling are reported in appendix A of the Kansas attainment SIP, available in the docket associated with this proposed action.

    Exide used the surface and upper air meteorological data from the Salina airport (SLN) for years 2007 through 2011. EPA recommends the use of five years of meteorological data for the model (40 CFR part 51, appendix W, section 8.3.1.2). EPA conducted a review of the meteorological data used for the modeling and agreed with Kansas's determination that it is representative of meteorological conditions in the nonattainment area. The meteorological data were run through AERMOD's pre-processors to make the data usable by the model.

    As required by section 172(c)(3) of the CAA, an emission inventory was developed for this nonattainment area. At Exide, ten baghouses were each modeled as separate point sources and ten oxide mills stacks were modeled as discharging from one 65-foot stack. Potential emissions rates for the point sources were determined from stack test data, using an average of three runs from the highest measured average emissions rates since 2007, or the most recent infrastructure update for the source. Appendix A of the attainment SIP contains a detailed listing of the emissions modeled for each point source. A factor of 3.3 to 12 times each point source emission rate was applied to demonstrate the levels necessary to achieve attainment of the 2008 Pb NAAQS.

    Fugitive sources of lead at the Exide facility include process fugitives and vehicular fugitives from truck haul routes. The fugitive emissions were modeled as volume sources. Building process fugitives were estimated with a 99 percent capture efficiency on the basis of total building enclosures with negative pressure and local exhaust ventilation (LEV). Haul route fugitives were estimated using the Paved Roads section of Chapter 13.2.1 of EPA's AP-42 guidelines.1

    1 AP-42, Compilation of Air Pollutant Emission Factors, Fifth Edition, http://www.epa.gov/ttnchie1/ap42/.

    Metlcast's emissions were modeled as volume sources because its operations occur in an open building with wall and roof vents, so there are no stacks from which to conduct emissions testing. Emissions estimates were based on the volatilized fraction of the lead fraction of the facility's 2011 production, which was estimated to be 6910 tons. The quantity of lead emissions was estimated over a 12-hour per day operating shift over 365 days per year.

    In accordance with 40 CFR part 51, appendix W, background concentrations must be considered when determining NAAQS compliance. Background concentrations are intended to include impacts attributable to natural sources, nearby sources (excluding the dominant source(s)), and unidentified sources. The calculated background concentration includes all sources of lead not already included in the model run script. The background concentration includes distant sources of lead or naturally occurring lead in soils that has become re-entrained in the atmosphere.

    A background value is typically calculated by averaging the monitored concentrations of lead in air from an ambient air monitor within the nonattainment area. In this case, however, the ambient air monitor is located between the two facilities so that it is not possible to calculate a background value for lead from the monitoring data that does not include the influence of one of the facilities, regardless of wind direction. Instead, Kansas used a background level of 0.01 μg/m3 which is the national non-source oriented monthly average ambient lead concentration determined by EPA in its final “Integrated Science Assessment for Lead (ISA),” dated June 2013 (http://www.epa.gov/ncea/isa/lead.htm). Tables 2-13 and 2-15 of the ISA provide detailed statistics based upon the national monitoring network to support a background lead level of 0.01 μg/m3. The use of this nationally determined background level is further supported by data from the temporary non-source oriented lead monitor located north of the nonattainment area in Salina, Kansas, which recorded an average lead concentration of 0.005 μg/m3. Also, a lead monitor formerly located in Wichita, Kansas, reported average concentrations of 0.0076 μg/m3.

    In the absence of the ability to establish a background lead level derived from a monitor within the nonattainment area, EPA agrees that the use of this non-source oriented average monthly ambient lead value from the ISA represents a conservative estimate of background for use in the Salina attainment modeling.

    C. Control Strategy

    The following describes the control strategy detailed in the Kansas attainment SIP to achieve the 2008 lead NAAQS. The Kansas control strategy focuses on control measures to be implemented at Exide because it is the greater source of lead emissions of the two facilities in the nonattainment area.

    In April 2006, Exide began a five-year project to replace all ten of its oxide mills. The project included replacement of associated baghouses and the addition of HEPA filters for each oxide mill source. The project was completed in March 2011. On October 1, 2013, the oxide mill baghouse emissions were routed to a new 65-foot stack.

    From September 2009 to February 2014, Exide also replaced its five general purpose baghouses (BH1 through BH5). Baghouse 1 (BH1) was replaced and its stack height was increased to 80 feet in a project completed on February 19, 2014.

    On July 19, 2013, Exide completed increasing the stack heights of the ball mill baghouses (BH11 through BH15) by 37 feet as necessary by the attainment modeling.

    To address process fugitives, Exide installed LEVs over processing operations located in negative pressure total enclosures to increase the effectiveness of lead particulate capture. This 99 percent reduction in emissions from the ball mill process is required by the Federally-enforceable construction permit issued by Kansas to Exide, effective date August 18, 2014. The permit is appendix C of the attainment SIP. The construction permit contains total enclosure standards including the requirement to maintain a negative pressure of at least 0.013 mm of mercury which is consistent with the secondary lead smelter NESHAP (77 FR 556, January 5, 2012). Although the Exide facility is not a secondary lead smelter, the concepts for controlling lead emissions are similar, and are therefore relevant.

    The Federally-enforceable construction permit also required Exide to complete paving all roadways by July 31, 2014. The additional paving of an area of approximately 15,200 square yards in the northwest section of the facility demonstrates a reduction of 0.04 tons of lead per year which represents a 29 percent reduction in lead emissions.

    D. Modeling Results

    Exide's modeling report can be found in appendix A of the Kansas attainment SIP. The modeling was conducted to determine the impacts of the additive lead emissions of both the Exide and Metlcast facilities, and the assumed area background of 0.01 μg/m3 lead, on off-site receptors including the air monitor and two nearby elementary schools.

    The results of the modeling demonstrate that with the control strategy described above in paragraph V.C. above, the facilities will attain the 2008 Lead NAAQS. At the point of maximum impact, which is approximately 50 feet to the northeast of the ambient air monitor, the model predicts a lead concentration of 0.137 μg/m3. This is below the 2008 Lead NAAQS of 0.15 μg/m3. At the ambient air monitor, the model predicts a lead concentration of 0.137 μg/m3.

    By comparison, the ambient air monitoring data demonstrate that the facility has measured lead concentrations below the 0.15 μg/m3 lead standard since the rolling calendar quarter ending September of 2013. The average rolling quarterly lead level in ambient air from the quarter ending September 2013 to the quarter ending May 2015 is 0.096 μg/m3, which is less than the model-predicted lead level.

    Exide also modeled the lead concentrations at two nearby elementary schools to ensure that there would be no unacceptable lead impacts. At Schilling Elementary School, the ambient lead levels in air are predicted to be 0.018 μg/m3, and the predicted lead levels for Coronado Elementary School are predicted to be 0.028 μg/m3. The predicted levels of lead in ambient air are less than 15 percent of the standard; therefore, there is no concern for exceeding the standard at either of these locations under the Federally-enforceable control strategy described in paragraph V.C. above.

    EPA reviewed and independently verified the modeling conducted by Exide. Based on EPA's analysis of the attainment modeling and its outcomes, EPA believes that the Kansas control strategy will bring the designated portions of Saline County, Kansas, into attainment of the 2008 Lead NAAQS.

    E. Reasonably Available Control Measures (RACM) Including Reasonably Available Control Technology (RACT) and Reasonable Further Progress (RFP)

    Section 172(c)(1) of the CAA requires nonattainment areas to implement all RACM, including emissions reductions through the adoption of Reasonably Available Control Technologies (RACT), as expeditiously as practicable. EPA interprets this as requiring all nonattainment areas to consider all available controls and to implement all measures that are determined to be reasonably available, except that measures which will not assist the area to more expeditiously attain the standard are not required to be implemented.2 In March 2012, EPA issued guidance titled, “Implementation of Reasonably Available Control Measures (RACM) for Controlling Lead Emissions” (RACM Guidance).3

    2 See 58 FR 67751, December 22, 1993, for a discussion of this interpretation as it relates to lead.

    3http://www.epa.gov/oar/lead/pdfs/2012ImplementationGuide.pdf.

    Section 172(c)(2) of the CAA requires areas designated as nonattainment for criteria pollutants to include a demonstration of Reasonable Further Progress (RFP) in attainment demonstrations. Section 171(1) of the CAA defines RFP as annual incremental reductions in emissions of the relevant air pollutants as required by part D, or emission reductions that may reasonably be required by EPA to ensure attainment of the applicable NAAQS by the applicable date. Part D does not include specific RFP requirements for lead.

    EPA recommends a RACT analysis for facilities emitting 0.5 tpy lead per year or more. (73 FR 66964). In 2011, Exide reported lead emissions of 1.45 tons per year.4 Metlcast's annual emissions were conservatively estimated based on its production to be approximately 0.004 tons of lead per year. Thus, only Exide exceeds the threshold for determining RACT to comply with the 2008 Lead NAAQS. Page 12 of the lead attainment SIP discusses the Kansas RACT/RACM analysis.

    4 EPA's 2011 National Emissions Inventory (NEI) v.2, February 5, 2015.

    Kansas determined that the ongoing emission control projects detailed in appendix B of the attainment SIP document and listed above in paragraph V.C. meet the requirements of EPA's RACM Guidance. As stated in the final lead NAAQS rule, RFP is satisfied by the strict adherence to a compliance schedule which is expected to periodically yield significant emission reductions. The control measures described in paragraph V.C. above have been modeled and demonstrated to achieve the lead NAAQS and also comply with RACM and RFP.

    RFP is addressed by the control strategy occurring in a timeframe consistent with the CAA. Upon implementation of the control strategy and practices described above, ambient air quality concentrations are expected to drop at or below attainment levels immediately. The nonattainment area's ambient air quality monitor began reporting lead concentrations below the 2008 lead NAAQS for the three-month rolling average for July through September 2013.

    Based on the RACM analysis and the combined reduction in lead emissions to meet the 2008 Lead NAAQS, which demonstrates RFP, EPA proposes to approve the Kansas SIP as meeting the requirements of sections 172(c)(1) and (c)(2) of the CAA.

    F. Attainment Demonstration

    CAA section 172 requires a state to submit a plan for each of its nonattainment areas that demonstrates attainment of the applicable ambient air quality standard as expeditiously as practicable, but no later than the specified attainment date. This demonstration should consist of four parts: (1) Technical analyses that locate, identify, and quantify sources of emissions that are contributing to violations of the lead NAAQS; (2) analyses of future year emissions reductions and air quality improvement resulting from already-adopted national, state, and local programs and from potential new state and local measures to meet the RACT, RACM, and RFP requirements in the area; (3) adopted emissions reduction measures with schedules for implementation; and (4) contingency measures required under section 172(c)(9) of the CAA.

    The requirements for the first two parts are described in the sections on emissions inventories, RACT/RACM and air quality above and in the discussion of the attainment demonstration that follows immediately below. Requirements for the third and fourth parts are described in the sections on the control strategy and the contingency measures, respectively.

    The dispersion modeling is the attainment demonstration used to verify that the control strategies will bring the area into attainment of the 2008 Lead NAAQS. In order to determine whether the emission reduction strategies will result in continued attainment of the NAAQS, the modeled maximum lead concentration in ambient air (based on a rolling three-month average) is added to the calculated background lead concentration of 0.01 μg/m3, then compared to the 2008 Lead NAAQS, which is 0.150 μg/m3. As discussed above, the dispersion modeling predicts that the cumulative impacts of both facilities, with the addition of background lead levels, meet the 2008 Lead NAAQS. The predicted maximum three-month rolling average lead concentration is 0.137 μg/m3. Therefore, EPA proposes to approve the Kansas attainment demonstration because the dispersion modeling demonstrates attainment of the standard.

    G. New Source Review (NSR)

    Within the CAA, section 172(c)(5) requires permits for construction and operation of new and modified major sources located within the nonattainment area. A special permitting process applies to such sources, referred to as a nonattainment new source review program. Section 173 of the CAA mandates nonattainment new source review and an approved state SIP must meet the requirements of 40 CFR 51.165.

    Kansas Administrative Regulation (K.A.R.) 28-19-16 et seq. require major stationary sources of air pollution emissions located within any area that has been identified as not meeting a national ambient air quality standard for the pollutant for which the source is major to obtain a permit prior to construction or major modification. EPA approved the Kansas nonattainment new source review regulations on January 16, 1990, (55 FR 1420).

    K.A.R. 28-19-300(a)(1)(F) requires any person who proposes to construct or modify a stationary source or emissions unit to obtain a construction permit before commencing such construction or modification if the potential-to-emit of the proposed stationary source or emissions unit, or the increase in the potential-to-emit resulting from the modification, equals or exceeds 0.6 tons per year of lead or lead compound. In addition, K.A.R. 28-19-301(d) states that a construction permit or approval shall not be issued if the air contaminant emissions from the source will interfere with the attainment or maintenance of any ambient air quality standard. EPA approved K.A.R. 28-19-300(a) and K.A.R. 28-19-301(d) on July 17, 1995. (60 FR 36361).

    H. Contingency Measures

    As required by CAA section 172(c)(9), the SIP submittal includes contingency measures to be implemented if the area has failed to make RFP or if the area fails to attain the NAAQS by December 2016. If the air quality data for any three-month rolling period after the implementation of the control measures identified in the construction permit for Exide exceed the 0.15 μg/m3 three-month rolling average lead standard, the facility shall implement the contingency measures set forth in sections X and XI of the construction permit which are found in appendix C of the attainment SIP.

    The Exide construction permit contains the following contingency measures described below.

    (1) Within 60 days after the effective date of the permit, Exide shall develop and submit to the Kansas Department of Environmental Health (KDHE) for approval, compliance plans that shall be implemented in accordance with section XII of the construction permit and include:

    a. An analysis of site conditions and operations that potentially may impact, directly or indirectly, KDHE ambient air monitors, including, but not limited to a root cause analysis and corrective/preventive action process for attaining and maintaining the 0.15 μg/m3 standard, start up and shut down procedures, and other improvements or optimizations that may become evident based on identified potential sources of lead emissions. Each measure is to be assigned a timeline for implementation and to be ranked with regard to ease of implementation, cost and effectiveness;

    b. A fugitive dust control plan that shall include an implementations timeline for each measures. The plan may include, but not be limited to new enclosures or improvements to existing enclosures, work practices for minimizing fugitive emissions during maintenance activities, and countermeasures during period of adverse meteorological conditions and/or agricultural conditions and practices on grounds surrounding the plant that may affect fugitive dust impact on KDHE ambient monitors;

    c. Identification and prioritization of measures, as developed in a. and b. above that shall be implemented immediately upon notification by KDHE of the first lead NAAQS violation. The contingent list of measures may be modified upon approval by KDHE of more effective measures identified by the root cause analysis.

    The compliance plan found in appendix F of the SIP was placed on public notice on November 20, 2014. No comments were received. KDHE submitted Exide's compliance plan for approval as an enforceable part of the attainment SIP.

    (2) Within 30 days after KDHE notification, for each NAAQS violation or for failure to maintain reasonable further progress (RFP), Exide shall develop and submit to KDHE a root cause analysis which shall include but not be limited to: The investigation of production/operations performance, including startup, shutdown, malfunction and maintenance periods and the resulting data and discussion; meteorological data for the site and surrounding area; Exide's fenceline site monitoring data; and any other conditions or events that may be relevant to lead emissions and/or that may influence or impact KDHE ambient air monitor results. Exide shall develop and submit to KDHE documentation of corrective actions taken for each occurrence for which there is found to be a controllable or preventable contributing factor or root cause.

    (3) In addition to the root cause analysis described above and corrective/preventative action process, Exide shall implement selected and approved contingency measures as outlined in the compliance plan developed by Exide described in paragraph (1) above. Exide shall submit to KDHE documentation of implemented measures, including identification of measures and timeline for implementation and effect.

    (4) Exide shall compile analyses and results from the contingency measures described above in paragraphs (2) and (3) and shall implement further contingency measures identified in the KDHE-approved compliance plan.

    (5) Exide shall implement measures from the compliance plan for control of fugitive dust and submit to KDHE the documentation from implementation of these measures, the timeline for implementation and effect.

    (6) Exide shall conduct stack testing on an increased frequency as determined by KDHE. The scope and frequency will be based on KDHE's evaluation of the root cause analysis required by paragraph (2) above.

    (7) Exide shall submit to KDHE for approval a revised attainment demonstration with new modeling of emissions rates and/or work practices, or other proposed changes, for attainment of the 2008 lead NAAQS. The demonstration shall include the timeline for implementation.

    These additional contingency measures will also be subject to EPA approval as part of the SIP. Any future changes to contingency measures would require a public hearing at the state level and EPA approval as a formal SIP revision. Until such time as EPA approves any substitute measure, the measures included in the approved SIP will be the enforceable measure. EPA does not intend to approve any substitutions that cannot be implemented in the same timeframe as the original measure. These measures will help ensure compliance with the 2008 lead NAAQS as well as meet the requirements of section 172(c)(9) of the CAA. EPA proposes to approve Kansas's SIP as meeting the requirements of section 172(c)(9) of the CAA.

    I. Enforceability

    As specified in section 172(c)(6) and section 110(a)(2)(A) of the CAA, and 57 FR 13556, all measures and other elements in the SIP must be enforceable by the state and EPA. The enforceable document included in the Kansas SIP submittal is the construction permit dated August 18, 2014. The construction permit contains all control and contingency measures with enforceable dates for implementation. Upon EPA approval of the SIP submission, Exide's construction permit will become state and Federally enforceable, and enforceable by citizens under section 304 of the CAA.

    EPA proposes to approve the Kansas SIP as meeting the requirements of sections 172(c)(6) and 110(a)(2)(A) of the CAA, and 57 FR 13556.

    VI. Proposed Action

    EPA is proposing to grant full approval of the Kansas attainment demonstration SIP for the Saline County 2008 lead NAAQS nonattainment area. EPA believes that the SIP submitted by the state satisfies the applicable requirements of the CAA identified in EPA's Final Rule (73 FR 66964, October 15, 2008), and will result in attainment of the 0.15 μg/m3 standard in the Saline County, Kansas, area.

    Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the proposed amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    VII. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 29, 2016. Filing a petition for reconsideration by the Administrator of this proposed rule does not affect the finality of this rulemaking for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such future rule or action. This proposed action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 17, 2016. Mark Hague, Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA proposes to amend 40 CFR part 52 as set forth below:

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

    42 U.S.C. 7401 et seq.

    Subpart R—Kansas 2. Amend § 52.870 by: a. Revising paragraph (d) by adding new entry (5) at the end of the table; and b. Revising paragraph (e) by adding entry (43) at the end of the table.

    The revisions read as follows:

    § 52.870 Identification of plan.

    (d) * * *

    EPA-Approved Kansas Source-Specific Requirements Name of source Permit or
  • case No.
  • State
  • effective
  • date
  • EPA approval date Explanation
    *         *         *         *         *         *         * (5) Exide Technologies 1690035 8/18/14 2/29/16 [Insert Federal Register citation] *         *         *         *         *         *         *

    (e) * * *

    EPA-Approved Kansas Nonregulatory Provisions Name of nonregulatory SIP provision Applicable geographic or nonattainment area State
  • submittal
  • date
  • EPA approval date Explanation
    *         *         *         *         *         *         * (43) Attainment plan for 2008 lead NAAQS Salina 2/3/15 2/29/16 [Insert Federal Register citation] [EPA-R07-OAR-2015-0708]. *         *         *         *         *         *         *
    [FR Doc. 2016-04080 Filed 2-26-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2015-0402; FRL-9943-07-Region 1] Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Infrastructure State Implementation Plan Requirements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve elements of State Implementation Plan (SIP) submissions from Rhode Island regarding the infrastructure requirements of the Clean Air Act (CAA or Act) for the 1997 fine particle matter (PM2.5), 2006 PM2.5, 2008 lead (Pb), 2008 ozone, 2010 nitrogen dioxide (NO2), and 2010 sulfur dioxide (SO2) National Ambient Air Quality Standards (NAAQS). Additionally, EPA is proposing to disapprove the submissions with respect to CAA section 110(a)(2)(H); a federal implementation plan has been in place for this requirement since 1973. EPA is also proposing to correct an earlier approval of this element for the 1997 8-hour ozone NAAQS. Finally, EPA is proposing to approve several statutes submitted by Rhode Island in support of their demonstration that the infrastructure requirements of the CAA have been met. The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA.

    DATES:

    Comments must be received on or before March 30, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R01-OAR-2015-0402 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the “For Further Information Contact” section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Publicly available docket materials are available either electronically in www.regulations.gov or at the U.S. Environmental Protection Agency, Region 1, Air Programs Branch, 5 Post Office Square, Boston, Massachusetts. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

    FOR FURTHER INFORMATION CONTACT:

    Richard P. Burkhart, Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05-02), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts, 02109-3912; (617) 918-1664; [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

    I. What should I consider as I prepare my comments for EPA? II. What is the background of these SIP submissions? A. What Rhode Island SIP submissions does this rulemaking address? B. Why did the state make these SIP submissions? C. What is the scope of this rulemaking? III. What guidance is EPA using to evaluate these SIP submissions? IV. What is the result of EPA's review of these SIP submissions? A. Section 110(a)(2)(A)—Emission Limits and Other Control Measures B. Section 110(a)(2)(B)—Ambient Air Quality Monitoring/Data System C. Section 110(a)(2)(C)—Program for Enforcement of Control Measures and for Construction or Modification of Stationary Sources D. Section 110(a)(2)(D)—Interstate Transport E. Section 110(a)(2)(E)—Adequate Resources F. Section 110(a)(2)(F)—Stationary Source Monitoring System G. Section 110(a)(2)(G)—Emergency Powers H. Section 110(a)(2)(H)—Future SIP Revisions I. Section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D J. Section 110(a)(2)(J)—Consultation with Government Officials; Public Notifications; Prevention Of Significant Deterioration; Visibility Protection K. Section 110(a)(2)(K)—Air Quality Modeling/Data L. Section 110(a)(2)(L)—Permitting Fees M. Section 110(a)(2)(M)—Consultation/Participation by Affected Local Entities N. Rhode Island Statutes Submitted for Incorporation Into the SIP V. What action is EPA taking? VI. Incorporation by Reference VII. Stationary and Executive Order Reviews I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:

    1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date, and page number).

    2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

    3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

    4. Describe any assumptions and provide any technical information and/or data that you used.

    5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

    6. Provide specific examples to illustrate your concerns, and suggest alternatives.

    7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

    8. Make sure to submit your comments by the comment period deadline identified.

    II. What is the background of these SIP submissions? A. What Rhode Island SIP submissions does this rulemaking address?

    This rulemaking addresses submissions from the Rhode Island Department of Environmental Management (RI DEM or DEM). The state submitted its infrastructure SIP for each NAAQS on the following dates: 1997 PM2.5 1 —September 10, 2008; 2006 PM2.5—November 6, 2009; 2008 Pb—October 26, 2011; 2008 ozone—January 2, 2013; 2010 NO2—January 2, 2013; and 2010 SO2—June 27, 2014.

    1 PM2.5 refers to particulate matter of 2.5 microns or less in diameter, oftentimes referred to as “fine” particles.

    B. Why did the state make these SIP submissions?

    Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for the NAAQS already meet those requirements.

    EPA highlighted this statutory requirement in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards” (2007 Memo). On September 25, 2009, EPA issued an additional guidance document pertaining to the 2006 p.m.2.5 NAAQS entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS)” (2009 Memo), followed by the October 14, 2011, “Guidance on infrastructure SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)” (2011 Memo). Most recently, EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)” on September 13, 2013 (2013 Memo). The SIP submissions referenced in this rulemaking pertain to the applicable requirements of section 110(a)(1) and (2) and address the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. To the extent that the prevention of significant deterioration (PSD) program is comprehensive and non-NAAQS specific, a narrow evaluation of other NAAQS, such as the 1997 ozone NAAQS, will be included in the appropriate sections.

    C. What is the scope of this rulemaking?

    EPA is acting upon the SIP submissions from Rhode Island that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    The requirement for states to make a SIP submission of this type arises out of CAA sections 110(a)(1) and 110(a)(2). Pursuant to these sections, each state must submit a SIP that provides for the implementation, maintenance, and enforcement of each primary or secondary NAAQS. States must make such SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a new or revised NAAQS.” This requirement is triggered by the promulgation of a new or revised NAAQS and is not conditioned upon EPA's taking any other action. Section 110(a)(2) includes the specific elements that “each such plan” must address.

    EPA commonly refers to such SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA.

    This rulemaking will not cover three substantive areas that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources (“SSM” emissions) that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP-approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); and, (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final New Source Review (NSR) Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these substantive areas separately. A detailed history, interpretation, and rationale for EPA's approach to infrastructure SIP requirements can be found in EPA's May 13, 2014, proposed rule entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” See 79 FR 27241 at 27242-45.

    III. What guidance is EPA using to evaluate these SIP submissions?

    EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. Historically, EPA has elected to use non-binding guidance documents to make recommendations for states' development and EPA review of infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements. EPA guidance applicable to these infrastructure SIP submissions is embodied in several documents. Specifically, attachment A of the 2007 Memo (Required Section 110 SIP Elements) identifies the statutory elements that states need to submit in order to satisfy the requirements for an infrastructure SIP submission. The 2009 Memo provides additional guidance for certain elements regarding the 2006 PM2.5 NAAQS, and the 2011 Memo provides guidance specific to the 2008 Pb NAAQS. Lastly, the 2013 Memo identifies and further clarifies aspects of infrastructure SIPs that are not NAAQS specific.

    IV. What is the result of EPA's review of these SIP submissions?

    EPA is soliciting comment on our evaluation of Rhode Island's infrastructure SIP submissions in this notice of proposed rulemaking. In each of Rhode Island's submissions, a detailed list of Rhode Island Laws and, previously SIP-approved Air Quality Regulations, show precisely how the various components of its EPA approved SIP meet each of the requirements of section 110(a)(2) of the CAA for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS, as applicable. The following review evaluates the state's submissions in light of section 110(a)(2) requirements and relevant EPA guidance.

    A. Section 110(a)(2)(A)—Emission Limits and Other Control Measures

    This section (also referred to in this action as an element) of the Act requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters. However, EPA has long interpreted emission limits and control measures for attaining the standards as being due when nonattainment planning requirements are due.2 In the context of an infrastructure SIP, EPA is not evaluating the existing SIP provisions for this purpose. Instead, EPA is only evaluating whether the state's SIP has basic structural provisions for the implementation of the NAAQS.

    2 See, e.g., EPA's final rule on “National Ambient Air Quality Standards for Lead.” 73 FR 66964, 67034 (Nov. 12, 2008).

    Rhode Island's infrastructure submittals for this element cite Rhode Island General Law (RIGL) and several RI Air Pollution Control Regulations (APCR) as follows:

    Rhode Island General Law § 23-23-5(12), “Powers and duties of the director,” authorizes the RI DEM Director “[t]o make, issue, and amend rules and regulations . . . for the prevention, control, abatement, and limitation of air pollution. . . .” In addition, this section authorizes the Director to “prohibit emissions, discharges and/or releases and . . . require specific control technology.” The state has submitted RIGL § 23-23-5 for inclusion in its SIP.

    The Rhode Island submittals cite more than a dozen specific rules that the state has adopted to control the emissions of Pb, SO2, PM2.5, volatile organic compounds (VOCs), and NOX. A few, with their EPA approval citation are listed here: No. 9—Air Pollution Control Permits (except for Section 9.13, 9.14 9.15 and Appendix A which were not submitted) (64 FR 67495; December 2, 1999); No. 11—Petroleum Liquids Marketing and Storage (80 FR 32469; June 9, 2015); No. 12—Incinerators (47 FR 17816; April 26, 1982); No. 27—Control of Nitrogen Oxide Emissions (62 FR 46202; September 2, 1997); No. 37—Rhode Island's Low Emissions Vehicle Program (80 FR 50203; August 19, 2015); and No. 45—Rhode Island Diesel Engine Anti-Idling Program (73 FR 16203; March 27, 2008).

    The RI regulations listed above were previously approved into the RI SIP by EPA. See 40 CFR 52.2070. In addition, EPA proposes to approve RIGL § 23-23-5 for inclusion in the SIP. Based upon EPA's review of the submittals, EPA further proposes to find that RI DEM's submittal meets the requirements of CAA Section 110(a)(2)(A). Therefore, EPA proposes that Rhode Island meets the infrastructure SIP requirements of section 110(a)(2)(A) with respect to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    In addition EPA is proposing to remove 40 CFR 52.2079, which was promulgated on January 24, 1995 (60 FR 4738). This section states that Rhode Island must comply with the requirements of 40 CFR 51.120, which are to implement the Ozone Transport Commission (OTC) Low Emission Vehicle (LEV) Program (a program which requires that only cleaner “LEV” cars can be sold in Rhode Island), or equivalent measures. Subsequently, Rhode Island adopted a Low Emission Vehicle Program based on California's LEV program (APCR No. 37), which has been approved into the SIP (65 FR 12476, March 9, 2000). In addition, Rhode Island recently adopted California's LEV II program (in revisions to APCR No. 37) which is even more stringent than LEV I, and that has also been approved into the SIP (80 FR 50203; August 19, 2015). Thus, Rhode Island has satisfied 40 CFR 52.2079, and therefore, EPA proposes to remove 40 CFR 52.2079 from the CFR.

    As previously noted, EPA is not proposing to approve or disapprove any existing state provisions or rules related to SSM or director's discretion in the context of section 110(a)(2)(A).

    B. Section 110(a)(2)(B)—Ambient Air Quality Monitoring/Data System

    This section requires SIPs to include provisions to provide for establishing and operating ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon request. Each year, states submit annual air monitoring network plans to EPA for review and approval. EPA's review of these annual monitoring plans includes our evaluation of whether the state: (i) Monitors air quality at appropriate locations throughout the state using EPA-approved Federal Reference Methods or Federal Equivalent Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in a timely manner; and (iii) provides EPA Regional Offices with prior notification of any planned changes to monitoring sites or the network plan.

    RI DEM operates an air quality monitoring network, and EPA approved the state's 2015 Annual Air Monitoring Network Plan for PM2.5, Pb, ozone, NO2, and SO2 on September 8, 2015. Furthermore, RI DEM populates AQS with air quality monitoring data in a timely manner, and provides EPA with prior notification when considering a change to its monitoring network or plan. EPA proposes that RI DEM has met the infrastructure SIP requirements of section 110(a)(2)(B) with respect to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    C. Section 110(a)(2)(C)—Program for Enforcement of Control Measures and for Construction or Modification of Stationary Sources

    States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet NSR requirements under PSD and nonattainment new source review (NNSR) programs. Part C of the CAA (sections 160-169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements.

    The evaluation of each state's submission addressing the infrastructure SIP requirements of section 110(a)(2)(C) covers the following: (i) Enforcement of SIP measures; (ii) PSD program for major sources and major modifications; and (iii) a permit program for minor sources and minor modifications. A discussion of greenhouse gas (GHG) emissions permitting and the “Tailoring Rule” 3 is included within our evaluation of the PSD provisions of Rhode Island's submittals.

    3 In EPA's April 28, 2011 proposed rulemaking for infrastructure SIPs for the 1997 ozone and PM2.5 NAAQS, we stated that each state's PSD program must meet applicable requirements for evaluation of all regulated NSR pollutants in PSD permits (See 76 FR 23757 at 23760). This view was reiterated in EPA's August 2, 2012 proposed rulemaking for infrastructure SIPs for the 2006 PM2.5 NAAQS (See 77 FR 45992 at 45998). In other words, if a state lacks provisions needed to adequately address Pb, NOX as a precursor to ozone, PM2.5 precursors, PM2.5 and PM10 condensables, PM2.5 increments, or the Federal GHG permitting thresholds, the provisions of section 110(a)(2)(C) requiring a suitable PSD permitting program must be considered not to be met irrespective of the NAAQS that triggered the requirement to submit an infrastructure SIP, including the 2008 Pb NAAQS.

    Sub-Element 1: Enforcement of SIP Measures

    The Rhode Island General Laws provide the Director of RI DEM with the legal authority to enforce air pollution control requirements. Such enforcement authority is provided by RIGL § 23-23-5, which grants the Director of RI DEM general enforcement power, inspection and investigative authority, and the power to issue administrative orders, among other things. In addition, RI APCR No. 9, “Air Pollution Control Permits,” sets forth requirements for new and modified major and minor stationary sources. Section 9.3 of the regulation contains specific requirements for new and modified minor sources. Section 9.4 of the regulation contains specific new source review requirements applicable to major stationary source or major modifications located in nonattainment areas. Section 9.5 contains specific new source review requirements applicable to major stationary sources or major modifications located in attainment or unclassifiable areas (PSD).

    EPA proposes that Rhode Island has met the enforcement of SIP measures requirements of section 110(a)(2)(C) with respect to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    Sub-Element 2: PSD Program for Major Sources and Major Modifications

    Prevention of significant deterioration (PSD) applies to new major sources or modifications made to major sources for pollutants where the area in which the source is located is in attainment of, or unclassifiable with regard to, the relevant NAAQS. RI DEM's EPA-approved PSD rules, contained at APCR No. 9, contain provisions that address the majority of the applicable infrastructure SIP requirements related to the 1997 PM2.5, 2006 p.m.2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify NOX as a precursor to ozone (see 70 FR 71612 at 71679, 71699-700 (November 29, 2005)). This requirement was codified in 40 CFR 51.166, and requires that states submit SIP revisions incorporating the requirements of the rule, including provisions that would treat NOx as a precursor to ozone provisions. These SIP revisions were to have been submitted to EPA by states by June 15, 2007. See 70 FR 71612 at 71683.

    Rhode Island has incorporated several of the changes required by the Phase 2 Rule, but has not made the necessary changes to the definition of “major stationary source” identifying NOX as a precursor to ozone. Therefore, we are proposing that Rhode Island has met all but one of the requirements of section 110(a)(2)(C) for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS obligated by the Phase 2 Rule. By letter dated February 18, 2016, Rhode Island committed to submit the required provisions for EPA approval by a date no later than one year from conditional approval of Rhode Island's infrastructure submissions. Consequently, we are proposing to conditionally approve with respect to this requirement of the Phase 2 Rule.

    On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” (2008 NSR Rule). The 2008 NSR Rule finalized several new requirements for SIPs to address sources that emit direct PM2.5 and other pollutants that contribute to secondary PM2.5 formation. One of these requirements is for NSR permits to address pollutants responsible for the secondary formation of PM2.5, otherwise known as precursors. In the 2008 rule, EPA identified precursors to PM2.5 for the PSD program to be SO2 and NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The 2008 NSR Rule also specifies that VOCs are not considered to be precursors to PM2.5 in the PSD program unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of VOCs in an area are significant contributors to that area's ambient PM2.5 concentrations.

    The explicit references to SO2, NOX, and VOCs as they pertain to secondary PM2.5 formation are codified at 40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of identifying pollutants that are precursors to PM2.5, the 2008 NSR Rule also required states to revise the definition of “significant” as it relates to a net emissions increase or the potential of a source to emit pollutants. Specifically, 40 CFR 51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define “significant” for PM2.5 to mean the following emissions rates: 10 tons per year (tpy) of direct PM2.5; 40 tpy of SO2; and 40 tpy of NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The deadline for states to submit SIP revisions to their PSD programs incorporating these changes was May 16, 2011 (See 73 FR 28321 at 28341).4

    4 EPA notes that on January 4, 2013, the U.S. Court of Appeals for the DC Circuit, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008 NSR Rule in accordance with the CAA's requirements for PM10 nonattainment areas (Title I, Part D, subpart 4), and not the general requirements for nonattainment areas under subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250). As the subpart 4 provisions apply only to nonattainment areas, EPA does not consider the portions of the 2008 rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the court's opinion. Moreover, EPA does not anticipate the need to revise any PSD requirements promulgated by the 2008 NSR rule in order to comply with the court's decision. Accordingly, EPA's approval of Rhode Island's infrastructure SIP as to Elements C, D(i)(II), or J with respect to the PSD requirements promulgated by the 2008 implementation rule does not conflict with the court's opinion.

    The Court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 implementation rule also does not affect EPA's action on the present infrastructure action. EPA interprets the CAA to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.

    On January 18, 2011, Rhode Island submitted revisions to its PSD program incorporating the necessary changes obligated by the 2008 NSR Rule, with respect to provisions that explicitly identify precursors to PM2.5. EPA approved Rhode Island's 2011 SIP revision on April 21, 2015 (80 FR 22106).

    The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as condensables, in PM2.5 and PM10 emission limits in NSR permits. Instead, EPA determined that states had to account for PM2.5 and PM10 condensables for applicability determinations and in establishing emissions limitations for PM2.5 and PM10 in PSD permits beginning on or after January 1, 2011. See 73 FR 28321 at 28334. This requirement is codified in 40 CFR 51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a). Revisions to states' PSD programs incorporating the inclusion of condensables were required be submitted to EPA by May 16, 2011 (See 73 FR 28321 at 28341).

    Rhode Island's SIP-approved PSD program does not contain the exact language in 40 CFR 51.166(b)(49)(i)(a). However, EPA has previously determined that Rhode Island's SIP-approved regulations define PM2.5 and PM10 such that the state's PSD program adequately accounts for the condensable fraction of PM2.5 and PM10. See 78 FR 63383 at 63386 (October 24, 2013).

    Therefore, we are proposing that Rhode Island has met this set of requirements of section 110(a)(2)(C) for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS regarding the requirements obligated by the 2008 NSR Rule.

    On October 20, 2010 (75 FR 64864), EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (2010 NSR Rule). This rule established several components for making PSD permitting determinations for PM2.5, including a system of “increments,” which is the mechanism used to estimate significant deterioration of ambient air quality for a pollutant. These increments are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c).

    The 2010 NSR Rule also established a new “major source baseline date” for PM2.5 as October 20, 2010, and a new trigger date for PM2.5 of October 20, 2011 in the definition of “minor source baseline date.” These revisions are codified in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule revised the definition of “baseline area” to include a level of significance (SIL) of 0.3 micrograms per cubic meter, annual average, for PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i) and 40 CFR 52.21(b)(15)(i). Rhode Island has not yet made a SIP submittal to EPA that addresses EPA's 2010 NSR rule. However, by letter dated February 18, 2016, Rhode Island committed to submitting the necessary updates to its NSR regulation within one year of EPA's conditional approval. Therefore, we are proposing to conditionally approve this part of sub-element 2 of section 110(a)(2)(C) relating to requirements for state NSR regulations outlined within our 2010 NSR regulation.

    With respect to Elements (C) and (J), EPA interprets the Clean Air Act to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of Element D(i)(II) may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Rhode Island has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including GHGs, with the exception of the deficiencies described elsewhere in this notice.

    On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427. The Supreme Court said that EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT).

    In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The amended judgment preserves, without the need for additional rulemaking by EPA, the application of the Best Available Control Technology (BACT) requirement to GHG emissions from Step 1 or “anyway” sources. With respect to Step 2 sources, the D.C. Circuit's amended judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification.”

    On August 19, 2015, EPA amended its PSD and title V regulations to remove from the Code of Federal Regulations portions of those regulations that the D.C. Circuit specifically identified as vacated. EPA intends to further revise the PSD and title V regulations to fully implement the Supreme Court and D.C. Circuit rulings in a separate rulemaking. This future rulemaking will include revisions to additional definitions in the PSD regulations.

    Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the additional planned revisions to EPA's PSD regulations. EPA is not expecting states to have revised their PSD programs in anticipation of EPA's additional actions to revise its PSD program rules in response to the court decisions for purposes of infrastructure SIP submissions. Instead, EPA is only evaluating such submissions to assure that the state's program addresses GHGs consistent with both the court decision, and the revisions to PSD regulations that EPA has completed at this time.

    At present, EPA has determined that Rhode Island's SIP is sufficient to satisfy Elements (C), (D)(i)(II), and (J) with respect to GHGs. This is because the PSD permitting program previously approved by EPA into the SIP continues to require that PSD permits issued to “anyway sources” contain limitations on GHG emissions based on the application of BACT. The approved Rhode Island PSD permitting program still contains some provisions regarding Step 2 sources that are no longer necessary in light of the Supreme Court decision and D.C. Circuit amended judgment. Nevertheless, the presence of these provisions in the previously-approved plan does not render the infrastructure SIP submission inadequate to satisfy Elements (C), (D)(i)(II), and (J). The SIP contains the PSD requirements for applying the BACT requirement to GHG emissions from “anyway sources” that are necessary at this time. The application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of Step 2 sources. Accordingly, the Supreme Court decision and subsequent D.C. Circuit judgment do not prevent EPA's approval of Rhode Island's infrastructure SIP as to the requirements of Elements (C), (as well as sub-elements (D)(i)(II), and (J)(iii)).

    For the purposes of the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS infrastructure SIPs, EPA reiterates that NSR Reform is not in the scope of these actions.

    In summary, we are proposing to approve the majority of Rhode Island's submittals for this sub-element with respect to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS, but to conditionally approve these submittals regarding the identification of NOX as a precursor to ozone in the definition of major stationary source and regarding the revisions required by the 2010 NSR Rule.

    Sub-Element 3: Preconstruction Permitting for Minor Sources and Minor Modifications

    To address the pre-construction regulation of the modification and construction of minor stationary sources and minor modifications of major stationary sources, an infrastructure SIP submission should identify the existing EPA-approved SIP provisions and/or include new provisions that govern the minor source pre-construction program that regulates emissions of the relevant NAAQS pollutants. EPA last approved Rhode Island's minor NSR program, on May 7, 1981 (46 FR 25446) as well as updates to that program. Since this date, Rhode Island and EPA have relied on the existing minor NSR program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    We are proposing to find that Rhode Island has met the requirement to have a SIP-approved minor new source review permit program as required under Section 110(a)(2)(C) for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    D. Section 110(a)(2)(D)—Interstate Transport

    This section contains a comprehensive set of air quality management elements pertaining to the transport of air pollution that states must comply with. It covers the following 5 topics, categorized as sub-elements: Sub-element 1, Contribute to nonattainment, and interference with maintenance of a NAAQS; Sub-element 2, PSD; Sub-element 3, Visibility protection; Sub-element 4, Interstate pollution abatement; and Sub-element 5, International pollution abatement. Sub-elements 1 through 3 above are found under section 110(a)(2)(D)(i) of the Act, and these items are further categorized into the 4 prongs discussed below, 2 of which are found within sub-element 1. Sub-elements 4 and 5 are found under section 110(a)(2)(D)(ii) of the Act and include provisions insuring compliance with sections 115 and 126 of the Act relating to interstate and international pollution abatement.

    Sub-Element 1: Section 110(a)(2)(D)(i)(I)—Contribute to Nonattainment (Prong 1) and Interfere With Maintenance of the NAAQS (Prong 2)

    With respect to the 2008 Pb NAAQS, the 2011 Memo notes that the physical properties of Pb prevent it from experiencing the same travel or formation phenomena as PM2.5 or ozone. Specifically, there is a sharp decrease in Pb concentrations as the distance from a Pb source increases. Accordingly, although it may be possible for a source in a state to emit Pb at a location and in such quantities that contribute significantly to nonattainment in, or interference with maintenance by, any other state, EPA anticipates that this would be a rare situation, e.g., sources emitting large quantities of Pb in close proximity to state boundaries. The 2011 Memo suggests that the applicable interstate transport requirements of section 110(a)(2)(D)(i)(I) with respect to Pb can be met through a state's assessment as to whether or not emissions from Pb sources located in close proximity to its borders have emissions that impact a neighboring state such that they contribute significantly to nonattainment or interfere with maintenance in that state.

    Rhode Island's infrastructure SIP submission for the 2008 Pb NAAQS notes that there are no large sources of Pb emissions located in close proximity to any of the state's borders with neighboring states. Additionally, Rhode Island's submittal and the emissions data the state collects from its sources indicate that there is no single source of Pb, or group of sources, anywhere within the state that emits enough Pb to cause ambient concentrations to approach the Pb NAAQS. Our review of the Pb emissions data from Rhode Island sources, which Rhode Island has entered into the EPA National Emissions Inventory (NEI) database, confirms this, and therefore, EPA agrees with Rhode Island and proposes that Rhode Island has met this set of requirements related to section 110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS.

    Rhode Island's submittals did not address section 110(a)(2)(D)(i)(I) for the 1997 PM2.5, 2006 PM2.5, 2008 ozone, 2010 NO2, or 2010 SO2 NAAQS. Rhode Island did, however, make subsequent submittals for this sub-element on June 23, 2015 (ozone) and October 15, 2015 (NO2 and SO2), which EPA will act on in a subsequent notice. Therefore, EPA is not taking any action with respect to this requirement for purposes of the 1997 PM2.5, 2006 PM2.5, 2008 ozone, 2010 NO2, or 2010 SO2 NAAQS at this time.

    Sub-Element 2: Section 110(a)(2)(D)(i)(II)—PSD (Prong 3)

    One aspect of section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state. As has already been discussed in the paragraphs addressing the PSD sub-element of Element C, Rhode Island has satisfied many, though not all, of the applicable PSD implementation rule requirements.

    States also have an obligation to ensure that sources located in nonattainment areas do not interfere with a neighboring state's PSD program. One way that this requirement can be satisfied is through an NNSR program consistent with the CAA that addresses any pollutants for which there is a designated nonattainment area within the state. EPA approved Rhode Island's latest NNSR regulations on April 21, 2015 (80 FR 22106). These regulations contain provisions for how the state must treat and control sources in nonattainment areas, consistent with 40 CFR 51.165, or appendix S to 40 CFR 51.

    As noted above and in Element C, Rhode Island's PSD program does not fully satisfy the requirements of EPA's PSD implementation rules, although Rhode Island has committed to submit the required provisions for EPA approval by a date no later than one year from conditional approval of Rhode Island's infrastructure submissions. Consequently, we are proposing to conditionally approve this sub-element for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS related to section 110(a)(2)(D)(i)(II) for the reasons discussed under Element C.

    Sub-Element 3: Section 110(a)(2)(D)(i)(II)—Visibility Protection (Prong 4)

    With regard to the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II), states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). The 2009 Memo, the 2011 Memo, and 2013 Memo state that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, or an approved SIP addressing regional haze. A fully approved regional haze SIP meeting the requirements of 40 CFR 51.308 will ensure that emissions from sources under an air agency's jurisdiction are not interfering with measures required to be included in other air agencies' plans to protect visibility.

    Rhode Island's Regional Haze SIP was approved by EPA on May 22, 2012 (77 FR 30214). Accordingly, EPA proposes that Rhode Island has met the visibility protection requirements of 110(a)(2)(D)(i)(II) for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    Sub-Element 4: Section 110(a)(2)(D)(ii)—Interstate Pollution Abatement

    One aspect of section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 126 relating to interstate pollution abatement.

    Section 126(a) requires new or modified sources to notify neighboring states of potential impacts from the source. The statute does not specify the method by which the source should provide the notification. States with SIP-approved PSD programs must have a provision requiring such notification by new or modified sources. A lack of such a requirement in state rules would be grounds for disapproval of this element. EPA approved Rhode Island's PSD program, as well as updates to that program, with the most recent approval occurring on April 21, 2015 (80 FR 22106), which includes a provision requiring notice to neighboring states of RI DEM's intention to either issue a draft PSD permit or deny a permit application. See APCR No. 9, section 9.12.3(e). Therefore, we propose to approve Rhode Island's compliance with the infrastructure SIP requirements of section 126(a) with respect to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. Rhode Island has no obligations under any other provision of section 126.

    Sub-Element 5: Section 110(a)(2)(D)(ii)—International Pollution Abatement

    One portion of section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 115 relating to international pollution abatement. Rhode Island does not have any pending obligations under section 115 for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, or 2010 SO2 NAAQS. Therefore, EPA is proposing that Rhode Island has met the applicable infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to section 115 of the CAA (international pollution abatement) for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    E. Section 110(a)(2)(E)—Adequate Resources

    This section requires each state to provide for adequate personnel, funding, and legal authority under state law to carry out its SIP and related issues. Additionally, Section 110(a)(2)(E)(ii) requires each state to comply with the requirements with respect to state boards under section 128. Finally, section 110(a)(2)(E)(iii) requires that, where a state relies upon local or regional governments or agencies for the implementation of its SIP provisions, the state retain responsibility for ensuring adequate implementation of SIP obligations with respect to relevant NAAQS. This sub-element, however, is inapplicable to this action, because Rhode Island does not rely upon local or regional governments or agencies for the implementation of its SIP provisions.

    Sub-Element 1: Adequate Personnel, Funding, and Legal Authority Under State Law To Carry Out Its SIP, and Related Issues

    Rhode Island, through its infrastructure SIP submittals, has documented that its air agency has the requisite authority and resources to carry out its SIP obligations. Rhode Island cites to RIGL § 23-23-5, which provides the Director of DEM with the legal authority to enforce air pollution control requirements. Additionally, this statute provides the Director with the authority to assess preconstruction permit fees and annual operating permit fees from air emissions sources and establishes a general revenue reserve account within the general fund to finance the state clean air programs. RI DEM further cites to RI APCR No. 28, “Operating Permit Fees,” which requires that major sources pay annual operating permit fees. Finally, Section III of the 1972 RI SIP specifies RI DEM's legal authority to implement SIP measures, and Section VII of the 1972 SIP describes the resources and manpower estimates for RI DEM. EPA proposes that Rhode Island has met the infrastructure SIP requirements of this portion of section 110(a)(2)(E) with respect to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    Sub-Element 2: State Board Requirements Under Section 128 of the CAA

    Section 110(a)(2)(E) also requires each SIP to contain provisions that comply with the state board requirements of section 128 of the CAA. That provision contains two explicit requirements: (i) That any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter, and (ii) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.

    In Rhode Island, no board or body approves permits or enforcement orders; these are approved by the Director of RI DEM. Thus, with respect to this sub-element, Rhode Island is subject only to the requirements of paragraph (a)(2) of section 128 of the CAA (regarding conflicts of interest). Accordingly, Rhode Island indicated in its January 2, 2013 infrastructure SIP submittals for the 2008 ozone and 2010 NO2 NAAQS that it was submitting the Rhode Island Code of Ethics, RIGL chapter 36-14, for incorporation into the SIP.5 The Rhode Island Code of Ethics, applies to state employees and public officials (see RIGL § 36-14-4), requires disclosure of potential conflicts of interest (see RIGL § 36-14-6), and provides that “No person subject to this Code of Ethics shall have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction, or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his or her duties or employment in the public interest and of his or her responsibilities” (see RIGL § 36-14-5(a)). EPA is proposing to approve RIGL §§ 36-14-1 through -7 into the Rhode Island SIP.

    5 Rhode Island also referenced incorporation of the Rhode Island Code of Ethics into the SIP in its June 27, 2014 infrastructure SIP submittal for the 2010 SO2 NAAQS.

    EPA proposes that, with the inclusion of RIGL §§ 36-14-1 through -7 into the Rhode Island SIP as proposed, Rhode Island has met the applicable infrastructure SIP requirements for this sub-element for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    F. Section 110(a)(2)(F)—Stationary Source Monitoring System

    States must establish a system to monitor emissions from stationary sources and submit periodic emissions reports. Each plan shall also require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources. The state plan shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and correlation of such reports by each state agency with any emission limitations or standards established pursuant to this chapter. Lastly, the reports shall be available at reasonable times for public inspection.

    Rhode Island's infrastructure submittals reference existing state regulations previously approved by EPA that require sources to monitor emissions and submit reports. For example, Rhode Island's submittals reference APCR No. 9, “Air Pollution Control Permits,” which requires emissions testing of permitted processes within 180 days of full operation and specifies that preconstruction permits issued contain an emissions testing section. Another example Rhode Island cites is APCR No. 14, “Record Keeping and Reporting,” which requires emission sources to annually report emissions and other data to RI DEM, and provides that information in certain reports obtained pursuant to APCR No. 14 “will be correlated with applicable emission and other limitations and will be available for public inspection.” Another example referenced in Rhode Island's submittals is APCR No. 27, “Control of Nitrogen Oxide Emissions,” listed in Element A, which requires annual emissions testing of subject sources and includes specifications for continuous emissions monitors.

    EPA proposes to find that deficiencies with Rhode Island's recordkeeping authority outlined at 40 CFR 52.2074(a) have been remedied. In particular, in May 1972, EPA found that Rhode Island had not met the requirements of 40 CFR 51.230(e) (formerly 40 CFR 51.11(a)(5)), which provides that “Each plan must show that the State has legal authority to carry out the plan, including authority to . . . [o]btain information necessary to determine whether air pollution sources are in compliance with applicable laws, regulations, and standards, including authority to require recordkeeping and to make inspections and conduct tests of air pollution sources.” In particular, EPA found that Rhode Island's “[a] uthority to require recordkeeping is deficient to the extent that [RIGL] section 23-25-13 requires only those sources with an air pollution control program to keep records.” 40 CFR 52.2074(a). Since this time, Rhode Island has revised (and renumbered) its statutes such that the applicable provision now applies not only to “any person owning or operating any air pollution control system,” but also to “any person owning or operating a source of air pollution which has the potential to emit any air contaminant, or any person owning or operating a source of air pollution which the director has reason to believe is emitting any extremely toxic air contaminant, that meets the definition in § 23-23-3 but may not have been adopted by the director.” RIGL § 23-23-13. In addition, RIGL § 23-23-5(16) provides RI DEM with the authority to “require any person who owns or operates any machine, equipment, device, article, or facility which has the potential to emit any air contaminant . . . to submit periodic reports on the nature and amounts of air contaminant emission from the machine, equipment, device, article, or facility.” In today's notice, EPA proposes to approve RIGL § 23-23-5. Furthermore, APCR No. 14, the latest revision of which was approved into the SIP on December 2, 1999, see 64 FR 67495, similarly requires certain recordkeeping by the “owner or operator of any facility that emits air contaminants.” Section 14.2. Finally, and as noted above, APCR No. 14 requires emission sources to report emissions and other data to RI DEM at least annually. Taken together, these post-1972 provisions significantly enhance Rhode Island's recordkeeping authority and remedy the deficiency identified in 40 CFR 52.2074(a) and, consequently, we are proposing to remove this provision from the Code of Federal Regulations.

    EPA also proposes to approve Rhode Island's SIP submittal with respect to the deficiencies outlined at 40 CFR 52.2073 and 52.2074(b) regarding the public availability of emission data. In May 1972, EPA found that Rhode Island had not met the requirements of 40 CFR 51.116(c) (formerly 40 CFR 51.10(e)), which provides that a state's SIP “must provide for public availability of emission data reported by source owners or operators or otherwise obtained by a State or local agency.” EPA concluded that Rhode Island's SIP was deficient “since the plan does not provide for public availability of emission data.” 40 CFR 52.2073(a). At the same time, EPA found that Rhode Island had not met the requirements of 40 CFR 51.230(f) (formerly 40 CFR 51.11(a)(6)), which provides, among other things, that “Each plan must show that the State has legal authority to carry out the plan, including authority to . . . [r]equire owners or operators of stationary sources to make periodic reports to the State on the nature and amounts of emissions from such stationary sources” and authority “to make such data available to the public as reported and as correlated with any applicable emission standards or limitations.” With respect to that requirement, EPA found that (1) Rhode Island's “[a]uthority to release emission data to the public is deficient in that section 23-25-6 requires that only records concerning investigations be available to the public” and that (2) “section 23-25-5(g) and section 23-25-13 may limit the State's authority to release emission data.” 40 CFR 52.2074(b). As a result, EPA promulgated regulations at 40 CFR 52.2073(b) regarding public availability of emission data.

    While the present-day version of RIGL § 23-25-6 (now codified at RIGL § 23-23-6) still appears to apply only to records concerning investigations, the SIP-approved state regulation APCR No. 14 is not by its terms so limited. This regulation establishes certain recordkeeping requirements and provides that “[i]nformation obtained from owners or operators of facilities pursuant to Section 14.2.1 . . . will be available for public inspection.” Section 14.2.1 is not limited to records concerning investigations and specifically encompasses, among other things, “data on . . . emissions of air contaminants . . . or other data that may be necessary to determine if the facility is in compliance with air pollution control regulations.” 6 The current version of RIGL § 23-25-13 (now codified at § 23-23-13) requires sources to “keep accurate records of operation” and provides that such records “may be submitted to the department as trade secret or proprietary information to the extent that protection is available under the [Rhode Island] public records act.” By letter dated February 18, 2016, RI DEM informed EPA that, in practice, it makes emission data available to the public pursuant to APCR No. 14 and that it interprets RIGL § 23-23-13 and the state public records act at RIGL title 38 as not providing “trade secret or proprietary information” protection to emission data reported to the state. Furthermore, former RIGL § 23-25-5(g) has been amended since the disapproval, no longer containing the apparent limitation on the State's authority to release emission data.7 Consequently, EPA proposes to approve Rhode Island's SIP as providing for public availability of emission data and that Rhode Island's authority to release emission data to the public is no longer deficient as described in 40 CFR 52.2073(a) and 52.2074(b). Thus, EPA proposes to approve Rhode Island's SIP as providing for correlation by RI DEM of emissions reports by sources with applicable emission limitations or standards, and as providing for the public availability of those emission reports. Therefore, we are proposing to remove from the Code of Federal Regulations 40 CFR 52.2073 in its entirety and the provisions in 40 CFR 52.2074(b) regarding public availability of emissions data.

    6 While EPA may have had reservations in 1976 as to whether the Rhode Island Department of Health—which at that time implemented the state's air pollution control program—lacked the statutory authority to promulgate APCR No. 14, see 41 FR 2231, 2231 (Jan. 15, 1976), revisions to state law that have occurred since that time convince us that RI DEM has sufficient authority. In addition to changes to RIGL § 23-23-5(16) discussed in the main text above, Rhode Island added a provision to RIGL § 23-23-2 that authorizes the RI DEM Director “to exercise all powers, direct or incidental, necessary to carry out the purposes of this chapter to assure that the state of Rhode Island complies with the federal Clean Air Act.” Additionally, RIGL § 23-23-5(24) provides that, “[i]n addition to the powers and duties enumerated in this section, the director shall have all appropriate power to adopt rules, regulations, procedures, programs, and standards as mandated by the authorization of the federal Clean Air Act.”

    7 In 1972, RIGL § 23-25-5(g) contained the following sentence, which has since been removed from the state Clean Air Act: “Any information relating to secret processes or methods of manufacture or production obtained in the course of such inspection shall be kept secret.” Compare RIGL § 23-23-5(7).

    EPA also proposes to find that additional deficiencies outlined at 40 CFR 52.2074(b) and 52.2075(a) regarding source surveillance have also been remedied. Section 52.2074(b) provides in relevant part that Rhode Island's SIP lacks adequate “[a]uthority to require sources to install and maintain monitoring equipment” and “[a]uthority to require sources to periodically report. . . .” Section 52.2075(a) provides that “[t]he requirements of § 51.211 of this chapter are not met since the plan lacks adequate legal authority to require owners or operators of stationary sources to maintain records of, and periodically report information as may be necessary to enable the state to determine whether such sources are in compliance with applicable portions of the control strategy.” As a result, section 52.2075(b) sets forth EPA regulations regarding source surveillance. As has already been discussed above, RIGL § 23-23-5(16) now provides the RI DEM Director with the authority to “require any person who owns or operates [a source that has] the potential to emit any air contaminant, or which is emitting any extremely toxic air contaminant, to install, maintain, and use air pollution emission monitoring devices and to submit periodic reports on that nature and amounts of air contaminant emission from the machine, equipment, device, article, or facility.” As has also been discussed previously, APCR No. 14 implements this authority by requiring facility owners or operators to keep certain records (including “data that may be necessary to determine if the facility is in compliance with air pollution control regulations”) and report those records to RI DEM at least annually. Moreover, APCR No. 9, “Air Pollution Control Permits,” requires emissions testing of permitted processes within 180 days of full operation and specifies that any preconstruction permits issued contain an emissions testing section. In addition, APCR No. 27, “Control of Nitrogen Oxide Emissions,” requires annual emissions testing of subject sources and includes specifications for continuous emissions monitors. Consequently, EPA proposes to approve the Rhode Island SIP as providing adequate authority regarding source surveillance, and therefore proposes to remove 40 CFR 52.2074(b) and 52.2075(a) and (b) from the Code of Federal Regulations. For the foregoing reasons, EPA proposes that Rhode Island has met the infrastructure SIP requirements of section 110(a)(2)(F) with respect to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    G. Section 110(a)(2)(G)—Emergency Powers

    This section requires that a plan provide for authority that is analogous to what is provided in section 303 of the CAA, and adequate contingency plans to implement such authority. Section 303 of the CAA provides authority to the EPA Administrator to seek a court order to restrain any source from causing or contributing to emissions that present an “imminent and substantial endangerment to public health or welfare, or the environment.” Section 303 further authorizes the Administrator to issue “such orders as may be necessary to protect public health or welfare or the environment” in the event that “it is not practicable to assure prompt protection . . . by commencement of such civil action.”

    We propose to find that Rhode Island's submittals and certain state statutes and regulations provide for authority comparable to that in section 303. Rhode Island's submittals cite Section V of the 1972 RI SIP, which specifies RI DEM's Emergency Episode Authority and Procedures and RIGL chapter 23-23.1 and § 23-23-16, which set forth certain emergency powers of the RI DEM Director. In particular, RIGL § 23-23-16 allows the Director to order a source to cease operations if it is determined that the source is violating any provision of RIGL Chapter 23-23, or any regulation or order issued thereunder, and that the violation poses “an immediate danger to public health or safety.” Section 23-23.1-5 of the RIGL provides that, if the RI DEM Director finds that air pollution anywhere in the state “constitutes an unreasonable and emergency risk to the health of those present within that area,” the Director shall communicate that finding to the governor, who “may by proclamation declare . . . that an air pollution episode exists” and may issue orders to, among other things, “prohibit, restrict, or condition the operation of retail, commercial, manufacturing, industrial, or similar activity . . . [the] operation of incinerators . . . the burning or other consumption of any type of fuel [and/or] any and all other activity in the area which contributes or may contribute to the air pollution emergency.” State law further provides that such gubernatorial orders “shall not require any judicial or other order or confirmation of any type in order to become immediately effective as the legal obligation of all persons, firms, corporations, and other entities within the state.” See RIGL § 23-23.1-7. In addition, such orders “shall be enforced by [RI DEM], the state council of defense, state and local police, and air pollution enforcement personnel forces. Those enforcing any governor's order shall require no further authority or warrant in executing it than the issuance of the order itself.” See RIGL § 23-23.1-8(a). Rhode Island has submitted RIGL §§ 23-23-16 and 23-23.1-5 for inclusion in the SIP.

    In a letter dated February 18, 2016, Rhode Island also specified that RIGL § 42-17.1-2 and APCR No. 7, taken together with the authorities in the submittals, satisfy the requirement that the SIP provide for authority comparable to section 303. More specifically, APCR No. 7, which was previously approved into Rhode Island's SIP in 1981 (see 46 FR 25446), provides that “[n]o person shall emit any contaminant which either alone or in connection with other emissions, by reason of their concentration and duration, may be injurious to human, plant or animal life, or cause damage to property or which unreasonably interferes with the enjoyment of life and property.” 8 Rhode Island notes that the emission standard set in APCR No. 7 is extremely broad, and intentionally so. Section 42-17.1-2(21) of the RIGL provides that, “[w]henever the director determines that there exists a violation of any law, rule, or regulation within his or her jurisdiction which requires immediate action to protect the environment, he or she may . . . issue an immediate compliance order stating the existence of the violation and the action he or she deems necessary.” Such orders may, at the Director's discretion, be effective immediately upon service. Id. With regard to the authority to bring suit, section 42-17.1-2(21) further empowers the Director to “institute injunction proceedings in the superior court of the state for enforcement of the compliance order and for appropriate temporary relief. . . .” 9

    8 Rhode Island's current version of APCR No. 7, though not incorporated into the SIP, has been expanded and contains a nearly identical provision, except that the “and” between “concentration” and “duration” has been replaced with an “or.” See APCR No. 7.2.

    9 This section further provides that the remedy provided therein “shall be in addition to remedies relating to the removal or abatement of nuisances or any other remedies provided by law.” With regard to the abatement of nuisances, Rhode Island law provides that, “[w]henever a nuisance is alleged to exist, the attorney general or any citizen of the state may bring an action in the name of the state . . . to abate the nuisance and to perpetually enjoin the person or persons maintaining the nuisance and any or all persons owning any legal or equitable interest in the place from further maintaining or permitting the nuisance either directly or indirectly.” RIGL § 10-1-1.

    Finally, the Rhode Island Environmental Rights Act (“RIERA”) provides that “each person is entitled by right to the protection, preservation, and enhancement of air, water, land, and other natural resources located within the state [and that] it is in the public interest to provide an adequate civil remedy to protect air, water, land and other natural resources located within the state from pollution, impairment, or destruction.” Id. § 10-20-1. Consequently, under RIERA, “[a]ny city or town” may bring suit against “any person to enforce, or to restrain the violation of, any environmental quality standard which is designed to prevent or minimize pollution, impairment, or destruction of the environment,” id. § 10-20-3(a), or bring an action “for declaratory and equitable relief against any other person for the protection of the environment, or the interest of the public therein, from pollution, impairment, or destruction,” id. § 10-20-3(b). An “environmental quality standard” is defined quite broadly as “any statute, ordinance, limitation, regulation, rule, order, license, stipulation, agreement, or permit of the state or any instrumentality, agency, or political subdivision thereof.” Id. § 10-20-2(2). RIERA also establishes an “environmental advocate” within the office of the Attorney General who is authorized to “[m]aintain and/or intervene in civil actions authorized by” RIERA and to “take all possible actions, including but not limited to . . . formal legal action, to secure and insure compliance with the provisions of [RIERA] and any promulgated environmental quality standards.” Id. § 10-20-3(d).

    While no single Rhode Island statute or regulation mirrors the authorities of CAA section 303, we propose to find that the combination of state statutes and regulations discussed herein provide for comparable authority to immediately bring suit to restrain, and issue orders against, any person causing or contributing to air pollution that presents an imminent and substantial endangerment to public health or welfare, or the environment.

    Section 110(a)(2)(G) also requires that, for any NAAQS, Rhode Island have an approved contingency plan for any Air Quality Control Region (AQCR) within the state that is classified as Priority I, IA, or II. See 40 CFR 51.152(c). A contingency plan is not required if the entire state is classified as Priority III for a particular pollutant. Id. There is only one AQCR in Rhode Island—the Metropolitan Providence Interstate AQCR—and Rhode Island's portion thereof is classified as a Priority I area for PM, SOX, carbon monoxide, and ozone and as a Priority III area for NO2. See 40 CFR 52.2071. Consequently, as relevant to this proposed rulemaking action, Rhode Island's SIP must contain an emergency contingency plan meeting the specific requirements of 40 CFR 51.151 and 51.152 with respect to SO2 and ozone.10

    10 Those regulations do not specifically address PM2.5 and lead. See also 40 CFR 51.150.

    Rhode Island's submittals cite to APCR No. 10, “Air Pollution Episodes,” which specifies episode criteria for, and measures to be implemented during, air pollution alerts, warnings and emergencies to prevent ambient pollution concentrations from reaching significant harm levels and is very closely modeled on EPA's example regulations for contingency plans at 40 CFR part 51, Appendix L. As stated in Rhode Island's infrastructure SIP submittals under the discussion of public notification (Element J), Rhode Island also posts near real-time air quality data, air quality predictions and a record of historical data on the RI DEM Web site. DEM's predictions are also displayed daily in the Providence Journal. Alerts are sent by email to a large number of affected parties, including emissions sources, concerned individuals, schools, health and environmental agencies and the media. Alerts include information about the health implications of elevated pollutant levels and list actions that reduce emissions.

    In addition, daily forecasted ozone and fine particle levels are also made available on the internet through the EPA AirNow and EnviroFlash systems. Information regarding these two systems is available on EPA's Web site at www.airnow.gov. Notices are sent out to EnviroFlash participants when levels are forecast to exceed the current 8-hour ozone or 24-hour PM2.5 standard.

    Finally, we note that lead and PM2.5 are not explicitly included in the contingency plan requirements of 40 CFR subpart H. In addition, Rhode Island notes in its submittals that, with respect to lead, there are no sources in the state that exceed EPA's reporting threshold of 0.5 tons per year and that the largest source has lead emissions of 0.076 tons per year. With respect to the 2006 PM2.5 NAAQS, the EPA 2009 Guidance recommends that states develop emergency episode plans for any area that has monitored and recorded 24-hour PM2.5 levels greater than 140 μg/m3 since 2006. In its November 6, 2009 submittal, Rhode Island certified that the highest 24-hour PM2.5 concentration recorded in the state since 2006 was 44.7 μg/m3. Furthermore, EPA's review of Rhode Island's certified air quality data in AQS indicates that the highest 24-hour PM2.5 concentration since that time (i.e., data through 2014) is 56.2 μg/m3, which occurred in 2010. Although not expected, if lead or PM2.5 conditions were to change, Rhode Island does have general authority, as noted previously (e.g., RIGL §§ 23-23-16, 23-23.1-5, 42-17.1-2(21) and APCR No. 7), to order a source to cease operations if it is determined that emissions from the source pose an immediate danger, or unreasonable and emergency risk, to public health or safety or to the environment.

    These Rhode Island statutes, rules and regulations are consistent with the requirements of 40 CFR part 51, subpart H, section 51.150 through 51.153.

    EPA proposes that Rhode Island has met the applicable infrastructure SIP requirements for section 110(a)(2)(G) with respect to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    Finally, EPA proposes to remove an outdated section from the Code of Federal Regulations related to abatement orders. In 1973, certain provisions enacted at RIGL §§ 23-25-5(h) and 23-25-8(a) (now renumbered as RIGL §§ 23-23-5(8) and 23-23-8(a), respectively) concerning state-issued abatement orders were found to be inconsistent with the Clean Air Act and, accordingly, disapproved. See 40 CFR 52.2078(a). EPA then promulgated regulations placing limitations on the extent to which state orders could defer compliance with the SIP. See 40 CFR 52.2078(b). Because Rhode Island has since remedied the inconsistency by striking the inappropriate language 11 from RIGL § 23-23-5(8) and adding limiting language 12 to RIGL § 23-23-8(a), EPA proposes to remove 40 CFR 52.2078 as no longer necessary.

    11 “. . . and the economic and social necessity of the source of air pollution.” Former RIGL § 23-25-5(h).

    12 “No order or modification of the order may be entered by the director deferring compliance with a requirement of this chapter or the rules and regulations promulgated under this chapter, unless the deferral is consistent with provisions and procedures of the federal Clean Air Act.” RIGL § 23-23-8(a).

    H. Section 110(a)(2)(H)—Future SIP Revisions

    This section requires that a state's SIP provide for revision in response to: Changes in the NAAQS; availability of improved methods for attaining the NAAQS; or an EPA finding that the SIP is substantially inadequate. In 1973, it was determined that Rhode Island's original SIP did not fully satisfy section 110(a)(2)(H) and EPA promulgated federal regulations to address the gap in the SIP. See 40 CFR 52.2080. Since Rhode Island's September 10, 2008, November 6, 2009, October 26, 2011, January 2, 2013, and June 27, 2014 submittals likewise do not address the gap in the SIP that led to a disapproval in 1973, EPA proposes to find that Rhode Island has not met applicable infrastructure SIP requirements for element H with respect to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. Accordingly, EPA proposes to disapprove this portion of the state's submittals. Further, EPA notes that our 2011 approval of the element H portion of Rhode Island's infrastructure submittal for the 1997 8-hour ozone NAAQS, see 76 FR 40248, was in error, because the state's submittal in that case likewise did not address the gap. EPA proposes to correct this oversight pursuant to section 110(k)(6) and to disapprove the 1997 8-hour ozone infrastructure submittal for element H. No further action by EPA or the state is required, however, because remedying federal regulations are already in place. Moreover, mandatory sanctions under CAA section 179 are inapplicable, because the submittal is not required under CAA title I part D nor in response to a SIP call under CAA section 110(k)(5).

    I. Section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D

    The CAA requires that each plan or plan revision for an area designated as a nonattainment area meet the applicable requirements of part D of the CAA. Part D relates to nonattainment areas.

    EPA has determined that section 110(a)(2)(I) is not applicable to the infrastructure SIP process. Instead, EPA takes action on part D attainment plans through separate processes.

    J. Section 110(a)(2)(J)—Consultation With Government Officials; Public Notifications; Prevention of Significant Deterioration; Visibility Protection

    The evaluation of the submissions from Rhode Island with respect to the requirements of CAA section 110(a)(2)(J) are described below.

    Sub-Element 1: Consultation With Government Officials

    States must provide a process for consultation with local governments and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements.

    Rhode Island General Law § 23-23-5, authorizes the RI DEM Director “[t]o advise, consult, and cooperate with the cities and towns and other agencies of the state, federal government, and other states and interstate agencies, and with effective groups in industries in furthering the purposes of this chapter.” Rhode Island has submitted this statute for inclusion into the SIP. In addition, APCR No. 9, which has been approved into Rhode Island's SIP (see 78 FR 63383, October 24, 2013), directs RI DEM to notify relevant municipal officials and FLMs, among others, of tentative determinations by RI DEM with respect to permit applications for major stationary sources and major modifications.

    EPA proposes to approve RIGL § 23-23-5 into the SIP and proposes that Rhode Island has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    Sub-Element 2: Public Notification

    Section 110(a)(2)(J) also requires states to notify the public if NAAQS are exceeded in an area and must enhance public awareness of measures that can be taken to prevent exceedances. Rhode Island's APCR No. 10, “Air Pollution Episodes,” specifies criteria for, and measures to be implemented during, air pollution alerts, warnings and episodes. In addition, the RI DEM Web site includes near real-time air quality data, air quality predictions and a record of historical data. DEM's predictions are also displayed daily in the Providence Journal, a newspaper with statewide circulation. Alerts are sent by email to a large number of affected parties, including emissions sources, concerned individuals, schools, health and environmental agencies and the media. Alerts include information about the health implications of elevated pollutant levels and list actions that reduce emissions. In addition, Air Quality Data Summaries of the year's air quality monitoring results are issued annually. The summaries are sent to a mailing list of interested parties and posted on the RI DEM Web site. Rhode Island is also an active partner in EPA's AirNow and EnviroFlash air quality alert programs. EPA proposes that Rhode Island has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    Sub-Element 3: PSD

    States must meet applicable requirements of section 110(a)(2)(C) related to PSD. Rhode Island's PSD program in the context of infrastructure SIPs has already been discussed in the paragraphs addressing sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II) and, as we have noted, does not fully satisfy the requirements of EPA's PSD implementation rules, although Rhode Island has committed to submit the required provisions for EPA approval by a date no later than one year from conditional approval of Rhode Island's infrastructure submissions. Consequently, we are proposing to conditionally approve the PSD sub-element of section 110(a)(2)(J) for the, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS, consistent with the actions we are proposing for sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II).

    Sub-Element 4: Visibility Protection

    With regard to the applicable requirements for visibility protection, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, as noted in EPA's 2013 Memo, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIPs for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. Accordingly, Rhode Island did not make a submittal for this sub-element, for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, or 2010 SO2 NAAQS infrastructure SIP submittals.

    K. Section 110(a)(2)(K)—Air Quality Modeling/Data

    To satisfy Element K, the state air agency must demonstrate that it has the authority to perform air quality modeling to predict effects on air quality of emissions of any NAAQS pollutant and submission of such data to EPA upon request. Rhode Island reviews the potential impact of major sources consistent with 40 CFR part 51, appendix W, “Guidelines on Air Quality Models.” Rhode Island APCR No. 9, “Air Pollution Control Permits,” requires permit applicants to submit air quality modeling to demonstrate impacts of new and modified major sources. The modeling data are sent to EPA along with the draft major permit.

    The state also collaborates with the Ozone Transport Commission (OTC), and the Mid-Atlantic Regional Air Management Association and EPA in order to perform large scale urban air shed modeling for ozone and PM if necessary. EPA proposes that Rhode Island has met the infrastructure SIP requirements of section 110(a)(2)(K) with respect to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    L. Section 110(a)(2)(L)—Permitting Fees

    This section requires SIPs to mandate that each major stationary source pay permitting fees to cover the cost of reviewing, approving, implementing, and enforcing a permit. Section 23-23-5 of the RIGL provides for the assessment of operating permit fees and preconstruction permit fees for air emissions sources. In addition, RI DEM's “Rules and Regulations Governing the Establishment of Various Fees” sets forth permit fee requirements for air emissions sources and the legal authority to collect those fees. These rules and regulations are promulgated pursuant to RIGL Chapter 23-23 Air Pollution, and Chapter 42-35, Administrative Procedures. Rhode Island's infrastructure SIP submittals also refer to its regulations implementing its operating permit program pursuant to 40 CFR part 70. Rhode Island's Title V permitting program, APCR No. 28, “Operating Permit Fees,” requires major sources to pay annual operating permit fees. EPA's full approval of Rhode Island's title V program (APCR No. 28) became effective on November 30, 2001. See 66 FR 49839 (Oct. 1, 2001). To gain this approval, Rhode Island demonstrated the ability to collect sufficient fees to run the program. The fees collected from title V sources are above the presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i). EPA proposes that Rhode Island has met the infrastructure SIP requirements of section 110(a)(2)(L) for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    M. Section 110(a)(2)(M)—Consultation/Participation by Affected Local Entities

    Pursuant to Element M, states must consult with, and allow participation from, local political subdivisions affected by the SIP. Rhode Island's infrastructure submittals reference RIGL § 23-23-5, which provides for consultation with affected local political subdivisions and authorizes the RI DEM Director “to advise, consult, and cooperate with the cities and towns and other agencies of the state . . . and other states and interstate agencies . . . in furthering he purposes of” the state Clean Air Act (i.e., RIGL chapter 23-23). EPA proposes that Rhode Island has met the infrastructure SIP requirements of section 110(a)(2)(M) with respect to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    N. Rhode Island Statutes for Inclusion Into the Rhode Island SIP

    As noted above in the discussion of several elements, Rhode Island submitted, and EPA is proposing to approve, Sections 23-23-5, 23-23-16, 23-23.1-5, and 36-14-1 through -7 of the Rhode Island General Laws (RIGL) into the SIP.

    V. What action is EPA taking?

    EPA is proposing to approve the infrastructure SIPs submitted by Rhode Island for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS, with the exception of certain aspects relating to the state's PSD program, which we are proposing to conditionally approve, and section 110(a)(2)(H), which we are proposing to disapprove. EPA is also proposing to correct an earlier approval pursuant to section 110(k)(6) with respect to section 110(a)(2)(H) for the 1997 8-hour ozone NAAQS. No further action by EPA or the state is required, however, since federal regulations are already in place that address the gap in the state's submittals with respect to element H.

    The state submitted these SIPs on the following dates: 1997 PM2.5—September 10, 2008; 2006 PM2.5—November 6. 2009; 2008 Pb—October 13, 2011; 2008 ozone—January 2, 2013; 2010 NO2—January 2, 2013; and 2010 SO2—May 30, 2013. Specifically, EPA's proposed actions regarding each infrastructure SIP requirement, are contained in Table 1 below.

    Table 1—Proposed Action on Rhode Island's Infrastructure SIP Submittals Element 2008 Pb 2008 Ozone 2010 NO2 2010 SO2 1997 and
  • 2006 PM2.5
  • (A): Emission limits and other control measures A A A A A (B): Ambient air quality monitoring and data system A A A A A (C)1: Enforcement of SIP measures A A A A A (C)2: PSD program for major sources and major modifications A* A* A* A* A* (C)3: PSD program for minor sources and minor modifications A A A A A (D)1: Contribute to nonattainment/interfere with maintenance of NAAQS A NI NI NI NS (D)2: PSD A* A* A* A* A* (D)3: Visibility Protection A A A A A (D)4: Interstate Pollution Abatement A A A A A (D)5: International Pollution Abatement A A A A A (E): Adequate resources A A A A A (E): State boards A A A A A (E): Necessary assurances with respect to local agencies NA NA NA NA NA (F): Stationary source monitoring system A A A A A (G): Emergency power A A A A A (H): Future SIP revisions D D D D D (I): Nonattainment area plan or plan revisions under part D + + + + + (J)1: Consultation with government officials A A A A A (J)2: Public notification A A A A A (J)3: PSD A* A* A* A* A* (J)4: Visibility protection + + + + + (K): Air quality modeling and data A A A A A (L): Permitting fees A A A A A (M): Consultation and participation by affected local entities A A A A A In the above table, the key is as follows: A Approve. A* Approve but conditionally approve aspect of PSD program relating to the identification of NOX as a precursor of ozone and the revisions required by the 2010 NSR rule. D Disapprove, but no further action required because federal regulations already in place. + Not germane to infrastructure SIPs. NI Not included in the January 2, 2013 (ozone and NO2) and May 20, 2013 (SO2) submittals which are the subject of today's action. Rhode Island later submitted SIPs to address this element on June 23, 2015 (ozone) and October 15, 2015 (NO2 and SO2). EPA will act at a later time on those submittals. NS No Submittal. NA Not applicable.

    In addition, EPA is proposing to approve, and incorporate into the Rhode Island SIP, the following Rhode Island statutes which were included for approval in Rhode Island's infrastructure SIP submittals: Sections 23-23-5, 23-23-16, 23-23.1-5, and 36-14-1 through -7. Finally, for the reasons stated above EPA is proposing to remove 40 CFR 52.2073(a) and (b); 52.2074(a) and (b); 52.2075(a) and (b); 52.2078(a) and (b); and 52.2079 from the CFR.

    As noted in Table 1, we are proposing to conditionally approve portions of Rhode Island's infrastructure SIP submittals pertaining to the state's PSD program for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. Under section 110(k)(4) of the Act, EPA may conditionally approve a plan based on a commitment from the State to adopt specific enforceable measures by a date certain, but not later than 1 year from the date of approval. If EPA conditionally approves the commitment in a final rulemaking action, the State must meet its commitment to submit an update to its PSD program that fully remedies the deficiencies mentioned above under element C. If the State fails to do so, this action will become a disapproval one year from the date of final approval. EPA will notify the State by letter that this action has occurred. At that time, this commitment will no longer be a part of the approved Rhode Island SIP. EPA subsequently will publish a document in the Federal Register notifying the public that the conditional approval automatically converted to a disapproval. If the State meets its commitment, within the applicable time frame, the conditionally approved submission will remain a part of the SIP until EPA takes final action approving or disapproving the new submittal. If EPA disapproves the new submittal, the conditionally approved infrastructure SIP elements for all affected pollutants will be disapproved. In addition, a final disapproval triggers the Federal Implementation Plan requirement under section 110(c). If EPA approves the new submittal, the PSD program and relevant infrastructure SIP elements will be fully approved and replace the conditionally approved program in the SIP.

    EPA is soliciting public comments on the issues discussed in this proposal or on other relevant matters. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the ADDRESSES section of this Federal Register, or by submitting comments electronically, by mail, or through hand delivery/courier following the directions in the ADDRESSES section of this Federal Register.

    VI. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference several Rhode Island statutes referenced in Section V above. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    VII. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 19, 2016. Deborah A. Szaro, Acting Regional Administrator, EPA New England.
    [FR Doc. 2016-04405 Filed 2-26-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0006; FRL-9942-89-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Prevention of Significant Deterioration; Fine Particulate Matter (PM2.5) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) proposes to approve the State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia which revises Virginia's Prevention of Significant Deterioration (PSD) air quality preconstruction permitting program to be consistent with the federal PSD regulations regarding the use of the significant monitoring concentration (SMC) and significant impact levels (SILs) for fine particulate matter (PM2.5) emissions. In the Final Rules section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

    DATES:

    Comments must be received in writing by March 30, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0006 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Himanshu Vyas, (215) 814-2112, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication.

    Dated: February 12, 2016. Shawn M. Garvin, Regional Administrator, Region III.
    [FR Doc. 2016-04240 Filed 2-26-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2015-0835; FRL 9942-77-Region 7] Approval of Air Quality Implementation Plans; Missouri State Implementation Plan for the 2008 Lead Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) proposes to grant full approval of Missouri's attainment demonstration State Implementation Plan (SIP) for the lead National Ambient Air Quality Standard (NAAQS) for the Exide Technologies Canon Hollow facility in Forest City, Missouri, received by EPA on October 20, 2014. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008. EPA believes that the SIP submitted by the state satisfies the applicable requirements of the Clean Air Act (CAA) identified in EPA's Final Rule published on October 15, 2008 in the Federal Register, and will bring the violating area into attainment of the 0.15 microgram per cubic meter (ug/m3) lead NAAQS.

    DATES:

    Comments must be received on or before March 30, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0835, to http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Publicly available docket materials are available electronically at www.regulations.gov and at EPA Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219. Please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

    FOR FURTHER INFORMATION CONTACT:

    Stephanie Doolan, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Missouri 66219 at (913) 551-7719, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” or “our” refer to EPA.

    Table of Contents I. What is being addressed in this document? II. Have the requirements for the approval of a SIP revision been met? III. What action is EPA taking? IV. Background V. Technical Review of the Compliance Plan for the 2008 Lead NAAQS A. Facility Description B. Model Selection, Meteorological and Emissions Inventory Input Data C. Control Strategy D. Modeling Results E. Attainment Demonstration F. Contingency Measures G. Enforceability VI. Proposed Action I. What is being addressed in this document?

    In this document, EPA is add